NPG Vs Tidal - Redacted Brief For Motion To Compel

CASE 0:16-cv-03909-JRT-FLN Document 62 Filed 11/10/17 Page 1 of REDACTED
27
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
NPG Records, Inc. and

NPG Music Publishing, LLC, Court File No.: 16-cv-03909 (JRT-FLN)
Plaintiffs,
v. PLAINTIFFS MEMORANDUM
IN SUPPORT OF MOTION TO
Roc Nation LLC, Aspiro AB, Project COMPEL
Panther Ltd. and WiMP Music AS,
Defendants.
INTRODUCTION
Plaintiffs NPG Records, Inc. and NPG Music Publishing, LLC (collectively,
NPG Entities) have uncovered evidence that the alleged contract the Defendants are
relying on in this action the Equity Term Sheet was fabricated and back-dated to
appear authentic. The NPG Entities have sought discovery regarding the alleged Equity
Term Sheet and the circumstances regarding its execution, but have been stymied by
improper privilege claims. In an effort to hide their activities from discovery, Defendants
Roc Nation LLC, Aspiro AB, Project Panther Ltd. and WiMP Music AS (collectively,
Tidal Entities and Tidal) claim that they share a common interest with a former
attorney and officer for the NPG Entities, both key witnesses. The Tidal Entities do not
have a shared interest with former employees of Plaintiffs, let alone a legal interest that
allows them to shield their communications from discovery.

