Crispin v. Christian Audigier Inc.

Decision Date26 May 2010
Docket NumberCase No. CV 09-09509 MMM (JEMx)
Citation717 F.Supp.2d 965
CourtU.S. District Court — Central District of California
PartiesBuckley H. CRISPIN, an individual, Plaintiff, v. CHRISTIAN AUDIGIER, INC., a California corporation; Nervous Tattoo, Inc., a California corporation, Shop on Stage, Inc., a California corporation, Christian Audigier, an individual; 3A Watch, LLC, a California limited liability company, Radiance Jewelry, Inc., a California corporation; Chromebones, a business entity of unknown form, Revolution Eyewear, Inc., a California corporation, CA Beverages, LLC, a California limited liability company, JR 93 Inc., a California corporation; New Wave Fragrances, a business entity of unknown form; Le Marais LLC, a California limited liability company; Mood Signatures LLC, a California limited liability company; HTP Enterprise Trading, a California company of unknown form; Sea and Sure LLC, a California limited liability company; Tattoo Drink, Inc., a California corporation; Tattoo Air Fresh, Inc., a California corporation; and Does 1-10, inclusive, Defendants.

Scott A. Burroughs, Stephen M. Doniger, Doniger Burroughs APC, Culver City, CA, for Plaintiff.

Michael A. Bowse, Browne Woods George LLP, Los Angeles, CA, J. Joseph Connolly, III, John M. Moscarino, Moscarino & Connolly LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR REVIEW OF MAGISTRATE JUDGE'S DECISION RE PLAINTIFF'S MOTION TO QUASH SUBPOENA

MARGARET M. MORROW, District Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Buckley Crispin filed this action on December 29, 2009 against Christian Audigier, Christian Audigier, Inc. ("CAI"), and their various sublicensees.1 On March 19, 2010, Crispin filed a first amended complaint.2 Crispin alleges that between November 2005 and January 2006, he granted Audigier and CAI an oral license to use certain of his works of art in a limited manner in connection with the manufacture of certain types of garments.3 The agreement purportedly required Audigier and CAI to pay a specified sum for the right to reproduce each work of art on street-wear apparel and also required that they include Crispin's logo on each garment. 4 Crispin alleges that Audigier and CAI have not only failed to include his logo on a substantial quantity of apparel bearing his artwork, but at times they attributed the artwork to another artist or to Audigier himself. 5 Crispin alleges that Audigier and CAI also violated his rights by sublicensing his artwork without obtaining his consent. He asserts that the artwork has now been used on jewelry, watches, shoes, pet accessories, luggage, sunglasses, swimwear, denim, wine bottles, and a variety of other products that are purportedly outside the scope of the limited oral license.6

Crispin pleads five causes of action: (1) breach of contract against CAI and Audigier; (2) copyright infringement against all defendants; (3) breach of the covenant of good faith and fair dealing against Audigier and CAI; (4) declaratory relief regarding the works of art against all defendants; and (5) constructive trust against all defendants.

On February 10, 2010, defendants served subpoenas duces tecum on four third-party businesses and social networking websites: Black Market Art Company, Facebook, Media Temple, Inc, and MySpace,Inc.7 The subpoenas directed to the latter three businesses sought Crispin's basic subscriber information, as well as all communications between Crispin and tattoo artist Bryan Callan, and all communications that referred or related to Audigier, CAI, the Ed Hardy brand, or any of the sublicensee defendants.8 Audigier and CAI contend that this information is relevant in determining the nature and terms of the agreement, if any, into which Crispin and Audigier entered. The subpoena directed to Black Market Art Company sought sales information for all apparel that incorporated artwork created by Crispin and that was sold through Black Market's website. Audigier and CAI contend this information is relevant to the measure of damages should Crispin prevail on the merits.

