Case 1:18-mc-00393-JMF Document 2 Filed 08/27/18 Page 1 of 34

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK

In Re Subpoena to Global Music Rights, LLC

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

MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFF GLOBAL MUSIC RIGHTS, LLC’S
MOTION TO QUASH BROADCAST MUSIC, INC.’S SUBPOENA

Leah Godesky (S.B. # 4815379)
O’MELVENY & MYERS LLP
7 Times Square
New York, New York 10036
Telephone: (212) 326-2000
Facsimile: (212) 326-2061
Daniel M. Petrocelli (pro hac vice to be filed)
David Marroso (pro hac vice to be filed)
Stephen J. McIntyre (pro hac vice to be filed)
O’MELVENY & MYERS LLP
1999 Avenue of the Stars
Los Angeles, California 90067
Telephone: (310) 553-6700
Facsimile: (310) 246-6779
Attorneys for Global Music Rights, LLC

 Case 1:18-mc-00393-JMF Document 2 Filed 08/27/18 Page 2 of 34
TABLE OF CONTENTS
Page
I.

INTRODUCTION ............................................................................................................. 1

II.

BACKGROUND ............................................................................................................... 3
A.

GMR Is An Innovative Start-Up PRO ................................................................... 3

B.

GMR Is Engaged In Antitrust Litigation Against RMLC ..................................... 3

C.

BMI’s Subpoena to GMR ...................................................................................... 5

III.

LEGAL STANDARD........................................................................................................ 6

IV.

ARGUMENT ..................................................................................................................... 7
A.

BMI’s Subpoena Must Be Quashed Because It Violates the 100-Mile Rule ........ 7

B.

BMI’s Subpoena Must Be Quashed Because It Does Not Identify Any
Topics For Examination ......................................................................................... 8

C.

BMI’s Subpoena Must Be Quashed Because It Requests Highly
Confidential Material For Which There Is No Substantial Need .......................... 9

D.

E.
V.

1.

The Subpoena Seeks Highly Confidential, Competitively Sensitive
Information ................................................................................................ 9

2.

BMI Does Not Have a Substantial Need For the Requested
Documents and Information .................................................................... 14

Disclosing Confidential Material to a Direct Competitor and Litigation
Adversary Would Irreparably Injure GMR.......................................................... 20
1.

Disclosure to BMI Would Irreparably Harm GMR ................................. 21

2.

Disclosure to RMLC Would Irreparably Harm GMR ............................. 22

3.

A Protective Order Would Not Cure the Harm to GMR ......................... 24

The Subpoena Must Be Quashed Because Compliance Would Impose
Significant Undue Burdens on GMR ................................................................... 26

CONCLUSION ................................................................................................................ 27

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TABLE OF AUTHORITIES
Page(s)
Cases
Alexander Interactive, Inc. v. Adorama, Inc.,
No. 12 Civ. 6608 (PKC) (JCF), 2013 WL 2455924 (S.D.N.Y. June 4, 2013) ......................... 6
Am. Soc’y of Media Photographers, Inc. v. Google, Inc.,
No. 13 C 408, 2013 WL 1883204 (N.D. Ill. May 6, 2013) .................................................... 13
Am. Std. Inc. v. Pfizer Inc.,
828 F.2d 734 (Fed. Cir. 1987)................................................................................................... 7
Anker v. G.D. Searle & Co.,
126 F.R.D. 515 (M.D.N.C. 1989) ....................................................................................... 7, 20
ASCAP v. Showtime/The Movie Channel, Inc.,
912 F.2d 563 (2d Cir. 1990).............................................................................................. 15, 18
Bagwe v. Sedgwick Claims Mgmt. Servs., Inc.,
No. 11 CV 2450, 2013 WL 5423852 (N.D. Ill. Sept. 27, 2013) ............................................. 11
Camacho v. Dean,
No. 1:14-CV-01428, 2015 WL 4478755 (M.D. Pa. July 22, 2015) ....................................... 11
DISH Network, L.L.C. v. WNET,
No. 13-cv-00832-PAB-KLM, 2014 WL 1628132 (D. Colo. Apr. 24, 2014) ................... 23, 24
Edwards v. Cal. Dairies, Inc.,
No. 1:14-mc-00007-SAB, 2014 WL 2465934 (E.D. Cal. June 2, 2014) .................... 12, 13, 21
Europlay Capital Advisors, LLC v. Does,
323 F.R.D. 628 (C.D. Cal. 2018) .......................................................................................... 7, 8
Freeman v. Rochester Psychiatric Center,
No. 12-CV-6045T, 2015 WL 4250892 (W.D.N.Y. July 10, 2015) .......................................... 8
GMA Accessories, Inc. v. Eminent, Inc.,
No. 07 Civ. 3219 (LTS) (DF), 2007 WL 4456009 (S.D.N.Y. Dec. 11, 2007) ......................... 7
GreenCycle Paint, Inc. v. PaintCare, Inc.,
No. 15-cv-04059-MEJ, 2018 WL 1399865 (N.D. Cal. Mar. 19, 2018) ........................... 12, 13
Heredia v. Heyman,
203 F.R.D. 112 (S.D.N.Y. 2001) ............................................................................................ 17
Hermitage Global Partners LP v. Prevezon Holdings Ltd.,
No. 14-mc-00318 (TPG), 2015 WL 728463 (S.D.N.Y. Feb. 19, 2015) ................................... 8
-ii-

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TABLE OF AUTHORITIES
(continued)

Page(s)

Holquin v. Celebrity Cruises, Inc.,
No. 10-20215-CIV, 2010 WL 6698221 (S.D. Fla. July 22, 2010) ........................................... 9
In re Application of MobiTv, Inc.,
712 F. Supp. 2d 206 (S.D.N.Y. 2010)......................................................................... 17, 18, 19
In re eBay Seller Antitrust Litig.,
No. C09-0735 RAJ, 2009 WL 10677051 (W.D. Wash. Aug. 17, 2009) ...................... 9, 12, 25
In re eBay Seller Antitrust Litig.,
No. C09-735RAJ, 2009 WL 5205961 (W.D. Wa. Dec. 23, 2009) ......................................... 19
In re EpiPen (Epinephrine Injection, USP) Marketing,
Sales Practices & Antitrust Litig.,
No. 17-md-2785-DDC-TJJ, 2018 WL 3818914 (D. Kan. Aug. 10, 2018) ............. 9, 12, 14, 22
Koch v. Greenberg,
No. 07 Civ. 9600 (BSJ) (DF), 2009 WL 2143634 (S.D.N.Y. July 14, 2009)......................... 24
Lakeview Pharmacy of Racine, Inc. v. Catamaran Corp.,
No. 3:15-290, 2017 WL 4310221 (M.D. Pa. Sept. 28, 2017) ................................................. 24
M’Baye v. N.J. Sports Production, Inc.,
246 F.R.D. 205 (S.D.N.Y. 2007) .............................................................................................. 7
Mannington Mills, Inc. v. Armstrong World Indus., Inc.,
206 F.R.D. 525 (D. Del. 2002) ............................................................................................... 25
Meyer v. Colavita, USA, Inc.,
No. SACV 11-00696-AG (MLGx),
2011 WL 2457681 (C.D. Cal. June 17, 2011) ........................................................................ 14
Micro Motion, Inc. v. Kane Steel Co.,
894 F.2d 1318 (Fed. Cir. 1990)............................................................................................... 25
Monge v. Maya Magazines, Inc.,
No. 2:10-CV-00230-RCJ-PA, 2010 WL 2776328 (D. Nev. July 14, 2010)............................. 8
Monterey Bay Military Housing, LLC v. Pinnacle Monterey LLC,
No. C15-80123 HRL, 2015 WL 2229229 (N.D. Cal. May 12, 2015) ........................ 11, 13, 23
Moon v. SCP Pool Corp.,
232 F.R.D. 633 (C.D. Cal. 2005) ...................................................................................... 10, 14
Nat’l Cong. For Puerto Rican Rights v. City of New York,
194 F.R.D. 105 (S.D.N.Y. 2000) ............................................................................................ 15
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TABLE OF AUTHORITIES
(continued)