CASE 0:16-cv-03909-JRT-FLN Document 62 Filed 11/10/17 Page 2 of 27
The Tidal Entities also insist that they may redact information they deem
irrelevant despite knowledge of this Courts prior decisions rejecting that practice.
Finally, the Tidal Entities refuse to provide basic information about the contracts
they claim they had with Prince. The Tidal Entities claim that they do not need to answer
interrogatories regarding the basis for contracts allegedly formed orally and through a
course of dealing because the topic is better suited to deposition. The Tidal Entities
also refused to provide complete information regarding the alleged execution of the
Equity Term Sheet.
The NPG Entities motion to compel should be granted, and the Tidal Entities
ordered to: (1) produce all documents being withheld based on improper claims of
common interest privilege; (2) produce complete copies of all documents that were
redacted to remove information Defendants deemed irrelevant; and (3) provide complete
answers to the NPG Entities interrogatories.
FACTS
A. The Parties
Prince Rogers Nelson, the international superstar and renowned artist known as
Prince died intestate on April 21, 2016. After Prince passed away, a probate action
began in Carver County District Court, Minnesota, Court File No. 10-PR-16-46 (Probate
Action). Bremer Trust, N.A. served as Special Administrator for the Prince Estate until
February 1, 2017, when the Court appointed Comerica Bank & Trust, N.A. (Comerica)
Personal Representative. Declaration of Lora M. Friedemann (hereafter, Friedemann
Dec.), 5. As Personal Representative, Comerica is a fiduciary charged with protecting
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and maximizing Estate assets. Id. Comerica has authority to act on behalf of the Estate
and all business entities owned or controlled by the Estate. Id.
The plaintiffs in this lawsuit are NPG Records, Inc. and NPG Music Publishing,
LLC. ECF No. 39. Prince owned the NPG Entities during his lifetime. The NPG
Entities are now owned and controlled by the Estate. Friedemann Dec., 6.
The Defendants in this lawsuit are entities associated with the Tidal streaming
service. ECF No. 39 at 20. Tidal is a small, subscription-based music streaming
service with an estimated 1 million members. See http://fortune.com/2017/01/21/tidal-
subscriber-number-inflation.
B. The Estates Claims
This is a case for copyright infringement. The NPG Entities own copyrights in
Prince musical compositions and sound recordings being exploited on the Tidal
streaming service without permission and without compensation to the Estate.
Friedemann Dec., 6.
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Exhibit 4, 2(a).1
Prince representatives provided certain specific music and videos to Tidal while
the parties were negotiating. Friedemann Dec., 8. Prince decided what items to
include, and Tidal added and removed them at Princes direction. Id.
After Prince passed away, Tidal began streaming additional Prince works,
including hundreds of works Prince did not authorize, and which had never before been
available online. Friedemann Dec., 9 and Exhibit 5 thereto. Tidal did not communicate
with the Estate before it began exploiting these works, let alone obtain a license.
Friedemann Dec., 9.
The Special Administrator asked Tidal to substantiate its right to stream Prince
music, and Tidal referenced one written contract, an August 1, 2015 agreement entitled
Letter of Intent (LOI).2 Friedemann Dec., 10 and Exhibit 3 thereto.
See
Exhibit 3. The album Prince released next was HITnRUN Phase One. Tidal failed to
1
The Exhibits referenced in this memorandum are attached to the
Declaration of Lora M. Friedemann.
2
In their pleadings, the Tidal Entities refer to the LOI as a Distribution
Agreement.
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provide any other documentation authorizing the exploitation of Prince works, and
instead claimed that the parties had either an oral contract, or an implied license through a
course of dealing. Friedemann Dec., 10.
On November 15, 2016, the Special Administrator terminated any alleged license
and filed this lawsuit. Friedemann Dec., 11; Exhibit 6; ECF No. 1. Tidal refused to
cease exploiting Prince works, and currently offers over 500 Prince songs and videos for
streaming. Friedemann Dec., 11.
C. The Tidal Entities Claims
The Tidal Entities filed two Petitions in the Probate Action asserting claims
against the Estate. The first Petition filed on November 11, 2016 claims rights based on a
[w]ritten contract for service and distribution of intellectual property as modified by
subsequent writings, course of dealing between the parties and oral understandings and
agreements. Exhibit 7, 3. The Tidal Entities assert in the Petition that, in July 2015,
in anticipation of a forthcoming exclusive streaming relationship with Prince, the Tidal
Entities and Prince entered into an Equity Term Sheet , setting forth preliminary terms
governing the relationship between the parties. Id., 23. Under the alleged Equity
Term Sheet, Tidal claims Prince granted exclusive worldwide streaming rights in his next
two previously-unreleased albums for a 90-day period for each album. Id., 24-26.
The Tidal Entities further contend that the alleged Equity Term Sheet prohibits Prince
from allowing any other streaming service to use his name or likeness to advertise
streaming services. Id., 27.
Exhibit 2 at 4.
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In addition to the alleged Equity Term Sheet, the Tidal Entities referenced a
Distribution Agreement dated August 1, 2015 (the LOI), and asserted that they had
additional rights based on subsequent agreements and a course of dealing between the
parties. Exhibit 7, 33.
The Tidal Entities filed a second petition on February 16, 2017 (Supplemental
Petition). Exhibit 8. In the Supplemental Petition, the Tidal Entities allege that they
were granted certain digital streaming rights in connection with [Prince] Musical Assets
by virtue of numerous written and oral agreements and a substantial course of dealing.
Id. 14. The Tidal Entities contend that they acquired these rights through two
principal written agreements: the alleged Equity Term Sheet, and the August 1, 2015
Distribution Agreement/LOI. Id., 15. The Tidal Entities allege that [t]he Equity
Term Sheet is the agreement by which Mr. Nelson allowed his music to be offered on the
Tidal streaming service and, in exchange, became an equity owner of TIDAL. Id.
Based on the alleged Equity Term Sheet, the Tidal Entities contend that they are
Id., 17. The Tidal Entities further contend that the
Estate breached the alleged Equity Term Sheet by permitting other streaming services to
use Princes name and likeness in advertising. Id., 53-58.
The Equity Term Sheet that is the basis for the Tidal Entities claims purports to
be a contract between Prince and Project Panther Ltd. dated July 19, 2015. See Exhibit 2.
The Tidal Entities contend that the Equity Term Sheet was signed on or about July 19,
2015 by Desiree Perez, on behalf of Project Panther, and Phaedra Ellis-Lamkins, on
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behalf of Mr. Nelson. Exhibit 9 at 12. Ellis-Lamkins performed services for Prince and
served as Secretary and Manager for Plaintiff NPG Music Publishing, LLC until Prince
died. Friedemann Dec., 46.
When the Tidal Entities began relying on the alleged Equity Term Sheet, the
Special Administrator immediately requested a copy. Exhibit 10. The Tidal Entities did
not provide a copy to the Special Administrator until January 2017. Friedemann Dec.,
4.
D. The Validity of The Alleged Equity Term Sheet is a Central Issue.
The lawsuits are proceeding on parallel tracks with mirrored scheduling orders.
Friedemann Dec., 15. Discovery obtained in one action may be used in the other. ECF
No. 47 at 7. The validity of the Equity Term Sheet is a central issue in both lawsuits.
Friedemann Dec., 16. As noted above, the Tidal Entities rely on the Equity Term Sheet
as the basis for their claims in the Probate Action. Id. The Tidal Entities also rely on that
alleged contract as a defense to the NPG Entities claims for copyright infringement
because they argue that the Equity Term Sheet authorizes the exploitation of Prince
works. Id. Exhibit 11 at 8.
E. Contemporaneous Communications Between the Parties Are

Inconsistent with the Equity Term Sheet.
Contemporaneous communications between the parties are inconsistent with
Tidals contention that Ellis-Lamkins signed the Equity Term Sheet on Princes behalf on
July 19, 2015. Friedemann Dec., 17.
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The Tidal Entities sent the proposed Equity Term Sheet to Prince representatives
on July 8, 2015. Exhibit 12. Diana Frappier, a lawyer for Prince and his entities,
responded on July 14,
Exhibit 13. Ellis-Lamkins added that
Id.
Exhibit 14.
Todd Mumford and Stephen Sessa from Reed Smith LLP represented the Tidal
Entities in the negotiations regarding the LOI and Equity Term Sheet. Friedemann Dec.,
21. At 10:22 a.m. on July 19, 2015, the date the Tidal Entities allege the Equity Term
Sheet was signed, Mumford wrote Exhibit 15. Sessa
provided Exhibit 16. Sessas email says
The business representative involved in the negotiations for the Tidal Entities was
Desiree Perez, Chief Operating Officer. Friedemann Dec., 22. On the morning of
July 20, 2015, Ellis-Lamkins wrote:
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Exhibit 17. Ellis-Lamkins added that Id. The reply
from Perez states
Id.
On July 22, 2015, Mumford circulated
Exhibit 18.
See
id.
Over the next several days, the parties continued to negotiate the LOI. Sessa
circulated Exhibit 19. The
parties exchanged additional drafts on July 24, 25, 26, 28 and 31. Exhibit 20. On
August 1, Frappier accepted the final change to the LOI, and Mumford replied with an
executed copy of the LOI. Exhibit 21.
See Exhibit 3.
Months later, on November 4, 2015, Ellis-Lamkins sent an email to Perez,
Mumford and Sessa asking
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Frappier circulated
See Exhibit 23.
See id. at NPG001702_0003, NPG001702_0004.
Mumford replied on November 11, 2015. Exhibit 24. Mumford wrote that
Id. Mumfords email
appears below.
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Frappier replied on November 24, 2015, and indicated
Exhibit 25. Frappier asked
Mumford
Id.3
Ellis-Lamkins and Frappier then traded emails about the proposed transaction
Exhibit 26. Frappier forwarded
See id. Frappiers February 11th email states:
Id.
No further written communications were exchanged on the topic before Prince
passed away on April 21, 2016. Friedemann Dec., 32. After Prince died, Ellis-
Lamkins corresponded with counsel for the Special Administrator regarding the status of
various business matters. Friedemann Dec., 33. Ellis-Lamkins told the lawyers for the
Special Administrator that
Exhibit 27.
3
Notably, Exhibit 25 was produced by Ms. Frappier. The Tidal Entities did
not produce this email exchange, even though Mumford was a participant. Friedemann
Dec., 30.
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F. Tidal Describes Its Business Relationship With Prince Without

Mention of the Equity Term Sheet
In May 2016, Tidal sent a letter to the Special Administrator seeking to administer
the Estates musical assets. Exhibit 28. The letter touts the business relationship the
Tidal Entities had with Prince, but omits any reference to the Equity Term Sheet or any
alleged equity in Project Panther. See id.
Several months later, on October 12, 2016, counsel for the Tidal Entities sent a
second letter highlighting the business relationship the Tidal Entities had with Prince.
Exhibit 29. Again, the letter omits any reference to the alleged Equity Term Sheet or an
equity interest in Project Panther. See id. The letter states:
Roc Nation and NPG have enjoyed a successful working

relationship that has included, among other things, the
Distribution Agreement [LOI], the distribution of two of
Artists albums entitled HITnRUN Phase One and
HITnRUN Phase 2, one album by the artist known as Judith
Hill entitled Back in Time, and the additional involvement
of Roc Nation in various aspects of the Artists catalog and
career. Id. at 1.4
Lawyers for the Tidal Entities sent additional letters asserting rights in Prince
works on October 17 and 21, 2016. Exhibits 30 and 31. Neither letter references the
alleged Equity Term Sheet. The October 21st letter to the Court in the Probate Action
asserts that
4
The Tidal Entities withheld the October 12th letter based on the common
interest doctrine, forcing the Estate to obtain a copy from the recipient. Friedemann Dec.,
35. The Tidal Entities later conceded that the common interest doctrine does not apply,
but have not yet produced the document. Id.
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See Exhibit 31.
G. The Tidal Entities Propose to Ellis-Lamkins and

Begin Asserting Rights Under the Equity Term Sheet
On October 18, 2016, Perez sent an email to Ellis-Lamkins with
Exhibit 32.
On November 5, 2016, Ellis-Lamkins sent an email to Perez, Marnie Fearon (an
attorney for Ellis-Lamkins), and counsel for the Tidal Entities enclosing
Exhibit 33. The text of the email has been
redacted. See id.
On November 11, 2016, the Tidal Entities filed a Petition in the Probate Action
relying on the alleged Equity Term Sheet, and alleging that the Equity Term Sheet was
signed in July 2015. Exhibit 7, 4, 23-29.
H. No Documentation Exists Regarding Execution of the Alleged Equity

Term Sheet.
The Estate has been asking for documents relating to the execution of the alleged
Equity Term Sheet for the last year. Friedemann Dec., 39. The Tidal Entities have not
produced a single document relating to the execution of the alleged contract, and
represented during the parties meet and confer that they have not located any documents
concerning the execution of the document. Id.
The NPG Entities also requested documents relating to the alleged issuance of
equity to Prince. Friedemann Dec., 40. The Tidal Entities have not produced a single
document that evidences the issuance of equity to Prince before this dispute arose. The
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Tidal Entities acknowledge that [t]here was no shareholders agreement in place at the
time of Mr. Nelsons death. Exhibit 34.
I. The Tidal Entities Withhold Information Based on an Alleged

Common Interest with Ellis-Lamkins.
In September 2017, the Tidal Entities produced documents that were redacted to
conceal communications with Ellis-Lamkins. Friedemann Dec., 41. On September 13,
2017, counsel for the NPG Entities questioned the basis for the redactions. Exhibit 35.
Tidal responded, claiming a common interest with Ellis-Lamkins based on jointly held
concerns regarding the conduct of the former Special Administrator of the Estate,
Bremer Trust, N.A. Exhibit 36. Specifically, the Tidal Entities articulated the alleged
common interest as follows:
Further, contrary to your blanket assertion that communications with

