Bluewater Music Services Corporation v. Spotify USA Inc.

MEMORANDUM in Support of 205 Emergency MOTION for Status Conference and Motion for Sanctions

M.D. Tenn.February 7, 2019

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION BLUEWATER MUSIC SERVICES CORPORATION, et al. Plaintiff(s), v. SPOTIFY USA INC., Defendant. Case No. 3:17-cv-1051 District Judge Jon Phipps McCalla Magistrate Judge Jeffrey S. Frensley ROBERT GAUDIO, et al. Plaintiff(s), v. SPOTIFY USA INC., Defendant. Case No. 3:17-cv-1052 District Judge Jon Phipps McCalla Magistrate Judge Jeffrey S. Frensley A4V DIGITAL, INC., et al. Plaintiff(s), v. SPOTIFY USA INC., Defendant. Case No. 3:17-cv-1256 District Judge Jon Phipps McCalla Magistrate Judge Jeffrey S. Frensley ROBERTSON, et al. Plaintiff(s), v. SPOTIFY USA INC., Defendant. Case No. 3:17-cv-1616 District Judge Jon Phipps McCalla Magistrate Judge Jeffrey S. Frensley Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 1 of 19 PageID #: 5238 2 PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION FOR STATUS CONFERENCE AND MOTION FOR SANCTIONS I. INTRODUCTION Plaintiffs, Bluewater Music Services Corporation, et. al.; Robert Gaudio, et al.; A4V Digital, Inc., et. al.; Robertson, et. al., hereinafter (collectively “Plaintiffs”) by and through their undersigned counsel submit this Memorandum of Law in Support of Plaintiffs’ Emergency Motion for Status Conference and Motion for Sanctions (“Motion”). Plaintiffs respectfully ask the Court to set a status conference regarding several outstanding issues that are impacting discovery, depositions, and the extraction process of the data files produced by Spotify. Plaintiffs believe that Spotify has intentionally withheld important evidence and discovery material that is directly related to the costly extraction process. Spotify’s behavior has caused substantial delays in the extraction process and has caused the costs of the extraction process to continue to increase. Plaintiffs believe a conference is necessary to address these issues immediately due to the impending deadlines and upcoming trial. Plaintiffs also believe that Spotify’s actions require sanctions in the form of paying for the costs of extraction and paying for attorneys’ fees related to the extraction process. II. ISSUES REQUIRING COURT INVOLVMENT A. Issues Regarding the Extraction Process. 1. Spotify’s Refusal To Produce Stream Count Information. On August 7, 2018, instead of providing information related to the Exhibit A Musical Compositions, Spotify produced a massive document dump of data (Usage Reports, Request Files, and Response Files) (“data files”) that were in no way tailored to the specific Exhibit A Musical Compositions and related sound recordings that are at issue in this lawsuit. It is important to note Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 2 of 19 PageID #: 5239 3 that the Usage Reports do not contain ISRCs, only Spotify TrackIDs. However, the Request Files do contain ISRCs. Therefore, the information provided by Spotify does not match ISRCs with streaming information, it only matches them to Spotify TrackIDs. (See Exhibit A-Declaration of Drew Jessel at ⁋8). Because of this, as part of the extraction process, Royalty Review Council must match ISRCs to Spotify TrackIDs, then look at the Usage Reports to determine streaming information per matched ISRC and Spotify TrackID. Id. This is not an easy process, and if there was a simpler method, Plaintiffs could have saved tens of thousands of dollars in extraction costs and attorneys’ fees related to this issue. Once Plaintiffs discovered that the data files were not tailored to the compositions at issue, on August 10, 2018 (three days later), Plaintiffs immediately served Plaintiffs’ First Set of Interrogatories to obtain specific streaming information tailored to the Exhibit A Musical Compositions. Instead of answering the Interrogatories, Defendant responded to the Interrogatories by invoking Fed. R. Civ. P. 33(d), directing Plaintiffs to the document dump of data files for the answers to the Interrogatories. At the hearing before this Court on October 24, 2018, Plaintiffs objected to Defendant’s use of Rule 33(d) to answer Plaintiffs’ Interrogatories by directing Plaintiffs to the data files. The parties specifically addressed whether Spotify could provide streaming information (stream counts and dates) if it had ISRC numbers. Spotify replied that it did not believe it could, but it would check. (Doc. 186-3 at 18). Counsel for Spotify stated “is there a separate system at Spotify that we can go in with a list of ISRCs and query –". The Court replied “Right”. Counsel for Spotify replied “I don’t think so…. I can confirm that, but – but I don’t think so.” (Id. at 18-19) (emphasis added). Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 3 of 19 PageID #: 5240 Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 4 of 19 PageID #: 5241 5 sound recordings embodying the works-in-suit.” (Doc. 182, pages 15-16). Based on this representation, Plaintiffs undertook substantial work to provide supplemental productions of ISRCs on January 17, 2019 and January 24, 2019 that relate directly to the sound recordings embodying the works in suit. Plaintiffs sent written correspondence on that same day asking Spotify to provide clarification on several issues that Plaintiffs have encountered throughout the extraction process. (See Exhibit D-Letter Dated January 17, 2019). After producing the ISRCs to Spotify, Plaintiffs inquired as to what additional information Spotify would provide since it had the ISRCs in its possession. (Exhibit E-Email to Spotify January 24, 2019) (Exhibit F- Letter to Spotify January 29, 2019). Plaintiffs have repeatedly asked counsel for Spotify to answer the direct question: “How does Spotify inform HFA of stream counts per ISRC and what specific documents/information is provided to HFA to notify HFA of these stream counts” and “Can Spotify match stream counts with the ISRCs provided.” (Exhibit E- Email to Spotify January 24, 2019). Spotify has refused to answer either question. (Exhibit G- Email dated February 4, 2019, Filed Under Seal).1 Plaintiffs received no substantive response and followed up again in two separate emails. (Exhibit I- Email dated January 31, 2019) (Exhibit J-Email dated February 1, 2019). Then, the Plaintiffs had a meet and confer in which Plaintiffs’ counsel directly inquired into Spotify’s representation to the Court that it could provide more narrowly tailored information. Spotify’s 1 Spotify failed to respond in any substantive fashion as to whether it could match streaming information to ISRCs. Instead, Spotify stated “HFA has stood ready to discuss with you whether they can generate stream counts per ISRC … [but] … Plaintiffs have not followed up with HFA on this offer.” (Exhibit G Email dated February 4, 2019). This is not true. Plaintiffs have been in direct communication with HFA about obtaining this information. (See Exhibit H-Letter to HFA). However, this does not explain how HFA gets the information from Spotify. It simply makes no sense that HFA obtains the stream count information on their own. It is not HFA that streams the sound recordings. Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 5 of 19 PageID #: 5242 6 counsel Buzz Frahn stated during the meet and confer that “that ship has sailed”. Thus, even though Plaintiffs produced ISRCs only six days after the representation to the Court that Spotify would be able to provide the more narrowly tailored information, counsel for Spotify is now refusing to follow through with what he previously represented to the Court.2 Plaintiffs believe that Spotify has intentionally withheld evidence and discovery materials that would show streaming information per each ISRC at issue in this case. Spotify has offered no explanation for how HFA is able to report stream counts on its statements if that information does not come directly from Spotify. In addition, Plaintiffs believe that Spotify provides streaming information per ISRC directly to record labels and distributors. (See Doc. 186-1 at § 9). Plaintiffs have previously requested documents and communications between Spotify and record labels related to the Exhibit A Musical Compositions. See Doc. 70-1, RFP No. 8. Spotify has still refused to produce streaming information related to ISRCs. This has caused Plaintiffs to incur tens of thousands of dollars in extraction costs. Spotify has refused to answer the question of how HFA obtains stream count information. Pursuant to Plaintiffs’ Request 2 On February 6, 2019, during a meet and confer, counsel for Spotify informed counsel for Plaintiffs that it would now after six months be willing to provide Plaintiffs with Request Files and Usage Reports that include only the Exhibit A Musical Compositions. Plaintiffs have repeatedly asked Spotify to narrow down the files to the Exhibit A Musical Compositions which would have ultimately prevented Plaintiffs from having to hire an expert and would have save tens of thousands of dollars in extraction costs and attorneys’ fees related to this issue. Plaintiffs provided initial ISRCs on November 2, 2018 pursuant to the Court’s Order and Spotify did not offer to narrow down the files. Now, after Plaintiffs have incurred cost and loss of valuable time, Spotify is willing to narrow down the files to the Exhibit A Musical Compositions. Spotify’s offer proves its representations to the Court were false and reveals that Spotify has the capacity to narrow down its files, but chose to obstruct discovery. Furthermore, Plaintiffs have now shown that Spotify has the capacity to match streaming information to ISRCs and is still refusing to provide that information because Spotify’s offer to extract does not include an offer to match ISRCs to streaming information. Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 6 of 19 PageID #: 5243 Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 7 of 19 PageID #: 5244 8 documents.3 Instead, Spotify chose to provide the information that it felt Plaintiffs should have related to the data files. On February 1, 2019, Royalty Review Council completed initial queries on the August 7, 2018 documents provided by Spotify. Plaintiffs were prepared to begin reviewing the information as it had represented to the Court that extraction would be complete by the end of January. On February 1, 2019, Spotify provided Plaintiffs’ counsel with a letter notifying plaintiffs that for approximately 1,200 files it withheld the date on which the Request Files were sent to HFA. (See Exhibit K- Letter Dated February 1, 2019) (See Exhibit A-Declaration of Drew Jessel at ⁋6). Spotify provided plaintiffs with an excel sheet which provided the actual titles of the files which were not produced or supplemented until five months after the production. Spotify has had five months to supplement its production, but it conveniently waited until the end of January when the extraction was scheduled to be completed to come forward with this information. Royalty Review Council is now having to redo all of the queries and reports causing a substantial delay in the extraction. (See Exhibit A-Declaration of Drew Jessel at ⁋⁋6-7). This will likely result in Plaintiffs being forced to incur substantial costs for the data extraction. Royalty Review Council now expects that the extraction results incorporating Spotify’s information produced on February 1, 2019 will be completed by February 14, 2019. Id. The remaining issues Plaintiffs have encountered are set forth in detail below. Second, Spotify has failed to provide pertinent information regarding their most recent production as ordered by the Court. On January 12, 2019, Spotify made a production of documents. There were issues with this document production, and Plaintiffs brought the issues to 3 In addition, Spotify has mischaracterized the data files throughout this process as “HFA Files” when it is undisputed the information belongs to Spotify. (See Doc. 192 at 1). Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 8 of 19 PageID #: 5245 9 Spotify’s attention in a January 17, 2019 letter. (See Exhibit D-Letter Dated January 17, 2019). In this production, the files contained no headers to identify what each of the columns represents. Plaintiffs have asked Spotify to provide a detailed description of every column in every set of data files and explain why there are differences in these files over time. (See Exhibit L- Letter dated October 10, 2019) (See Exhibit D-Letter Dated January 17, 2019) (See Exhibit F- Letter dated January 29, 2019). As set forth in Plaintiffs’ January 17, 2019 letter, the discrepancies and lack of column-identifying information has caused substantial delays in the extraction process. (See Exhibit A-Declaration of Drew Jessel at ⁋⁋9-12). Spotify has yet to provide this complete information despite the urgency of upcoming deadlines. Counsel for Plaintiffs inquired during the January 25, 2019 meet and confer if Spotify would be willing to provide a person knowledgeable about the files to answer Royalty Review Council’s questions regarding the data files. Counsel for Spotify refused. It is imperative that Plaintiffs are able to verify the information contained in the files. Additionally, with respect to Defendant’s January 12, 2019 document production, there is nowhere in the filename or elsewhere that indicates that the files are, in fact, “request files.” (See Exhibit A-Declaration of Drew Jessel at ⁋ 11). The folder name in Spotify’s production actually indicates that the files are usages reports. Id. During a January 25, 2019 meet and confer, Plaintiffs asked that Spotify provide bates ranges for the files that constitute Request Files and bates ranges for files that are Usage Reports. This information is necessary for Royalty Review Council to complete