IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
WRIGHT ENTERTAINMENT GROUP,
LLC, and WRIGHT ENTERTAINMENT
GROUP, INC.,
Plaintiffs,
V.
BRITNEY SPEARS, and BRITNEY
TOURING, INC.,
Defendants.
I
--------------
COMPLEX BUSINESS
LITIGATION COURT
CASE NO. 48-2007-CA-014233-O
DIVISION 32
DEFENDANTS' MEMORANDUM IN OPPOSITION
TO PLAINTIFFS' MOTION FOR APPOINTMENT OF
COMMISSIONER AND ISSUANCE
OF
SUBPOENA
James
P.
Spears as temporary conservator
of
Britney Spears, and James
P.
Spears and Andrew Wallet as temporary conservators
of
the Estate
of
Britney
Spears (the "Conservators"), on behalf
of
defendants Britney Spears ("Ms. Spears")
and Britney Touring, Inc. ("BTI") (collectively the "Defendants"), oppose
Plaintiffs' Motion for Appointment
of
Commissioner and Issuance
of
Subpoena to
Zomba Recording Corporation ("Motion"), which Plaintiffs filed without
complying with Business Court Rule 5.3, because the subpoena is overbroad and
prematurely seeks financial information discovery to which they are not entitled.
I.
Preliminary Statement
This case concerns a contractual commission dispute between a successful
recording artist and her former manager, Johnny Wright ("Mr. Wright"). On or
about February
14,
2008, this Court entered final default judgments against the
Defendants. On March 24, 2008, the Defendants filed their verified motion
to
set
aside the final default judgments. This motion
is
still pending. On or about March
19,
2008, with the Court's approval, the Plaintiffs issued a subpoena duces tecum
without deposition upon Zomba. That subpoena was not served. On April
3,
2008, Plaintiffs filed another Motion for Appointment
of
Commissioner and
Issuance
of
Subpoena to Zomba. Defendants oppose Plaintiffs' Motion.
Plaintiffs are not entitled to financial information discovery at this stage in
the case. Specifically, Plaintiffs are not entitled
to
financial information discovery
because there has not been a preliminary determination
as
to their right
to
an
accounting in this case. Additionally, the subpoena
is
too broad, in that it requests
private financial information that
is
irrelevant, inadmissible, and not reasonably
calculated
to
lead
to
the discovery
of
admissible evidence. Florida law clearly
entitles the Defendants to have the subpoena quashed. However, the Defendants
are willing
to
compromise and take a practical approach, by instead, requesting
that the subpoena be modified. The Defendants request that the subpoena be
modified
to
require Zomba
to
provide the Defendants' financial information that
2
only relates to the relevant time period and issues in this case.
II. Argument
Florida law permits courts to quash or modify subpoenas that are
unreasonable and oppressive. Specifically, Florida Rule
of
Civil Procedure
1.410( c) states:
( c) For Production
of
Documentary Evidence.
A subpoena may also command the person to whom it is
directed to produce the books, papers, documents, or
tangible things designated therein, but the court, upon
motion made promptly and in any event at or before the
time specified in the subpoena for compliance therewith,
may (1) quash or modify the subpoena
if
it is
unreasonable and oppressive
....
Fla.
R.
Civ.
P.
1.410( c
).
Under Rule 1.410, a party has standing to seek an order
quashing a subpoena directed to a non-party witness. Sunrise Shopping Center,
Inc.
v.
Allied Stores Corp., 270
So.
2d 32, 34 (Fla. 4th DCA 1972).
The Florida Rules
of
Civil Procedure generally provide for broad discovery
in a civil trial. However, this discovery is not unlimited.
E.
Colonial Refuse Serv.,
Inc.
v.
Velocci, 416 So. 2d 1276, 1277 (Fla. 5th DCA 1982). The discovery must
be relevant to the subject matter
of
the case and be admissible, or reasonably
calculated
to
lead to the discovery
of
admissible evidence. Id. ( analyzing Florida
Rule
of
Civil Procedure 1.280).
The Florida Supreme Court has held that discovery relating to a claim for an
3
accounting is not permitted until a right to an accounting has been established.
Charles Sales Corp.
v.
Rovenger,
88
So.
2d 551, 554-55 (Fla. 1956). The Fifth
District Court
of
Appeal has noted that "a party must show that he
is
entitled, at
least preliminarily, to the accounting before he is entitled to discovery
of
financial
records." Colonies Condo Ass'n, Inc.
v.
Clairview Holdings, Inc., 419
So.
