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Pipeline Productions, Inc. v. Madison Companies, LLC

United States District Court, D. Kansas

August 22, 2019

PIPELINE PRODUCTIONS, INC., et al., Plaintiffs and Counterclaim Defendants,
THE MADISON COMPANIES, LLC, et al., Defendants and Counterclaimants.


          Angel D. Mitchell U.S. Magistrate Judge

         This matter comes before the court on Defendants' Motion to Compel Production of Selected Documents Identified on Plaintiffs' Privilege Log (ECF No. 511). Defendants The Madison Companies, LLC and Horsepower Entertainment, LLC (collectively “Madison”) seek production of certain communications between litigation counsel for Plaintiffs Pipeline Productions, Inc., Backwood Enterprises, LLC, OK Productions, Inc., and Brett Mosiman (collectively “Pipeline”) and two witnesses whom Pipeline disclosed as both fact and non-retained expert witnesses. For the reasons explained below, the court finds that Pipeline has met its burden to demonstrate that work-product protection applies, and Madison has not met its burden to establish waiver. Madison's motion is, therefore, denied.

         I. BACKGROUND

         The case arises out of the parties' business dealings relating to the Thunder on the Mountain country music festival (“Thunder”) in 2015. According to the Complaint, Pipeline is a well-known producer of live music festivals, including Thunder. Madison is a venture capital firm that was looking to invest in Pipeline's music festival business. The parties engaged in business dealings leading up to the then-planned Thunder festival in 2015. Shortly before the festival was scheduled to occur, those business dealings fell through. This lawsuit centers around whether, when, and the extent to which the parties incurred legally binding obligations to one another before the deal fell through. Pipeline also alleges that Madison hired away key employees and partners. Pipeline asserts claims for breach of contract, breach of fiduciary duty, fraud, and tortious interference.

         The communications that are the subject of the current motion are from Pipeline's litigation counsel to non-party witnesses, Todd Coder and AJ Niland, and some also include Coder's attorney. Pipeline disclosed Coder and Niland as potential fact witnesses and, later, as non-reporting expert witnesses. (ECF No. 511-2, at 3.)

         Pipeline disclosed Coder as a potential fact witness because he booked artists for the 2015 Thunder festival. Pipeline also disclosed him as a non-reporting expert witness because, according to Pipeline's Rule 26(a)(2)(C) disclosures, he is “a veteran of the live music industry who has booked bands for 20 years.” (Id.) He is expected to testify “about the deposits that promoters are required to pay to book bands, as well as how deposit amounts are dramatically increased for promoters after canceled events, when testifying about deposits paid in this case, Mosiman's ability to book bands for festivals after the cancelation of Thunder, and the effect the cancelation of Thunder had on Plaintiffs' music festival business.” (Id.) According to Pipeline's Rule 26(a)(2)(C) disclosures, Coder's testimony will be based on his experience booking bands and dealing with promoters who have canceled events. He may testify about industry standards based on his experience dealing with the aftermath of canceled events. (Id.)

         Pipeline later supplemented Pipeline's Rule 26(a)(2)(C) disclosures and stated that Coder would provide the following opinions:

a. Promotors work hard to establish and maintain a reputation with artists and agencies to keep the amount they are required to deposit when booking bands as low as possible. 10 to 25% down is an outstanding percentage.
b. Canceling a festival can have a devastating effect on a promoter's ability to keep low deposit percentages and destroy the cash flow required to operate a festival. Percentages can be as high as 90 to 100% down after cancelation;
c. The cancelation of Thunder has likely made it difficult for Mr. Mosiman to put on festivals going forward;
d. Regardless of the language on a ticket, it is industry standard to reimburse ticket holders for the price they paid for their tickets to a cancelled festival; and
e. Fans who purchased tickets to Thunder should be reimbursed for the amount they paid.

(ECF No. 511-3, at 2-3.)

