Email Evid.: Party’s Production of Email with Employee’s Name & Co. Signature Authenticates It; Email = Admission; 2nd Level Hearsay OK As Verbal Act — Expert Report OK on SJ If Accompanied by Sworn Certification, Needn’t Itself Be Sworn

Am. Fedn. of Musicians of the United States v. Paramount Pictures Corp., 2018 U.S. App. LEXIS 25570 (9th Cir. Sept. 10, 2018):

Since at least 1946, major motion picture studios and the musicians, conductors, and orchestras who score motion pictures have agreed to a series of collective bargaining agreements governing the musicians' hiring, wages, and work conditions when they score a motion picture for a signatory studio. This case concerns whether Paramount Pictures breached a recent vintage of those agreements, the Basic Theatrical [*4]  Motion Picture Agreement of 2010 ("Basic Agreement"). The musicians' bargaining representative, the American Federation of Musicians of the United States and Canada ("AFM"), sued Paramount — a signatory to the Basic Agreement — after the motion picture Same Kind of Different As Me ("SKODAM") was scored in Slovakia. AFM alleged that Paramount breached its obligation under Article 3 of the Basic Agreement to score domestically, with AFM musicians, any motion picture that it produces domestically. Paramount moved for summary judgment, contending that Article 3 did not apply because Paramount did not produce SKODAM.

The district court granted the motion. First, the court concluded that a studio produces a motion picture when the studio "makes" or "shoots" the principal photography. Second, the court concluded that under Article 3, a signatory studio that "produces" a motion picture has to score a motion picture domestically only when it employs the cast and crew shooting the picture. Because there was no evidence that Paramount employed anyone shooting the picture, the court concluded that as a matter of law, Paramount did not breach the Basic Agreement.

We reverse. The district court misinterpreted [*5]  Article 3 to apply only if a signatory Producer employs the cast and crew shooting the picture. The Basic Agreement is a labor agreement involving scoring musicians, and Article 3 functions as a work preservation provision that dictates when a signatory has to hire those musicians. Therefore, Article 3 applies when a signatory studio produces a motion picture and has authority over the hiring and employment of scoring musicians. Whether a studio also employs the cast and crew is not relevant to Article 3. On the summary judgment record, it is a disputed question of fact whether Paramount produced SKODAM and had sufficient authority over the hiring of scoring musicians such that Article 3 applied. We also reject Paramount's affirmative defense that Article 3 violates the National Labor Relation Act's ("NLRA") "hot cargo" prohibition, and reverse two of the district court's evidentiary rulings.

Background

I. Factual Background

AFM is a labor union that represents approximately 80,000 professional musicians in the United States and Canada, including those who score motion pictures. The "scoring" of motion pictures refers both to the recording of music sound track for motion pictures and music preparation [*6]  work, such as copying and orchestration.1 Scoring musicians are not salaried employees of individual production studios; instead, musicians score motion pictures on a per-picture basis. The studios usually arrange for the employment of scoring musicians indirectly. In a "fee deal" arrangement, the studio hires a music contractor, who hires the musicians. In a "package deal" arrangement, the studio hires the composer and provides him or her a lump sum to hire the musicians, which the composer usually does through a music contractor.

A. The Basic Agreement

For decades, AFM has negotiated a series of collective bargaining agreements with major motion picture studios, represented in negotiations by the Alliance of Motion Picture and Television Producers ("AMPTP"). Paramount has been party to the agreements since at least 1964. At the time of SKODAM's production, the collective bargaining agreement at issue in this lawsuit — the Basic Agreement — was in effect.

The Basic Agreement enumerates wage, benefits, and working conditions requirements for AFM musicians hired to score motion pictures. For example, the Basic Agreement establishes when musicians receive days off, requires the signatory [*7]  Producers2 to pay into a musician health plan, and establishes wage scales for various covered employees. Article 1 of the Basic Agreement, titled "Scope of Agreement," provides:

This Agreement shall be applicable to the classifications of employees listed in the "Wage Scales, Hours of Employment and Working Conditions" attached hereto, and also to all conductors, featured instrumental musicians and orchestras, employed by the Producer in the State of California or elsewhere in the United States and Canada and whose services are rendered in connection with the production of theatrical motion pictures.

Article 3 of the Basic Agreement — the provision central to this case — provides: "All theatrical motion pictures produced by the Producer in the United States or Canada, if scored, shall be scored in the United States or Canada." Article 3 has been in the Basic Agreement for at least 50 years and has been a point of contention in negotiations.

B. Same Kind of Different As Me

The instant dispute arises from the making of the motion picture Same Kind of Different As Me. Ron Hall, who had authored a book of the same title, developed the SKODAM screenplay along with Alex Foard and Michael Carney, [*8]  who would become the picture's director. In 2014, the screenwriters and Darren Moorman formed SKODAM Films, LLC, in order to produce SKODAM. Moorman raised money and reached out to potential partners, including Disruption Entertainment ("Disruption"), which was run by individual producer Mary Parent. Parent showed interest in SKODAM and told Moorman that she would ask Paramount for its response to the project.

1. Paramount and Disruption Memorandum of Agreement

At the time that SKODAM Films approached Disruption, Paramount and Disruption had a Memorandum of Agreement ("MOA") related to Parent's producing services. The MOA was a "first look" agreement that required Parent to share with Paramount any motion picture projects under her control or that she was considering acquiring, so that Paramount could determine whether to produce the motion picture. The MOA provided, "It is the essence of this Agreement that during the Term, [Disruption's] producing services in connection with theatrical motion pictures shall be exclusive to [Paramount]." If Paramount passed on a project, Parent could shop that project to other motion picture studios. In exchange, Paramount paid Disruption an overhead [*9]  contribution toward expenses and staff salaries and paid Parent a per-picture producing fee. Disruption employees also kept office space at Paramount and had Paramount email addresses. During the term of the MOA, Parent worked on several motion pictures with Paramount and several with other studios.

After Parent's conversation with Moorman, Disruption contacted Paramount in the summer 2014. Paramount executives commented on two versions of the SKODAM script and projected the motion picture's potential revenue. Paramount also met with Carney and eventually decided to become involved with SKODAM.

2. Co-Financing and Distribution Agreement

On October 16, 2014, Paramount and SKODAM Films executed a "Co-Financing and Distribution Agreement." The Co-Financing and Distribution Agreement referred to SKODAM Films as "Producer" and Paramount as "Paramount" and established the parties' respective obligations in connection with "the production, distribution, and co-financing" of SKODAM. Paramount committed to finance 40% of SKODAM's production and budget, while SKODAM Films would contribute 60%. Paramount received the exclusive right to distribute the picture and the soundtrack, and a 40% copyright [*10]  to "reflect[] the status of Paramount and Producer as co-authors and co-owners of the work." Paramount also received a presentation credit — "Paramount Pictures presents" — on the motion picture, while Parent and the individual members of SKODAM Films received "producer" credits.

The Co-Financing and Distribution Agreement included several conditions precedent to Paramount's performance, two relevant to this case. First, SKODAM Films was required to contract with Disruption for Parent's producing services. Second, Paramount had to approve "the screenplay and the budget prepared by [SKODAM Films]," the director, and lead cast members. SKODAM Films could not begin principal photography until Paramount gave the latter two approvals.

3. SKODAM Films and Disruption Agreement

In satisfaction of the first condition precedent in the Co-Financing and Distribution Agreement, SKODAM Films executed an agreement with Dreamchaser, Inc. — an entity associated with Disruption and Parent — for Parent's producing services. SKODAM Films gave Parent the right to "mutually approve all material creative decisions" in connection with SKODAM. The agreement further provided that if Parent and SKODAM Films disagreed [*11]  about those material creative decisions, "[Paramount's] decision shall control."

4. Principal Photography on SKODAM

With the foregoing agreements in place, principal photography for SKODAM took place in Jackson, Mississippi, between October and December 2014. Moorman selected the shooting dates and locations, and spent "hundreds of hours" arranging the shooting of every scene. SKODAM Films, via Moorman, also negotiated agreements with labor unions like the Directors Guild of America and SAG-AFTRA. Although they were not on site during principal photography, multiple Paramount employees received and reviewed dailies — the daily film output — from SKODAM Films. One Paramount executive gave the SKODAM director suggestions relating to the "pace" of shooting, as well as feedback on a few specific scenes and one actor's performance. At Paramount's behest, SKODAM Films consulted with a production professional prior to an aerial shoot in Texas.