Page(s)

Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340 (1978) ................................................................................................................ 24
Pandora Media, Inc.,
6 F. Supp. 3d 317 (S.D.N.Y. 2014)......................................................................................... 17
S.N. Phelps & Co. v. Circle K. Corp. (In re Circle K Corp.),
199 B.R. 92 (Bankr. S.D.N.Y. 1996) ...................................................................................... 26
Scientific Games Corp. v. AGS LLC,
No. 2:17-cv-00343-JAD-NJK, 2017 WL 3671286 (D. Nev. Aug. 24, 2017),
aff’d, 2018 WL 2292811 (D. Nev. May 18, 2018) ........................................................... 15, 20
SEC v. Ahmed,
No. 3:15cv675 (JBA), 2018 WL 1541902 (D. Conn. Mar. 29, 2018) .................................... 23
Solow v. Conseco, Inc.,
No. 06 Civ. 5988 (BSJ) (THK), 2008 WL 190340 (S.D.N.Y. Jan. 18, 2008) .............. 7, 12, 21
Tiger Lily Ventures Ltd. v. Barclays Capital Inc.,
No. 17-MC-499 (GBD) (KNF), 2018 WL 3300703 (S.D.N.Y. May 2, 2018),
report & recommendation adopted,
2018 WL 2316727 (S.D.N.Y. May 22, 2018) .......................................................................... 6
Toth v. Cal. Univ. of Pa.,
Civ. No. 09-1692, 2011 WL 2436138 (W.D. Pa. June 15, 2011)........................................... 17
Toto, Inc. v. Sony Music Entm’t,
No. C-13-mc-80168-MISC-JST (DMR),
2014 WL 793558 (N.D. Cal. Feb. 26, 2014) .................................................................... 10, 21
United States v. BMI,
316 F.3d 189 (2d Cir. 2003).................................................................................................... 15
United States v. BMI,
426 F.3d 91 (2d Cir. 2005).................................................................................... 15, 16, 19, 20
United States v. BMI,
No. 64 Civ. 3787 (LLS), 2001 WL 829874 (S.D.N.Y. July 23, 2001) .................................. 19
Varelas v. Crown Equip. Corp.,
No. 17-CV-869-JPS-JPS, 2018 WL 1307961 (E.D. Wis. Mar. 13, 2018) ............................. 17
Verinata Health, Inc. v. Sequenom, Inc.,
No. C 12-00865 SI, 2014 WL 2600367 (N.D. Cal. June 10, 2014)............................ 12, 13, 21

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TABLE OF AUTHORITIES
(continued)

Page(s)

Warner Chilcott Ltd. v. Express Scripts, Inc.,
No. 4:17MC250 RLW, 2017 WL 4084045 (E.D. Mo. Sept. 14, 2017).................................. 20
Waymo LLC v. Uber Techs., Inc.,
No. 17-cv-00939-WHA (JSC), 2017 WL 2929439 (N.D. Cal. July 7, 2017) ............ 10, 13, 21
Wultz v. Bank of China Ltd.,
293 F.R.D. 677 (S.D.N.Y. 2013) .............................................................................................. 8
Other Authorities
9 Moore’s Federal Practice—Civil § 45.52[1] (2018) ................................................................. 10
Rules
Fed. R. Civ. P. 30(b)(6)............................................................................................................... 2, 8
Fed. R. Civ. P. 45(c) ....................................................................................................................... 2
Fed. R. Civ. P. 45(c)(1)(A) ......................................................................................................... 6, 7
Fed. R. Civ. P. 45(c)(2)(A) ......................................................................................................... 6, 7
Fed. R. Civ. P. 45(d)(1)................................................................................................................... 6
Fed. R. Civ. P. 45(d)(3)(A) ......................................................................................................... 6, 8
Fed. R. Civ. P. 45(d)(3)(A)(ii) ........................................................................................................ 7
Fed. R. Civ. P. 45(d)(3)(A)(iv) ..................................................................................................... 27
Fed. R. Civ. P. 45(d)(3)(B) ............................................................................................................. 8
Fed. R. Civ. P. 45(d)(3)(B)(i) ................................................................................................... 7, 14
Fed. R. Civ. P. 45(d)(3)(C)(i) ........................................................................................... 2, 7, 9, 14

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I.

INTRODUCTION
The business of licensing public performances of music has long been dominated by two

behemoths: ASCAP and BMI. Global Music Rights, LLC (“GMR”), an upstart performance
rights organization (“PRO”) founded in 2013, injected new competition into the industry for the
first time in decades. (Grimmett Decl. ¶¶ 8, 10.) GMR is nothing like its larger competitors.
Whereas BMI and ASCAP have more than 1.4 million affiliates and control over 23 million
compositions, GMR represents just 77 songwriters and has a repertory of roughly 33,000
compositions. (Id. ¶ 9.) This is by design; GMR’s size is its strength. Unlike ASCAP and BMI,
GMR operates as a “boutique,” offering individualized service to a small number of highly
talented artists and songwriters, as well as compensation befitting their in-demand musical
works. (Id. ¶¶ 11-12.)
As a new entrant, GMR has fought tooth and nail to gain a foothold in the industry. It
has faced an illegal blockade by the commercial radio industry, orchestrated by the Radio Music
License Committee, Inc. (“RMLC”). (Id. ¶ 10.) Since GMR’s inception, RMLC and its
thousands of members refused to obtain a license with GMR licenses unless GMR acceded to the
radio industry’s collusive rate demands, including depressed rates and compulsory licensing—
even as stations played GMR songs day in and day out, without authorization and without paying
GMR or its songwriters a dime. (Id. ¶¶ 27-30.) GMR is presently engaged in antitrust litigation
against RMLC in two forums. Despite the radio boycott, GMR persisted—and has been lauded
for bringing competition and innovation to a staid industry.
BMI threatens to undo GMR’s hard-fought progress. Earlier this month, BMI served a
sweeping subpoena on GMR in connection with rate court proceedings against RMLC (the
“Subpoena”). The Subpoena demands that GMR reveal the most closely guarded aspects of its
business to BMI, its largest competitor, and to RMLC, a litigation adversary and powerful
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counterparty in license negotiations. Among other things, BMI asks GMR to produce all radio
license agreements, all documents relating to GMR’s radio license negotiations, detailed revenue
and compensation data, internal market analyses, and documents underpinning GMR’s antitrust
claims against RMLC. Put simply, the Subpoena asks GMR to give a dominant competitor and
adversary near-comprehensive access to the heart and soul of GMR’s business.
The Federal Rules do not require GMR to equip BMI and RMLC with the very tools they
would need to unfairly disadvantage GMR in the marketplace. BMI’s Subpoena should be
quashed in full for the following reasons:
First, the Subpoena asks GMR to produce documents and appear for deposition in New
York City, even though GMR is based in Los Angeles. Rule 45 prohibits BMI from demanding
GMR’s compliance more than 100 miles from its headquarters. Fed. R. Civ. P. 45(c).
Second, the Subpoena demands that GMR designate a witness to testify on behalf of the
company, but does not “describe with reasonable particularity the matters for examination.” Fed.
R. Civ. P. 30(b)(6). In fact, the Subpoena does not identify any matters for examination.
Third, the Subpoena seeks highly confidential material for which BMI has no
“substantial need.” Fed. R. Civ. P. 45(d)(3)(C)(i). BMI’s contention that GMR licenses may
serve as an appropriate benchmark in rate-setting proceedings finds no support in law or fact—
and, in any event, could not support its demand for near-unfettered access to GMR’s license
agreements, private negotiations, market analyses, revenues, and pricing structures.
Fourth, even if BMI could articulate some need to know the inner workings of GMR’s
business, that need would not outweigh the severe harm GMR would suffer if forced to disclose
this information to its biggest competitor and to the radio industry’s negotiating body. Since

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BMI’s and RMLC’s counsel in these proceedings also act as their clients’ negotiators, “outside
counsel’s eyes only” restrictions would not cure the prejudice to GMR.
Fifth, compliance with BMI’s expansive Subpoena would entail substantial costs to
GMR and its small staff. There is no reason to subject GMR to this undue burden.
BMI’s Subpoena is improper, through and through. The Court should quash it.
II.