         Pipeline disclosed Niland as a potential fact witness because he previously discussed music festival joint ventures with Madison, and Niland “witnessed the fallout” after Thunder's cancelation. Pipeline's Rule 26(a)(2)(C) disclosures describe him as “a veteran of the live music industry who has created, produced and marketed several highly regarded music festivals.” (ECF No. 511-2, at 2.) According to Pipeline, Niland will testify about his own experiences in the music-festival business, including canceling his own festival “when testifying about the effect Thunder's cancelation had on Plaintiffs' music festival business.” (Id. at 3-4.)

         Underlying the current motion are Madison's Request for Production (“RFP”) Nos. 63 and 64. These RFPs sought “[a]ll documents Plaintiffs provided” to Coder and Niland. (ECF No. 470-2, at 10.) Pipeline responded, objecting to RFP Nos. 63 and 64 as “seeking documents protected from disclosure by the work product doctrine.” (Id.)

         This is Madison's third discovery motion related to RFP Nos. 63 and 64. Madison previously moved to compel Pipeline to provide a privilege log for documents withheld in response to RFP Nos. 63 and 64, which the court granted. See Pipeline Prods. v. The Madison Cos., No. 15-4890-KHV, 2019 WL 1304428, at *8 (D. Kan. Mar. 21, 2019). After Pipeline served its privilege log, Madison moved to compel production of the logged documents, which the court denied without prejudice. See Pipeline Prods., Inc. v. Madison Companies, LLC, No. 15-4890-KHV, 2019 WL 2106111, at *4 (D. Kan. May 14, 2019). In denying the motion, the court found that Madison's briefs largely confused attorney-client privilege with work-product protection, and therefore set forth incorrect legal standards and inapplicable arguments. Id. at *3 (explaining that Madison had set forth the legal standard for waiver of attorney-client privilege, not work-product protection). The court noted that the logged communications appeared to meet at least the basic the elements of attorney work product but that Madison's failure to raise any applicable legal standard in its opening brief resulted in Pipeline responding to inapplicable arguments. Id. The court directed Pipeline to serve a revised privilege log and granted Madison leave to file a renewed motion to compel. Id. at *4.

         Pipeline served its revised privilege log. It includes communications from Pipeline's counsel to Niland and Coder, some also including Coder's attorney. (ECF No. 511-1.) Madison states that it does not seek documents that relate to nothing more than setting or changing meeting dates, times or locations. Madison says this includes Entry Nos. 21-24, 30-31, 39-40, 51-52, 57, 65-66, 90-106, 110-111, 113-117, 123, 127-128, [1] 132-136, 138, 140-142, and 144-158. (ECF No. 511, at 2.) Madison also does not seek communications that merely attach documents Pipeline previously produced, which Madison says include Entry Nos. 68-84, and potentially 85. (Id.) Madison characterizes the remainder of the entries as involving substantive communications, and Madison moves to compel those. Madison divides these documents into two main categories: (1) those involving Pipeline's non-retained expert witness disclosures, which Madison says include Entry Nos. 5-9, 53-56, 58, 61, 107-109, 112, 118-122, 129-131, 137, 139, and 143[2]; and (2) those involving preparing and making changes to affidavits, which Madison says include, as examples, Entry Nos. 10-13, 32-38, and 41-49. (Id.) Madison also seeks to compel other communications but does not separately address them. These include emails regarding depositions, opposing counsel, and subpoenas; text messages regarding calls from opposing counsel, follow-up calls, the date of a deposition, speaking with the witness and/or counsel; and a Dropbox document. (ECF No. 511-1, Entry Nos. 1-3, 14-20, 25-29, 50, 60, 62-64, 67, 85-89, and 124-126.)


         Federal law governs application of the work-product doctrine in federal court. See Frontier Ref. Inc. v. Gorman-Rupp Co., Inc., 136 F.3d 695, 702 n.10 (10th Cir. 1998). The doctrine was first recognized in Hickman v. Taylor, 329 U.S. 495, 509-11 (1947). It is a practical doctrine that is grounded in the realities of litigation in our adversary system because, when an attorney performs his or her various duties, “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Id. at 510. The doctrine was subsequently incorporated into Federal Rule of Civil Procedure 26(b)(3). It provides that “[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, ...

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