Phaedra Ellis-Lamkins cannot be privileged, Ms. Lamkins, Roc Nation,
LLC (Roc Nation) and the TIDAL Parties maintained a common interest
privilege beginning in or around October 2016 stemming from jointly held
concerns over the conduct of Bremer Trust, N.A. (the Former Special
Administrator) on behalf of Mr. Nelsons estate. As you are aware, Roc
Nation LLC and the TIDAL Parties consistently have expressed serious
concerns over the Former Special Administrators disregard for the rights
of Roc Nation and [the] TIDAL Parties concerns that Roc Nation and the
Tidal Parties continue to maintain with respect to the Personal
Representative. For example, on October 17, 2016, Roc Nation wrote to
the Former Special Administrator to highlight various media publications
which suggested that the Former Special Administrator was on the verge of
consummating transactions that would run afoul of my clients rights.5
Likewise, during this same timeframe, Ms. Ellis-Lamkins also was troubled
by the manner in which the Former Special Administrator ignored her
concerns as to whether she was properly removed as an officer or manager
of Mr. Nelsons companies while the Former Special Administrator may
5
The rights the Special Administrator allegedly violated emanate from the
alleged Equity Term Sheet. Friedemann Dec., 42.
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have been taking actions on behalf of those companies without consulting

her. See e.g., Lamkins Petition Requesting Special Administrator to
Provide Documentation and Other Relief, dated November 17, 2015 ([n]o
meaningful response or documentation has been given to Petition despite
repeated requests for clarification from the Former Special Administrator,
and counsel for the Special Administrator has been unable or unwilling to
provide Petitioner with an indemnification for any actions for and/or on
behalf of [Mr. Nelsons] Companies.).6 Accordingly, the parties
proceeded to operate under a common interest privilege given their shared
legal interests in interacting with the Former Special Administrator and, as
such, the redactions to communications with Ms. Ellis-Lamkins and her
counsel are appropriate.
Exhibit 36 (citations omitted).
The parties met and conferred regarding the alleged common interest, but could
not resolve the dispute. Friedemann Dec., 43.
J. Hundreds of Documents Are Being Withheld Based on Alleged

Common Interest with Ellis-Lamkins and Frappier.
On October 11, 2017, the Tidal Entities produced a 203-page privilege log.
Exhibit 37. Hundreds of communications with Ellis-Lamkins and her lawyer, Marnie
Fearon, have been withheld or redacted. Friedemann Dec., 44. The privilege log lists
nearly two hundred withheld communications on November 10 and 11, 2016 alone. See,
e.g., Exhibit 37 at PRIV000006, PRIV0000142, PRIV0000144, PRIV0000274,
PRIV0000355, PRIV0000356, PRIV0000358-59, PRIV0000362, PRIV0000363,
6
Ellis-Lamkins filed a claim in the Probate Action entitled Petition
Requesting Special Administrator to Provide Documentation and other Relief, Exhibit
38. Among other relief, Ellis-Lamkins sought confirmation that she was effectively
removed as manager of NPG Music Publishing, LLC. See Id.. Ellis-Lamkins and the
Personal Representative resolved the concerns Ellis-Lamkins raised in the Petition
through a Stipulation confirming that Ellis-Lamkins was removed as manager of NPG
Music Publishing, LLC effective April 27, 2016. Exhibit 39. The Court entered an order
confirming her removal as of that date. Exhibit 40.
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PRIV0000371.7 The Tidal Entities also withheld dozens of communications with Diana
Frappier. Friedemann Dec., 44.
The parties met and conferred regarding the basis for withholding communications
with Frappier on October 26, 2017. Friedemann Dec., 45. Counsel for the Tidal
Entities claimed that communications with Frappier may be withheld under the common
interest doctrine because Frappier was on the same team as Ellis-Lamkins. Id.
K. The Tidal Entities Interrogatory Answers Remain Deficient Despite

Numerous Attempts to Obtain Compliance.
The NPG Entities served interrogatories on Aspiro on March 22, 2017, and on
Project Panther on April 3, 2017. Friedemann Dec., 2. The answers are deficient in
several respects. Aspiro and Project Panther failed to provide information regarding the
communications that form the basis for an alleged oral contract with Prince and the
conduct that allegedly gave rise to a contract through a course of dealing. Project Panther
also refused to fully describe the circumstances under which the alleged Equity Term
Sheet was executed. The specific interrogatories in issue and the Tidal Entities answers
are quoted below and in Exhibit 1 to the Friedemann Declaration.
7
The Tidal Entities filed their petition alleging the existence of the Equity
Term Sheet on November 11. Exhibit 7.
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ARGUMENT
I. THE TIDAL ENTITIES CANNOT SHIELD COMMUNICATIONS WITH

FRAPPIER AND ELLIS-LAMKINS UNDER THE COMMON INTEREST
DOCTRINE.
The Tidal Entities reliance on the common interest doctrine to withhold
communications with former agents and employees of the NPG Entities is improper.
The common interest doctrine stems from the attorney-client privilege, which
protects confidential communications made for the purpose of facilitating the rendition
of legal services to the client. United States v. Horvath, 731 F.2d 557, 561 (8th Cir.
1984). The goal of the attorney-client privilege is to encourage attorneys and their clients
to engage in full and frank communication. Upjohn Co. v. United States, 449 U.S. 383,
389 (1981). But because this privilege obstructs the truth-finding process, it is
construed narrowly, protect[ing] only those disclosuresnecessary to obtain legal
advicewhich might not have been made absent the privilege. Luminara Worldwide,
LLC v. Liown Elecs. Co., No. 14-3103 (SRN/FLN), 2016 WL 6908109, at *4 (D. Minn.
Jan. 11, 2016) (quoting Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d
1414, 1423-24 (3rd Cir. 1991)).
The common interest doctrine expands the attorney-client privilege in certain
situations:
If two or more clients with a common interest in a litigated or

non-litigated matter are represented by separate lawyers and
they agree to exchange information concerning the matter, a
communication of any such client that otherwise qualifies as
privileged . . . that relates to the matter is privileged as against
third persons. Any such client may invoke the privilege,
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unless it has been waived by the client who made the

communication.
In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 922 (8th Cir. 1997) (quoting
Restatement (Third) of the Law Governing Lawyers 126 (Am. Law Inst., Proposed
Final Draft No. 1, 1996)).
The doctrine is an exception to the general rule that the attorney-client privilege
is waived when privileged information is disclosed to a third party. Khoday v. Symantec
Corp., No. 11-cv-180 JRT/TNL, 2013 WL 12140484 at *2 (citing Shukh v. Seagate
Tech., LLC, 872 F. Supp. 2d 851, 855 (D. Minn. 2012). The exception to waiver under
the common interest doctrine is applicable to [parties] who can demonstrate a common
goal and that the communications in question further that common interest. Sandoval v.
American Building Maintenance Indus., Inc., 267 F.R.D. 257, 273 (D. Minn. 2007).
This Court recently applied a three-part test to evaluate a claim under the common
interest doctrine. See Luminara Worldwide, LLC, 2016 WL 6908109, at *5. To withhold
communications under the doctrine, the Tidal Entities must show (1) that [they] had a
common interest . . . ; (2) that the communications at issue were designed to further that
interest; and (3) that the nature of the interest was legal, and not solely commercial. Id.
The Tidal Entities have not articulated any plausible basis for shielding
communications with Diana Frappier based on the common interest doctrine. The Tidal
Entities have not identified any legal interest that they allegedly share with Frappier, and
instead claim that communications with Frappier may be withheld because Frappier is
on the same team as Ellis-Lamkins. Friedemann Dec., 45. Unsurprisingly, the Tidal
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Entities cite no authority that allows them to shield communications with Frappier on that
basis.
The Tidal Entities also fail to establish a shared interest with Ellis-Lamkins, let
alone a shared legal interest. Ellis-Lamkins is not a party in this litigation and has no
stake in the outcome. While the Tidal Entities stand to win or lose on the claims asserted
in this lawsuit and the Probate Action, Ellis-Lamkins is merely a witness. Thus, Tidal
and Ellis-Lamkins do not have aligned legal interests in this litigation. See SR Intl Bus.
Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 9291(JSM), 2002 WL 1334821, at
*4 (S.D.N.Y. June 19, 2002) (finding no recognizable common interest where an entity
is not a party to this litigation, and its legal position will be unaffected by the outcome of
this case).
The Tidal Entities claim that they have a common interest with Ellis-Lamkins
because they both had concerns over the conduct of the former Special Administrator.
Exhibit 36. The concerns they had are of an entirely different nature, however. Tidal
claims Ellis-Lamkins was concerned about whether she was properly removed as an
officer or manager of [Princes] companies. Id. Tidal claims it was concerned about the
former Special Administrators alleged disregard for the rights of Roc Nation and
TIDAL Parties. Id. Even if the cause of the concern was the same (the actions of the
former Special Administrator), the nature of the concern is entirely different. The claims
asserted in the Probate Action reflect that difference. Tidal is pursuing claims for alleged
breaches of the Equity Term Sheet; Ellis-Lamkins sought (and obtained) confirmation
that she was removed as manager of NPG Music Publishing, LLC.
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The common interest doctrine requires that the Tidal Entities and Ellis-Lamkins
have an identical (or nearly identical) legal interest as opposed to a merely similar
interest. Green Edge Enterprises, LLC v. Rubber Mulch etc., LLC, No. 4:02CV566TIA,
2006 WL 2623855 at *1 (E.D. Mo. Sept. 12, 2006); Ayers Oil Co. v. American Business
Brokers, Inc., No. 2:09 CV 02 DDN, 2009 WL 4725297 at *2 (E.D. Mo. Dec. 2, 2009)
(a common interest must be an identical interest). The Tidal Entities and Ellis-Lamkins
have starkly different interests. A former officer and manager of NPG Music Publishing,
LLC, Ellis-Lamkins is associated with the NPG Entities and, as the Tidal Entities
acknowledge, she sought confirmation from the Estate that she had been removed as an
officer and Manager of NPG Music Publishing, LLC during the time the Tidal Entities
contend they shared a common interest with her. If Ellis-Lamkins had doubts about
whether she had been removed as Manager of NPG Music Publishing, LLC, then her
personal interests were directly opposite to the interests of the Tidal Entities in this
litigation because of legal duties and obligations to that entity. Using the analogy the
Eighth Circuit employed in In re Grand Jury Subpoena, the Tidal Entities and Ellis-
Lamkins are not in the same canoe. 112 F.3d at 923.
Furthermore, Tidals claim fails because a shared concern about a third partys
actions is not an interest the law protects. To withhold documents under the common
interest doctrine, the Tidal Entities must demonstrate a shared interest that is legal, and
not solely commercial or personal. See, e.g., Luminara Worldwide, 2016 WL 6908109,
at *5; Khoday, 2013 WL 12140484 at * 4 (holding that shared business concerns are
not legal interests protectable under the common interest doctrine); SR Intl Bus. Ins.
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Co., No. 01 Civ. 9291(JSM), 2002 WL 1334821, at *3 (a shared desire to succeed does
not create a common interest) (citing Shamis v. Ambassador Factors Corp., 34 F. Supp.
2d 879, 893 (S.D.N.Y. 1999); see also In re Grand Jury Subpoena Duces Tecum, 112
F.3d at 922 (rejecting an alleged common interest where the asserted interest was not
legal, factual or strategic in character).
The Tidal Entities have presented no authority where a court found a protectable
common interest in a shared concern about the actions of a third party, or because
witnesses are on the same team. The Court should reject the claimed common
interest with Frappier and Ellis-Lamkins and order the Tidal Entities to produce all
documents being withheld under the common interest doctrine.
II. THE TIDAL ENTITIES CANNOT REDACT INFORMATION THEY

DEEM IRRELEVANT.
In the course of discovery, the Tidal Entities improperly redacted an unknown
number of documents on the basis of relevance. Friedemann Decl. 47. Some documents
contained redactions explicitly marked Non-Relevant Information. Id. In other
instances, the Tidal Entities only revealed that documents were redacted for relevance in
response to questions from the NPG Entities. Id.
Relevance is not a proper basis for redaction. See Bartholomew v. Avalon Capital
Group, Inc., 278 F.R.D. 441, 451-52 (D. Minn. 2011) (compelling production of redacted
documents because [r]edaction is an inappropriate tool for excluding alleged irrelevant
evidence, and noting that irrelevant information may be highly useful to providing
context for the relevant information).
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The NPG Entities first addressed this issue with Tidal in June. See Exhibit 41. In
response, the Tidal Entities elected to re-produce certain documents without redactions,
while others remained improperly redacted. Friedemann Dec., 49. The Tidal Entities
then continued to produce documents with relevance redactions, some of which relate to
key issues in the dispute. See, e.g., Exhibit 42. The parties have discussed this issue in
letters and during meet-and-confers, but the Tidal Entities refuse to remove the wrongful
redactions. Friedemann Decl. 49. Accordingly, the NPG Entities request an Order
compelling the Tidal Entities to produce complete copies of all documents redacted on
the basis of relevance. See Hageman v. Accenture, LLP, 2011 WL 13136510 at *4 (D.
Minn. June 7, 2011) (granting motion to compel documents previously redacted based on
relevance).
III. THE TIDAL ENTITIES CANNOT REFUSE TO ANSWER

INTERROGATORIES BECAUSE THEY PREFER TO PROVIDE THE
REQUESTED INFORMATION IN DEPOSITIONS.
The NPG Entities sent Interrogatories to Aspiro and Project Panther seeking
information about the contracts they allege they had with Prince based on oral promises
and a course of dealing. Aspiro and Project Panther provided a lengthy list of
documents in response. Aspiros answer to Interrogatory No. 5 is representative and
quoted in full below. The additional interrogatories in issue (Interrogatory 6 to Aspiro
and Interrogatory Nos. 1 and 2 to Project Panther) are quoted in full in Exhibit 1.
INTERROGATORY NO. 5: Identify each oral communication that

forms the basis for any alleged agreement with Prince Rogers Nelson
and/or the NPG Entities, including the date of each such communication,
the participants in the communication, the substance of the communication,
and all documents relating to the communication.
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RESPONSE TO INTERROGATORY NO. 5: Aspiro objects to

Interrogatory No. 5 on the basis that it is vague, ambiguous, overly
burdensome, and seeks the production of information and/or documents
that are already within Plaintiffs possession, custody or control. Aspiro
further objects to Interrogatory No. 5 to the extent that it seeks the
production of information and/or documents protected by the attorney-
client privilege, the work-product doctrine and/or any other applicable
privilege, immunity, or protection available under law, and to the extent it
seeks the production of information or documents that are readily
obtainable from other sources, including, but not limited to, agents and/or
former employees of the NPG Entities. Aspiro also objects to
Interrogatory No. 5 on the grounds that it calls for a narrative better
suited for deposition testimony. Accordingly, Aspiro does not identify any
specific oral communications in response to Interrogatory No. 5 at this
time.
Subject to and without waiver of the foregoing objections and General

Objections, Aspiro identifies the following documents relating to oral
communications responsive to Interrogatory No. 5.
Email from Phaedra Ellis-Lamkins to Desiree Perez, dated

January 16, 2015 re: <no subject> (RN00001962)
Email from Desiree Perez to Todd Mumford, Phaedra Ellis-

Lamkins, Dara Michelle and Stephen Sessa, dated February 6,
2015 re: Panther (RN00002926)
Email from Desiree Perez to Phaedra Ellis-Lamkins, dated

February 11, 2015 re: Panther (RN00003112)
Email from Desiree Perez to Phaedra Ellis-Lamkins, dated

February 22, 2015 (RN00002841)
Emails between Phaedra Ellis-Lamkins and Desiree Perez,

dated March 6, 2015 re: Talk? (RN00003110)

dated March 11, 2015 re: Check-in (RN00002923)

dated April 29, 2015 re: Tidal (RN00002773)
- 23 -

dated July 2, 2015 re: Tidal (RN00001750)

dated July 2, 2015 re: Tidal (RN00001569)

dated July 2, 2015 re: P would like to speak with J
(RN00001954)

dated July 2, 2015 re: Check in today (RN00003098)

dated July 3, 2015 re: ONE SLIGHT LAST REVISION
(RN00001950)
Email from Phaedra Ellis-Lamkins to Desiree Perez, dated

July 9, 2015 re: <no subject> (RN00010521)

dated July 9, 2015 re: Brainstorming (RN00002762)

dated July 10, 2015 re: Another idea call me
(RN00003281)

dated August 4, 2015 re: can we move P and J call to 3:30
instead of 3 (RN00002818)

dated August 4, 2015 re: Can u tell P to call right back for 1
second J has 1 question they just got off (RN00001924)

dated December 12, 2015 re: Hit N Run Volume 2
(RN000001599)
Email from Phaedra Ellis-Lamkins to Cate Heaven Young,

Traci Bransford, Joel Leviton, Douglas Peterson and Tyler
Atkinson, dated May 19, 2016 re: Next steps
(NPG000004_0001)
Exhibit 1 at 1-3 (emphasis added).
- 24 -
Interrogatory No. 6 asks Aspiro to identify each action or event that forms the
course of dealing that you allege created a contractual relationship and elicited a
similar response.
Aspiros answers are insufficient. Rule 33(d) allows the answering party to
reference documents instead of providing a narrative response where the answer to the
interrogatory may be determined by examining, auditing, compiling abstracting, or
summarizing a partys business records and the burden of deriving or ascertaining the
answer will be substantially the same for either party. Fed. R. Civ. P. 33(d). The
answers to these interrogatories cannot be ascertained from the laundry list of documents
in Aspiros answers. Anything the NPG Entities might glean from the listed documents
would be no better than a guess as to what Aspiro is claiming. The lengthy list of
documents is also non-responsive because the listed documents do not provide the
requested information concerning the communications and actions that allegedly gave
rise to contracts orally and through a course of dealing.
Counsel met and conferred regarding the interrogatories on August 9th.
Friedemann Dec., 50. Aspiro and Project Panther refused to supplement their answers,
and argued instead that the topic is better suited for deposition. Id. That Aspiro would
prefer the NPG Entities to address this request to a witness in deposition is not a valid
objection. The NPG Entities are entitled to a narrative answer that identifies the
communications that allegedly created an oral contract and the events that allegedly
formed a contract through a course of dealing.
- 25 -
IV. THE NPG ENTITIES ARE ENTITLED TO A COMPLETE ANSWER

CONCERNING THE EXECUTION OF THE ALLEGED EQUITY TERM
SHEET.
Project Panthers Answer to Interrogatory No. 3 regarding execution of the Equity
Term Sheet is deficient. In Interrogatory No. 3, the NPG Entities requested that Project
Panther provide information regarding execution of the alleged Equity Term Sheet. The
Interrogatory and Project Panthers answer are below.
INTERROGATORY NO. 3: Describe the circumstances of execution of

the Artist Equity Term Sheet by you and by Prince Rogers Nelson,
including but not limited to who executed the document, when the
document was executed, whether any others witnessed the execution, and
the Bates number of any documents relating to the execution.
RESPONSE TO INTERROGATORY NO. 3: Project Panther objects to

Interrogatory No. 3 on the grounds that it is vague, ambiguous, and seeks
the production of information and/or documents that are already within
Plaintiffs possession, custody or control. Project Panther further objects to
Interrogatory No. 3 to the extent that it seeks the production of information
and/or documents protected by the attorney-client privilege, the work-
product doctrine and/or any other applicable privilege, immunity, or
protection available under law, and to the extent it seeks the production of
information or documents that are readily obtainable from other sources,
including, but not limited to, agents and or former employees of the NPG
Entities. Project Panther also objects to Interrogatory No. 3 on the grounds
that it calls for a narrative better suited for deposition testimony.
In response to Interrogatory No. 3 Project Panther further states that the