the data extraction and compile the necessary information from these files. (See Exhibit A-Declaration of Drew Jessel at ⁋ 12). Spotify, however, has failed to differentiate the files and designate which files are Request Files and which files are Usage Reports. This delay is causing prejudice to Plaintiffs because Royalty Review Council needs this information to complete the Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 9 of 19 PageID #: 5246 10 data extraction process. Id. Now, Spotify is taking the position that it will not differentiate these files. In a February 4, 2019 email from counsel for Spotify, Spotify expressed that it does not intend to respond to every question posed by Plaintiffs about the content of documents produced in discovery. (See Exhibit G-E-mail dated February 4, 2019). During the meet and confer February 6, 2019, counsel for Spotify proposed that it would consider providing this crucial information if counsel for Plaintiffs would identify all third-party documents produced in all of Plaintiffs’ productions. This task is simply not equal, Plaintiffs need information on one document production, and in order to receive that information, Plaintiffs must provide detailed information regarding every production it has made. This position is unduly prejudicial to Plaintiffs and is causing substantial harm to Plaintiffs in addressing the issues involved in the case. If the Court were to accept Spotify’s position that it need not set forth any details regarding its document production, Plaintiffs are left to guess at what the content of the files are. This is an important issue that needs to be addressed by the Court. Third, Spotify has failed to identify the stream count per Usage Report. In a January 17, 2019 letter, Plaintiffs asked that Spotify provide a total stream count per Usage Report, or in the alternative, the total number of rows for each of the Usage Reports. Plaintiffs reiterated the request for this information in the January 29, 2019 letter to Defendant. (See Exhibit D-Letter Dated January 17, 2019) (See Exhibit F- Letter dated January 29, 2019). This information is important for Royalty Review Council to complete the data extraction process and compile the results. (See Exhibit A-Declaration of Drew Jessel at ⁋⁋ 13-14). This is important for ensuring that the data ingested by Royalty Review Council as part of the extraction process matches exactly what Spotify produced and claims to maintain as part of its files. Id. On January 18, 2019, Spotify advised that it was working to address this request. Spotify, however, has failed to provide the requested Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 10 of 19 PageID #: 5247 11 information. This failure is causing prejudice to Plaintiffs by hindering the completion of the data extraction process by Royalty Review Council. The accuracy of the data files is necessary to ensure that the data extraction yields the correct results. At every turn, Plaintiffs have been met with an objection that has hindered its ability to obtain information sought from Defendant since December 2018. It is now February, 2019, and Plaintiffs do not have the extracted discovery material that is tailored to the Exhibit A Musical Compositions due to the issues caused by Spotify. This loss of valuable time has been caused by Defendant’s failure to tailor its document productions to the Exhibit A Musical Compositions, objections to the data analysts Plaintiffs sought to perform the data extraction, and failure to clarify the information contained within the files. These substantial delays in Plaintiffs’ ability to obtain information related to the Exhibit A Musical Compositions have seriously hindered Plaintiffs’ ability to analyze the discovery material provided. Plaintiffs have waited nearly a year now for tailored data to help them build these cases. Plaintiffs respectfully request the Court to set a status conference to discuss the issues regarding the extraction. 