2d 725,
726 (Fla. 5th DCA 1982). A preliminary determination can be deduced from a
court's review
of
a complaint, answer, and other pleadings. See Bartolucci
v.
Bartolucci, 399 So. 2d 448, 448 (Fla. 5th DCA
1981
).
Here, the Defendants recently filed a motion
to
set aside the final default
judgments. Given the unique circumstances constituting the Defendants' excusable
neglect, the Defendants are confident that this Court will set aside the final default
judgments, and permit the case
to
be heard on its merits.
If
the final default
judgments are set aside, the Defendants will be permitted
to
file a motion
to
dismiss for the Plaintiffs' failure
to
state causes
of
action. A primary reason for the
motion to dismiss is that the Plaintiffs are not in privity
of
contract to bring claims
for breach
of
contract and an accounting. The contract at issue in this case
is
by
and between Ms. Spears and
Mr.
Wright. Having no privity, Plaintiffs have no
contractual right
to
bring actions for an accounting,
as
the accounting claims are
based on the contract itself.
At this early phase m the case, a preliminary determination
as
to
the
4
Plaintiffs' entitlement to an accounting should not be made.
It
is questionable
whether the Plaintiffs' have a right to seek an accounting based on the Plaintiffs'
lack
of
privity. Accordingly, based on Florida Supreme Court and Fifth District
Court
of
Appeal precedent, the Plaintiffs are not permitted
to
seek discovery
related to the Defendants' private financial information at this time and this Court
should quash the subpoena
to
Zomba. Defendants, however, acknowledge that at
some point, the Plaintiffs may be able
to
state causes
of
action for breach
of
contract and
an
accounting by either:
(I)
substituting Mr. Wright
as
the proper
plaintiff in this case; or by (2) alleging that Mr. Wright assigned his interests to the
Plaintiffs. With this in mind, the Defendants are willing to take a practical
approach. Instead
of
requesting that this Court quash the subpoena outright, the
Defendants' request that this Court modify the subpoena.
The Defendants request that the subpoena be modified to require Zomba to
only produce (
1)
documents reflecting amounts paid, earned or accrued
to
Ms.
Spears during the term
of
her contract with Wright, between January
1,
1999 and
February 20, 2003 ("Term"); and (2) documents reflecting amounts paid, payable,
earned or accrued subsequent to February 20, 2003 which result from any contract
entered into or substantially negotiated during the Term.
Financial information documents within this narrow scope and time period
are relevant
to
calculating the Plaintiffs' alleged damages in this case. Anything
5
outside this time period and narrow scope is irrelevant and not reasonably
calculated
to
lead to the discovery
of
admissible evidence.
III. Conclusion
There has not been a preliminary determination as to the Plaintiffs'
entitlement
to
an accounting. Thus, the Plaintiffs are not entitled to seek financial
information discovery at this time. Rather than quashing the subpoena
to
Zomba
outright, the Defendants respectfully request that this Court modify the subpoena
by requiring Zomba
to
only produce (
1)
documents reflecting amounts paid, earned
or accrued
to
Ms. Spears during the term
of
her contract with Wright, between
January
1,
1999 and February 20, 2003 ("Term"); and (2) documents reflecting
amounts paid, payable, earned or accrued subsequent to February 20, 2003 which
result from any contract entered into or substantially negotiated during the Term.
6
HOLLAND & KNIGHT LLP
Attorneys for Conservators on behalf
of
Defendants
200
S.
Orange Ave., Suite 2600
Orlando, Florida 3280 I
Telephone: ( 407) 425-8500
Facsimile: ( 407) 244-5288
/s/ Judith
M.
Mercier
Jorge Hernandez-Torafio (FBN 339301)
jorge.hernandez-torano@hklaw.com
William
B.
Wilson (FBN 153167)
bill. wilson@hklaw.com
Judith
M.
Mercier (FBN 0032727)
judy.mercier@hklaw.com
Min
K.
Cho (FBN 754331)
min.cho@hklaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April
3,
2008, I electronically filed the
foregoing with the Orange County Clerk
of
the Court by using the ECF system
which will send a notice
of
electronic filing to Clay
M.
Townsend, Esq., Keith
Mitnik, Esq., Gregorio Francis, Esq., William B. Wilson, Esq., Judith
M.
Mercier,
Esq., Jorge Hernandez- Torafio, Esq., and Min
K.
Cho, Esq.
/s/ Judith
M.
Mercier
Attorney
# 5245107_vl
7