On February 24, 2010, Crispin filed an ex parte motion to quash the subpoenas that was heard by Judge John E. McDermott. Crispin raised three arguments regarding the subpoenas served on Media Temple, Facebook, and MySpace: (1) that they sought electronic communications that third-party Internet Service Providers ("ISPs") 9 are prohibited from disclosing under the Stored Communications Act ("SCA"), 18 U.S.C. § 2701(a)(1); (2) that the subpoenas were otherwise overbroad in that they required disclosure of information protected by the marital privilege, the attorney-client privilege, the trade secret doctrine, and Crispin's privacy rights; and (3) that the subpoenas sought irrelevant information because copyright ownership cannot be transferred without a writing nor may parties enter into a sublicense without a writing and communications revealing Crispin's understanding of his arrangement with CAI and Audigier would not change the fact that the agreement was not reduced to writing.10

Judge McDermott rejected each of Crispin's arguments. With respect to the argument that the information would be irrelevant because the Copyright Act does not permit an oral transfer of rights, Judge McDermott noted that a nonexclusive license is not a transfer of ownership and does not require a writing. He held that, because the nature of the transfer is the issue in this case and because the subpoenas seek information regarding that subject, the relevance objection was not well taken.11

Judge McDermott concluded that the SCA did not apply because that Act reaches only electronic communication service ("ECS") providers and third-party businesses are not ECS providers as defined in the statute. Judge McDermott also concludedthat the SCA prohibits only the voluntary disclosure of information by ECS providers, not disclosure compelled by subpoena. Finally, Judge McDermott found that the SCA prohibits only the disclosure of communications held in "electronic storage" by the ECS provider, and that the materials were not in electronic storage as that term is defined in the statute.12

Judge McDermott rejected Crispin's generalized overbreadth and privacy arguments because he provided "no declaration or basis for these assertions, [did not] explain[ ] or support[ ] his trade secret argument, and the subpoenas expressly exclude[d] communications with Crispin's attorney." 13 Judge McDermott held, however, that the request for all communications between Crispin and Callan, regardless of the subject matter, was overbroad; he noted that such discovery might be an effort to gain information related to a separate lawsuit Callan filed against Audigier.

Crispin argued that the Black Market subpoena sought information regarding artwork sold through Black Market that is not the subject of this lawsuit. Judge McDermott credited Audigier's and CAI's argument that the sale of products through Black Market that are designed by Crispin but do not bear Audigier's brand would help resolve whether and to what extent sales of Audigier products bearing Crispin designs are driven by Audigier's brand or Crispin's design. He quashed two requests, which collectively sought all communications regarding Crispin or his artwork, as overbroad and not tied to claims or defenses in the lawsuit. Judge McDermott requested additional briefing regarding Black Market's payments to Crispin, noting Crispin's interest in not revealing payments he received to the general public. Judge McDermott also noted that it was not immediately obvious why Crispin's profit was relevant.14

Plaintiff has timely moved for reconsideration of Judge McDermott's decision insofar as it concludes that Media Temple, Facebook, and MySpace are not subject to the SCA.

II. DISCUSSION
A. Legal Standard For Review Of Magistrate Judge's Order

A magistrate judge has authority to hear matters that are not dispositive of a claim or defense. See Fed.R.Civ.Proc. 72. These include discovery motions. See Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir.1991) ("Nondispositive issues include discovery sanctions"); Hoar v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990) ("Matters concerning discovery generally are considered 'nondispositive' of the litigation"). Under Rule 72(a), a party may serve and file objections to a magistrate judge's order that concerns a nondispositive pretrial matter "[w]ithin 10 days after being served with a copy of the magistrate judge's order." Fed.R.Civ.Proc. 72(a); see CA CD L.R. 72-2.1 ("Any party objecting under F.R.Civ.P. 72(a) to a Magistrate Judge's ruling on a pretrial matter not dispositive of a claim or defense must file a motion for review ... within ten (10) days of an oral ruling which the Magistrate Judge indicates will not be followed by a written ruling, or within ten (10) days of service of a written ruling").

Normally, a magistrate judge's order can be reversed by the district court only if it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.Proc. 72(a); Bhan, 929 F.2d at 1414.The clearly erroneous standard, which applies to a magistrate judge's findings of fact, is "significantly deferential, requiring 'a definite and firm conviction that a mistake has been committed.' " Concrete Pipe & Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993); see Security Farms v. International Brotherhood of Teamsters, 124 F.3d 999, 1014 (9th Cir.1997); see also Grimes v. City and County of San Francisco, 951 F.2d 236, 240 (9th Cir.1991) (holding that discovery sanctions are non-dispositive pretrial matters that are reviewed for clear error under Rule 72(a)). By contrast, "[t]he 'contrary to law' standard ... permits independent review of purely legal determinations by the magistrate judge." F.D.I.C. v. Fidelity & Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D.Cal.2000) (citing Haines v. Liggett Group, Inc.,...

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