3. Issues Regarding Allowing Plaintiffs Representatives to Review the Extracted Data Files. First, Plaintiffs have asked that Defendant allow Plaintiffs and Audiam to be able to review the extracted Request Files, Response Files, and Usage Reports, containing data tailored to the Exhibit A Musical Compositions. It is important that the Plaintiffs and Audiam have access to the extracted data to enable them to review their records to determine the facts supporting copyright infringement. This is an important part of the case, and Plaintiffs have a right to see information directly related to Spotify’s use of the copyrights they own and/or control. Plaintiffs have brought this issue before the Court in their Emergency Motion for Clarification Regarding the Scope of Court’s Order Overruling Objection to Magistrate Frensley’s Order. (Doc. 195). Neither Audiam, Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 11 of 19 PageID #: 5248 12 nor Plaintiffs, have information showing when sound recordings were live on Spotify, how many times the recording streamed, and if the recording was listed in the data files. This information is critical for Plaintiffs to be able to review and support their copyright infringement claims. Additionally, this is the exact type of work that Jeff Price and Audiam do for their clients every day, including for Plaintiffs Optic Noise, Robert Gaudio, and A4V. To not allow Plaintiffs to review this information which is directly related to their compositions puts them at a substantial disadvantage. Furthermore, to not allow Audiam to review the extracted material that it would be entitled to review in the ordinary course of its’ business because the documents are part of a litigation file is unfairly prejudicial to Plaintiffs. 4. Issues Regarding Deposition Scheduling and Defendant’s Objection to the Deposition of Daniel Ek. Counsel for Plaintiffs have identified several individuals for depositions that Spotify has objected to, specifically James Duffet Smith, Keven Choset, Kenneth Parks, Annika Goldman, and Daniel Ek. Plaintiffs provided Spotify with a list on December 17, 2019 and received a written response in an e-mail on January 18, 2019. (See Exhibit M- E-mail Dated January 18, 2019, Filed Under Seal). On January 18, 2019, Spotify objected to the deposition of James Duffett Smith based on the fact that Mr. Smith is no longer at Spotify and was former counsel. (See Exhibit M). Mr. Duffet Smith was sent Notices of Termination directly from Plaintiffs, therefore his testimony is important to the case. After counsel for Plaintiffs repeatedly asked for information regarding Mr. Smith, Spotify provided contact details on February 6, 2019. However, counsel for Spotify informed counsel for Plaintiffs during a meet and confer on February 6, 2019 that if a subpoena was issued for Mr. Smith, Spotify would immediately file a Motion for Protective Order. Spotify’s behavior is ultimately preventing Plaintiffs from obtaining relevant evidence. Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 12 of 19 PageID #: 5249 13 Spotify objected to Keven Choset on January 18, 2019 based on the fact that Keven Choset is counsel at Spotify. Spotify objected to Kenneth Parks on January 18, 2019 based on the fact that Kenneth Parks is no longer employed at Spotify. Id. Counsel for Spotify provided contact information for Kenneth Parks on February 6, 2019 after waiting almost a month and half. Spotify also objected to Annika Goldman on January 18, 2019 based on the fact that Annika Goldman is no longer employed with Spotify. Counsel for Spotify has yet to provide contact information for Annika Goldman preventing plaintiffs from serving a subpoena. On February 4, 2019, counsel for Plaintiffs reminded counsel for Spotify regarding the deposition of Daniel Ek and the importance of his testimony regarding founding Spotify and issues related with how Spotify intended to comply with U.S Copyright Law. (See Exhibit G -E-mail dated February 4, 2019). Mr. Ek is the founder and current CEO of Spotify. He launched Spotify here in the United States and played an integral role in obtaining songs to put on Spotify’s service during its initial launch in the United States. (Exhibit N- Daniel Ek Article 1). He also played an integral in Spotify’s early licensing decisions, admitting he “didn’t know much about licensing.” (Exhibit O- Daniel Ek Article 2) (Exhibit P- Daniel Ek Article 3). When Plaintiffs previously inquired about Daniel Ek in December 2018, they inadvertently provided the name as Daniel Elk rather than Daniel Ek. Rather than assist plaintiffs with minor typo, counsel for Spotify responded on January 17, 2018 that there were no witnesses by the name of Daniel “Elk”. Plaintiffs immediately corrected the name of Daniel Ek, but Spotify has continued to object to putting up Mr. Ek for deposition. III. ARGUMENT ON MOTION FOR SANCTIONS A district court has several sources of authority to sanction parties and attorneys for misconduct. Jones v. Ill. Cent. R.R. Co., 617 F.3d 843, 854 (6th Cir. 2010). Federal Rule of Civil Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 13 of 19 PageID #: 5250 14 Procedure 26(g) requires an attorney or the party personally to certify that discovery responses