Case 1:18-mc-00393-LLS Document 24 Filed 09/11/18 Page 1 of 32

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
18-MC-393 (LLS)
In Re Subpoena to Global Music Rights, LLC

Related to United States v. Broadcast
Music, Inc., 64 Civ. 3787 (LLS)
Related to Radio Music License
Committee, Inc. v. Broadcast Music,
Inc., 18 Civ. 4420 (LLS)

BROADCAST MUSIC INC.’S MEMORANDUM OF LAW IN OPPOSITION TO
GLOBAL MUSIC RIGHTS, LLC’S MOTION TO QUASH AND IN SUPPORT OF ITS
CROSS-MOTION TO COMPEL

Scott A. Edelman
Atara Miller
Alison M. Bonelli
Milbank, Tweed, Hadley & McCloy LLP
28 Liberty Street
New York, New York 10005-1413
Telephone: 212-530-5000
Facsimile: 212-530-5219
Email: sedelman@milbank.com
-andStuart Rosen
Joseph J. DiMona
Broadcast Music, Inc.
7 World Trade Center
250 Greenwich Street
New York, New York 10007
Attorneys for Broadcast Music, Inc.

 Case 1:18-mc-00393-LLS Document 24 Filed 09/11/18 Page 2 of 32

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION ...........................................................................................................................1
FACTS .............................................................................................................................................3
A.

THE UNDERLYING RATE COURT ACTION BETWEEN BMI AND
THE RMLC IS PENDING BEFORE THIS COURT..............................................3

B.

GMR IS A NEW PERFORMING RIGHTS ORGANIZATION
FOUNDED TO DISRUPT THE INDUSTRY ........................................................4

C.

GMR IS ENGAGED IN ANTITRUST LITIGATION WITH THE RMLC ...........6

D.

BMI ISSUED A THIRD-PARTY SUBPOENA TO GMR IN THE
UNDERLYING ACTION .......................................................................................7

LEGAL STANDARD ......................................................................................................................8
ARGUMENT ...................................................................................................................................9
I.

BMI HAS A SUBSTANTIAL NEED FOR THE HIGHLY RELEVANT MATERIAL
SOUGHT IN THE SUBPOENA, AND WILL FACE UNDUE BURDEN IF THE
MATERIAL IS NOT PRODUCED.................................................................................... 9
A.

Requests Related to GMR’s Licenses (Requests Nos. 1–3) ..................................10
1.

GMR’s Final Licenses .............................................................................. 11

2.

GMR’s Interim Licenses and Negotiation Documents ............................. 12

B.

Requests Related to GMR’s License Fee Data (Request Nos. 4-5) .......................14

C.

Requests Related to GMR’s Market Data (Request No. 6) ...................................15

D.

Other Requests (Requests Nos. 7-9) ......................................................................15

E.

BMI Will Face Undue Burden If GMR Does Not Produce the Materials
Requested by the Subpoena ...................................................................................16

II.

COMPLIANCE WITH THE SUBPOENA WILL NOT SUBJECT GMR TO
IRREPARABLE HARM .................................................................................................. 17

III.

THE PROTECTIVE ORDER PROTECTS GMR SUFFICIENTLY AGAINST ANY
ALLEGED HARM ........................................................................................................... 19

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IV.

COMPLIANCE WITH THE SUBPOENA WILL NOT SUBJECT GMR TO UNDUE
BURDEN .......................................................................................................................... 21

V.

THE PROCEDURAL ARGUMENTS ADVANCED BY GMR ARE NOT GROUNDS
FOR QUASHING THE SUBPOENA .............................................................................. 22

VI.

A.

The Subpoena Complies with the 100-Mile Rule ..................................................22

B.

BMI Consents to a Modification of the Subpoena to List Deposition
Topics .....................................................................................................................24

GMR SHOULD BE COMPELLED TO PRODUCE DOCUMENTS RESPONSIVE TO
THE SUBPOENA ............................................................................................................. 25

CONCLUSION ..............................................................................................................................25

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TABLE OF AUTHORITIES
Page(s)
Cases
Am. Soc’y of Composers, Authors & Publishers v. Showtime/The Movie Channel,
912 F. 2d 563 (2d Cir. 1990)....................................................................................................10
Applied Hydrogel Tech., Inc. v. Raymedica, Inc.,
No. 06-CV-2254, 2008 WL 11340012 (S.D. Cal. Jan. 25, 2008) ...........................................17
Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Ams.,
262 F.R.D. 293 (S.D.N.Y. 2009) ...............................................................................................9
Broad. Music, Inc. v. Pandora Media, Inc.,
140 F. Supp. 3d 267 (S.D.N.Y. 2015)................................................................................11, 13
Broad. Music, Inc. v. Weigel Broad. Co.,
488 F. Supp. 2d 411 (S.D.N.Y. 2007)......................................................................................11
Centurion Indus., Inc. v. Warren Steurer & Assocs.,
655 F.2d 323 (10th Cir. 1981) ...............................................................................................8, 9
E.E.O.C. v. Freeman,
No. 09-2573, 2012 WL 3536752 (D. Md. Aug. 14, 2012) ................................................21, 22
In re Epipen,
17-md-2785, 2018 WL 3818914 (D. Kan. Aug. 10, 2018) ...............................................18, 19
Global Music Rights, LLC v. Radio Music License Committee, Inc., et al.,
16-cv-09051 (C.D. Cal.) ..........................................................................................................15
Gonzales v. Google, Inc.,
234 F.R.D. 674 (N.D. Cal. 2006) ...............................................................................................8
Hillerich & Bradsby Co. v. MacKay,
26 F. Supp. 2d 124 (D.D.C. 1998) .......................................................................................9, 19
Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP,
No. 03-5560, 2008 WL 4452134 (S.D.N.Y. Oct. 2, 2008) ......................................................11
Ex parte Kleimar N.V.,
220 F. Supp. 3d 517 (S.D.N.Y. 2016)..................................................................................9, 22
Kulzer v. Esschem, Inc.,
390 F. App’x 88 (3d Cir. 2010) .........................................................................................17, 18

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Masters v. Gilmore,
No. 08-02278, 2009 WL 4016003 (D. Colo. Nov. 17, 2009) ..................................................18
In re MobiTV, Inc.,
712 F. Supp. 2d 206 (S.D.N.Y. 2010)......................................................................................13
Peters v. Comm. on Grievances for U.S. Dist. Court for S. Dist. of N.Y.,
748 F.3d 456 (2d Cir. 2014).....................................................................................................21
Price Waterhouse LLP v. First Am. Corp.,
182 F.R.D. 56 (S.D.N.Y. 1998) ...............................................................................................24
Probulk Carriers Ltd. v. Marvel Int’l Mgmt. & Transp.,
180 F. Supp. 3d 290, 294 (S.D.N.Y. 2016)..............................................................................24
Radio Music License Comm., Inc. v. Broad. Music, Inc.,
18 Civ. 4420 (LLS) (S.D.N.Y. 2018) ................................................................................1, 3, 8
Radio Music License Comm., Inc. v. SESAC, Inc.,
29 F. Supp. 3d 487 (E.D. Pa. 2014) ...........................................................................................4
Radio Music License Comm., Inc. v. SESAC, Inc.,
No. 12-5807, 2013 WL 12114098 (E.D. Pa. Dec. 23, 2013).....................................................4
S.E.C. v. Vitesse Semiconductor Corp.,
771 F. Supp. 2d 310 (S.D.N.Y. 2011)......................................................................................17
Smith & Fuller, P.A. v. Cooper Tire & Rubber Co.,
685 F.3d 486 (5th Cir. 2012) ...................................................................................................21
Sokolow v. Palestine Liberation Organization,
No. 04-397, 2012 WL 3871380 (S.D.N.Y. Sept. 5, 2012) ......................................................25
Tucker v. Ohtsu Tire & Rubber Co., Ltd.,
191 F.R.D. 495 (D. Md. 2000).................................................................................................21
University Sports Publications Co., Inc. v. Playmakers Media Co.,
No. 09-8206, 2011 WL 1143005 (S.D.N.Y. March 21, 2011) ................................................25
United States ex rel. Willis v. SouthernCare, Inc.,
No. 410-124, 2015 WL 5604367 (S.D. Ga. Sept. 23, 2015)....................................................17
Wiwa v. Royal Dutch Petroleum Co.,
392 F.3d 812 (5th Cir. 2004) ...................................................................................................24
Yukos Capital S.A.R.L. v. Feldman,
No. 15-4964, 2016 WL 3181151 (S.D.N.Y. June 3, 2016) .....................................................24

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Other Authorities
Fed. R. Civ. P. 26(b)(1)....................................................................................................2, 8, 11, 12
Fed. R. Civ. P. 45(c)(1)(A), (2)(A) ................................................................................................23
Fed. R. Civ. P. 45(c)(3)(A)(iv) ........................................................................................................9
Fed. R. Civ. P. 45(d)(2)(B)(i) .......................................................................................................25
Fed. R. Civ. P. 45(d)(3)(B), (C) .......................................................................................................8

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INTRODUCTION
On August 13, 2018, Broadcast Music, Inc. (“BMI”) served a subpoena (the “Subpoena”)
on Global Music Rights, LLC (“GMR”), seeking the production of nine discrete categories of
highly relevant documents in connection with the Petition of the Radio Music License Committee
for the Determination of Reasonable License Fees currently pending before this Court 1 (the
“Underlying Action”). On August 27, 2018, GMR provided BMI with written objections to the
Subpoena, refusing to produce a single document in response to the Subpoena. On the same day—
without notice, and without seeking to meet and confer with BMI—GMR filed the present motion
to quash the Subpoena in its entirety (the “Motion”).
As a non-regulated Performing Rights Organization (“PRO”), GMR has been able to
establish market rates that are higher than the rates achieved by BMI in the shadow of the Rate
Court. The existence of those market-based agreements provides important evidence for this Court
to evaluate in determining an appropriate rate for BMI. In contrast to BMI, which operates as a
not-for-profit corporation, GMR has an economic motivation to avoid consideration of its license
agreements in this proceeding and thereby seek to suppress the rates that BMI is able to charge to
users. To the extent that GMR persists in being able to charge rates that are higher than BMI,
GMR can either (1) pass on higher amounts to its affiliate songwriters, or (2) keep the additional
amounts for its own investors.
GMR makes three principal arguments in support of the Motion, each of which is
unavailing. First, GMR argues that its license agreements are not suitable benchmarks for use in
the Underlying Action. In doing so, GMR asks this Court to make a substantive determination
about the relevance of potential benchmarks in the context of a discovery ruling, and without

1

Radio Music License Comm., Inc. v. Broad. Music, Inc., 18 Civ. 4420 (LLS) (S.D.N.Y. 2018).

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allowing BMI to have information related to those potential benchmarks that is necessary to
evaluate its relevance. Indeed, GMR’s motion ignores the applicable standard for discovery. The
Federal Rules permit BMI to seek discovery of any information “relevant to [its] claim or
defense[.]” Fed. R. Civ. P. 26(b)(1). GMR’s license agreements, and related documents and
communications, meet this broad standard easily. Absent the requested discovery, BMI will be
deprived of the opportunity to demonstrate that the GMR licenses are relevant benchmarks, and
this Court will be unable to determine whether, and to what degree, such licenses are relevant. As
GMR is the only source of the documents sought in the Subpoena, this Court should order GMR
to comply.
Second, GMR contends that the Subpoena’s requests seek confidential information that, if
revealed, would cause it irreparable harm. This concern is unfounded, as this Court has already
entered a robust Stipulation and Protective Order in the Underlying Action (the “Protective Order”)
that would protect GMR’s confidential and competitively sensitive information from being
improperly disclosed or used for any purpose other than litigation of the Underlying Action.
Indeed, the American Society of Composers, Authors, and Publishers (“ASCAP”), which shares
the same concerns as GMR regarding the potential misuse of its competitively sensitive
information, has already agreed to produce similar documents in response to a similar subpoena
served by BMI in the Underlying Action. As this Court knows, parties similarly situated to GMR
have, for many years, found ways to produce information (competitively sensitive or not) while
protecting themselves from any harm through appropriate confidentiality orders. GMR’s failure
to meet and confer resulted in a complete failure to discuss the potential use of such protections.
Third, GMR attacks the Subpoena on procedural grounds, arguing, inter alia, that by
requiring compliance in New York City, the Subpoena violates Rule 45’s 100-mile limit. GMR

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should know better. New York City is an appropriate place of compliance as three GMR
employees central to the licensing efforts at the heart of the Subpoena reside, work, and regularly
transact business on behalf of GMR in the New York City area.
For these reasons, as explained more fully below, the Motion should be denied, and this
Court should compel GMR to provide the discovery requested in the Subpoena.
FACTS
A.

THE UNDERLYING RATE COURT ACTION BETWEEN BMI AND THE
RMLC IS PENDING BEFORE THIS COURT

On May 17, 2018, the Radio Music License Committee, Inc. (“RMLC”)—on behalf of
thousands of FCC-licensed commercial broadcast radio stations operating in the United States—
filed a petition against BMI asking this Court to set a reasonable rate for the public performance
of the musical compositions in BMI’s repertoire from January 1, 2017 through December 31, 2021
(the “Petition”). (Pet. of the Radio Music License Comm. for the Determination of Reasonable
Final License Fees, Radio Music License Comm., Inc. v. Broad. Music, Inc., 18 Civ. 4420 (LLS)
(S.D.N.Y. May 17, 2018), ECF No. 1.) GMR is at the center of many of the issues at play in the
Petition and in BMI’s response to the Petition (the “Response”). (Resp. of Broadcast Music, Inc.
to the Pet. of the Radio Music License Comm., Inc. for the Determination of Reasonable Final
License Fees, Radio Music License Comm., Inc. v. Broad. Music, Inc., 18 Civ. 4420 (LLS)
(S.D.N.Y. May 29, 2018), ECF No. 13.)
The RMLC primarily contends that the Rate Court should base BMI’s license fees on the
RMLC’s recent agreement with ASCAP, and that a reduction in rates currently paid to BMI is
warranted based on GMR’s entry into the market as a new PRO, and BMI’s relative market share.
As BMI contends in its Response, an increase is appropriate in view of other relevant agreements
(including GMR’s free-market deals with iHeartRadio and Townsquare), as well as the decline of

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ASCAP’s market share relative to BMI’s market share, in part as a result of GMR’s entry into the
industry. (Id. ¶ 33.) In addition, BMI’s Response explains that ASCAP’s agreement with the
RMLC is an unreliable benchmark. The ASCAP license was negotiated without the RMLC having
reliable information concerning BMI’s market share or accounting for the impact of GMR’s
market share on ASCAP. (Id.)
B.

