*1 Case is called. Counsel state their appearances.

The court conducted a continued hearing set by its order dated February 27, 2017. (Dkt. No. 165.)

The District Judge set a discovery cut-off date of March 8, 2017. (Dkt. No.147.) Pursuant to the court's Order Re Jury Trial, discovery motions challenging the adequacy of discovery responses must be calendared “sufficiently in advance of the discovery cut-off date to permit the responses to be obtained before that date, if the motion is granted.” (Dkt. No. 66 at 3, ¶ B.3.)

The court first addresses the two items continued from the February 27, 2017 hearing.

Defendants moved to compel production of the content on websites of fan clubs at issue in this litigation. Songkick was tasked with determining whether the content was within its possession, custody or control within the meaning of Fed. R. Civ. P. 34 and, if so, the feasibility of producing the content of fan club websites for artists identified in Document Request No. 27.

Songkick reported that the content is within its possession, custody or control. However, the content of each website is updated over time and cannot be readily produced from the database. Rather, the process would involve researching documents to determine what content (e.g, games, videos, photos) was on a particular website at a point in time, and then locating that content in the database. Songkick estimated that the process would take weeks if not months.

The court concluded that Defendants' motion was untimely because Defendants did not raise the issue sufficiently in advance of the discovery cut-off date to permit the responses to be obtained before that date if the motion were granted.

Defendants moved to compel production of 1700 documents withheld by Songkick as protected by the attorney client privilege. The sole ground of Defendants' motion is that Songkick's in-house counsel, Glenn Ray, was on inactive status with the California bar at the time of the communications at issue. In other words, Defendants do not contest for purposes of this motion that the communications involve legal advice.

The court previously set forth the Ninth Circuit's test for invocation of the attorney client privilege, which applies: “ ‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived.’ ” United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (citation omitted).

Both parties cited Gucci Am., Inc. v. Guess?, Inc., 2011 U.S. Dist. LEXIS 15, 2011 WL 9375 (S.D.N.Y. Jan. 3, 2011). In that case, the lawyer, Moss, was admitted to the California bar and voluntarily assumed inactive status in 1996. In 2002, Gucci hired him as legal counsel outside California. It was undisputed that he provided legal services to Gucci such as appearing in court and administrative agencies, handling employment matters and negotiating leases. It was also undisputed that no one at Gucci investigated his status as a practicing attorney.

*2 The court in Gucci made two observations relevant here. First, the court found that Moss was an attorney for the purpose of invoking the attorney-client privilege. The court rejected the magistrate judge's conclusion that an attorney must be “ ‘actually authorized to engage in the practice of law’ ” as contrary to law. 2011 U.S. Dist. LEXIS 15, at *13 (citation omitted). The test applied in the Southern District of New York required only that the attorney be a member of the bar of a court, and Moss clearly was a member of the California bar although inactive. Id. at *14. Moss “was admitted to the bar in three jurisdictions: California, the Southern District of California, and the Central District of California. Although he voluntarily assumed inactive status, he remained a member of the bar in at least two of those jurisdictions. In addition, the language of the California Business and Professions Code is less than clear as to whether his inactive status as a member of the California bar prohibited him from practicing law outside the jurisdiction. Indeed, because the operative language of sections 6125-6126 is ambiguous, I find that Moss' belief that he was permitted to provide legal advice outside of California was not unreasonable.” Id. at *13 (footnote omitted).

The ambiguity that the Gucci court identified persists to this day. California's State Bar Act provides that “[n]o person shall practice law in California unless the person is an active member of the State Bar.” Cal. Bus. & Prof. Code § 6125 (emphasis added). Rule 2.30(A) of the Rules of the State Bar of California provides: “Any member not under suspension, who does not engage in any of the activities listed in (B) in California, may, upon written request, be enrolled as an inactive member.” Rule 2.30(A) (emphasis added). Subsection (B), in turn, provides: “No member practicing law, or occupying a position in the employ of or rendering any legal service for an active member, or occupying a position wherein he or she is called upon in any capacity to give legal advice or counsel or examine the law or pass upon the legal effect of any act, document or law, shall be enrolled as an inactive member.” Rule 2.30(B).

Moreover, inactive members are nevertheless members of the State Bar. California's application for transfer to inactive status, available online, advises applicants that inactive members of the bar remain subject to the State Bar's disciplinary authority. Inactive members receive a “State Bar membership card” and are eligible to transfer back to active status. Inactive members retain the ability to enroll in State Bar sections, attend meetings of the State Bar, and be appointed by the Board of Trustees to various committees.

Songkick made an offer of proof that, among other things, it hired Glenn Ray to provide legal services, that he performed legal work for Songkick, that he resided in Wyoming at the relevant times, and that he believed he could perform legal services for Songkick outside of California while on inactive status. Assuming Songkick made such a showing, Gucci supports the conclusion that his belief would not be unreasonable. This is not a case in which the person was never admitted to practice law. Cf. Dabney v. Investment Corp. of Am., 82 F.R.D. 464, 465 (E.D. Penn. 1979) (law student who had not yet graduated and who had not yet been admitted to the bar); see also Speaker v. Cty. of San Bernardino, 82 F. Supp. 2d 1105, 1112-13 (C.D. Cal. 2000) (psychologist who had not yet become licensed).

Even when the person is not a member of the bar, the Gucci court, as well as other decisions, supported the invocation of the attorney client privilege so long as the client reasonably believed it was communicating with an attorney.

As the court stated on the record, the court could not adjudicate this dispute without giving Songkick the opportunity to oppose Defendants' motion and provide supporting declarations on all of the foregoing issues. The record in Gucci and other cases were quite extensive. At this juncture, the court has only Defendants' written submission. (Dkt. No. 167.)

For these reasons, the court again concluded that Defendants' motion was untimely because Defendants did not raise the issue sufficiently in advance of the discovery cut-off date to permit the responses to be obtained before that date if the motion were granted.

*3 Defendants seek a Rule 30(b)(6) deposition of Songkick as to the Seventh, Eighth and Ninth Claims for Relief in the First Amended Complaint filed on February 16, 2017 (Dkt. No. 158), with the following topics:

After extensive discussion, the court granted Defendants' request for a Rule 30(b)(6) deposition in part as set forth below. As to subsection (d), it was understood that the topic was limited to policies and procedures, and would not require the witness to be knowledgeable as to the application of those policies and procedures with each individual client or in each instance. In making its ruling, the court took into account the direct relevance of the requested topics to Songkick's very recent First Amended Complaint as well as the compressed time schedule and other factors in Fed. R. Civ. P. 26(b)(1).

Finally, Defendants wished to correct a statement in this court's order dated February 27, 2017. This court stated that “it appeared undisputed that the witnesses identified in Defendants' January 30, 2017 supplemental disclosures are simply the venue representatives who were the signatories to the 200 contracts previously produced by Ticketmaster as described in this court's order dated November 10, 2016.” (Dkt. No. 165 at 1.) Defendants advised that the witnesses are venue representatives for the 200 contracts previously produced by Ticketmaster as described in this court's order dated November 10, 2016. While some are signatories, others are identified in a notice section of the contract or else represent Defendants' best guess as to who the venue might select as its representative.

IT IS ORDERED that: