Case 2:21-cv-08157-JAK-RAO Document 59 Filed 11/13/23 Page 1 of 7 Page ID #:572
`DavisWright
`LJ TremaineLLP
`
`865 South Figueroa Street
`865 South Figueroa Street
`24th Floor
`24" Floor
`Los Angeles, CA 90017-2566
`Los Angeles, CA 90017-2566
`(213) 633-6800
`(213)633-6800
`
`Peter Anderson, Esq.
`Peter Anderson, Esq.
`peteranderson@dwt.com
`peteranderson@cvt.com
`Sean M. Sullivan, Esq.
`Sean AA. Sullivan, Esq.
`seansullivan@dwt.com
`seansullivan@dwtcom
`Eric H. Lamm, Esq.
`Eric H. Lamm, Esq.
`ericlamm@dwt.com
`ericlamm@dwt.com
`Samuel A. Turner, Esq.
`Samuel A. Turner, Esq.
`samturner@dwt.com
`samtumer@dvetcom
`
`November 13, 2023
`November 13, 2023
`
`The Honorable Rozella A. Oliver
`The Honorable Rozella A. Oliver
`United States Magistrate Judge
`United States Magistrate Judge
`Roybal Federal Building and United States Courthouse
`Roybal Federal Building and United States Courthouse
`255 E. Temple St., Los Angeles, CA, 90012
`255 E. Temple St., Los Angeles, CA, 90012
`Courtroom 590, 5th Floor
`Courtroom 590, 5th Floor
`
`Re:
`Re:
`
`Cher v. Bono, et al., Case No. 2:21-CV-08157 JAK (RAOx)
`Cher v. Bono, et al., Case No. 2:21-CV-08157 JAK (RAOx)
`
`Dear Magistrate Judge Oliver:
`Dear Magistrate Judge Oliver:
`
`Pursuant to the Court’s November 6, 2023 Order (Doc. 57), plaintiff and counterdefendant
`Pursuant to the Court's November 6, 2023 Order (Doc. 57), plaintiff and c,ounterdefendant
`Cher respectfully submits this letter brief in support of her informal discovery motion requesting
`Cher respectfully submits this letter brief in support of her informal discovery motion requesting
`that the Court overrule the attorney-client privilege and work product doctrine objections of
`that the Court overrule the attorney-client privilege and work product doctrine objections of
`defendant and counterclaimant Mary Bono to the production of her and her counsel’s
`defendant and counterclaimant Mary Bono to the production of her and her counsel's
`communications with third parties.
`communications with third parties.
`
`1.
`1.
`
`Relevant Background
`Relevant Background
`
`In 1978 and as part of their division of community property following the dissolution of
`In 1978 and as part of their division of community property following the dissolution of
`their marriage, Sonny Bono assigned to Cher, among other things, fifty percent of all musical
`their marriage, Sonny Bono assigned to Cher, among other things, fifty percent of all musical
`composition royalties that he, his successors, or heirs received from any source with respect to
`composition royalties that he, his successors, or heirs received from any source with respect to
`musical compositions Sonny authored, co-authored, or acquired prior to their separation. Cher’s
`musical compositions Sonny authored, co-authored, or acquired prior to their separation. Cher's
`right to those royalties is confirmed in their 1978 Marriage Settlement Agreement (the “MSA,”
`right to those royalties is confirmed in their 1978 Marriage Settlement Agreement (the "MSA,"
`Ex. 2 at 6-8, ¶ 10(d)), the 1978 State Court Judgment in their dissolution proceeding (Ex. 3 at 6-7
`Ex. 2 at 6-8, ¶ 10(d)), the 1978 State Court Judgment in their dissolution proceeding (Ex. 3 at 6-7
`¶ 7D), and in the 1999 Creditor’s Claim Agreement entered into by Cher and Ms. Bono in the
`¶ 7D), and in the 1999 Creditor's Claim Agreement entered into by Cher and Ms. Bono in the
`probate of Sonny’s estate after his death in 1998 (Ex. 4). These royalties are generally hundreds
`probate of Sonny's estate after his death in 1998 (Ex. 4). These royalties are generally hundreds
`of thousands of dollars per year.
`of thousands of dollars per year.
`
`In the Creditor’s Claim Agreement, Cher and Ms. Bono agreed to cooperate in “the
`In the Creditor's Claim Agreement, Cher and Ms. Bono agreed to cooperate in "the
`collection and proper disbursement of such royalties,” and in 2011, they (through their respective
`collection and proper disbursement of such royalties," and in 2011, they (through their respective
`trusts) jointly engaged Wixen Music Publishing, Inc. (“Wixen”) as their “agent” to, among others
`trusts) jointly engaged Wixen Music Publishing, Inc. ("Wixen") as their "agent" to, among others
`things, collect and disburse those royalties on their behalves, pursuant to three written agreements,
`things, collect and disburse those royalties on their behalves, pursuant to three written agreements,
`
`DWT.COM
`
`1
`1
`
`

`

`Case 2:21-cv-08157-JAK-RAO Document 59 Filed 11/13/23 Page 2 of 7 Page ID #:573
`
`The Honorable Rozella A. Oliver
`The Honorable Rozella A. Oliver
`November 13, 2023
`November 13, 2023
`
`a Collection Agreement, Administration Agreement, and Promotion Agreement (collectively, the
`a Collection Agreement, Administration Agreement, and Promotion Agreement (collectively, the
`“Agreements”). See Exs. 5-7.1
`"Agreements"). See Exs. 5-7.1
`
`Section 304(c) of the Copyright Act provides that a deceased author’s surviving spouse
`Section 304(c) of the Copyright Act provides that a deceased author's surviving spouse
`and other heirs may, under certain circumstances, terminate the author’s pre-January 1, 1978 grants
`and other heirs may, under certain circumstances, terminate the author's pre-January 1, 1978 grants
`of copyrights or copyright rights. 17 U.S.C. § 304(c). In 2016, Ms. Bono and her two children
`of copyrights or copyright rights. 17 U.S.C. § 304(c). In 2016, Ms. Bono and her two children
`served on grantees of Sonny’s pre-1978 grants, a Section 304(c) notice terminating those copyright
`served on grantees of Sonny's pre-1978 grants, a Section 304(c) notice terminating those copyright
`grants, with the earliest terminations beginning in 2018 and then continuing through 2026. Ex. 8.
`grants, with the earliest terminations beginning in 2018 and then continuing through 2026. Ex. 8.
`Neither the 1978 MSA, the 1978 State Court Judgment, nor the 1999 Creditor’s Claim Agreement
`Neither the 1978 MSA, the 1978 State Court Judgment, nor the 1999 Creditor's Claim Agreement
`pre-date January 1, 1978. Neither are they grants of copyrights or copyright rights—the right to
`pre-date January 1, 1978. Neither are they grants of copyrights or copyright rights—the right to
`receive royalties is not a copyright right2—and Ms. Bono’s notice of termination does not mention
`receive royalties is not a copyright right2—and Ms. Bono's notice of termination does not mention
`them and was not served on Cher. Also, Section 304(c)(6)(E) states that “[t]ermination of a grant
`them and was not served on Cher. Also, Section 304(c)(6)(E) states that "[t]ermination of a grant
`under this subsection … in no way affects rights arising under any other Federal, State, or foreign
`under this subsection ... in no way affects rights arising under any other Federal, State, or foreign
`laws.” 17 U.S.C. § 304(c)(6)(E). So, not surprisingly, the District Judge has ruled at the pleading
`laws." 17 U.S.C. § 304(c)(6)(E). So, not surprisingly, the District Judge has ruled at the pleading
`level that Ms. Bono’s notice of termination did not terminate Cher’s rights to fifty percent of the
`level that Ms. Bono's notice of termination did not terminate Cher's rights to fifty percent of the
`composition royalties.3
`composition royalties.3
`
`However, in September 2021, Ms. Bono’s lawyer disclosed to Cher’s transactional counsel
`However, in September 2021, Ms. Bono's lawyer disclosed to Cher's transactional counsel
`that at Ms. Bono’s direction, her and Cher’s agent, Wixen, secretly had begun diverting to Ms.
`that at Ms. Bono's direction, her and Cher's agent, Wixen, secretly had begun diverting to Ms.
`Bono Cher’s fifty percent of the composition royalties, on the specious ground that Ms. Bono’s
`Bono Cher's fifty percent of the composition royalties, on the specious ground that Ms. Bono's
`Section 304(c) notice terminated Cher’s right to fifty percent of those royalties—nearly $190,000
`Section 304(c) notice terminated Cher's right to fifty percent of those royalties—nearly $190,000
`has been diverted and far more is in a separate account pending the outcome of this litigation. On
`has been diverted and far more is in a separate account pending the outcome of this litigation. On
`October 13, 2021, Cher filed this action for a declaration that Ms. Bono’s notice did not affect
`October 13, 2021, Cher filed this action for a declaration that Ms. Bono's notice did not affect
`Cher’s rights and for breach of contract. She also filed a State action against Wixen, but her claims
`Cher's rights and for breach of contract. She also filed a State action against Wixen, but her claims
`against Wixen have effectively been placed on hold pending this action.
`against Wixen have effectively been placed on hold pending this action.
`
`In the course of discovery, Cher sought e-mails and other written communications between
`In the course of discovery, Cher sought e-mails and other written communications between
`Ms. Bono and Wixen and one of the terminated grantees, Warner Chappell Music Publishing, Inc.
`Ms. Bono and Wixen and one of the terminated grantees, Warner Chappell Music Publishing, Inc.
`(“Warner Chappell”), between 2016 and the filing of this action in October 2021, regarding Ms.
`("Warner Chappell"), between 2016 and the filing of this action in October 2021, regarding Ms.
`Bono’s notice of termination, its supposed effect on Cher’s rights, and the diversion of Cher’s
`Bono's notice of termination, its supposed effect on Cher's rights, and the diversion of Cher's
`royalties. Cher also questioned Ms. Bono, and Wixen’s lay principal, Randall Wixen, at their
`royalties. Cher also questioned Ms. Bono, and Wixen's lay principal, Randall Wixen, at their
`depositions about these subjects. However, Ms. Bono withheld the communications and she and
`depositions about these subjects. However, Ms. Bono withheld the communications and she and
`Mr. Wixen were instructed not to answer the deposition questions, on the ground that Mr. Wixen
`Mr. Wixen were instructed not to answer the deposition questions, on the ground that Mr. Wixen
`was her agent and, as a result, her and her lawyer’s communications with Wixen—which is not
`was her agent and, as a result, her and her lawyer's communications with Wixen—which is not
`represented by Ms. Bono’s lawyer—are protected by the attorney-client privilege and work
`represented by Ms. Bono's lawyer—are protected by the attorney-client privilege and work
`
`1
`Ms. Bono has designated Exhibits 5, 6, 7, 11 as CONFIDENTIAL under the parties’ Stipulated Protective
`1
`Ms. Bono has designated Exhibits 5, 6, 7, 11 as CONFIDENTIAL under the parties' Stipulated Protective
`Order (Doc. 38). Accordingly, these documents have not been filed, but have been emailed to Chambers separately.
`Order (Doc. 38). Accordingly, these documents have not been filed, but have been emailed to Chambers separately.
`See, e.g., Broadcast Music, Inc. v. Hirsch, 104 F.3d 1163, 1166 (9th Cir. 1997) (assignments of royalty
`2
`2
`See, e.g., Broadcast Music, Inc. v. Hirsch, 104 F.3d 1163, 1166 (9th Cir. 1997) (assignments of royalty
`interests have “no relationship to the existence … of a copyright, nor to ‘rights under a copyright.’”).
`interests have "no relationship to the existence ... of a copyright, nor to `rights under a copyright.").
`See Mar. 14, 2023, Order (Doc. 43) at 8. Much of that Order deals with whether Ms. Bono’s notice of
`3
`3
`See Mar. 14, 2023, Order (Doc. 43) at 8. Much of that Order deals with whether Ms. Bono's notice of
`termination terminated Cher’s rights to a different stream of royalties: record royalties under recording contracts.
`termination terminated Cher's rights to a different stream of royalties: record royalties under recording contracts.
`However, Ms. Bono has admitted that her notice did not mention the recording contracts.
`However, Ms. Bono has admitted that her notice did not mention the recording contracts.
`
`2
`2
`
`

`

`Case 2:21-cv-08157-JAK-RAO Document 59 Filed 11/13/23 Page 3 of 7 Page ID #:574
`
`The Honorable Rozella A. Oliver
`The Honorable Rozella A. Oliver
`November 13, 2023
`November 13, 2023
`
`product immunity.4 There is no dispute that this discovery is relevant and, accordingly, the discrete
`product immunity.4 There is no dispute that this discovery is relevant and, accordingly, the discrete
`issue is whether the attorney-client privilege and work product immunity apply.
`issue is whether the attorney-client privilege and work product immunity apply.
`
`2.
`2.
`
`The Communications Are within the Scope of Discovery Under Rule 26
`The Communications Are within the Scope of Discovery Under Rule 26
`
`As a threshold matter, the communications are discoverable under Federal Rule of Civil
`As a threshold matter, the communications are discoverable under Federal Rule of Civil
`Procedure 26. Rule 26(b) provides that discovery extends to “matter that is relevant to any party’s
`Procedure 26. Rule 26(b) provides that discovery extends to "matter that is relevant to any party's
`claim or defense and proportional to the needs of the case.” Ms. Bono’s written and oral
`claim or defense and proportional to the needs of the case." Ms. Bono's written and oral
`communications with Wixen regarding the misuse of the notice of termination to cause the
`communications with Wixen regarding the misuse of the notice of termination to cause the
`diversion of Cher’s royalties is directly relevant to Cher’s claims that Ms. Bono did exactly that.
`diversion of Cher's royalties is directly relevant to Cher's claims that Ms. Bono did exactly that.
`And Ms. Bono does not contend that she would be unduly burdened by producing the
`And Ms. Bono does not contend that she would be unduly burdened by producing the
`communications—she has already identified them in privilege logs—or by the completion of her
`communications-she has already identified them in privilege logs—or by the completion of her
`and Mr. Wixen’s depositions as to the questions they were instructed not to answer on privilege
`and Mr. Wixen's depositions as to the questions they were instructed not to answer on privilege
`grounds.
`grounds.
`
`3.
`3.
`
`The Communications Are Not Protected by the Attorney-Client Privilege
`The Communications Are Not Protected by the Attorney-Client Privilege
`
`Ms. Bono contends that the attorney-client privilege shields communications between Ms.
`Ms. Bono contends that the attorney-client privilege shields communications between Ms.
`Bono and/or her attorneys, on the one hand, and Wixen, on the other, because the privilege may
`Bono and/or her attorneys, on the one hand, and Wixen, on the other, because the privilege may
`extend to communications with third parties acting as her agents and, under the 2011 agreements,
`extend to communications with third parties acting as her agents and, under the 2011 agreements,
`Wixen was her agent. But Wixen also was Cher’s agent at the same time, and Ms. Bono offers no
`Wixen was her agent. But Wixen also was Cher's agent at the same time, and Ms. Bono offers no
`explanation of her withholding of communications with Warner Chappell.
`explanation of her withholding of communications with Warner Chappell.
`
`(a)
`(a)
`
`The Attorney Client Privilege Does Not Apply to Ms. Bono’s
`The Attorney Client Privilege Does Not Apply to Ms. Bono's
`Communications with Cher’s Agent, Wixen, and Warner Chappell
`Communications with Cher's Agent, Wixen, and Warner Chappell
`
`In the Ninth Circuit, courts analyzing whether communications are shielded by the
`In the Ninth Circuit, courts analyzing whether communications are shielded by the
`attorney-client privilege utilize an eight-part test, which requires, among other things, that the
`attorney-client privilege utilize an eight-part test, which requires, among other things, that the
`communications be “made in confidence.” United States v. Sanmina Corp., 968 F.3d 1107, 1116
`communications be "made in confidence." United States v. Sanmina Corp., 968 F.3d 1107, 1116
`(9th Cir. 2020) (citation omitted). The “decisive inquiry” is “whether the client reasonably
`(9th Cir. 2020) (citation omitted). The "decisive inquiry" is "whether the client reasonably
`understood the conference to be confidential.” Griffith v. Davis, 161 F.R.D. 687, 695 (C.D. Cal.
`understood the conference to be confidential." Griffith v. Davis, 161 F.R.D. 687, 695 (C.D. Cal.
`1995) (quoting Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir. 1984)); MCCORMICK ON EVIDENCE
`1995) (quoting Kevlik v. Goldstein, 724 F.2d 844, 849 (1st Cir. 1984)); MCCORMICK ON EVIDENCE
`§ 91 at 189 (2022). Here, Ms. Bono could not have reasonably understood that her and her
`§ 91 at 189 (2022). Here, Ms. Bono could not have reasonably understood that her and her
`counsel’s communications were in confidence because Wixen is Cher’s agent too.
`counsel's communications were in confidence because Wixen is Cher's agent too.
`
`As discussed above, it is undisputed that Cher and Ms. Bono jointly engaged Wixen as
`As discussed above, it is undisputed that Cher and Ms. Bono jointly engaged Wixen as
`their agent when they co-signed the Agreements in 2011. The existence of this relationship is
`their agent when they co-signed the Agreements in 2011. The existence of this relationship is
`evidenced by the Wixen Collection Agreement and Wixen Promotion Agreement, which expressly
`evidenced by the Wixen Collection Agreement and Wixen Promotion Agreement, which expressly
`refer to Wixen as an “agent” of both parties. Exs. 5 at 2 § 1(a), 7 at 5 § 4(c)(iii). Randall Wixen
`refer to Wixen as an "agent" of both parties. Exs. 5 at 2 § 1(a), 7 at 5 § 4(c)(iii). Randall Wixen
`
`Wixen has taken no position on the privilege objection and Wixen’s counsel made it clear he instructed Mr.
`4
`4
`Wixen has taken no position on the privilege objection and Wixen's counsel made it clear he instructed Mr.
`Wixen not to answer questions only because Ms. Bono’s lawyer asked him to, and Wixen’s counsel has agreed to
`Wixen not to answer questions only because Ms. Bono's lawyer asked him to, and Wixen's counsel has agreed to
`abide by the Court’s determination whether the privileges apply as Ms. Bono claims. Id. at 16:14-24; 126:18-130:9.
`abide by the Court's determination whether the privileges apply as Ms. Bono claims. Id. at 16:14-24; 126:18-130:9.
`
`3
`3
`
`

`

`Case 2:21-cv-08157-JAK-RAO Document 59 Filed 11/13/23 Page 4 of 7 Page ID #:575
`
`The Honorable Rozella A. Oliver
`The Honorable Rozella A. Oliver
`November 13, 2023
`November 13, 2023
`
`also stated that “[a]s a representative of both Cher and Mary, [he] really shouldn’t be advocating
`also stated that "[a]s a representative of both Cher and Mary, [he] really shouldn't be advocating
`one party’s POV to the other.” Ex. 10. Indeed, Ms. Bono’s attorney-client privilege argument is
`one party's POV to the other." Ex. 10. Indeed, Ms. Bono's attorney-client privilege argument is
`premised on Wixen being an agent pursuant to the Agreements. She simply turns a blind eye to
`premised on Wixen being an agent pursuant to the Agreements. She simply turns a blind eye to
`the fact that, under those Agreements, Wixen was a joint agent for Cher with respect to the same
`the fact that, under those Agreements, Wixen was a joint agent for Cher with respect to the same
`services.
`services.
`
`While it is black-letter law that an agent owes a duty of disclosure to its principal, the
`While it is black-letter law that an agent owes a duty of disclosure to its principal, the
`Agreements provide they are governed by California law (see Exs. 5 at 9 § 17(d), 6 at 8 § 14(d), 7
`Agreements provide they are governed by California law (see Exs. 5 at 9 § 17(d), 6 at 8 § 14(d), 7
`at 7 § 9(d)), and California law is clear that “an agent is required to disclose to the principal all
`at 7 § 9(d)), and California law is clear that "an agent is required to disclose to the principal all
`information relevant to the subject matter of the agency.” 3 B. WITKIN, SUMMARY OF CALIFORNIA
`information relevant to the subject matter of the agency." 3 B. WrnaN, SUMMARY OF CALIFORNIA
`LAW, Agency § 106 (11th Ed. 2023); see, e.g., O’Riordan v. Fed. Kemper Life Assurance Co., 36
`LAW, Agency § 106 (11th Ed. 2023); see, e.g., 0 'Riordan v. Fed. Kemper Life Assurance Co., 36
`Cal. 4th 281, 288 (2005) (“Once he became Kemper’s agent, Hoyme had a duty to disclose to
`Cal. 4th 281, 288 (2005) ("Once he became Kemper's agent, Hoyme had a duty to disclose to
`Kemper any material information he had pertaining to [subject of agency], and Kemper is deemed
`Kemper any material information he had pertaining to [subject of agency], and Kemper is deemed
`to have knowledge of such facts”). As the subject matter of Wixen’s agency with Cher is Cher’s
`to have knowledge of such facts"). As the subject matter of Wixen's agency with Cher is Cher's
`royalty and related approval rights, Wixen was obligated to disclose to Cher that, for example, Ms.
`royalty and related approval rights, Wixen was obligated to disclose to Cher that, for example, Ms.
`Bono and Wixen would claim they no longer existed and divert Cher’s royalties. Accordingly,
`Bono and Wixen would claim they no longer existed and divert Cher's royalties. Accordingly,
`Ms. Bono could not reasonably have believed that her or her counsel’s communications with
`Ms. Bono could not reasonably have believed that her or her counsel's communications with
`Wixen regarding these rights would be kept secret from Cher.
`Wixen regarding these rights would be kept secret from Cher.
`
`From 2016 through October 2021, Ms. Bono, often with her lawyer, convinced Cher’s
`From 2016 through October 2021, Ms. Bono, often with her lawyer, convinced Cher's
`agent, Wixen, to divert Cher’s royalties. There is no co-conspirator privilege and there is no merit
`agent, Wixen, to divert Cher's royalties. There is no co-conspirator privilege and there is no merit
`to Ms. Bono’s argument that these communications are protected by her attorney-client privilege.
`to Ms. Bono's argument that these communications are protected by her attorney-client privilege.
`
`(b)
`(b)
`
`There Is No Merit to Ms. Bono’s Arguments to Keep Her Relevant
`There Is No Merit to Ms. Bono's Arguments to Keep Her Relevant
`Communications Secret
`Communications Secret
`
`First, Ms. Bono cites Skidmore v. Led Zeppelin for the proposition that “a music publisher
`First, Ms. Bono cites Skidmore v. Led Zeppelin for the proposition that "a music publisher
`does not have a fiduciary relationship with its composers, absent special circumstances.” 952 F.3d
`does not have a fiduciary relationship with its composers, absent special circumstances." 952 F.3d
`1051, 1078 (9th Cir. 2020). This argument is a red herring. Cher is not Wixen’s composer and,
`1051, 1078 (9th Cir. 2020). This argument is a red herring. Cher is not Wixen's composer and,
`unlike most music publishers, including in Skidmore, Wixen does not own the copyrights
`unlike most music publishers, including in Skidmore, Wixen does not own the copyrights
`exploited. See Ex. 6 at 3 § 2(c). Further, special circumstances exist here because Wixen did more
`exploited. See Ex. 6 at 3 § 2(c). Further, special circumstances exist here because Wixen did more
`than “collect[ ] royalties and pass[ ] them on” to Cher and Ms. Bono. Faulkner v. Arista Recs.
`than "collect[ ] royalties and pass[ ] them on" to Cher and Ms. Bono. Faulkner v. Arista Recs.
`LLC, 602 F. Supp. 2d 470, 482 (S.D.N.Y. 2009) (record company, like music publishers, not a
`LLC, 602 F. Supp. 2d 470, 482 (S.D.N.Y. 2009) (record company, like music publishers, not a
`fiduciary if it only collects monies and pays royalties). Wixen was granted broad administration
`fiduciary if it only collects monies and pays royalties). Wixen was granted broad administration
`rights “on behalf of [Cher and Ms. Bono]” (Ex. 6 at 2-3 § 2) and authorized Wixen to promote
`rights "on behalf of [Cher and Ms. Bono]" (Ex. 6 at 2-3 § 2) and authorized Wixen to promote
`Sonny & Cher, their recordings, and pursue new Sonny & Cher projects (Ex. 7 at 1, Recitals, 2-3,
`Sonny & Cher, their recordings, and pursue new Sonny & Cher projects (Ex. 7 at 1, Recitals, 2-3,
`¶ 1).