GMR IS A NEW PERFORMING RIGHTS ORGANIZATION FOUNDED
TO DISRUPT THE INDUSTRY

In 2013, Irving Azoff—the former chairman of Live Nation Entertainment—founded
GMR in an effort to “challenge” the industry long-dominated by three PROs: BMI, ASCAP, and
SESAC, Inc. (“SESAC”). (Miller Decl. Ex. A.) As this Court is aware, BMI and ASCAP are
governed by judicially-monitored consent decrees, and have been so since the Department of
Justice first sued them over 70 years ago. These consent decrees regulate how BMI and ASCAP
must negotiate public performance rights royalty rates with all music users, including the
thousands of radio stations that are represented by the RMLC. These consent decrees dictate that
BMI and ASCAP must offer each music user a compulsory license and, ultimately, submit
themselves to the supervision of the Rate Court in the Southern District of New York when those
negotiations fail. (Miller Decl. Ex. B, BMI Consent Decree ¶ XIII.) SESAC, likewise, is now
subject to 20 years of private rate arbitration, in accordance with a settlement with the RMLC. See
Radio Music License Comm., Inc. v. SESAC, Inc., No. 12-cv-5807, 2013 WL 12114098 (E.D. Pa.
Dec. 23, 2013); Radio Music License Comm., Inc. v. SESAC, Inc., 29 F. Supp. 3d 487 (E.D. Pa.
2014).
Initially GMR was able to find a foothold in this heavily-regulated marketplace for
performing rights because of growing unrest from a select group of famous songwriters—Bruno
Mars, Smokey Robinson, and the Eagles, to name a few—who were frustrated with perceived

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below-market royalty rates the PROs historically had secured in certain markets. (Miller Decl.
Ex. A.) Since 2013, GMR has taken advantage of its unique and valuable position as the only
wholly unregulated, domestic PRO, by promising its affiliates royalty rates at least 30% higher
than either BMI or ASCAP can pay—rates that BMI believes may more closely align with the
true, free-market value of a license covering public performances of the musical compositions in
GMR’s repertoire. (Miller Decl. Ex. C ¶ 94.) Unlike BMI, as a for-profit entity, GMR’s investors
can extract part of those increased rates to pay themselves, rather than songwriters.
GMR’s strategy is working. It has gained a critical mass of songwriters, focusing its efforts
on luring away coveted songwriters from the other PROs to gain market share within the
performing rights industry in less than five short years. (Id. ¶ 42.) GMR has quickly accumulated
a repertoire of approximately 33,000 works, including those written or performed by popular artists
such as Adele, Aerosmith, the Beatles, Bruno Mars, Jay-Z, Madonna, Pharrell Williams, U2, Ryan
Tedder, Eddie Vedder, Bruce Springsteen, and Jon Bon Jovi. (Id. ¶ 45; GMR Br. at 1.) According
to Mr. Azoff, GMR has “a full roster of songwriters that nobody can, shall we say, comfortably
exist without.” (Miller Decl. Ex. D.)
By focusing on artists and hit songs that GMR believes stations cannot avoid playing, GMR
has accumulated an estimated share of approximately five percent of the radio industry. (Miller
Decl. Ex. C ¶ 53.) In addition, GMR has successfully entered into recent license agreements with
two of the largest RMLC–member station groups, Townsquare Media (“Townsquare”) and
iHeartRadio. (See Resp. ¶ 29.) It has also negotiated a series of interim license agreements with
the RMLC. (GMR Br., ECF No. 2, at 11, 17-18.) These licenses provide a rare window into
licensing rates negotiated outside the shadow of the Rate Court.
Although each of ASCAP, BMI, and SESAC has lost affiliates or members to GMR, those

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losses have impacted ASCAP disproportionately. (See Miller Decl. Ex. C ¶ 52 (“Before joining
GMR, all or virtually all of GMR’s affiliates were members of ASCAP or BMI. In fact, the vast
majority were affiliates of . . . ASCAP.”).) ASCAP has lost five times as many affiliates to GMR
as has BMI. (Resp. ¶ 33.)
C.

GMR IS ENGAGED IN ANTITRUST LITIGATION WITH THE RMLC

On November 18, 2016, the RMLC filed suit against GMR in the Eastern District of
Pennsylvania (the “Pennsylvania Antitrust Action”) alleging, inter alia, that GMR is an “unlawful
monopolist” and should be subject to regulation similar to the other PROs. (Miller Decl. Ex. C
¶ 53.) Shortly thereafter, on December 6, 2016, GMR filed a suit against the RMLC in the Central
District of California (the “California Antitrust Action”), claiming that the RMLC is operating an
“illegal cartel” that “artificially depress[es] the license fees member stations pay to perform
musical compositions on the radio.” (Miller Decl. Ex. E ¶ 1.) In the California Antitrust Action,
GMR alleges that the RMLC exercises substantial control over the country’s terrestrial radio
stations and is able to keep license fees artificially low because it represents more than ninety
percent of the country’s terrestrial radio revenue. (Id. ¶ 2.)
Those two litigations are currently at a standstill. A magistrate judge has recommended
that the Pennsylvania Antitrust Action be dismissed for lack of personal jurisdiction and improper
venue. (See Miller Decl. Ex. F.) The California Antitrust Action is stayed pending the outcome
of the Pennsylvania case (see Miller Decl. Ex. G)—although GMR, anxious to proceed with
discovery (which would entail production of the same documents GMR seeks to shield through
the Motion), recently (and unsuccessfully) moved the California court to lift the stay so that
discovery could begin. (See Miller Decl. Ex. H.) While those cases may have stalled, GMR’s
allegations about the RMLC’s use of its monopsony power to suppress market rates have
significant bearing on the ultimate issue before this Court in the Underlying Action. (See Resp.
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¶¶ 21-24.)
D.

BMI ISSUED A THIRD-PARTY SUBPOENA TO GMR IN THE
UNDERLYING ACTION

In view of the issues raised in the Petition and Response, it is indisputable that discovery
from GMR is essential to BMI’s arguments in the Underlying Action. Accordingly, on August
13, 2018, BMI served the Subpoena, which contains nine narrowly tailored requests for the
production of documents to GMR. In short, the Subpoena seeks:
•

interim and final licenses with the RMLC, radio stations, and groups, and
communications concerning the negotiation of those agreements (Request Nos. 1–
3);

•

documents concerning the license fees paid to GMR by radio stations, and the
percentage of those license fees that were distributed to GMR’s affiliates (Request
Nos. 4–5);

•

documents concerning GMR’s market share (Request No. 6);

•

documents concerning the songwriters and other artists who have left other PROs
to join GMR (Request No. 7); and

•

documents concerning the RMLC’s exercise of illegal monopsony power (Request
Nos. 8–9).