BACKGROUND
A.

GMR Is An Innovative Start-Up PRO.

GMR is the first new competition the public performance rights licensing industry has
seen in decades. (Grimmett Decl. ¶ 10.) Rather than emulating the dominant PROs, GMR
competes by distinguishing itself from them. (Id. ¶¶ 11-12.) GMR’s business model is founded
on providing “concierge” service to a small group of talented songwriters, all while operating as
a lean, cost-efficient company. (Id. ¶ 12.) GMR is orders of magnitude smaller than ASCAP,
BMI, and SESAC. (Id. ¶ 9.) It maintains only one office, in Los Angeles. (Id. ¶ 7.)
B.

GMR Is Engaged In Antitrust Litigation Against RMLC.

Not everyone has welcomed a new entrant into the marketplace. The RMLC represents
3,000 radio companies, controlling over 90% of terrestrial radio stations, and openly states that
its primary objective is to use its colossal collective buying power to extract from licensors
below market license rates. (Id. ¶ 23.) When GMR refused to capitulate to the buying cartels
anticompetitive demands, RMLC effected a licensing boycott, pursuant to which its members
refused to enter licensing agreements with GMR, but nevertheless continued to perform musical
compositions in GMR’s catalog. (Id. ¶¶ 27-30.)
Prior to the lawsuit RMLC’s extraordinary market power manifested itself with only two
out of 3,000 members—.07% of RMLC’s total membership—breaking rank and agreeing to
accept a license with GMR. (Id. ¶ 29.)
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Pennsylvania Action. On November 18, 2016, RMLC filed suit against GMR in the
Eastern District of Pennsylvania alleging that GMR is a “monopolist” in a “market” consisting of
the performance rights for the songs in its own repertory. Radio Music License Committee, Inc.
v. Global Music Rights, LLC, No. 2:16-CV-06076 CDJ (E.D. Pa. Nov. 18, 2016) (E.D. Pa. Dkt.
1). RMLC simultaneously filed a motion for preliminary injunction that would require GMR to
make performance rights licenses available to RMLC’s members during the pendency of the
lawsuit. (E.D. Pa. Dkt. 3). GMR denied RMLC’s allegations and was preparing to oppose
RMLC’s injunction motion.
The Honorable C. Darnell Jones II referred to Magistrate Judge Lynn A. Sitarski
RMLC’s motion for preliminary injunction. (E.D. Pa. Dkt. 9) Judge Sitarski convened several
hearings, during which she encouraged GMR and RMLC develop a solution that would obviate
the need for extensive injunction proceedings. (Marroso Decl. ¶ 5.) Pursuant to Judge Sitarski’s
direction, GMR and RMLC agreed to an interim resolution pursuant to which GMR would offer
RMLC members a short-term performance license in exchange for a fee. (Id.) The interim
license terms, including license rate, were part of a litigation compromise to avoid injunction
proceedings. (Id.) The interim license agreements state that the agreement itself, and all
negotiations that led to it, were compromise negotiations protected by Federal Rule of Evidence
408; and that each party reserved their respective rights were subject to subsequent adjustment
pending the outcome of the parties’ respective litigations. (Id.) GMR filed motions to dismiss
for lack of personal jurisdiction and failure to state a claim. (Id. ¶ 6) In November 2017, a
magistrate judge issued a lengthy recommendation that the district judge dismiss RMLC’s
lawsuit because the court lacked personal jurisdiction over GMR. (Id.) The district judge has
not ruled on either of GMR’s motions to dismiss. (Id.)

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On three separate occasions, GMR has agreed to extend the interim licenses on the same
terms. (Id. ¶ 7.) In the meantime, GMR has sought to negotiate and enter longer term market
licenses with RMLC members. (Grimmett Declaration ¶ 30.) In the nearly two years since the
first lawsuit was filed, not one RMLC member has broken ranks and agreed to an individually
negotiated market license. (Id.)
California Action. In December 2016, GMR sued RMLC in California for fixing
license fees below competitive levels and orchestrating an illegal boycott of GMR licenses.
(Marroso Decl. ¶ 8.) In April 2017, the district court denied RMLC’s motion to dismiss for lack
of subject matter jurisdiction, but stayed the case pending the Pennsylvania court’s resolution of
GMR’s personal jurisdiction motion. (Id.) Discovery has not begun in either action. (Id. ¶¶ 48.)
C.

BMI’s Subpoena to GMR.

In June 2018, RMLC filed a Petition on behalf of thousands of radio stations seeking a
final determination of rates for licenses with BMI. 1 In its Response to the Petition, without
recounting the history of the GMR-RMLC lawsuit or the fact that GMR’s licenses with RMLC
Station Groups are explicit litigation compromises, not market-negotiated business deals, BMI
self-servingly contends that “final agreements between large RMLC Station groups and GMR”
may serve as “benchmarks” in the rate court proceeding. 2
On August 13, 2018, GMR accepted service of BMI’s Subpoena. (Marroso Decl. ¶ 3.)
Even though GMR is based in Los Angeles, the Subpoena purports to require GMR to produce a

1

Petition ¶ 2, Radio Music License Committee, Inc. v. Broadcast Music, Inc., No. 18 Civ. 4420
(LLS) (S.D.N.Y. May 17, 2018) [hereinafter “RMLC Pet.”].
2

Response ¶¶ 29, 35, Radio Music License Committee, Inc. v. Broadcast Music, Inc., No. 18
Civ. 4420 (LLS) (S.D.N.Y. May 29, 2018) [hereinafter “BMI Resp.”].
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corporate designee for deposition in New York on August 28, 2018. (Id., Ex. 1.) The Subpoena
also purported to require GMR to produce a sweeping array of proprietary and highly
confidential documents—none of which has relevance or probative value to the rate setting
petition. Even though BMI is a direct competitor of GMR’s and even though RMLC is GMR’s
current litigation adversary, the Subpoena seeks all licenses between GMR and any radio
licensee, all documents concerning radio license negotiations, granular revenue and
compensation data, client details, internal market analyses, and even clear work-produce and
privileged documents underlying GMR’s antitrust claims against RMLC. (See id.) The
Subpoena covers an eight-year period, eclipsing GMR’s entire existence. (Id.) GMR served
objections to the Subpoena on August 27, 2018. (Id., Ex. 2.)
III.

LEGAL STANDARD
“Protection of non-parties from inconvenience and burden is one of the important goals

of Rule 45.” Alexander Interactive, Inc. v. Adorama, Inc., No. 12 Civ. 6608 (PKC) (JCF), 2013
WL 2455924, at *1 (S.D.N.Y. June 4, 2013). To that end, the Rule imposes a duty on parties to
“avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P.
45(d)(1). The court for the district where compliance is required “must enforce this duty.” Id.
Rule 45 also “provides certain procedural and due process protections not provided by
other Rules of Federal Civil Procedure.” Tiger Lily Ventures Ltd. v. Barclays Capital Inc., No.
17-MC-499 (GBD) (KNF), 2018 WL 3300703, at *3 (S.D.N.Y. May 2, 2018), report &
recommendation adopted, 2018 WL 2316727 (S.D.N.Y. May 22, 2018). For example, a
subpoena must identify a compliance location that is within 100 miles of the recipient’s
residence or place of business. Fed. R. Civ. P. 45(c)(1)(A), (2)(A). Subpoena-related disputes
also generally must be resolved in that district so as to minimize the nonparty’s burden. Fed. R.
Civ. P. 45(d)(3)(A). The Court “must quash or modify” a subpoena that violates the rule’s
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“geographical limits.” Fed. R. Civ. P. 45(d)(3)(A)(ii) (emphasis added); see, e.g., M’Baye v. N.J.
Sports Production, Inc., 246 F.R.D. 205, 207–08 (S.D.N.Y. 2007) (quashing subpoena).
Rule 45 institutes stringent protections for nonparties’ confidentiality. Fed. R. Civ. P.
45(d)(3)(B)(i). A nonparty need not produce trade secrets or other confidential material unless
the propounding party “shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship,” Fed. R. Civ. P. 45(d)(3)(C)(i), and even then only if the
need “outweighs the burden and prejudice to the non-party.” Anker v. G.D. Searle & Co., 126
F.R.D. 515, 522 (M.D.N.C. 1989). The imperative to protect nonparties is especially acute
where a subpoena requires disclosure to a direct competitor. See Am. Std. Inc. v. Pfizer Inc., 828
F.2d 734, 741 (Fed. Cir. 1987) (“Courts have presumed that disclosure to a competitor is more
harmful than disclosure to a noncompetitor.”); Solow v. Conseco, Inc., No. 06 Civ. 5988 (BSJ)
(THK), 2008 WL 190340, at *4 (S.D.N.Y. Jan. 18, 2008) (“Macklowe clearly has a privacy
interest in maintaining the confidentiality of the information. That interest is particularly
heightened in the present context, where the information is sought by a competitor[.]”).
IV.

ARGUMENT
A.

BMI’s Subpoena Must Be Quashed Because It Violates the 100-Mile Rule.

Rule 45 requires the party propounding a subpoena to identify a place of compliance that
is within 100 miles of “where the [recipient] resides, is employed, or regularly transacts business
in person.” Fed. R. Civ. P. 45(c)(1)(A), (2)(A). Where the recipient is an entity rather than a
natural person, the entity’s residence is determined by its headquarters. See Europlay Capital
Advisors, LLC v. Does, 323 F.R.D. 628, 629–30 (C.D. Cal. 2018); GMA Accessories, Inc. v.
Eminent, Inc., No. 07 Civ. 3219 (LTS) (DF), 2007 WL 4456009, at *1 (S.D.N.Y. Dec. 11, 2007).
Violating Rule 45’s geographic limitations is a sufficient basis for quashing a subpoena. See,

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e.g., Europlay, 323 F.R.D. at 629–30; Hermitage Global Partners LP v. Prevezon Holdings Ltd.,
No. 14-mc-00318 (TPG), 2015 WL 728463, at *4 (S.D.N.Y. Feb. 19, 2015).
BMI’s Subpoena identifies the New York City office of its counsel as the place of
compliance. (Marroso Decl., Ex. 1.) But as the Subpoena acknowledges, GMR is headquartered
in Los Angeles, California—well in excess of 100 miles from New York City. (Id.) GMR has
no offices or facilities within 100 miles of New York City. (Grimmett Decl. ¶ 7.) This alone
warrants quashing BMI’s Subpoena. 3
B.

BMI’s Subpoena Must Be Quashed Because It Does Not Identify Any Topics
For Examination.

When a subpoena requests that an entity appear for deposition through a designated
witness, the propounding party must comply with Rule 30(b)(6), see Wultz v. Bank of China Ltd.,
293 F.R.D. 677, 679 (S.D.N.Y. 2013), which states that the party “must describe with reasonable
particularity the matters for examination.” Fed. R. Civ. P. 30(b)(6) (emphasis added). BMI’s
Subpoena purports to require GMR to appear for deposition, but does not identify any “matters
for examination,” much less “describe [them] with reasonable particularity.” (See Marroso
Decl., Ex. 1. ) For this reason, the subpoena for testimony must be quashed. See, e.g., Freeman
v. Rochester Psychiatric Center, No. 12-CV-6045T, 2015 WL 4250892, at *3 (W.D.N.Y. July
10, 2015); Monge v. Maya Magazines, Inc., No. 2:10-CV-00230-RCJ-PA, 2010 WL 2776328, at
*4–5 (D. Nev. July 14, 2010).

3

Alternatively, the Court may modify the Subpoena to identify Los Angeles as the compliance
location. Indeed, GMR reserves the right and may seek to transfer court oversight of the
subpoena to the Central District of California. Fed. R. Civ. P. 45(d)(3)(A), (B).
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C.

BMI’s Subpoena Must Be Quashed Because It Requests Highly Confidential
Material For Which There Is No Substantial Need.

The prime defect in BMI’s Subpoena is apparent on its face: it asks GMR to divulge
voluminous information touching the most sensitive aspects of its business to a chief competitor
(BMI) and a cartel of radio groups against which GMR is embroiled in antitrust litigations across
the country (RMLC). There is no need in the rate setting proceeding between BMI and RMLC
for GMR’s material, to say nothing of the “substantial need” Rule 45 demands. Fed. R. Civ. P.
45(d)(3)(C)(i). “An antitrust action”—or a rate court proceeding stemming from BMI’s antitrust
violations—“does not come with an automatic entitlement to force non-parties to reveal their
competitive thinking.” In re eBay Seller Antitrust Litig., No. C09-0735 RAJ, 2009 WL
10677051, at *5 (W.D. Wash. Aug. 17, 2009). The Court should put a stop to BMI’s fishing
expedition.
1.

The Subpoena Seeks Highly Confidential, Competitively Sensitive
Information.

The Subpoena demands that GMR turn over a broad range of highly confidential
documents, from licensing agreements, to revenue data, to GMR’s private assessments of the
competitive landscape. But the Federal Rules do not obligate GMR to disclose “the very essence
of its [past and] current strategic business operations” to BMI, its largest competitor, or to
RMLC, a litigation adversary and potential counterparty in licensing negotiations. In re EpiPen
(Epinephrine Injection, USP) Marketing, Sales Practices & Antitrust Litig., No. 17-md-2785DDC-TJJ, 2018 WL 3818914, at *4 (D. Kan. Aug. 10, 2018) (quashing subpoena). Far from it,
“[a] subpoena may be quashed to protect trade secrets or other confidential information.”
Holquin v. Celebrity Cruises, Inc., No. 10-20215-CIV, 2010 WL 6698221, at *1 (S.D. Fla. July
22, 2010). Discovery material qualifies as confidential if disclosure would “cause ‘substantial

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economic harm’ to the competitive position of the entity from [which] it is obtained.” 9 Moore’s
Federal Practice—Civil § 45.52[1] (2018) (collecting cases).
The Court should quash BMI’s Subpoena as an unjustified intrusion into GMR’s
confidential business affairs. The trove of proprietary and competitively sensitive materials
demanded in the Subpoena are entitled to protection under Rule 45:
Request No. 1: All interim and final licenses and/or other agreements concerning
the right to publicly perform musical works between GMR and any station or radio group.
Licensing agreements are the core of GMR’s business. (Grimmett Decl. ¶ 14.) GMR maintains
these agreements as confidential, and they are subject to express confidentiality provisions. (Id.)
Disclosing these agreements—together with the licensing rates and other competitive terms they
embody—to a rival PRO and to an entity that is devoted to using cartel power to extract belowmarket licensing rates would be unfairly prejudicial to GMR. (Id.) The agreements are plainly
confidential. See Toto, Inc. v. Sony Music Entm’t, No. C-13-mc-80168-MISC-JST (DMR), 2014
WL 793558, at *2 (N.D. Cal. Feb. 26, 2014) (refusing to enforce subpoena seeking “highly
confidential” licensing agreements; rejecting argument that discovery was warranted because
non-party’s licensing agreements were similar to agreements in dispute); Moon v. SCP Pool
Corp., 232 F.R.D. 633, 638 (C.D. Cal. 2005) (“documents related to nonparty KSA’s business
relationship with other nonparties” were “clearly” confidential; quashing subpoena).
Request Nos. 2–3: All documents and communications concerning the negotiation
of any interim or final license or agreement with RMLC or any station or radio group.
Documents relating to private business negotiations are routinely protected as confidential—and
GMR treats them as such. (Grimmett Decl. ¶ 15); see, e.g., Waymo LLC v. Uber Techs., Inc.,
No. 17-cv-00939-WHA (JSC), 2017 WL 2929439, at *1, *3–4 (N.D. Cal. July 7, 2017)