Artist Equity Term Sheet was signed on or about July 19, 2015 by Desiree
Perez, on behalf of Project Panther, and Phaedra Ellis-Lamkins, on behalf
of Mr. Nelson.
Exhibit 1 at 11.
On July 14, 2017, counsel for the NPG Entities demanded a more complete
answer, and pointed out that the answer does not identify where the document was
- 26 -
signed, whether anyone witnessed the signature, or identify documents relating to the
execution. Exhibit 43 at 2.
Counsel met and conferred on August 9, 2017. Friedemann Dec., 52. At that
time, counsel for Project Panther indicated that he would consider supplementing, but
that he could not commit to doing so. Id. Project Panther did not supplement the answer.
Id.
The requested information is obviously relevant. The Court should compel Project
Panther to provide a complete answer.
CONCLUSION
For the foregoing reasons, the NPG Entities motion to compel should be granted,
and the Court should order the Defendants to (1) produce all documents being withheld
based on improper claims of common interest privilege; (2) produce complete copies of
all documents that were redacted to remove information Defendants deemed irrelevant;
and (3) provide complete answers to the NPG Entities interrogatories.
Dated: November 10, 2017 /s/Lora M. Friedemann

Lora M. Friedemann (#0259615)
Joseph J. Cassioppi (#0388238)
Anne Rondoni Tavernier (#0398516)
FREDRIKSON & BYRON, P.A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402-1425
Telephone: 612.492.7000
lfriedemann@fredlaw.com
jcassioppi@fredlaw.com
arondonitavernier@fredlaw.com
Attorneys for Plaintiffs
- 27 -

NPG Vs Tidal - Redacted Brief For Motion To Compel

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NPG Vs Tidal - Redacted Brief For Motion To Compel

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CASE 0:16-cv-03909-JRT-FLN Document 62 Filed 11/10/17 Page 1 of REDACTED

UNITED STATES DISTRICT COURT

NPG Records, Inc. and

allows them to shield their communications from discovery.

Equity Term Sheet.

answers to the NPG Entities interrogatories.

Personal Representative. Declaration of Lora M. Friedemann (hereafter, Friedemann

Dec.), 5. As Personal Representative, Comerica is a fiduciary charged with protecting

and all business entities owned or controlled by the Estate. Id.

service. ECF No. 39 at 20. Tidal is a small, subscription-based music streaming

service with an estimated 1 million members. See http://fortune.com/2017/01/21/tidal-

B. The Estates Claims

streaming service without permission and without compensation to the Estate.

Letter of Intent (LOI).2 Friedemann Dec., 10 and Exhibit 3 thereto.

course of dealing. Friedemann Dec., 10.

streaming. Friedemann Dec., 11.

C. The Tidal Entities Claims

[w]ritten contract for service and distribution of intellectual property as modified by

in anticipation of a forthcoming exclusive streaming relationship with Prince, the Tidal

streaming services. Id., 27.

parties. Exhibit 7, 33.

Id., 17. The Tidal Entities further contend that the

use Princes name and likeness in advertising. Id., 53-58.

2015 by Desiree Perez, on behalf of Project Panther, and Phaedra Ellis-Lamkins, on

died. Friedemann Dec., 46.

D. The Validity of The Alleged Equity Term Sheet is a Central Issue.

works. Id. Exhibit 11 at 8.

E. Contemporaneous Communications Between the Parties Are

Contemporaneous communications between the parties are inconsistent with

July 19, 2015. Friedemann Dec., 17.

responded on July 14,

Exhibit 13. Ellis-Lamkins added that

Sheet was signed, Mumford wrote Exhibit 15. Sessa

provided Exhibit 16. Sessas email says

July 20, 2015, Ellis-Lamkins wrote:

Exhibit 17. Ellis-Lamkins added that Id. The reply

from Perez states

On July 22, 2015, Mumford circulated

circulated Exhibit 19. The

executed copy of the LOI. Exhibit 21.

Months later, on November 4, 2015, Ellis-Lamkins sent an email to Perez,

Mumford and Sessa asking

See Exhibit 23.

See id. at NPG001702_0003, NPG001702_0004.

Id. Mumfords email

Frappier replied on November 24, 2015, and indicated

Exhibit 25. Frappier asked

Exhibit 26. Frappier forwarded

See id. Frappiers February 11th email states:

No further written communications were exchanged on the topic before Prince

Special Administrator that

F. Tidal Describes Its Business Relationship With Prince Without

alleged equity in Project Panther. See id.

equity interest in Project Panther. See id. The letter states:

Roc Nation and NPG have enjoyed a successful working

See Exhibit 31.

G. The Tidal Entities Propose to Ellis-Lamkins and

On October 18, 2016, Perez sent an email to Ellis-Lamkins with

On November 5, 2016, Ellis-Lamkins sent an email to Perez, Marnie Fearon (an

Exhibit 33. The text of the email has been

redacted. See id.

signed in July 2015. Exhibit 7, 4, 23-29.

H. No Documentation Exists Regarding Execution of the Alleged Equity