(See Miller Decl. Ex. I.) The Subpoena also noticed a deposition for August 28, 2018. (Id.)
On August 23, 2018, BMI received a letter from GMR stating that “GMR [was] preparing
written objections to the Subpoena and, in the interest of transparency and professional
courtesy, [giving notice] that GMR [would] not appear for deposition on August 28, 2018.”
(Miller Decl. Ex. J.) On August 27, 2018, GMR provided BMI with its Objections to the Subpoena
(“Objections”), which objected to each request on grounds substantially similar to those advanced
in the Motion, and refused to provide any documents. (Miller Decl. Ex. K.) That same day, GMR,
without notice to BMI, and without any attempt to meet and confer regarding the scope of the

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Subpoena, 2 filed the Motion seeking to quash the Subpoena in its entirety. 3 GMR has flatly and
improperly refused to comply with its discovery obligations, as dictated by the Federal Rules of
Civil Procedure, in response to BMI’s Subpoena.
LEGAL STANDARD
A non-party witness is subject to the same scope of discovery under Rule 45 as a party is
under Rule 34. See Fed. R. Civ. P. 45 (advisory committee’s note to 1970 amendments). As such,
a party may seek discovery from any non-party of any non-privileged material “relevant to any
party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). When considering relevance on a discovery
motion, courts should take a broad view—for the purposes of discovery, relevance is broadly
defined and “[r]elevant information need not be admissible at trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” Id.
Pursuant to Rule 45, a court in the district where compliance with the subpoena is required
may quash or modify a subpoena if it requires disclosing a trade secret or other confidential
research. Fed. R. Civ. P. 45(d)(3)(B). If a non-party shows that the requested information is
confidential commercial information, the burden shifts to the requesting party to show a
“substantial need for the . . . [material] that cannot otherwise be met without undue hardship.”
Fed. R. Civ. P. 45(d)(3)(C). “[T]here is no absolute privilege for trade secrets and similar
confidential information.” Centurion Indus., Inc. v. Warren Steurer & Assocs., 655 F.2d 323, 325
(10th Cir. 1981). The district court’s role is to balance the relevancy and need for the confidential
information against the claim of injury or harm resulting from disclosure. See Gonzales v. Google,
2
GMR filed its Motion to Quash as a new action, 18-mc-393, which was initially assigned to Judge Jesse M.
Furman. The Motion to Quash was reassigned to Your Honor as related to Radio Music License Committee, Inc. v.
Broadcast Music, Inc., 18 Civ. 4420 (LLS) (S.D.N.Y. 2018).

BMI has issued subpoenas in substantially the same form to ASCAP and SESAC. ASCAP responded with
its responses and objections to BMI’s requests on August 27, 2018. SESAC has been in communication with BMI
regarding its responses, and BMI expects SESAC to serve its responses and objections shortly.

3

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Inc., 234 F.R.D. 674, 685 (N.D. Cal. 2006). If the requesting party demonstrates both relevancy
and need, the confidential information should be disclosed and a court may order production,
unless the subpoenas are unreasonable, oppressive, annoying, or embarrassing. See Centurion
Indus., Inc., 655 F.2d at 326.
A court may decline to quash or modify a subpoena where a party shows substantial need
for confidential documents, particularly where, as here, a non-party’s production would be
governed by a robust Protective Order. See, e.g., Hillerich & Bradsby Co. v. MacKay, 26 F. Supp.
2d 124, 127 (D.D.C. 1998) (declining to quash a subpoena finding the existence of a protective
order between the parties sufficient to protect from disclosure confidential information related to
the development of new products and patent applications).
Rule 45 also provides that a court may quash or modify a subpoena that “subjects a person
to undue burden.” Fed. R. Civ. P. 45(c)(3)(A)(iv). The movant carries the heavy burden of proving
that a subpoena imposes an undue burden. Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Ams.,
262 F.R.D. 293, 299 (S.D.N.Y. 2009). Whether a subpoena imposes an “undue burden” depends
on the specific facts of the case and courts “must balance the interests served by demanding
compliance with the subpoena against the interests furthered by quashing it.” Ex parte Kleimar
N.V., 220 F. Supp. 3d 517, 522 (S.D.N.Y. 2016) (citation omitted).
ARGUMENT
I.

BMI HAS A SUBSTANTIAL NEED FOR THE HIGHLY RELEVANT MATERIAL
SOUGHT IN THE SUBPOENA, AND WILL FACE UNDUE BURDEN IF THE
MATERIAL IS NOT PRODUCED
GMR prematurely attacks the probative value of the material sought by the Subpoena, and

urges the Court to foreclose any consideration of GMR’s licenses as potential benchmarks without
the benefit of a full record to evaluate their applicability. The Federal Rules do not require the
Court to engage in such a premature evaluation, and it should decline to do so. As set forth below,
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BMI has a substantial need for the documents sought in the Subpoena, which will shed invaluable
light on the arguments made by the parties in the Underlying Action. Moreover, BMI will face
undue hardship if GMR does not produce the requested documents. As such, this Court should
decline to quash or modify the Subpoena, and instead order production.
A.

Requests Related to GMR’s Licenses (Requests Nos. 1–3)

Requests One, 4 Two, 5 and Three 6 seek documents related to GMR’s licenses and other
agreements, including (1) final licenses, (2) interim licenses, and (3) documents and
communications related to the negotiation of both final and interim licenses. GMR’s licenses are
potential benchmarks that may aid the Court in determining the fair market value of a license
between BMI and the RMLC stations. As this Court is very much aware, in setting a reasonable
rate, this Court must “start from the premise . . . that license agreements entered into by parties in
circumstances comparable to those of the litigants may provide guidance in setting a reasonable
fee in a rate proceeding.” Am. Soc’y of Composers, Authors & Publishers v. Showtime/The Movie
Channel, 912 F. 2d 563, 582 (2d Cir. 1990). Indeed, Courts resort to “agreements reached either
by the[] parties or by others for the purchase of comparable rights,” id. at 577, and typically set a
reasonable fee with reference to “other transactions between willing sellers and buyers more or

Request No. 1 seeks “[a]ll interim or final licenses and/or other agreements concerning the right to publicly
perform musical works between you and (a) any Station or (b) any Radio Group.” (Miller Decl. Ex. I.)
4

Request No. 2 seeks “[a]ll documents or communications concerning the negotiation of any interim or final
license and/or other agreement with the RMLC, on behalf of RMLC Stations, including the following: (a) any study
or analysis prepared in connection with such negotiations; (b) communications between you and the RMLC in
connection with such negotiations, including any notes of in-person or telephonic meetings; (c) documents provided
to the RMLC by you in connection with such negotiations; and (d) documents provided to you by the RMLC in
connection with such negotiations.” (Id.)
5

Request No. 3 seeks “[a]ll documents or communications concerning the negotiation of any interim or final
license and/or other agreement with a Station and/or Radio Group, including the following: (a) any study or analysis
prepared in connection with such negotiations; (b) communications between you and the Station and/or Radio Group
in connection with such negotiations, including any notes of in-person or telephonic meetings; (c) documents provided
to the Station and/or Radio Group by you in connection with such negotiations; and (d) documents provided to you
by the Station and/or Radio Group in connection with such negotiations.” (Id.)

6

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less similarly situated to the particular case.” Broad. Music, Inc. v. Weigel Broad. Co., 488 F.
Supp. 2d 411, 415 (S.D.N.Y. 2007).
1.