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(agreements, letters of intent, term sheets, and negotiation documents and communications
relating to deal between nonparty Lyft and party Waymo protected as confidential; subpoena
quashed). The sensitivities are heightened here, given that BMI competes against GMR in
negotiating with these same entities, and RMLC represents these same entities in licensing
negotiations. (Grimmett Decl. ¶ 22.); see Monterey Bay Military Housing, LLC v. Pinnacle
Monterey LLC, No. C15-80123 HRL, 2015 WL 2229229, at *3 (N.D. Cal. May 12, 2015)
(quashing subpoena where disclosure of “terms and pricing” of nonparty’s insurance program
would hamper its “ability to negotiate the terms of its insurance portfolio” in the future).
Moreover, contrary to BMI’s unsubstantiated (and erroneous) claims, GMR’s interim
licenses are not any kind of “benchmark” for BMI’s rate setting proceedings. The interim
licenses between GMR and RMLC’s members are not freely negotiated licenses in an open
marketplace. Rather, as explained above, they are court-directed litigation compromises entered
to obviate the need for injunction proceedings. These temporary settlement discussions were
“meant to be confidential.” Camacho v. Dean, No. 1:14-CV-01428, 2015 WL 4478755, at *6
n.6 (M.D. Pa. July 22, 2015); see Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., No. 11 CV
2450, 2013 WL 5423852, at *4 (N.D. Ill. Sept. 27, 2013) (“courts are generally reluctant to order
disclosure of negotiations or documents related to a settlement agreement;” declining to enforce
subpoena) (quotation omitted). Many documents related to interim license negotiations include
privileged information and/or attorney work product. (Grimmett Decl. ¶ 37.)
Request Nos. 4–5: License revenue data for each year GMR has been in existence,
broken down by blanket license fees, fees paid on a “program-period basis,” and fees
derived from “New Media transmissions,” and the percentage of GMR license fees that
GMR distributed to its members or affiliates. GMR does not publicly disclose licensing

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revenue or distribution figures. (Grimmett Decl. ¶ 16.) Indeed, GMR’s formula for calculating
disbursements to its clients is one of the key metrics on which it competes against larger PROs.
(Id. ¶ 11.) These data are paradigmatic examples of confidential commercial information. See
EpiPen, 2018 WL 3818914, at *4–5 (nonparty’s “revenues, pricing, sales, rebates, incentives,
budgets, revenue projections, cost projections, and profits” protected as confidential; quashing
subpoena); GreenCycle Paint, Inc. v. PaintCare, Inc., No. 15-cv-04059-MEJ, 2018 WL
1399865, at *3–4 (N.D. Cal. Mar. 19, 2018) (nonparty’s “pricing and customer information”
protected as confidential; quashing subpoena); Edwards v. Cal. Dairies, Inc., No. 1:14-mc00007-SAB, 2014 WL 2465934, at *5–6 (E.D. Cal. June 2, 2014) (nonparty’s “pricing data”
protected as confidential; denying motion to compel); Solow, 2008 WL 190340, at *4–5
(quashing subpoena seeking nonparty’s “assets and financial plans”).
Request No. 6: Internal market studies and analyses, including about GMR’s and
its competitors’ current or projected shares of public performances, and all supporting
methodologies, data and documents. Like any competitive going concern, GMR treats internal
studies and analyses of the marketplace as highly confidential, as they reveal GMR’s competitive
thinking and inform its business strategy. (Grimmett Decl. ¶ 17.) In some instances, these
analyses constitute or reflect attorney work product. (Id.) Courts routinely shield nonparties
from disclosing internal market analyses to competitors. See, e.g., EpiPen, 2018 WL 3818914,
at *4–5 (internal “market research and analysis” and documents relating to “competition in the
market” protected as confidential; quashing subpoena); Verinata Health, Inc. v. Sequenom, Inc.,
No. C 12-00865 SI, 2014 WL 2600367, at *2–3 (N.D. Cal. June 10, 2014) (“view of the market”
protected as confidential; quashing subpoena); eBay, 2009 WL 10677051, at *4–6 (internal
market assessments protected as confidential; subpoena quashed as to these documents).

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Request No. 7: Information concerning the songwriters, composers, and publishers
that GMR represents, including the date on which GMR began (or will begin) representing
each of its clients and GMR’s clients’ former PRO affiliations. To the extent BMI merely
seeks a list of songwriters in GMR’s catalog, that information is readily and publicly available on
GMR’s website. (Grimmett Decl. ¶ 18.) To the extent BMI seeks addition information about the
songwriters or publishers, such as past business relationships and when those relationships
terminated, BMI must obtain that information, if at all, from the participants, not GMR. GMR
does not publicize or disclose details concerning its client relationships—as GMR’s clients
rightly expect. (Id.); see Edwards, 2014 WL 2465934, at *5 (“[nonparty]’s customers expect
their information to be kept confidential;” quashing subpoena). In fact, GMR’s client
agreements include express confidentiality obligations. (Grimmett Decl. ¶ 18.) This nonpublic
information is entitled to protection under Rule 45. See, e.g., GreenCycle, 2018 WL 1399865, at
*3–4 (“customer information” protected; quashing subpoena); Am. Soc’y of Media
Photographers, Inc. v. Google, Inc., No. 13 C 408, 2013 WL 1883204, at *5 (N.D. Ill. May 6,
2013) (quashing subpoena seeking confidential information about nonparty’s customers).
Request No. 8: All documents and communications concerning RMLC and its
members’ boycott of GMR, as described in GMR’s antitrust lawsuit against RMLC. These
documents would largely consist of GMR’s privileged and work product material, which
obviously would not be produced. Any non-lawyer-related information in this category would
mainly concern negotiations (and attempted negotiations) with RMLC and radio stations,
(Grimmett Decl. ¶ 19.), which are confidential, as discussed above. (Id. ¶¶ 15, 19); see Waymo,
2017 WL 2929439, at *1, *3–4; Monterey Bay, 2015 WL 2229229, at *3; Verinata Health, 2014
WL 2600367, at *2–3.

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Request No. 9: All documents and communications concerning the removal of
GMR-affiliated musical works from radio broadcasts or new media transmissions. GMR
uses data from a third-party service to track stations’ performances of GMR works. (Grimmett
Decl. ¶ 20.) GMR is contractually bound to keep these data confidential. (Id.) And like all of its
private dealings with actual and potential licensees, GMR keeps confidential any
communications dealing with the removal of GMR works from radio broadcasts and other
transmissions. (Id.) Documents “related to [a nonparty’s] business relationship with other
nonparties” are “clearly” confidential. Moon, 232 F.R.D. at 638. Moreover, since the extent to
which broadcasters have removed GMR works in lieu of purchasing a license may be indicative
of GMR’s financial condition (Grimmett Decl. ¶ 20), disclosure to a large competitor and the
organization that negotiates license rates on behalf of the commercial radio industry could be
ruinous to GMR’s competitive position. (Id.)
In sum, the Subpoena seeks confidential and competitively sensitive information that
“cover almost every aspect” of its business. EpiPen, 2018 WL 3818914, at *4. These materials
are entitled to protection from disclosure. Fed. R. Civ. P. 45(d)(3)(B)(i).
2.

BMI Does Not Have a Substantial Need For the Requested Documents
and Information.

Because the Subpoena seeks confidential commercial information, the Court may not
enforce it against GMR unless BMI “shows a substantial need for the . . . material that cannot
be otherwise met without undue hardship.” Fed. R. Civ. P. 45(d)(3)(C)(i) (emphasis added).
Substantial need is a much higher bar than “simple relevance.” Meyer v. Colavita, USA, Inc.,
No. SACV 11-00696-AG (MLGx), 2011 WL 2457681, at *3 (C.D. Cal. June 17, 2011). A
“substantial need” exists only where the requested discovery is “essential to a judicial
determination of [the party’s] case.” Scientific Games Corp. v. AGS LLC, No. 2:17-cv-00343-

