Keep On Kicking Music, Inc v. Universal Music Group, Inc.

Background

The court reviewed the parties’ joint letter, filed as a request for a discovery conference under Local Civil Rule 37.2. The Universal Defendants sought an order requiring third-party defendant Robert Martino to produce a complete copy of text messages with Marc Chetata, some of which had been redacted based on privilege, and to take additional steps to obtain bank records concerning his receipt of a $10,000 payment from Jerry Duplessis in or around 2018.

Text-message communications

The court required Martino to serve the Universal Defendants and submit to the court, by July 22, 2025, a supplemental privilege log complying with Local Civil Rule 26.2. The court explained that each message in a text-message thread is a separate communication and that the log therefore must include an entry for each withheld message. Each entry must identify the attorneys involved or referenced, the clients represented by those attorneys, and the subject matter of the allegedly privileged communication. The information could be provided through individual entries or a key listing the relevant individuals, titles, affiliations, and roles.

Martino also had to submit a letter brief explaining why disclosure of allegedly privileged attorney-client communications between him and Chetata did not waive any otherwise applicable privilege. The court said it would address the privilege issue at the status conference scheduled for August 7, 2025, after reviewing Martino’s supplemental privilege log.

2018 bank records

The Universal Defendants sought the bank records through a request for production. The court stated that the party seeking documents generally bears the burden of showing that the opposing party controls them. It found that a party who cannot obtain bank records through ordinary procedures generally need not use extraordinary efforts to obtain them when the requesting party can use a subpoena against the bank.

The court was not convinced that Martino had fully pursued the records. Because Bank of America stated that customers could obtain statements for up to seven years, the court concluded that Martino should be able to request statements dating back to July 2018. The court therefore required him, promptly and with counsel’s assistance if necessary, to make another good-faith effort to obtain those records through the bank’s ordinary procedures. He had to review and produce records reflecting the $10,000 payment by July 25, 2025.

The court did not require Martino or his lawyer to work directly with the bank to reconstruct records that could not be obtained through ordinary procedures, or to provide an affidavit from the bank confirming the payment. If Martino could not access records dating back to July 2018, he had to provide the Universal Defendants by July 25, 2025, with a declaration or other admissible evidence describing his efforts and explaining why he could not obtain them. The Universal Defendants could subpoena the bank themselves.

Disposition

The court’s order granted in part and denied in part the Universal Defendants’ letter-motion. It imposed the supplemental privilege-log and letter-brief requirements, ordered the additional bank-record effort and production described above, and directed the Clerk of Court to close the motion at Docket 157. Judge Barbara Moses did not resolve the text-message privilege dispute in this order; the parties were directed to be prepared to discuss it at the August 7 conference.