GMR’s Final Licenses

Recently, GMR has entered into final license agreements with the two of the largest
RMLC–member station groups, Townsquare and iHeartRadio. (See supra at 5.) These final
licenses agreements may be important evidence for BMI in the Underlying Action. GMR is an
unregulated PRO. As such, its license agreements with station groups are market-tested evidence
of what a willing buyer of music would pay in a transaction outside the shadow of the Rate Court.
These are precisely the type of benchmark agreements that this Court has welcomed in prior
proceedings. See Broad. Music, Inc. v. Pandora Media, Inc., 140 F. Supp. 3d 267, 288 (S.D.N.Y.
2015) (recognizing the importance of “free-market licenses” that “were freed from the
overhanging control of the rate courts”).
Presumably cognizant of the incontrovertible relevance of its licenses, GMR asserts that
“the rates a single RMLC member (or a small handful of members) may be willing to pay for a
GMR license are not necessarily probative” in the Underlying Action. (GMR Br. at 16 (emphasis
added).) Yet, GMR asks this Court, in the context of a discovery dispute, to adjudge the
substantive evidentiary question of whether its licenses with two of the largest RMLC members
are in fact relevant. This is premature and improper, particularly when BMI has not seen the
documents in question to determine whether or not they are probative. BMI has no burden to show
that the evidence will be “necessarily” probative. BMI must only show that discovery from any
non-party of any non-privileged material be “relevant to any party’s claim or defense.” Fed R.
Civ. P. 26(b)(1) (“Information within this scope of discovery need not be admissible in evidence
to be discoverable”); see also Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, No. 03
Civ. 5560, 2008 WL 4452134, at *4 (S.D.N.Y. Oct. 2, 2008) (finding that a relevance inquiry on
11

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a motion to quash is governed by Federal Rule of Civil Procedure 26(b)(1) and the “obviously
broad rule is liberally construed”). BMI has easily met that burden.
In addition, even if the probative value of the licenses had to be established, GMR’s
argument that it has only entered into final licenses with two RMLC members creates a misleading
picture because GMR neglects to inform the Court that those two licenses account for over 1,100
radio stations. (GMR Br. at 16.) They are with iHeartRadio (owner of more than 850 radio
stations) and Townsquare (owner of 320 radio stations), two of the largest RMLC members. (See
Miller Decl. Exs. L; M.) Moreover, GMR’s size relative to BMI’s is not relevant for purposes of
this Motion. (GMR Br. at 17.) Although it is true that GMR is smaller than BMI, the difference
in size is not dispositive, and the parties’ experts will have to make any appropriate adjustments to
account for these differences. Any resulting questions will go to the weight the benchmarks should
be afforded by the Court, and should not be a bar to discovery at this stage of the proceeding.
2.

GMR’s Interim Licenses and Negotiation Documents

Just as the final licenses are potentially valuable benchmarks for this Court to consider,
GMR’s interim licenses with the RMLC and negotiation communications may provide key
evidence to contextualize those licenses for proper evaluation, and shed light on aspects of those
licenses not clear on their face. Specifically, GMR’s interim licenses with the RMLC, like its final
licenses with iHeartRadio and Townsquare, are examples of arm’s-length agreements outside the
Rate Court. These agreements are unlike interim rates set by the Rate Court, where the rate is
ordered (by design in the Consent Decree) without a fully-developed record. The GMR interim
licenses were “offered” to the RMLC’s members by GMR (GMR Br. at 17-18), and negotiated by
the parties. Moreover, as with GMR’s contentions regarding the final licenses, the questions GMR
raises about the interim licenses—such as their interim status, short terms, and litigation provisions
(GMR Br. at 17-18)—go to the eventual weight this Court may give the licenses, but do not alter
12

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their relevance to the issues in the Underlying Action under Rule 26. 7
With regard to GMR’s documents and communications concerning the negotiation of both
the final and interim licenses, these are produced routinely in response to third-party subpoenas in
rate court cases because of the necessary context they set for the rates and terms agreed to by the
transacting parties. 8 See Broad. Music, Inc. v. Pandora Media, Inc., 140 F. Supp. 3d at 284-88
(reproducing an entire email chain regarding negotiations because it was “so revelatory of [the]
executives’ contemporary appreciation of free-market rates that it merits complete quotation”). As
the Court knows, these documents often tell the story of “how” and “why” the licenses were agreed
to, including showing the parties’ assumptions, representations, and expectations regarding
changes in market share and revenue, among other things, all of which will be relevant in
determining necessary adjustments to the GMR licenses if they are used as benchmarks for the
BMI license.
Indeed, negotiation documents, like the ones sought in the Subpoena, explain the
provisions and meaning of the licenses, and will include important information about the parties’
representations during negotiations that may inform the agreed-to rate. For example, a PRO’s
representations regarding its market share, and the accuracy of that representation, could inform
necessary adjustments required for benchmarking purposes. Without these documents, the parties
(and this Court) have no way to evaluate the relative weight potential benchmarks should be given.
See, e.g., id. at 292 (declining to give weight to a particular license as a benchmark where

GMR cites In re MobiTV, Inc., 712 F. Supp. 2d 206 (S.D.N.Y. 2010), for the proposition that the GMR
interim agreement is not an “adequate benchmark.” (GMR Br. at 17-18.) MobiTV was a rate court decision in which
Judge Cote assessed the adequacy of various license agreements as benchmarks with the benefit of a full record. That
case is inapplicable where, as here, the operative question is limited to whether the GMR interim agreements may be
relevant to BMI’s claims and defenses in the Underlying Action.

7

In response to a similar document request directed to ASCAP in the Underlying Action, ASCAP agreed to
“conduct a reasonable search of employees principally responsible for the negotiation of the 2017 ASCAP License.”
(Miller Decl. Ex. N, Req. No. 2.)

8

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negotiation discovery revealed that “[i]ts unusual flat-fee structure was negotiated by lawyers, with
the transaction’s potential use as a benchmark in this litigation in mind”). 9
B.

Requests Related to GMR’s License Fee Data (Request Nos. 4-5)

Requests Four 10 and Five 11 seek data related to GMR’s license fees. BMI has a substantial
need for such data, as it will assist its experts (and ultimately this Court) in evaluating GMR’s
licenses for use as benchmarks, and place the rates and terms contained in those licenses in the
context of the parties’ understanding and expectations about the industry. As with GMR’s
negotiations documents, GMR’s license agreements may be of limited utility without the related
license fee and revenue data. For example, percent-of-revenue license agreements may define
“revenue” differently, and often include various deductions to arrive at the revenue base to which
the rate in the license is applied. Data sufficient to show the license fees paid to GMR by
broadcasters is necessary, not only to serve as a double-check on any revenue data received from
broadcasters and/or the RMLC, but also to shed light on any revenue definition and deductions
thereto in GMR’s license agreements. If GMR’s licenses with broadcasters are based on a percentof-revenue, this Court would have no way of knowing how much those broadcasters have actually
paid GMR without such license fee information.
GMR’s only argument against disclosure of this information is that it is confidential
competitive information (see GMR Br. at 11-12), but, as described below, the Protective Order

Moreover, the RMLC’s use of its market power is an important issue in the Underlying Action (Resp. ¶ 15).
As such, GMR’s negotiations with two of the largest RMLC members—iHeartRadio and Townsquare—are likely to
shed light on the RMLC’s use of that power, further underscoring BMI’s substantial need for this information.

9

Request No. 4 requests “[f]or each year during the Period, documents sufficient to show the aggregate license
fees paid to GMR by Stations, identified by FCC ID, call letters, and license type, broken out in the following
categories: (a) license fees paid on a blanket basis; (b) license fees paid on a program-period basis; and (c) license fees
attributable to New Media transmissions.” (Miller Decl. Ex. I, Subpoena.)

10

Request No. 5 requests “[f]or each year during the Period, documents sufficient to show the percentage of
license fees collected that were distributed to your affiliates or members.” (Id.)

11

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entered by the Court in the Underlying Action obviates that concern. (See infra Section III.) 12
C.

Requests Related to GMR’s Market Data (Request No. 6)

Request Six 13 seeks information related to GMR’s share of the market for public
performances of musical works. BMI has a substantial need for this information. Information
about GMR’s assertion of its market share is necessary to appropriately adjust GMR’s rate to serve
as a benchmark. Given GMR’s significant acquisition of prominent former ASCAP affiliates, this
information also will be particularly relevant to evaluating the applicability of the ASCAP license
that the RMLC will seek to use as a benchmark, and to BMI’s contention that the ASCAP license
is a flawed benchmark. (See supra at 3-4; Resp. ¶¶ 30-37.) GMR’s only argument against
disclosure is the sensitive nature of the information, which, again, can be cured by this Court’s
Protective Order.
D.

