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Paisley Park Enterprises, Inc. v. Boxill

United States District Court, D. Minnesota

March 4, 2019

Paisley Park Enterprises, Inc. and Comerica Bank & Trust, N.A. as Personal Representative for the Estate of Prince Rogers Nelson, Plaintiffs,
v.
George Ian Boxill, Rogue Music Alliance, LLC, Deliverance, LLC, David Staley, Gabriel Solomon Wilson, Brown & Rosen, LLC and Sidebar Legal, PC, Defendants,

          Anne R. Rondoni Tavernier, Grant D. Fairbairn, and Lora Mitchell Friedemann, Fredrikson & Byron, PA, (for Plaintiffs);

          Kieran D. Hartley, Rastegar Law Group, and Paul Allen Godfread, Godfread Law Firm, (for Defendants George Ian Boxill, Rogue Music Alliance, LLC, Deliverance, LLC, David Staley, and Gabriel Solomon Wilson); and

          M. Gregory Simpson, Meagher & Geer, PLLP, (for Defendant Brown and Rosen LLC).

          ORDER

          Tony N. Leung United States Magistrate Judge

         This matter is before the Court on Plaintiffs' Motion for Sanctions Due to Spoliation of Evidence (ECF No. 383) and Plaintiffs' Motion to Compel Discovery from Defendant Brown & Rosen, LLC (ECF No. 408). For the reasons set forth below, the Court will grant in part and deny in part Plaintiffs' Motion for Sanctions Due to Spoliation of Evidence and deny as moot Plaintiffs' Motion to Compel Discovery from Defendant Brown & Rosen.

         I. BACKGROUND

         Plaintiff Comerica Bank & Trust, N.A. is the personal representative for the estate of the late internationally known musician Prince Rogers Nelson (“Prince” and “Prince Estate”). Third Amend. Compl. ¶ 2 (ECF No. 262). The Prince Estate owns Plaintiff Paisley Park Enterprises, Inc. Id. The Prince Estate has an interest in various songs created by Prince, including those not released to the public. Id. at ¶ 3. Plaintiffs allege that Defendants have taken steps to release songs that Prince created but did not previously release to the public without the permission of the Prince Estate. In particular, Plaintiffs allege that Defendant George Ian Boxill, a sound engineer who worked with Prince previously, took tracks of certain songs that he worked on with Prince, edited, and released those songs with the assistance of Defendant Rogue Music Alliance (“RMA”), an LLC whose principals are David Staley and Gabriel Solomon Wilson. (ECF No. 388, p. 1-2). Plaintiffs also allege that Boxill, Staley, and Wilson formed Deliverance, LLC to release the music and that the law firms Sidebar Legal, PC and Brown & Rosen, LLC (“Brown”) assisted in the infringement. (Id. at pp. 1-2).

         On February 11, 2017, before releasing the music at issue in this lawsuit, Staley sent an e-mail to Nate Yetton of Sensibility Music wherein Staley indicated that Boxill had indemnified RMA in case the Prince Estate chose to challenge the release of the music. (ECF No. 389). On March 16, 2017 after learning that Defendants intended to release the music, the Prince Estate sent a cease and desist letter. (ECF No. 388, p. 2). Plaintiffs followed up with a second letter demanding that the music be returned. (ECF No. 388, p. 2). They then filed suit against Boxill in state court on April 14, 2017. (ECF No. 388, p. 2; ECF No. 2). Boxill removed the lawsuit to federal court on April 18, 2017. (ECF No. 1). Plaintiffs filed an amended complaint on April 24, 2017, in which they also named RMA and Deliverance as defendants (ECF No. 36), a second amended complaint on December 21, 2017 (ECF No. 150), and a third amended complaint on June 14, 2018, in which they added Staley, Wilson and the two law firms as defendants. (ECF No. 262).

         In December 2017, after Plaintiffs filed their first amended complaint, they, RMA, Deliverance, and Boxill, stipulated to certain protocols regarding the discovery of electronically stored information (“ESI”). (ECF No. 141). In that stipulation, the parties indicated that they had taken “reasonable steps to preserve reasonably accessible sources of ESI.” (ECF No. 141, p. 1). The Court indicated that it would enforce the parties' agreement but did not enter an order concerning the stipulation. (ECF No. 145, p. 1).

