Gray v. Paramount Global
1:25-cv-03484
| S.D.N.Y. | Sep 15, 2025|
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Case 1:25-cv-03484-JSR Document 59 _ Filed 09/15/25 Page1of9
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHAUN GRAY,
Plaintiff, 25-cv-3484 (JSR)
OPINION AND ORDER
PARAMOUNT GLOBAL ET AL.,
Defendants.
JED S. RAKOFF, U.S.D.J.
On September 2, 2025, the Court issued a “bottom-line” Order
(the “September 2 Order”) granting the defendants’ motion to compel
production of communications between Shaun Gray and non~party the
Writers’ Guild of America (“WGA”). See ECF No. 54. That Order
explained that the Court had concluded Gray had no basis to
withhold from defendants his copies of the communications sought
by defendants. See id. This Opinion and Order sets forth the
reasons for the September 2 Order and further concludes that it
need not reach the parallel motion to require the WGA to provide
its copies of the same communications.
I. Background
This case arises out of the production and release of the
film Top Gun: Maverick. The full background is detailed in the
Court’s previous Opinion & Order, familiarity with which is here
presumed. See ECF No. 40. As relevant here, Gray alleges that in
Case 1:25-cv-03484-JSR Document 59 _ Filed 09/15/25 Page 2of9
or around June 2017, his cousin Eric Warren Singer was hired by
various Paramount entities to write the film’s screenplay. See ECF
No. 1 at @ 2. Gray further alleges that Singer then approached
Gray to co-write the screenplay. Id. Over the next several months,
Gray’s complaint states that he participated in story meetings and
the drafting of key scenes in the movie. Id. at @ 4.
After Top Gun: Maverick was released, Gray filed suit against
various Paramount entities, alleging, among other claims,
copyright infringement. On July 30, 2025, the Court granted in
part and denied in part defendants’ motion to dismiss. See ECF No.
29.
Since then, the parties have been engaged in the instant
discovery dispute. Relevant to that dispute are communications
that Gray and his personal attorney, Saver, had with WGA attorneys
regarding Gray’s rights under the WGA’s minimum bargaining
agreement (“MBA”) and the WGA’s investigation into potential
violations of that agreement. After conducting the investigation,
the WGA issued a determination letter to Gray, concluding that
there was no viable claim the WGA could bring under the MBA.
In May 2025, defendants served their first Set of Requests
for Production on Gray. Gray agreed to produce documents subject
to objections. Paramount also served a subpoena on the WGA seeking
“Ta]1l documents Concerning any claim or request by Shaun Gray for
writing credit, including Concerning Top Gun: Maverick . . .,
Case 1:25-cv-03484-JSR Document59 _ Filed 09/15/25 Page 3of9
Including Communications with Gray.” ECF No. 35 (“Lens
Declaration”), Exh. H. During a meet~and-confer on July 30, 2025
Gray’s counsel indicated that Gray and Saver’s communications with
the WGA were privileged. On August 1, 2025, the WGA produced a
privilege log identifying emails between the WGA attorneys and
Gray and Saver as privileged. Gray and Saver also filed privilege
logs, flagging those same communications as privileged. Defendants
then filed a motion to compel production. On August 19, 2025, the
Court heard arguments on this motion.
II. Legal Standard
A party is entitled to discovery on “any nonprivileged matter
that is relevant to any party’s claim or defense.” Fed. R. Civ. P.
26(b) (1). The movant has the initial burden of demonstrating that
the information sought is relevant to the subject matter of the
pending action. In re BM Brazil 1 Fundo de Investimento em
Particpacoes Multistrategia, 347 F.R.D. 1, 9 (S.D.N.Y. 2024). But
once that initial burden is met, the responding party must justify
curtailing discovery. Id. Here, the parties agree that the
requested communications are relevant to the lawsuit, so the burden
shifts to the responding party to justify any refusal to produce.