Other Requests (Requests Nos. 7-9)

GMR’s Motion only briefly addresses Requests Seven, 14 Eight, 15 and Nine, 16 each of
which requests materials plainly relevant to the issues in the Underlying Action for which BMI

In response to a similar request, ASCAP has agreed to produce “non-privileged documents, if any, sufficient
to show the aggregate license fees billed . . . by ASCAP to FCC-licensed commercial broadcast radio stations.” (See
Miller Decl. Ex. N, Req. No. 4.)
12

Request No. 6 seeks “[a]ll studies or analyses, including the methodology used and any supporting data or
documents, conducted by or on behalf of GMR concerning the share or projected share of public performances by
Stations of musical works during the Period in the repertoire of (a) BMI, (b) ASCAP, (c) SESAC, or (d) GMR.”
(Miller Decl. Ex. I.)

13

Request No. 7 seeks “[d]ocuments sufficient to identify (a) all songwriters, composers, and publishers that
GMR represents, (b) the date on which GMR’s representation of such songwriters, composers, and publishers became,
or will become, effective, and (c) the previous PRO affiliation of each GMR-affiliated songwriter, composer, and
publisher.” (Miller Decl. Ex. I.)
14

Request No. 8 seeks “[a]ll documents and communications concerning the RMLC’s or RMLC Stations’
refusal to negotiate public performing rights licenses with GMR, including documents and communications
concerning the alleged boycott of GMR orchestrated by the RMLC and referenced in the case captioned Global Music
Rights, LLC v. Radio Music License Committee, Inc., et al., 16-cv-09051 (C.D. Cal.).” (Id.)

15

Request No. 9 seeks “[a]ll documents and communications concerning the removal of GMR-affiliated
musical works from terrestrial radio broadcasts or New Media transmissions by Stations.” (Id.)

16

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has a substantial need. Request Seven seeks a list of GMR’s affiliates, the date they joined GMR,
and their previous PRO affiliation. GMR cannot contend the songs in its repertoire are confidential
information—it offers to supply requesters with a full list of its catalogue on its website. (See
Miller Decl. Ex. O.) While BMI can identify which of its former affiliates left for GMR and when
(GMR Br. at 20), it is GMR that is likely the best source of information regarding its own affiliates.
Since GMR’s impact on the makeup of other PRO catalogues—and ASCAP’s in particular—is
critical to evaluating the ASCAP benchmark and the other potential benchmarks in this litigation,
BMI needs this information, which is most readily obtained from GMR. (Resp. ¶¶ 32-34.)
Request Eight likewise seeks relevant material regarding the RMLC’s exercise of its
monopsony power and its refusal to negotiate licenses with GMR. (Resp. ¶¶ 21-24.) The RMLC’s
exercise of its monopsony power is an important issue in this case (see supra at 6-7), and GMR
itself alleges that it is a victim of the RMLC’s attempts to suppress prices. (See GMR Br. at 1, 3,
5.)

Thus, BMI has a substantial need for these documents.

Outside of GMR’s direct

communications with the RMLC, BMI has no other avenue to obtain these documents. For
substantially the same reasons, BMI also needs the information sought in Request Nine, regarding
the removal of GMR-affiliated musical works from commercial radio stations, to determine if, for
instance, the RMLC attempted to drive down GMR’s share of public performances as part of its
negotiating tactics. Such information could also be relevant to the extent it shows the impact of
this removal on the performance of works licensed by other PROs.
E.

BMI Will Face Undue Burden If GMR Does Not Produce the Materials
Requested by the Subpoena

Given the highly relevant nature of the documents sought in the Subpoena to the issues in
the Underlying Action, and BMI’s substantial need for these documents to support its theories of
the case and defend against the RMLC’s, this Court should order their production.

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Cf. United States ex rel. Willis v. SouthernCare, Inc., No. CV 410-124, 2015 WL 5604367, at *4
(S.D. Ga. Sept. 23, 2015) (plaintiffs showed substantial need for subpoenaed third party’s
confidential reports where those reports were “relevant and likely to lead to the discovery of
admissible evidence” in the underlying litigation).
BMI will face undue burden if it is not permitted to obtain the discovery sought. With the
exception of GMR’s interim license agreements with the RMLC, and direct communications
between the RMLC and GMR, these documents are not otherwise available to BMI through party
discovery. See S.E.C. v. Vitesse Semiconductor Corp., 771 F. Supp. 2d 310, 314 (S.D.N.Y. 2011)
(denying motion to quash and finding inability to obtain documents not otherwise available
publicly represented undue hardship); Applied Hydrogel Tech., Inc. v. Raymedica, Inc., No. 06CV-2254-DMS-POR, 2008 WL 11340012, at *2 (S.D. Cal. Jan. 25, 2008) (same); Kulzer v.
Esschem, Inc., 390 F. App’x 88, 93 (3d Cir. 2010) (vacating order quashing subpoena where party
had a substantial need and subpoena was the only reasonable means for party to obtain confidential
documents of non-party).
II.

COMPLIANCE WITH THE SUBPOENA WILL NOT SUBJECT GMR TO
IRREPARABLE HARM
Even though BMI has demonstrated a substantial need for the relevant information sought

in the Subpoena, GMR nevertheless contends that it would suffer irreparable harm if forced to
disclose its confidential information to one of its “chief competitors,” BMI, and its “litigation
adversary” and “powerful counterparty in negotiations,” the RMLC. (GMR Br. at 20, 22.) GMR’s
arguments are unpersuasive. Disclosure of certain confidential information by the PROs in the
context of Rate Court litigation—including the information sought in the Subpoena—is a

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necessary aspect of the heavily-regulated performing rights industry. 17 In an apparent recognition
of this fact, ASCAP has already agreed to produce documents in response to its subpoena from
BMI, including its license agreements with the RMLC, negotiations documents, and certain license
fee information to give those agreements meaning. (See Miller Decl. Ex. N, Req. Nos. 1, 2, 4.)
Further, GMR’s attempt to articulate any actual, concrete harm falls short. Instead, GMR
offers only generalities and conclusory statements that disclosure of GMR’s license agreements,
negotiations with broadcasters, and client information, would give BMI “everything it would need
to unfairly undermine GMR’s competitive process” and to “surgically undercut[] GMR’s
negotiation strategies and competitive offers.” (GMR Br. at 21; Grimmett Decl. ¶ 22.) Similarly,
GMR contends that discovery of GMR’s revenue data would give BMI a “window into any
pressure points, which BMI could then exploit.” (Id.) How, precisely, BMI would be able to
accomplish such things is left to the Court’s imagination. See, e.g., Masters v. Gilmore, No. 08CV-02278-LTB-KLM, 2009 WL 4016003, at *2 (D. Colo. Nov. 17, 2009) (denying motion to
quash subpoena, in part, because the objecting party cannot “sustain this burden with boilerplate
claims that the requested discovery is oppressive, burdensome or harassing”) (citation omitted).
Indeed, the lack of concrete harm to GMR that would result from disclosure to BMI makes
this case easily distinguishable from In re Epipen, 17-md-2785-DDC-TJJ, 2018 WL 3818914 (D.
Kan. Aug. 10, 2018). (GMR Br. at 9, 12, 14, 22.) There, the subpoenaed party sought to prohibit
the disclosure of information concerning its supply chain, distribution network, and marketing
plans, which, if disclosed would have allowed the subpoenaing party—its only competitor—to
directly interfere with, “and potentially damage the [supply] chain, which in turn would . . . caus[e]

This is recognized in the robust nature of the Protective Order in this Action is particularly robust. As set
forth below (see infra Section III), the Protective Order provides more than adequate protection for GMR to safeguard
its confidentiality interests.