         The Court then issued its pretrial scheduling order on January 10, 2018, (ECF No. 156). In that order, the Court directed the parties to preserve “all electronic documents that bear on any claims, defenses, or the subject matter of this lawsuit.” (ECF No. 156, p. 2). The Court warned failure to comply with any provision of this order would subject the non-complying party to “any and all appropriate remedies, ” including sanctions, assessment of costs, fines and attorneys' fees and disbursements, and any other relief the Court might deem appropriate. (ECF No. 156, p. 5). The Court issued amended pretrial scheduling orders on June 27, 2018 and October 4, 2018. (ECF Nos. 282 & 357). Each order contained language regarding ESI discovery and the potential consequences of a violation of the Court's order. (ECF Nos. 282 & 357).

         Plaintiffs served written discovery on RMA and Deliverance on December 1, 2017. (ECF No. 388, p. 2). Included in their discovery were requests for the production of all documents related to the timing, circumstances, format, and content of the music at issue in this lawsuit, communications with any third-party regarding Boxill, Prince, and items at issue in this lawsuit, and all documents related to Boxill, Prince, the music at issue here, Paisley Park Enterprises, and this lawsuit. (ECF No. 388-1, pp. 8, 9, 11, 21, 22, 24). Plaintiffs indicated in their requests that the term document had the broadest possible meaning ascribed to it under Rule 34. (ECF No. 388-1, p. 2, 15). Plaintiffs sent a letter outlining certain deficiencies with RMA and Deliverance's responses on March 2, 2018, including the failure to produce text messages responsive to their requests. (ECF No. 388-1, pp. 28-29).

         Shortly thereafter, Plaintiffs received a third-party production of documents from a public relations firm that Defendants had hired. (ECF No. 388, p. 3). Included in that production were text messages that Wilson sent to an employee of the public relations firm. (ECF No. 388, p. 3). Plaintiffs then filed a motion to compel discovery from RMA, seeking production of text messages that Staley and Wilson sent to each other and third parties (ECF No. 266, p. 5). The Court ordered that Defendants produce all responsive text messages on July 19, 2018. (ECF No. 388-2, p. 32).

         Counsel for Plaintiffs, Wilson, Staley, RMA and Deliverance then held a meet-and-confer on September 21, 2018. (ECF No. 388, p. 3). There, counsel for Wilson, Staley, RMA and Deliverance indicated that they could not produce responsive text messages because they had not preserved their text messages. (ECF No. 388, pp. 3-4). They indicated that text messages had not been preserved because Staley and Wilson did not disengage the auto-delete function on their phones and because Staley had wiped and discarded his phone in October 2017 and Wilson had wiped and discarded his phone in January 2018 and then wiped and discard his new phone in May 2018. (ECF No. 388, p. 4; ECF No. 395-2, p. 4). They also indicated that no back-up data existed for either phone, though they were later able to produce a screenshot captured from Staley's phone, which he had uploaded to his cloud storage space. (ECF No. 388, p. 4; ECF No. 395-1, p. 8-9). An e-discovery lawyer for Plaintiffs' law firm indicates that had Staley and Wilson not wiped and discarded their phones, it might have been possible to recover the deleted messages. (ECF No. 387, p. 2).

         Plaintiffs also served written discovery on Brown, the law firm that issued an opinion letter regarding Boxill's right to release the music. (ECF No. 411-1, p. 2-3). In those requests, Plaintiffs sought discovery regarding information and documents that Brown considered prior to writing the opinion letter, identification of evidence regarding Prince's intent, research and analysis that Brown conducted regarding the music at issue here, and issues related to Brown's competency to author the opinion. (ECF no. 411-1, pp. 5, 7-14). Plaintiffs also sought the production of documents related to Brown's experience in teaching intellectual property law. (ECF No. 411-1, ECF Nos. 28-29). Brown objected to each of those requests on grounds of irrelevancy, privilege, or the fact that the opinion letter spoke for itself.

         Plaintiffs have filed a motion for sanctions against RMA, Deliverance, Staley, and Wilson and a motion to compel against Brown. RMA, Deliverance, Staley, and Wilson filed a memorandum in response on November 6, 2018 (ECF No. 394) and Brown filed a response on January 4, 2019. (ECF No. 416). The Court heard argument on both matters on January 15, 2019 and took both under advisement.

         II. ANALYSIS

         A. Motion for Sanctions

         Plaintiffs first move to sanction RMA, Deliverance, Staley, and Wilson (“RMA Defendants”) for the destruction of text messages. They seek sanctions under Rule 37(e)(1), 37(e)(2) and 37(b)(2)(A). The RMA Defendants argue that they took reasonable steps to preserve relevant evidence, that Plaintiffs failed to show prejudice, and that the record shows that they did not act with intent to deprive Plaintiffs of relevant evidence. The ...


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