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JAD-NJK, 2017 WL 3671286, at *2 (D. Nev. Aug. 24, 2017), aff’d, 2018 WL 2292811 (D. Nev.
May 18, 2018) (emphasis added); see Nat’l Cong. For Puerto Rican Rights v. City of New York,
194 F.R.D. 105, 110 (S.D.N.Y. 2000) (“substantial need” exists where “the information sought is
‘essential’ to the party’s defense, is ‘crucial’ to the determination of whether the defendant could
be held liable for the acts alleged, or carries great probative value on contested issues”). BMI
does not come close to demonstrating a “substantial need” for GMR’s confidential material.
RMLC has petitioned the Court to set reasonable license rates for “the FCC-licensed
broadcast radio stations operating in the United States that it represents.” (RMLC Pet. ¶ 2.) To
determine a reasonable license rate, the Court must “define a rate or range of rates that
approximates the rates that would be set in a competitive market.” ASCAP v. Showtime/The
Movie Channel, Inc., 912 F.2d 563, 576 (2d Cir. 1990). Accordingly, BMI must demonstrate
that the documents it seeks from GMR carry “great probative value” in defining a competitive
“rate or range of rates” for a license between BMI and RMLC.
While rate courts have at times considered so-called “benchmark” agreements when
defining a reasonable rate, not all license agreements make suitable benchmarks. See United
States v. BMI (“BMI I”), 316 F.3d 189, 194 (2d Cir. 2003) (“[D]etermination [of a reasonable
rate] is often facilitated by the use of a benchmark—that is, reasoning by analogy to an
agreement reached after arms’ length negotiation between similarly situated parties.”) (emphasis
added). Rather, a license agreement must be “comparable” to a license agreement between the
parties to the rate court proceeding. United States v. BMI (“BMI II”), 426 F.3d 91, 95 (2d Cir.
2005). Rate courts consider multiple factors in assessing whether an agreement is “comparable,”
including “[1] the degree of comparability of the negotiating parties to the parties contending in
the rate proceeding, [2] the comparability of the rights in question, [3] the similarity of the

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economic circumstances affecting the earlier negotiators and the current litigants[,] and [4] the
degree to which the assertedly analogous market under examination reflects an adequate degree
of competition to justify reliance on agreements that it has spawned.” Id.
Applying these standards, GMR’s licenses with RMLC members are not “comparable”
and there is no “substantial need” for the documents BMI has requested. BMI’s Subpoena
principally seeks documents and communications relating to two categories of GMR license
agreements: (a) final license agreements with RMLC or its member stations; and (b) interim
license agreements with RMLC or its members station. Neither category is remotely
“comparable” to a license between BMI and RMLC.
GMR’s Final License Agreements. To date, GMR has only entered into final license
agreements with two RMLC members. (Grimmett Decl. ¶ 29.) These agreements are not
adequate benchmarks. First, a license between GMR and a single RMLC member is not
comparable to a license between BMI and the entire RMLC membership. RMLC has thousands
of members. Some RMLC members own hundreds of radio stations, while others own just one
or two. RMLC’s members also operate stations in different media markets and in different
formats (e.g., talk radio, news, adult contemporary, classic rock). Because of this, 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 of the appropriate across-the-board rate for thousands of “broadcast
radio stations operating in the United States.” (RMLC Pet. ¶ 2.)
Second, the dramatic size differential between BMI and GMR underscores that GMR
licenses are not appropriate benchmarks. ASCAP and BMI each represent hundreds of
thousands of artists and control millions of songs; by both metrics, GMR and SESAC are
significantly smaller. (Grimmett Decl. ¶ 9.) Rate court decisions have found SESAC licenses to

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be poor benchmarks precisely because of its small size. In In re Pandora Media, Inc., 6 F. Supp.
3d 317 (S.D.N.Y. 2014), for example, the ASCAP rate court indicated that “[t]he SESAC license
has historically been a benchmark of limited value”—largely because “SESAC’s small size . . .
amplifies any error” when trying to use SESAC rates to determine the implied license rate for a
much larger PRO. Id. at 362; see also In re Application of MobiTv, Inc., 712 F. Supp. 2d 206,
254 (S.D.N.Y. 2010) (“SESAC agreements have never been used as benchmarks in ASCAP rate
court proceedings.”). Here the contrast is even starker, since GMR is a tiny fraction of SESAC’s
size. (Grimmett Decl. ¶ 9.) With 77 songwriters and 33,000 songs, GMR’s client base is just
0.25% of SESAC’s membership, and its repertory is only 8.25% the size of SESAC’s. (See id.)
If SESAC licenses have “limited value” in rate court proceedings, Pandora, 6 F. Supp. 3d at 362,
GMR’s handful of final license agreements are virtually useless.
GMR’s Interim License Agreements. At no point in its Response to RMLC’s Petition
does BMI even suggest that GMR’s interim licenses would be adequate benchmarks. (See BMI
Resp. ¶ 29 (alleging only that GMR’s “final license agreements” with “large RMLC Station
groups” may serve as benchmarks) (emphasis added).) Nonetheless, the Subpoena demands that
GMR produce “[a]ll” interim licenses and “[a]ll documents” concerning the negotiation of “any”
interim license. (Marroso Decl., Ex. 1.) Since even relevancy is circumscribed by the
pleadings, 4 BMI cannot assert a “substantial need” for licenses it did not even mention.
In any event, GMR’s interim licenses are not comparable to long-term BMI licenses. In
late 2016, after the antitrust litigations were underway, GMR offered interim licenses to RMLC’s

4

See Varelas v. Crown Equip. Corp., No. 17-CV-869-JPS-JPS, 2018 WL 1307961, at *2 (E.D.
Wis. Mar. 13, 2018) (“Rule 26 limits discovery to the scope of the pleadings.”); Toth v. Cal.
Univ. of Pa., Civ. No. 09-1692, 2011 WL 2436138, at *2 (W.D. Pa. June 15, 2011) (“The
complaint and its claims circumscribe the scope of discovery.”); Heredia v. Heyman, 203 F.R.D.
112, 113 (S.D.N.Y. 2001) (denying discovery outside the scope of the complaint).
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members. (Grimmett Decl. ¶ 31). These interim licenses were litigation expedients that allowed
participating RMLC members to perform works in GMR’s repertory for a short period while the
cases proceeded. (Id.). As temporary settlements, they do not reflect competitive rates.
First, unlike the BMI license RMLC is seeking, the interim license agreements are for
very short terms. Whereas RMLC is seeking a five-year license (RMLC Pet. ¶ 2), the first GMR
interim license lasted for only nine months. (Grimmett Decl. ¶ 32.) Since then, GMR has
periodically entered into new interim licenses for just six-month terms. (Id.)
Second, the interim license agreements are riddled with litigation-specific provisions.
For example, a material term was whether either party could rely on the existence of interim
licenses in their respective lawsuits. (Id. ¶ 33.) Similarly, the parties negotiated a provision to
address copyright infringement by RMLC members prior to the interim license agreements. (Id.)
These and other provisions have no bearing on the appropriate rate for a license between BMI
and RMLC. These litigation-specific provisions also demonstrate that the rates included in
GMR’s interim licenses reflect concerns unique to the parties’ litigation, and do not accurately
reflect the value of music licenses generally or of a GMR license specifically.
Third, the interim license agreements are subject to subsequent adjustment, by either
GMR or the radio groups, depending on the outcome of the pending antitrust suits. (Id.) Far
from being “free market deals” (BMI Resp. ¶ 29), the agreements expressly contemplate that the
interim license rates do not “approximate[] the rates that would be set in a competitive market.”
ASCAP, 912 F.2d at 576.
The MobiTV rate court decision is on point. SESAC had accused MobiTV of willfully
infringing copyrights in the SESAC repertory. MobiTV, 712 F. Supp. 2d at 221. The parties
ultimately entered into a settlement, whereby MobiTV agreed to (a) take a license from SESAC

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and (b) pay a lump sum in satisfaction of its alleged copyright infringement. Id. In a subsequent
rate court proceeding, the court found that SESAC’s license agreement with MobiTV was “a
poor yardstick to measure the fairness of any fee to ASCAP” and had “limited relevance.” Id. at
222. In particular, the court explained that MobiTV’s license fee took into account other factors,
such as litigation risks. Id. at 254. And the court noted that ASCAP and SESAC were in
different positions with respect to MobiTV because, unlike SESAC, ASCAP had no potential
claim for copyright infringement against MobiTV. Id.
So too here. GMR’s interim licenses reflect and account for specific litigation risks and
concerns. And unlike GMR and RMLC, BMI and RMLC do not have pending antitrust claims
against each other. Neither the “negotiating parties” nor the “economic circumstances”
surrounding GMR’s interim licenses are comparable to a license between BMI and RMLC.
BMI, 426 F.3d at 95; see also United States v. BMI, No. 64 Civ. 3787 (LLS), 2001 WL 829874,
at *6 (S.D.N.Y. July 23, 2001) (finding that, in light of “special considerations affecting [the
licensees] position in the negotiations” regarding a prior license with BMI, that license “should
not be regarded as reflecting normal competitive market terms.”).
Additional Documents Requested by the Subpoena. In addition to license agreements,
BMI requests all documents relating to interim or final radio license negotiations, GMR’s
revenue and compensation data, information about GMR’s clients, internal market analyses, and
evidence of RMLC’s boycott. BMI cannot demonstrate a “substantial need” for any of these
documents. First, much of this information is already at BMI’s fingertips. For instance, BMI is
capable of conducting its own market studies, and it is improper for BMI to use a subpoena to
piggy back on any analyses GMR has undertaken at its own expense. See In re eBay Seller
Antitrust Litig., No. C09-735RAJ, 2009 WL 5205961, at *3 (W.D. Wa. Dec. 23, 2009) (“EBay

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does not have a substantial need to force Amazon to turn over market analyses that eBay could
conduct on its own.”). And BMI should be fully aware of whether and when any of its artists
have left BMI to join GMR. BMI cannot demonstrate a “substantial need” for information it can
discern or analyses it can perform on its own.
Second, these extraneous materials are not necessary (or even relevant) to determining a
reasonable rate for a five-year BMI license agreement. GMR’s license revenues, distributions to
clients, client details, and in-house market analyses say nothing about what license fees RMLC’s
thousands of members should pay BMI—and neither the Subpoena nor BMI’s Response to the
Petition suggests otherwise. And even if GMR’s interim or final licenses could conceivably
serve as benchmarks—and they cannot—BMI would not need to comb through tens of thousands
of negotiation documents to determine the comparability of the negotiating parties, the rights
conveyed, or the economic and market circumstances in question. See BMI II, 426 F.3d at 95.
Since none of the documents BMI has requested are probative of the “rate or range of
rates” for a license between BMI and RMLC, BMI cannot contend that they are even relevant to
the present rate court proceedings—much less “essential” to them. Scientific Games, 2017 WL
3671286, at *2. BMI does not have a substantial need for these documents.
D.

Disclosing Confidential Material to a Direct Competitor and Litigation
Adversary Would Irreparably Injure GMR.

Even if BMI could demonstrate a substantial need for GMR’s confidential business
documents—and it cannot—that need would not outweigh the burden and prejudice GMR stands
to suffer. Anker, 126 F.R.D. at 522; see Warner Chilcott Ltd. v. Express Scripts, Inc., No.
4:17MC250 RLW, 2017 WL 4084045, at *2 (E.D. Mo. Sept. 14, 2017) (“While Allergan argues
that it has a substantial need for the documents, the Court finds that any need does not outweigh
the burden and hardship of producing highly confidential and competitive trade secrets belonging

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to Express Scripts.”). Requiring GMR to disclose the inner workings of it business to BMI, its
biggest competitor, and to RMLC, a counterparty in negotiations and litigation adversary, would
unfairly and irreparably damage its competitive position.
1.

Disclosure to BMI Would Irreparably Harm GMR.

BMI is one of GMR’s chief competitors. (Grimmett Decl. ¶ 21.) BMI represents over
800,000 affiliates and has 13 million compositions in its repertory. (BMI Resp. ¶ 5.) These
figures dwarf GMR’s 77 songwriter clients and 33,000-composition repertory. (Grimmett Decl.
¶ 9.) Founded just five years ago, GMR has fought long and hard to gain a foothold in the PRO
industry. (Id. ¶ 10.) Turning over to BMI the heart and soul of GMR’s business would imperil
all the progress GMR has made. (Id. ¶ 22.)
Disclosing GMR’s license agreements, negotiations with broadcasters, client information,
and detailed revenue and distribution data would give BMI everything it would need to unfairly
undermine GMR’s competitive position. BMI could target the broadcasters with which GMR
does business and the songwriters GMR represents, surgically undercutting GMR’s negotiation
strategies and competitive offers. (Id.) And GMR’s financial data would give BMI a window to
any pressure points, which BMI could then exploit. (Id.) Courts routinely quash subpoenas that
threaten these very harms. See, e.g., Waymo, 2017 WL 2929439, at *3–4 (protecting nonparty
competitor’s agreements and negotiation documents); Toto, 2014 WL 793558, at *2 (protecting
nonparty competitor’s licensing agreements); Edwards, 2014 WL 2465934, at *5 (protecting
“information [that] could be used by its [nonparty’s] competitors to undercut [its] prices”);
Verinata Health, 2014 WL 2600367, at *2–3 (quashing subpoena seeking nonparty competitor’s
“pricing strategies” and “view of the market”); Solow, 2008 WL 190340, at *4–5 (nonparty need
not disclose its “present financial condition” to competitor).

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Earlier this month, a district court quashed an equally invasive subpoena directed to a
competitor. In EpiPen, the defendant pharmaceutical company, Mylan, served a sweeping
subpoena on kaléo, a much smaller upstart. 2018 WL 3818914, at *1–4. Like BMI, Mylan
sought documents reflecting its smaller competitor’s “business-development efforts,” “market
research and analysis,” and “revenues, pricing, [and] sales” data. Id. at *3–4. The court
recognized that these materials were “critical to kaléo’s business,” and that disclosing them to
“the biggest market player” would “create a competitive disadvantage and potentially devastate
the company.” Id. at *4–5. The nonparty’s diminutive size heightened these concerns. See id. at
*4 (“Also relevant is kaléo’s size relative to Mylan.”). Concluding that “even if Mylan had
shown a need for these documents, the potential harm to kaléo would outweigh Mylan’s need,”
the court denied Mylan’s motion to compel. Id. at *5 (emphasis added).
This Court should do likewise. Requiring GMR to give “the biggest market player”
access to far-reaching, confidential business information would “create a competitive
disadvantage and potentially devastate the company.” Id. at *4–5. That harm far outweighs any
purported need BMI may assert.
2.

Disclosure to RMLC Would Irreparably Harm GMR.

Disclosing the requested documents to RMLC would be no less damaging to GMR. The
reasons are twofold: first, RMLC is a powerful counterparty in licensing negotiations; and
second, GMR is engaged in antitrust litigation against RMLC. Complying with the Subpoena
would give RMLC an unfair advantage over GMR in both the marketplace and the courtroom.
According to the its own Executive Director, RMLC’s “overwhelming objective is to
keep license fees for the commercial radio industry as low as [it] can possibly keep them.”
(Marroso Decl., Ex. 3.) As RMLC admits in this case, it “negotiates with performance rights
organizations” on behalf of “thousands of terrestrial radio stations throughout the United States.”
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(RMLC Pet. ¶ 3.) In litigation against GMR, RMLC purports to represent the interests of 10,000
radio stations, 5 which account for over 90% of the billions of dollars in annual revenue generated
by the U.S. terrestrial radio industry. (Grimmett Decl. ¶ 23.) This gives the RMLC tremendous
market power in license negotiations. (Id.)
Disclosing GMR’s license agreements, negotiation documents, pricing structures, and
internal market analyses would give RMLC insight into GMR’s negotiation strategies and
thought processes—affording it even more leverage in any future negotiations. (Id. ¶ 26.) This
imminent danger warrants quashing the Subpoena. See SEC v. Ahmed, No. 3:15cv675 (JBA),
2018 WL 1541902, at *3 (D. Conn. Mar. 29, 2018) (denying motion to compel where disclosure
of nonparty’s stock purchase agreements “could cause [it] commercial harm in negotiating with
counterparties”); Monterey Bay, 2015 WL 2229229, at *3 (protecting “confidential commercial
information” that was key to nonparty’s “ability to negotiate the terms of its insurance
portfolio”); DISH Network, L.L.C. v. WNET, No. 13-cv-00832-PAB-KLM, 2014 WL 1628132,
at *1, *3–4, *10 (D. Colo. Apr. 24, 2014) (quashing subpoena where “[b]roadcasters sit on the
opposite side of the bargaining table from DISH,” and disclosure would give broadcasters “an
advantage over DISH in future business negotiations”).
That GMR is engaged in antitrust litigation against RMLC further compounds the
prejudice of disclosure. Discovery has not commenced in either the California suit or the
Pennsylvania suit. Requiring GMR to disclose licensing negotiations and other documents
relating to the California action would effectively give RMLC early discovery on GMR’s
antitrust claims—before RMLC itself bears any reciprocal discovery obligations.