and objections are supported by nonfrivolous argument and are not aimed to harass, cause delay, or drive up litigation costs. The rule requires a court to impose sanctions for any violation without “substantial justification.” Fed. R. Civ. P. 26(g). Section 1927 of Title 28 of the U.S. Code provides that “[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” The U.S. Supreme Court has held that “if a court finds ‘that fraud has been practiced upon it, or that the very temple of justice has been defiled,’ it may assess attorney’s fees against the responsible party, as it may when a party ‘shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order.’” Chambers v. NASCO, Inc., 501 U.S. 32, 49 (1991) (citing Universal Oil Prods. Co. v. Root Refining Co., 328 U.S. 575, 580, (1946); Hutto v. Finney, 437 U.S. 678, 689, n. 14 (1978)). Lastly, a court has inherent authority to sanction bad-faith conduct in litigation. Id.; Roadway Express, Inc. v. Piper, 447 U.S. 752, 766–67 (1980). The Sixth Circuit has upheld the assessment of “inherent authority” attorney fees against “bad faith” actors. See First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 526 (6th Cir. 2002); Mann v. Univ. of Cincinnati, 1997 U.S. App. LEXIS 12482, at *8 (6th Cir. May 27, 1997). Additionally, some Sixth Circuit authority even expands the “inherent authority” powers to cases “tantamount to bad faith.” See Grinnell Brothers, Inc. v. Touche Ross & Co., 655 F.2d 725, 727 (6th Cir. 1981); Banner v. City of Flint, 99 F. App’x 29, 37–38 (6th Cir. 2004). The discovery misconduct by Defendant matches those that the Sixth Circuit upheld as sanctionable in Scott v. Metro. Health Corp., 234 F. App’x 341, 368 (6th Cir. 2007), when the trial Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 14 of 19 PageID #: 5251 15 court found that “[n]obody could know better than [the party] whether she had all three tapes of the meeting. That was flatly within her knowledge, and it was not clear error to find that [the party] knew she was lying when her initial disclosures and later responses certified that she had not ‘found’ all of them.” Furthermore, Defendant’s resistance to discovery “constitute[s] bad faith and an unethical attempt to distract [Plaintiffs’] counsel from the real issues of the case.” Jones v. Ill. Cent. R.R. Co., 617 F.3d 843, 854–55 (6th Cir. 2010). Similar to the actions the Sixth Circuit found to be sanctionable in Jones, Defendant has failed to be “completely forthcoming with all available information and, instead, forced Plaintiff’s counsel and the Court to spend unnecessary time procuring information readily available to Defendant.” Id. at 855. Defendant has completely failed to be forthcoming with other available information, ultimately forcing Plaintiffs to waste valuable time and resources in an attempt to build their arguments. “Undoubtedly, when faced with discovery misconduct that unduly delays the progress of civil litigation, courts may impose sanctions when warranted.” KCI USA, Inc. v. Healthcare Essentials, Inc., 2018 U.S. Dist. LEXIS 118077, at *10 (N.D. Ohio July 16, 2018) (citing Med. Billing, Inc., v. Med. Mgmt. Sci., Inc. v. Reich, 1996 WL 219657, at *3 *4, *7 (N.D. Ohio Apr. 26, 1996) (imposing sanctions, pursuant to Rules 26 and 37, against the defendant and defense counsel’s law firm based on a history of discovery abuses that include: failing to timely produce discovery documents; failing to identify relevant witnesses, altering relevant documents already subject to production requests, and lying to the court and counsel about all of these things)). Spotify’s conduct has been completely in bad faith and warrants the sanctions sought by Plaintiffs. Plaintiffs have sought specific information related to streaming and the Exhibit A Musial Compositions for over a year. As described in detail above, Spotify has simply played games and hidden direct evidence on this issue. Spotify’s own documents establish it has the Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 15 of 19 PageID #: 5252 16 capacity to provide this information. Even common sense would indicate that Spotify must keep up with the songs that stream on its service. Plaintiffs asked that Spotify be immediately ordered to provide narrowly tailored and complete streaming information for the ISRCs produced by Plaintiffs. Spotify’s gamesmanship on this issue has continued to the present day. In a February 4, 2019 email from Defendant’s counsel, Spotify is now attempting to shift this task to HFA. (See Exhibit G-E-mail dated February 4, 2019). Plaintiffs are asking Defendant to use the information