TIl. Discussion
The WGA and Gray press three arguments as to why the
communications are not discoverable: (1) attorney-client
privilege, (2) common-interest privilege, and (3) collective-
Case 1:25-cv-03484-JSR Document 59 Filed 09/15/25 Page 4of9
bargaining privilege. We reject each in turn as to Gray and take
no position as to the WGA’s assertions of privilege.
A. Attorney-Client Privilege
When a party asserts the attorney-client privilege, courts
construe the privilege narrowly because it renders relevant
information undiscoverable. Courts apply the privilege only when
necessary “to encourage attorneys and their clients to communicate
fully and frankly and thereby to promote broader public interests
in the observance of law and administration of justice.” In re
Cnty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007) (quotations
omitted).
The WGA asserts the attorney-client privilege over the
communications between itself and Gray. As noted, the WGA and Gray
do not dispute that the communications at issue are relevant. But
the WGA and Gray nonetheless argue that the Upjohn doctrine, which
protects communications between corporate counsel and rank~and-
file employees when those communications are made to secure legal
advice for the corporation, applies in this context. Upjohn Co. v.
United States, 449 U.S. 383 (1981). The WGA explains that when
Gray submitted his complaint to the WGA, the WGA’s task was to
determine whether to initiate on behalf of the WGA a formal claim
under the grievance and arbitration provisions of the agreement
between the WGA and Paramount. To do so, the WGA needed to gather
more information from Gray about his claim before deciding whether
Case 1:25-cv-03484-JSR Document 59_ Filed 09/15/25 Page 5of9
to proceed with a claim against Paramount, which the WGA argues
indicates the need for attorney-client privilege.
Paramount disagrees. It asserts that Upjohn’s concerns are
inapplicable here, because Gray is not an employee or agent of the
WGA, and his acts do not bind the WGA. Paramount further argues
that neither this case, nor the underlying investigation by the
WGA, implicate any concern that Gray might embroil the WGA in
serious legal difficulties. Finally, Paramount notes that even if
the privilege applied, it would belong to the WGA, not Gray, and
that the WGA confirmed in a July 22 email that it would not object
if Paramount sought production of communications from Gray or
Singer. So the Court could compel production from Gray, who would
have no independent basis to withhold the subject documents.
The Court agrees that even if the Upjohn doctrine arguably
protects communications between unions or labor organizations and
its members in situations such as the one here presented, such
privilege, if any, would belong to the organization, rather than
the member. The WGA stressed this very point at oral argument, and
Gray does not make any argument to the contrary. See Transcript
from Oral Argument (“Transcript”) at 8-9. So such attorney-client
privilege as arguably here exists belongs to the WGA and does not
protect Gray’s communications with the WGA from discovery given
that the WGA agreed to not object to production of documents from
Case 1:25-cv-03484-JSR Document 59 Filed 09/15/25 Page 6of9
Gray. Lens Declaration, Ex. Q (“[Tlhe Guild will not object if
[defendants] seek production of the communications from [Gray].”).
B. Common-Interest Privilege
Gray now argues that the so-called “common-interest
privilege” provides independent protection for the communications.
See ECF No. 44 at 10. The common-interest privilege is “an
extension of the attorney-client privilege” that applies where
multiple parties “share a common interest about a legal matter.”
United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). But
there are at least two independent reasons to reject this argument.
First, the argument was forfeited. In the initial discovery
dispute, neither Gray nor the WGA asserted the “common-interest
privilege” as a reason to protect their communications. See ECF
Nos. 45-1, 35-5. A belated assertion of privilege amounts to a
“moving target” that courts regularly reject. S.E.C. v. Yorkville
Advisors, LLC, 300 F.R.D. 152, 166 (S.D.N.Y. 2014); see In re DiDi
Glob. Inc. Sec. Litig., 2025 WL 1735412, at *7 & n.59 (S.D.N.Y.
June 23, 2025) (unpublished) (gathering cases).