`¶ 1).
`
`Also, the agreements expressly refer to Wixen as Cher’s and Ms. Bono’s agent and under
`Also, the agreements expressly refer to Wixen as Cher's and Ms. Bono's agent and under
`California law, which governs the agreements, an agent owes a duty of disclosure to its principals.
`California law, which governs the agreements, an agent owes a duty of disclosure to its principals.
`O’Riordan, 36 Cal. 4th at 288. Furthermore, Wixen acted on behalf of and subject to the
`0 'Riordan, 36 Cal. 4th at 288. Furthermore, Wixen acted on behalf of and subject to the
`substantial control of Ms. Bono and Cher. See, e.g., Ex. 5 at 3 ¶ 4, 4 ¶ 5. That makes it an agent
`substantial control of Ms. Bono and Cher. See, e.g., Ex. 5 at 3 ¶ 4, 4 ¶ 5. That makes it an agent
`under California law. McCollum v. Friendly Hills Travel Center, 172 Cal. App. 3d 83, 90-91
`under California law. McCollum v. Friendly Hills Travel Center, 172 Cal. App. 3d 83, 90-91
`
`4
`4
`
`

`

`Case 2:21-cv-08157-JAK-RAO Document 59 Filed 11/13/23 Page 5 of 7 Page ID #:576
`
`The Honorable Rozella A. Oliver
`The Honorable Rozella A. Oliver
`November 13, 2023
`November 13, 2023
`
`(1985). Ultimately, though, Ms. Bono’s argument is self-defeating because if Wixen was not
`(1985). Ultimately, though, Ms. Bono's argument is self-defeating because if Wixen was not
`Cher’s agent because the Agreements did not create a fiduciary relationship, then Wixen also was
`Cher's agent because the Agreements did not create a fiduciary relationship, then Wixen also was
`not Ms. Bono’s agent. As a result, Ms. Bono’s communications with Wixen were not with an
`not Ms. Bono's agent. As a result, Ms. Bono's communications with Wixen were not with an
`agent but with a third party and, accordingly, also were not confidential attorney-client
`agent but with a third party and, accordingly, also were not confidential attorney-client
`communications.
`communications.
`
`Second, Ms. Bono may argue that the fact she secretly entered into an agreement with
`Second, Ms. Bono may argue that the fact she secretly entered into an agreement with
`Wixen to divert Cher’s royalties, dated as of January 1, 2019 but signed in late January 2020 (Exs.
`Wixen to divert Cher's royalties, dated as of January 1, 2019 but signed in late January 2020 (Exs.
`11, 12), created a separate legal relationship with Wixen beyond her and Cher’s joint engagement
`11, 12), created a separate legal relationship with Wixen beyond her and Cher's joint engagement
`of Wixen under the Agreements. However, not only was that agreement kept secret from Cher,
`of Wixen under the Agreements. However, not only was that agreement kept secret from Cher,
`but it purports to supplant only the original 2011 Collection Agreement and then only as to Cher’s
`but it purports to supplant only the original 2011 Collection Agreement and then only as to Cher's
`royalty rights are supposedly terminated, song by song, from 2019 to 2026. Ex. 11 at 1, 2nd
`royalty rights are supposedly terminated, song by song, from 2019 to 2026. Ex. 11 at 1, 2nd
`Recital, & 1-2. As a result, despite that secret agreement, Wixen remained Cher’s agent under the
`Recital, & 1-2. As a result, despite that secret agreement, Wixen remained Cher's agent under the
`original 2011 Agreements, which Cher terminated only in October 2021.
`original 2011 Agreements, which Cher terminated only in October 2021.
`
`Ms. Bono knew that her communications with Wixen were not made in confidence because
`Ms. Bono knew that her communications with Wixen were not made in confidence because
`Wixen was her and Cher’s joint agent. As a result, Wixen owed Cher a duty to disclose their
`Wixen was her and Cher's joint agent. As a result, Wixen owed Cher a duty to disclose their
`communications. There is no merit to Ms. Bono’s claim of attorney-client privilege.
`communications. There is no merit to Ms. Bono's claim of attorney-client privilege.