they provided to produce responses and relevant information based on Spotify data. Spotify’s attempt to shift this task to HFA is causing needless delay and substantial prejudice to Plaintiffs. Defendant have withheld critical information regarding their productions despite the fact that this information has been in Defendant’s possession since Plaintiffs initiated this matter in 2017. Defendant’s continuous discovery violations are designed to hinder Plaintiffs’ ability to fully establish Plaintiffs’ claims as alleged in their complaints. Defendant’s conduct to date directly contradicts the rules of discovery. Defendant has no valid excuse for withholding relevant information from its production. Had Defendant properly produced all relevant documents and information regarding its production, Plaintiffs could have completed the extraction on time. Instead, Royalty Review Council has been forced by Defendant’s conduct to redo a substantial portion of the work it completed in processing the data extraction and now expects the extraction results to completed on February 14, 2019. Spotify has caused a two-week delay. As such, Defendant should be sanctioned for the egregious behavior, including an Order for Defendant to pay Plaintiffs’ attorneys’ fees, costs, and expenses related to the extraction process and the full costs of the extraction paid to Royalty Review Council. Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 16 of 19 PageID #: 5253 17 CONCLUSION Pursuant to Local Rule 7.01(a)(1), the undersigned certifies that Plaintiffs have conferred in good faith with opposing counsel about the issues described in this Motion. Specifically, counsel for Plaintiffs and counsel for Spotify met and conferred on January 25, 2019. The primary issue requiring a status conference is Spotify’s production of the Usage Reports and Request Files. For the reasons set forth above, Plaintiffs respectfully request that this Court set a status conference to address the issues identified above. Further, Plaintiffs respectfully request this Court, pursuant to Fed. R. Civ. P. 26(g)(3), 28 U.S.C. § 1927, and through its inherent power to sanction and enforce its own orders, enter an Order sanctioning Defendant for discovery violations, and award Plaintiffs attorneys’ fees for time spent related to the extraction process and the full costs of the extraction process. Dated: February 7, 2019 Respectfully submitted, By: /s/ Richard S. Busch __________ Richard S. Busch (TN BPR # 14594) Joshua D. Wilson (TN BPR # 031486) Nashville, Tennessee 37201 Telephone: 615-726-5422 Facsimile: 615-726-5417 rbusch@kingballow.com jwilson@kingballow.com Attorneys for Plaintiffs Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 17 of 19 PageID #: 5254 18 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing the Plaintiffs’ Memorandum of Law in Support of Emergency Motion for Status Conference and Motion for Sanctions and Exhibits have been served upon the following parties in this matter using the ECF system this 7th day of February, 2019. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt, including the following: MILLER LEGAL PARTNERS PLLC Samuel F. Miller (TN BPR #22936) A. Grace Van Dyke James (TN BPR #35667) Nicholas R. Valenti (TN BPR # 35420) Fifth Third Center 424 Church Street, Suite 2000 Nashville, Tennessee 37129 Telephone: (615) 988-9011 Facsimile: (615) 988-9559 Email: smiller@millerlegalpartners.com Email: gjames@millerlegalpartners.com Email: nvalenti@illerlegalpartners.com SIMPSON THACHER & BARTLETT LLP Jeffrey E. Ostrow (CA #213118, Admitted Pro Hac Vice) Harrison Frahn (CA #206822, Admitted Pro Hac Vice) 2475 Hanover Street Palo Alto, California 94304 Telephone: (650) 251-5000 Facsimile: (212) 4552502 Email: jostrow@stblaw.com Email: hfrahn@stblaw.com Christopher J. Sprigman (NY #CS7310, Admitted Pro Hac Vice) Michael S. Carnevale (NY #MC1088, Admitted Pro Hac Vice) Thomas Cramer (NY #TC2264, Admitted Pro Hac Vice) 425 Lexington Avenue New York, New York 10017 Telephone: (212) 455-7844 Facsimile: (212) 455-2502 Email: christopher.sprigman@stblaw.com Email: Thomas.cramer@stblaw.com Email: Michael.carnevale@stblaw.com Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 18 of 19 PageID #: 5255 19 SHACKLEFORD, BOWEN, MCKINLEY & NORTON, LLP Jay S. Bowen (TN BPR #2649) Lauren E. Kilgore, (TN BPR #30219) 47 Music Square East Nashville, TN 37203 Telephone: 615-329-4440 Facsimile: 615-329-4485 Email: jbowen@shackelfordlaw.net Email: lkilgore@shackelfordlaw.net /s// Richard S. Busch Attorney for Plaintiffs Case 3:17-cv-01051 Document 206 Filed 02/07/19 Page 19 of 19 PageID #: 5256