17

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a shortage in the product that would threaten [its] emerging place in the . . . market.” Id. at *4. No
similar concerns are present here, since GMR has failed to cite any specific example of how GMR
could be harmed by disclosure of the information sought in the Subpoena.
Similarly, GMR’s arguments that disclosure to the RMLC would cause it irreparable harm
are overstated. GMR itself sought to lift the stay of discovery in the California Antitrust Action.
(See supra at 6-7.) Although GMR’s motion was denied, GMR has conceded that it is anxious to
proceed with discovery against the RMLC, noting that the delay has already “severely impacted
GMR’s business.” (See Miller Decl. Ex. P at 7.) As GMR has acknowledged, many of the
documents sought by the Subpoena are the same documents that GMR will produce in the
California Antitrust Action once discovery is allowed to proceed. (See GMR Br. at 24.) GMR
cannot show irreparable harm by having to produce them, albeit slightly in advance, here. As set
forth below, any such concern related to the RMLC’s “litigation advantage” can be easily obviated
by the Court’s Protective Order in the Underlying Action.
III.

THE PROTECTIVE ORDER PROTECTS GMR SUFFICIENTLY AGAINST ANY
ALLEGED HARM
Irrespective of the harm to GMR that may be present without it, the vigorous Protective

Order in the Underlying Action is more than sufficient to overcome any alleged harm that GMR
may face. (Miller Decl. Ex. Q.) In general, the existence of a protective order weighs against
quashing a subpoena based on confidentiality concerns, since—by its very nature—a protective
order is designed to protect and prevent disclosure of confidential and sensitive business
information. See, e.g., Hillerich & Bradsby Co. v. MacKay, 26 F. Supp. 2d 124, 127-28 (D.D.C.
1998) (finding the protective order would safeguard the confidentiality of the information at issue
and denying the motion to quash the subpoena).
This Court’s Protective Order offers multiple levels of protection to GMR: GMR may

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designate its information as either “CONFIDENTIAL,” “RESTRICTED,” or “OUTSIDE
COUNSEL ONLY.” (Miller Decl. Ex. Q ¶¶ 5, 13, 17.) The Protective Order’s “RESTRICTED”
designation limits disclosure of GMR’s confidential information to outside counsel, their expert
witnesses, and in-house attorneys at BMI and the RMLC (see id. ¶ 14). GMR may also designate
its particularly sensitive and confidential information as “OUTSIDE COUNSEL ONLY” under
the Protective Order. (Id. ¶ 17.) Designation of such information would—as the title suggests—
restrict access to BMI’s and the RMLC’s outside counsel and expert witnesses. (Id. ¶ 18.) Under
either designation, disclosure is limited to the parties’ legal representation and their agents. 18
Indeed, use of either the “RESTRICTED” or “OUTSIDE COUNSEL ONLY” designation,
combined with the Protective Order’s proviso that GMR’s information may be used “only in
connection with the prosecution or appeal of [this Action]” and not “for any other purpose” (see
id. ¶¶ 15, 19 (emphasis added)), completely obviates GMR’s unfounded concern that “disclosure
to the parties’ business personnel” could cause GMR commercial harm. (GMR Br. at 25.) See,
e.g., Albany Molecular Research, Inc. v. Schloemer, 274 F.R.D. 22, 27 (D.D.C. 2011) (“Hence,
there is little or no threat that PGxHealth’s financial health will be impacted by the document
disclosures or that their direct competitors would gain unfair access to the confidential information
and use it against the company, since the requested information will be fully protected from
disclosure or use outside the ongoing litigation.”). 19

While “key non-legal officers, directors, or personnel of each party may require access to the material terms
of proposed benchmark agreements and potentially other critical information to assist outside counsel and evaluate
the merits of settlement during the course of this Proceeding” (see Miller Decl. Ex. Q ¶ 13), that exception is narrowly
tailored to apply only to limited, and critical “RESTRICTED,” information necessary to effect settlement between the
parties in this Action, and is inapplicable to documents designated as “OUTSIDE COUNSEL ONLY.”

18

GMR’s suggestion that the “OUTSIDE COUNSEL ONLY” designation does not provide adequate protection
does not hold water. Counsel for BMI, Atara Miller, only occasionally participates in licensing negotiations on behalf
of BMI when it appears possible that rate litigation will ensue. (Miller Decl. ¶ 4.) Where litigation is likely, GMR
and BMI do not compete with respect to licensees because they do not license the same set of works. Additionally,
the RMLC is represented in the Underlying Action by King & Spalding, LLP. The RMLC is represented by Latham
& Watkins, LLP in the antitrust actions pending against GMR in California and Pennsylvania. BMI is aware of no

19

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Moreover, GMR’s suggestion that the parties—and outside counsel to the parties—cannot
“unsee” what is learned through discovery about GMR, is entirely unfounded. GMR cites no
specific examples of how its information may be misused or has the potential to be misused by
either party. GMR’s generalized anxiety is not grounds to quash the Subpoena—particularly
where the parties must seek discovery of each other’s (and third parties’) confidential, and highly
relevant, information to effectively litigate in Rate Court.
In any event, the Protective Order clearly provides that GMR’s information may be used
only in connection with this Underlying Action. (See Miller Decl. Ex. Q ¶¶ 15, 19). Of course,
GMR would be able to seek recourse in this Court for any violation of the Protective Order.
Cf. Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 491 (5th Cir. 2012)
(affirming court’s decision imposing discovery sanctions for inadvertent violation of a protective
order); Peters v. Comm. on Grievances for U.S. Dist. Court for S. Dist. of N.Y., 748 F.3d 456, 459,
461-62 (2d Cir. 2014) (finding a violation of a protective order is a violation of the Rules of
Professional Conduct 8.4).
IV.

COMPLIANCE WITH THE SUBPOENA WILL NOT SUBJECT GMR TO UNDUE
BURDEN
GMR cannot overcome the presumption that compliance with the Subpoena is required by

a showing that production would cause undue burden to GMR. Indeed, GMR must provide
specific proof that the burden it would face is undue, and it has failed to do so. See, e.g., E.E.O.C.
v. Freeman, No. CIV. RWT-09-2573, 2012 WL 3536752, at *5 (D. Md. Aug. 14, 2012) (citing
Tucker v. Ohtsu Tire & Rubber Co., Ltd., 191 F.R.D. 495, 498 (D. Md. 2000) (When a “party
claim[s] that a discovery request is unduly burdensome,” that party “must allege specific facts that
overlap in RMLC’s counsel among these actions, and, thus, no possibility that the RMLC could gain a supposed
“litigation advantage” in the antitrust actions through the use of information produced subject to an “OUTSIDE
COUNSEL ONLY” designation by GMR here.