`
`4.
`4.
`
`The Communications Also Are Not Protected by the Work Product Doctrine
`The Communications Also Are Not Protected by the Work Product Doctrine
`
`Ms. Bono asserts that the communications are also shielded by the work product doctrine.
`Ms. Bono asserts that the communications are also shielded by the work product doctrine.
`The work product doctrine “protects from discovery documents and tangible things prepared by a
`The work product doctrine "protects from discovery documents and tangible things prepared by a
`party or his representative in anticipation of litigation.” United States v. Christensen, 828 F.3d
`party or his representative in anticipation of litigation." United States v. Christensen, 828 F.3d
`763, 805 (9th Cir. 2016) (citation omitted), cert. denied, 580 U.S. 1049 (2017); Fed. R. Civ. P.
`763, 805 (9th Cir. 2016) (citation omitted), cert. denied, 580 U.S. 1049 (2017); Fed. R. Civ. P.
`26(b)(3)(A). The work product doctrine does not apply here because the communications were
`26(b)(3)(A). The work product doctrine does not apply here because the communications were
`not made in anticipation of litigation and Ms. Bono waived the privilege by disclosing the work
`not made in anticipation of litigation and Ms. Bono waived the privilege by disclosing the work
`product to Wixen.
`product to Wixen.
`
`(a)
`(a)
`
`The Communications Were Not Made in Anticipation of Litigation
`The Communications Were Not Made in Anticipation of Litigation
`
`Ms. Bono’s communications with Wixen and Warner Chappell regarding the notice of
`Ms. Bono's communications with Wixen and Warner Chappell regarding the notice of
`termination and Cher’s royalties or approval rights are not protected by the work product doctrine
`termination and Cher's royalties or approval rights are not protected by the work product doctrine
`because they were not “prepared in anticipation of litigation or for trial.” Fed. R. Civ. P.
`because they were not "prepared in anticipation of litigation or for trial." Fed. R. Civ. P.
`26(b)(3)(A).
`26(b)(3)(A).
`
`First, Ms. Bono has asserted the work product immunity as to communications with Wixen
`First, Ms. Bono has asserted the work product immunity as to communications with Wixen
`going back to 2016, when Ms. Bono served the notice of termination. And her privilege log lists
`going back to 2016, when Ms. Bono served the notice of termination. And her privilege log lists
`communications with Warner Chappell in July 2021. See Ex. 1 at 41, 43-44, 47. However, no
`communications with Warner Chappell in July 2021. See Ex. 1 at 41, 43-44, 47. However, no
`dispute arose until September 2021 when Cher’s representatives learned that Ms. Bono had gotten
`dispute arose until September 2021 when Cher's representatives learned that Ms. Bono had gotten
`Wixen to begin diverting Cher’s royalties, and objected to them doing so. And litigation was not
`Wixen to begin diverting Cher's royalties, and objected to them doing so. And litigation was not
`filed until October 2021. Ms. Bono has argued that while these communications involved getting
`filed until October 2021. Ms. Bono has argued that while these communications involved getting
`Wixen to accede to Ms. Bono’s view that the notice of termination affected Cher’s rights, she and
`Wixen to accede to Ms. Bono's view that the notice of termination affected Cher's rights, she and
`
`5
`5
`
`

`

`Case 2:21-cv-08157-JAK-RAO Document 59 Filed 11/13/23 Page 6 of 7 Page ID #:577
`
`The Honorable Rozella A. Oliver
`The Honorable Rozella A. Oliver
`November 13, 2023
`November 13, 2023
`
`her counsel also considered that Cher might object to her royalties being diverted. But even
`her counsel also considered that Cher might object to her royalties being diverted. But even
`assuming that to be true, and it well may not be, that is not enough.
`assuming that to be true, and it well may not be, that is not enough.
`
`“In circumstances where a document serves a dual purpose, that is, where it was not
`"In circumstances where a document serves a dual purpose, that is, where it was not
`prepared exclusively for litigation, then the ‘because of’ test is used…. Dual purpose documents
`prepared exclusively for litigation, then the `because of' test is used.... Dual purpose documents
`are deemed prepared because of litigation if ‘in light of the nature of the document and the factual
`are