Transmittal Of Publisher's Lawyer's Analysis To ASCAP Did Not Waive Attorney-Client Privlege

Good Morning You Prod. v. Warner/Chappell Music, No. 2:13-cv-04460 (C.D. Cal. filed 07/25/14) (Doc. 132).

The Court concluded that the 1979 transmittal by a music publisher to ASCAP, of letters prepared by the publisher's attorneys, did not waive the attorney-client privilege applicable to those materials.  The letters "speak directly to the validity of the copyrights" in the song Happy Birthday To You.  "The [transmittal] letter is silent as to the specific reason why [the publisher] provided materials from its outside lawyer to the association’s lawyer regarding the validity. However, the only sensible conclusion that the Court can draw – that is, based on the evidence presented, it is more likely than not – is that ASCAP needed or requested this information to properly represent [the publisher] in exploiting its song rights. ASCAP would only have been able to sue an infringer if it could demonstrate that its principal [the publisher] owned a valid copyright"

Label Defeats 'Inadvertent] Privilege Disclosure Claim

Fifty-Six Hope Road Music, Ltd. v. UMG Recordings, Inc., No. 08-cv-6143, NYLJ 2/10/2010 "Decision of Interest" (S.D.N.Y. decided Feb. 1, 2010).

Plaintiffs claim privileged documents (attorney client and work product) were inadvertently produced to Defendant by a non-party witness pursuant to a subpoena.

At the heart of plaintiffs' application was their contention that they "retained" the non-party to act as their "representative" in the litigation. In this role, plaintiffs disclosed to the non-party "numerous confidential communications" between plaintiffs and their counsel, which plaintiffs contend are protected by the attorney client privilege and the work-product doctrine. Plaintiffs maintain that the nonparty was included on these communications based on plaintiffs' "understanding and expectation" that he would keep the communications confidential.

The Court found that Plaintiffs failed to meet their burden of establishing that the privilege should apply to the documents at issue because, inter alia, Plaintiff did not demonstrate that the non-party was their representative or agent.