Williams v. Bridgeport Music, Inc.
300 F.R.D. 120
S.D.N.Y.2014Background
- Gayes move to quash Ferrara Subpoena in Williams v. Bridgeport Music (California Action)
- California Action seeks declaratory relief and counterclaim for copyright infringement over Blurred Lines and Got to Give It Up
- Ferrara initially retained by Kyser and Jan Gaye to analyze Got to Give It Up vs Blurred Lines; Ferrara Report July 2013
- Plaintiffs later sought Ferrara’s files; issue involves work-product and privilege protections
- Court grants motion to quash Subpoena, finding Rule 26(b)(4)(D) protection applies and no waiver by third-party disclosures
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether non-testifying expert work product is protected from discovery | Williams asserts no protection for Ferrara’s files | Gayes rely on Rule 26(b)(4)(D) protection for non-testifying experts | Protection applies; Subpoena quashed |
| Whether disclosure to third parties waived the work-product privilege | Plaintiffs argue waiver due to third-party access | Disclosures to Kyser/Jan Gaye align with common litigation interests; no waiver | No waiver; work-product privilege preserved |
| Whether the privilege log was adequate to preserve privilege | Log deficient or late logging could indicate waiver | Delays were not egregious and log produced; Rule 26(b)(4)(D) protects information | No waiver; privilege log adequate enough to sustain protection |
| Whether Rule 26(b)(4) protections were properly invoked given the 2010 amendments | Amendments alter scope of disclosure | Amendments preserve work-product protections for experts; identity of non-testifying experts protected | Protections remain; Subpoena quashed |
| Whether timing/compliance under Rule 45(d)(2)(B) affected waiver analysis | Objections timely; log later | Timely objections and delayed log do not imply waiver | No waiver; privilege maintained |
Key Cases Cited
- Ager v. Jane C. Stormont Hospital and Training School for Nurses, 622 F.2d 496 (10th Cir. 1980) (precludes discovery of informally consulted experts)
- Arco Pipeline Co. v. S/S Trade Star, 81 F.R.D. 416 (E.D. Pa. 1978) (informally consulted experts treated differently from retained ones)
- In re Pfizer Inc. Sec. Litig., 1993 WL 561125 (S.D.N.Y. 1993) (work-product protections context; disclosure to third party analyzed)
- Hickman v. Taylor, 329 U.S. 495 (Sup. Ct. 1947) (policy basis for work-product protection)
- Medinol, Ltd. v. Boston Scientific Corp., 214 F.R.D. 113 (S.D.N.Y. 2002) (extends work-product protection to consultants/agents)
- Higher One, Inc. v. TouchNet Information Systems, Inc., 298 F.R.D. 82 (W.D.N.Y. 2014) (discusses scope of Rule 26(b)(4) protections)