5

First Am. Compl. ¶ 18, Radio Music License Committee, Inc. v. Global Music Rights, LLC, No.
2:16-cv-6076-CDJ (E.D. Pa. Feb. 10, 2017).
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Courts are rightly wary of enforcing subpoenas that would give a party a litigation
advantage against the nonparty in another proceeding. 6 Though RMLC did not serve the
Subpoena, enforcing it against GMR would undoubtedly give RMLC a leg up in the antitrust
actions. In Lakeview Pharmacy of Racine, Inc. v. Catamaran Corp., No. 3:15-290, 2017 WL
4310221 (M.D. Pa. Sept. 28, 2017), the court quashed several subpoenas to avoid this very risk.
Lakeview, a pharmacy, sought a nonparty pharmacy benefits manager’s contracts with several
competing pharmacy chains. Id. at *1, *3–4. The nonparty, Catamaran, objected that disclosure
of these confidential agreements would not only “benefit Lakeview in future negotiations with
Catamaran,” but also give Lakeview “undue advantage in related litigation.” Id. at *8–10.
Finding that the discovery “may unfairly influence Lakeview’s litigation strategy in these outside
proceedings,” the court quashed the subpoenas. Id. at *10; see also DISH, 2014 WL 1628132, at
*3–4, *10 (quashing subpoena that would have required nonparty to disclose confidential
material to its “opponent in on-going federal court litigation”).
Since BMI’s Subpoena expressly seeks documents underlying GMR’s antitrust claims
against RMLC, it is all but certain that disclosure would influence RMLC’s litigation strategy in
that action. The Court should quash the Subpoena.
3.

A Protective Order Would Not Cure the Harm to GMR.

BMI may argue that a protective order would cure any harm to GMR. Not so. A
protective order is not a panacea, even if it allows for “outside counsel’s eyes only” treatment.

6

See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 n.17 (1978) (“[W]hen the purpose
of a discovery request is to gather information for use in proceedings other than the pending suit,
discovery properly is denied.”); Koch v. Greenberg, No. 07 Civ. 9600 (BSJ) (DF), 2009 WL
2143634, at *5 n.3 (S.D.N.Y. July 14, 2009) (“Plaintiff has instituted a separate action against
[nonparty] Rodenstock . . . in which discovery has been stayed. The instant action should not
provide a vehicle for Plaintiff to evade that discovery stay.”).
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See eBay, 2009 WL 10677051, at *4 (noting, in response to a request for an order restricting
disclosure to outside counsel, that “Rule 45 does not require the court to permit the disclosure of
competitively sensitive information even under such a protective order”) (emphasis added). It
would be “divorced from reality to believe that either party here would serve as the champion of
its competitor”—or, in the case of RMLC, its litigation adversary and negotiating counterparty—
“to maintain the confidentiality designation or to limit public disclosure.” Mannington Mills,
Inc. v. Armstrong World Indus., Inc., 206 F.R.D. 525, 530–31 (D. Del. 2002) (quoting Micro
Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1325 (Fed. Cir. 1990)).
Although the parties’ stipulated protective order provides for “Restricted” and “Outside
Counsel’s Eyes Only” designations, it expressly contemplates that “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.” (Stipulation and Protective
Order ¶ 13, Radio Music License Committee, Inc. v. Broadcast Music Inc., No. 18 Civ. 4420
(LLS) (S.D.N.Y. June 28, 2018).) And it is disclosure to the parties’ business personnel that
raises the highest likelihood of commercial harm.
But even if GMR had assurance that its information could be restricted to outside
counsel, that would not avoid the injury due to a unique facet of this industry. RMLC is
represented in these proceedings by Mr. Kenneth L. Steinthal. Mr. Steinthal is a longtime
advocate for RMLC, and has previously represented RMLC in license negotiations with GMR.
(Grimmett Decl. ¶ 34.) Likewise, Ms. Atara Miller, counsel for BMI, “negotiates appropriate
rates for music performing rights, on behalf of Broadcast Music, Inc.” (Marroso Decl., Ex. 4.)
While GMR does not doubt counsel’s professionalism, there is simply no way to eliminate the
possibility (indeed, the likelihood) that knowledge of GMR’s licensing agreements, negotiations,

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and pricing strategies may impact their own conduct when negotiating on behalf of BMI and
RMLC. These lawyers cannot “unsee” what they are trying to see here.
A protective order would not avoid the significant competitive harm GMR faces. The
Court should quash the Subpoena in full.
E.

The Subpoena Must Be Quashed Because Compliance Would Impose
Significant Undue Burdens on GMR.

BMI’s demand that GMR divulge the most sensitive aspects of its business is reason
enough to quash the Subpoena. But the burdens do not end there. By its terms, the Subpoena
would require GMR to review thousands upon thousands of hard-copy and electronic documents
stretching all the way back to its founding. (Grimmett Decl. ¶¶ 36-37.) In fact, it is difficult to
think what documents GMR would not have to review. (Id.) Since BMI’s “sweeping subpoena”
would require GMR to “sift through virtually every document in its files,” it is “prima facie
improper.” S.N. Phelps & Co. v. Circle K. Corp. (In re Circle K Corp.), 199 B.R. 92, 102
(Bankr. S.D.N.Y. 1996).
Complying with the Subpoena would cost tens of thousands of dollars and strain GMR’s
already-lean staff. (Grimmett Decl. ¶ 35.) To comply with the Subpoena, GMR would have to
search through the emails of every current and former member of its staff involved in business
development and licensing. (Id. ¶ 36) This would require those employees to comb through
years’ worth of emails to identify every potentially responsive document—an enormous
expenditure of time and resources that would detract from GMR’s ability to run its day-to-day
business. (Id.) Moreover, it is not uncommon for a single license negotiation to involve dozens
(if not hundreds) of separate communications. (Id. ¶ 37.) Responsive documents likely number
in the tens of thousands. (Id.) And because GMR negotiated and offered interim licenses in the
context of litigation, GMR would have to carefully review those documents and communications

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for privileged material. (Id.)
BMI’s Subpoena also implicates stringent confidentiality commitments to GMR’s clients
and licensees. All of GMR’s license agreements with radio station groups contain a
confidentiality provision, under which GMR must provide written notice before the agreement
can be produced. (Id. ¶ 38.) To comply with the Subpoena, GMR would have to separately
notify each radio group that has ever taken a license—by now hundreds of radio station groups—
that its confidential license agreement will be produced to BMI. (Id.) As most stations also pay
for BMI licenses, they may be reluctant to disclose their agreements to a rival PRO. (Id.) The
disclosure could very well impact GMR’s relationship with its licensees. (Id.)
Because the Subpoena would impose substantial, undue burdens on GMR, it should be
quashed in its entirety. Fed. R. Civ. P. 45(d)(3)(A)(iv).
V.

CONCLUSION
For the foregoing reasons, the Court should quash BMI’s Subpoena in full.

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Dated: New York, New York
August 27, 2018

By: /s/ Leah Godesky
LEAH GODESKY
lgodesky@omm.com
O’MELVENY & MYERS LLP
7 Times Square
New York, New York 10036
Telephone: (212) 326-2000
Facsimile: (212) 326-2061
DANIEL M. PETROCELLI
dpetrocelli@omm.com
DAVID MARROSO
dmarroso@omm.com
STEPHEN J. MCINTYRE
smcintyre@omm.com
O’MELVENY & MYERS LLP
1999 Avenue of the Stars
Los Angeles, California 90067
Telephone: (310) 553-6700
Facsimile: (310) 246-6779
Attorneys for Global Music Rights, LLC

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