Second, even assuming arguendo that the privilege has not
been forfeited, it is still inapplicable here. The common-interest
privilege applies when multiple parties “share a common interest
v
about a legal matter.” Schwimmer, 892 F.2d at 243. To assert the
common-interest privilege, (1) the party asserting the privilege
must share a common legal interest with the party with whom the
Case 1:25-cv-03484-JSR Document 59 Filed 09/15/25 Page 7 of9
communications were shared, (2) the communications must have been
made in furtherance of that common legal interest, and (3) the
parties should not have subsequently taken positions adverse to
each other with respect to the shared legal interest. Schaeffler
v. United States, 806 F.3d 34, 40 (2d Cir. 2015).
Gray’s argument fails at the first element. A “common legal
interest” requires the parties to “share an identical, not similar,
legal interest.” SS&C Tech. Holdings, Inc. v. AIG Specialty Ins.
Co., 2019 WL 6701857, at *1 (S.D.N.Y. Dec. 9, 2019) (quotations
omitted). But at the time that Gray and Saver reached out to the
WGA, they were interested in potentially pursuing their own claims
under the MBA. Gray Decl. @ 4; Saver Decl. J 7. The WGA’s interest,
on the other hand, was investigating whether Paramount had violated
the MBA. Transcript at 19 (“Mr. Gray had come to us about possibly
pursuing a grievance and an arbitration claim on his behalf
[the WGA] conducted an investigation to see if there was a viable
claim.”). Though all the parties’ interests may have been similar,
they were not identical. That distinction is belied by the fact
that the WGA ultimately decided to not pursue a claim on behalf of
Gray.
Additionally, Gray and Saver were interested in potentially
pursuing claims against Paramount and “others.” Gray Decl. I 4;
Saver Decl. @ 7 (Saver expressing an “interest in evaluating and
potentially pursuing claims against, inter alia, [Paramount].”
Case 1:25-cv-03484-JSR Document 59_ Filed 09/15/25 Page 8of9
(emphasis added)). But to the extent the “other” individuals
included Gray’s cousin, Singer, Transcript at 13-14, the WGA owed
duties to both Gray and Singer. So again, though all the parties’
interests may have mostly aligned, they would not have been
identical. So Gray cannot rely on the common-interest privilege.
C. Collective-Bargaining Privilege
Finally, Gray asserts what he calls the “collective-
bargaining privilege,” which he argues protects communications
between individuals and their union representatives during
disciplinary proceedings. ECF No. 44 at 9.
The Court rejects this assertion for several reasons. First,
like the common-interest privilege, this privilege was not
identified at any point during the discovery dispute, and was
therefore waived. Second, in any case, no “Second Circuit case law
recognizes a ‘union relations privilege.’” Hernandez v. Off.
of the Comm’r of Baseball, 331 F.R.D. 474, 477-78 (S.D.N.Y. 2019).
And many courts, in fact, have.flatly rejected the existence of
such a privilege. See, e.g., ECF No. 50 at 14 n.10 (collecting
cases). This caution is well-founded, because privileges “are not
lightly created nor expansively construed, for they are in
derogation of the search for truth.” United States v. Nixon, 418
U.S. 683, 710 (1974). Accordingly, the Court does not take the
step at this juncture of recognizing the collective-bargaining
privilege, or its application to these particular facts.
Case 1:25-cv-03484-JSR Document 59 Filed 09/15/25 Page 9of9
IV. Conclusion
For the foregoing reasons, the Court reconfirms its September
2 Order granting the defendants’ motion to compel production.
Specifically, the Court finds that Gray has no privilege that he
can assert with respect to the communications between himself,
Saver, and the WGA. It follows that Gray must produce the
communications in question. And since the parties agree that these
are the same as the communications sought from the WGA, the
subpoena to the WGA is hereby quashed on grounds of mootness.
SO ORDERED.
New York, NY, Ql
September [5 , 2025 JED/S. RAKO#FF, U.S.D.d.