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indicate the nature and extent of the burden, usually by affidavits or other reliable evidence. A
conclusory assertion of burden and expense is not enough.”)).
First, GMR did not even attempt to meet and confer with BMI prior to filing the Motion.
Had it done so, the parties could have worked together to limit the scope and extent of GMR’s
review for documents responsive to the Subpoena, obviating GMR’s plainly exaggerated concern
that it would have to “sift through virtually every document in its files” (GMR Br. at 26) and
“search through the emails of every current and former member of its staff involved in business
development and licensing” to respond to nine document requests over a shorter-than-five-year
time-span (id.). BMI remains willing to work with GMR to reasonably lessen any burden it may
face.
Second, as GMR itself admits, it will have to undertake much of the same discovery in the
California Antitrust Action once discovery in that case begins. Thus, GMR will sustain the burden
of collecting and reviewing these documents anyway.
Third, GMR’s concerns relating to potential privilege issues, and the confidentiality clauses
in certain documents, are par for the course in discovery in Rate Court litigation. In any event,
neither issue precludes those documents from production here. See, e.g., Ex parte Kleimar N.V.,
220 F. Supp. 3d at 522 (“Although the subpoena requests documents . . . such as . . . contracts that
contain confidentiality clauses, . . . the Court is persuaded that such concerns are not severe enough
to warrant quashing the subpoena.”).
V.

THE PROCEDURAL ARGUMENTS ADVANCED BY GMR ARE NOT
GROUNDS FOR QUASHING THE SUBPOENA
A.

The Subpoena Complies with the 100-Mile Rule

GMR contends that the Subpoena must be quashed because it calls for production in
New York City, rather than in Los Angeles, where GMR is headquartered. See Fed. R. Civ. P.

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45(c)(1)(A), (2)(A) (providing that the party issuing the subpoena must identify a place of
compliance that is within 100 miles of where the subpoenaed party “resides, is employed, or
regularly transacts business in person”). Although Los Angeles is a proper place of compliance,
New York is an equally appropriate venue for compliance. GMR has at least three employees—
all of whom are central to GMR’s licensing efforts at the heart of the Subpoena—who work in the
New York City area.
In March 2017, GMR CEO Randy Grimmett filed a declaration in the Pennsylvania
Antirust Action in support of GMR’s motion to dismiss for lack of jurisdiction, stating that two
GMR employees worked from their homes in New Jersey. (See Miller Decl. Ex. R ¶ 7.) Although
the declaration Mr. Grimmett filed in support of GMR’s current Motion is similar in many respects
to the declaration he filed in the Pennsylvania Antitrust Action, his declaration here is silent as to
whether GMR has key employees in the New York City area. (See id.)
Despite that, public LinkedIn profiles for GMR’s Director of Licensing Andrew Albaum 20
and VP of Licensing Vince Abbatiello 21 state that they were employed by GMR at the time of Mr.
Grimmett’s declaration in the Pennsylvania Antitrust Action and work in the “Greater New York
City Area.” (See Miller Decl. Exs. S, T.) The public LinkedIn profile of GMR’s Chief Business
Officer Jeff Toig—who joined GMR in January 2018—shows that he works in the Greater New
York City Area as well, and is “responsible for driving the company’s revenue (TV, radio, digital
and general licensing) and guiding strategy and planning for the business.” (See Miller Decl.
Ex. U.) Thus, GMR both “regularly transacts business” within 100 miles of New York City, and,

On information and belief, Mr. Albaum resides in Closter, New Jersey, which is 25 miles from the
Subpoena’s compliance location.

20

On information and belief, Mr. Abbatiello resides in Wyckoff, New Jersey, which is 30 miles from the
Subpoena’s compliance location.

21

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given the titles of its employees, transacts licensing-related business that is at the heart of
Subpoena—making New York a proper place of compliance. 22 This is especially true since “Rule
45’s goal is to prevent inconvenience to the flesh-and-blood human beings who are asked to testify,
not the legal entity for whom those human beings work” and these are precisely the sort of
individuals BMI would expect to have the information necessary to serve as a 30(b)(6) witness
responsive the Subpoena. See Price Waterhouse LLP v. First Am. Corp., 182 F.R.D. 56, 62
(S.D.N.Y. 1998).
Even if the Court were to disagree that New York is a proper place of compliance, Rule
45(d)(3) permits it to modify the place of compliance, rather than quash the Subpoena, and courts
routinely make such modifications. See, e.g., Yukos Capital S.A.R.L. v. Feldman, No. 15-cv-4964,
2016 WL 3181151, at *3 (S.D.N.Y. June 3, 2016) (modifying the place of compliance set forth in
the subpoena and enforcing the subpoena as modified); Probulk Carriers Ltd. v. Marvel Int’l
Mgmt. & Transp., 180 F. Supp. 3d 290, 294 (S.D.N.Y. 2016) (modifying subpoena requiring
compliance beyond Rule 45(c)’s geographical limits); see also Wiwa v. Royal Dutch Petroleum
Co., 392 F.3d 812, 818 (5th Cir. 2004) (“Generally, modification of a subpoena is preferable to
quashing it outright.”).
B.

BMI Consents to a Modification of the Subpoena to List Deposition Topics

Lastly, GMR is correct that the Subpoena does not contain a list of deposition topics.
(GMR Br. at 8.) While this issue could have been addressed expeditiously through a meet-andconfer—which GMR did not seek prior to filing the Motion—BMI consents to a modification of
the Subpoena and has attached a list of the topics on which it seeks to depose GMR hereto. (See

In addition, GMR has acknowledged that it met with representatives of the RMLC in New York City to
negotiate a license for its repertoire on at least two occasions. (See Miller Decl. Ex. R ¶¶ 18-19.)

22

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Miller Decl. Ex. V.) BMI remains willing to meet and confer with GMR to schedule an appropriate
time for such a deposition.
VI.

GMR SHOULD BE COMPELLED TO PRODUCE DOCUMENTS RESPONSIVE
TO THE SUBPOENA
On the same day GMR filed its Motion, GMR served BMI with its Objections, in which

GMR stated that it will not produce any documents. (Miller Decl. Ex. K.) The Objections, in
large part, advance the same arguments GMR makes in support of its Motion, and contend that
production would be unduly burdensome, harmful, prejudicial, and would involve disclosure of
confidential information. (Id.) As such, should this Court decline to quash the Subpoena, it should
also overrule GMR’s objections to the extent they are inconsistent with this Court’s ruling, and
compel GMR to produce documents responsive to the Subpoena.

See Fed. R.

Civ. P. 45(d)(2)(B)(i); see also University Sports Publ’ns. Co., Inc. v. Playmakers Media Co., No.
09-Civ-8206, 2011 WL 1143005 (S.D.N.Y. March 21, 2011) (denying motion to quash subpoena
and compelling production of documents); Sokolow v. Palestine Liberation Org., No. 04-Civ-397,
2012 WL 3871380 (S.D.N.Y. Sept. 5, 2012) (same). BMI remains willing to meet and confer with
GMR to address any objections that are not the subject of the Motion.
CONCLUSION
For the foregoing reasons, GMR’s Motion to Quash should be denied in its entirety, and
the Court should compel GMR to produce materials responsive to the Subpoena.

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Dated: September 11, 2018
New York, New York

MILBANK, TWEED, HADLEY & MCCLOY
LLP
/s/ Scott A. Edelman
Scott A. Edelman
Atara Miller
Alison M. Bonelli
28 Liberty Street
New York, New York 10005-1413
Telephone: 212-530-5000
Facsimile: 212-530-5219
Email: sedelman@milbank.com
-andStuart Rosen
Joseph J. DiMona
7 World Trade Center
250 Greenwich Street
New York, New York 10007
Attorneys for Broadcast Music, Inc.

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