AFM learned about SKODAM and, in December 2014, sent Paramount a letter stating that the union's musicians "look[ed] forward to the scoring" of SKODAM as the picture entered post-production.3 "Post-production" refers to activities occurring after the motion [*12]  picture has been shot, such as editing and scoring. Nothing in the record indicates that Paramount responded to AFM's letter.

5. Composer Agreement

In February 2015, after principal photography had concluded, composer John Paesano contracted with SKODAM Films to score SKODAM (the "Composer Agreement"). The SKODAM director, Carney, selected Paesano. In the Composer Agreement, Paesano warranted that the SKODAM score would not be subject to the "jurisdiction of any labor organization (e.g., [AFM])." Per the contract, Paesano's composer fee included money to hire musicians, making the arrangement a "package deal." Paramount reviewed and approved the Composer Agreement.

Paesano composed the score between January and April 2015. Around that time, after a test screening of the picture (which did not yet include Paesano's score), Paramount's chief music executive called Paesano to have what the composer described as a "general conversation" about the music for the picture. Once the score was composed, Paesano hired a music contractor, who selected the musicians. Paesano chose to record the score in Bratislava, Slovakia, although he monitored the recording remotely from Los Angeles. That same [*13]  week, Paesano also recorded two music soloists in Los Angeles.

II. Procedural Background

A. District Court Proceedings

In June 2015, AFM sued Paramount in federal district court for breach of contract under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a). AFM's complaint alleged that Paramount breached Article 3 of the Basic Agreement by scoring SKODAM in Slovakia. Paramount moved for summary judgment, contending that it had no obligation to score the picture in the United States or Canada because it did not "produce" the picture under the terms of Article 3. Paramount also raised the affirmative defense that AFM's demand letter violated the "hot cargo" provision, § 8(e) of the NLRA, 29 U.S.C. § 158(e).

The district court granted Paramount's motion. First, the court concluded that the term "produced" in Article 3 is ambiguous and that, based on extrinsic evidence, a Producer "produces" a motion picture when it "makes" or "shoots" the principal photography for a motion picture. The court determined that there was a genuine dispute of material fact whether Paramount "produced" SKODAM because, although SKODAM Films did the bulk of the work, Paramount paid SKODAM Films during principal photography and reviewed dailies. Second, the [*14]  district court concluded that Article 3 does not apply every time a signatory Producer produces a motion picture. Looking to Article 1, which establishes that the Basic Agreement applies only to musicians "employed by the Producer," the court concluded that Article 3 "covers only a Producer of a theatrical motion picture who . . . has the authority to hire and fire employees," like the cast and crew. In addition, the Producer must employ, directly or indirectly, "the employees covered under the [Basic Agreement] during the making and shooting of a motion picture." Because there was no dispute that Paramount did not employ the SKODAM cast or crew (SKODAM Films did) or the scoring musicians, Article 3 did not apply. The court thus granted summary judgment for Paramount. The court did not address Paramount's alternative argument that § 8(e), the "hot cargo" provision, bars AFM's suit.4 This appeal followed.

B. Standard of Review

The district court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 185(a), and we have jurisdiction under 28 U.S.C. § 1291. We review de novo both the district court's grant of summary judgment for Paramount and its interpretation of the collective bargaining agreement. See Alday v. Raytheon Co., 693 F.3d 772, 782 (9th Cir. 2012). We review for abuse of discretion the district court's [*15]  exclusion of evidence from the summary judgment record. Reed v. Lieurance, 863 F.3d 1196, 1204 (9th Cir. 2017).

Discussion

I. Evidentiary Rulings

First, AFM challenges two of the district court's evidentiary rulings. Paramount objected to an expert report and an internal Paramount email that AFM included as part of its opposition to Paramount's summary judgment motion. The district court sustained both objections. In each instance, exclusion was legal error and therefore an abuse of discretion. See United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc).

A. Paramount email

AFM challenges the district court's exclusion of an email that Paramount produced in discovery. In the email, Paramount employee Christina Toth wrote to two other Paramount employees that Neil Kohan, a representative of SKODAM composer Paesano, had reached out to discuss "union vs. non union recordings." Toth — whose email signature indicated that she worked for Randy Spendlove, President of Motion Picture Music at Paramount — asked the recipients if, "[p]er Randy," one of them could call Kohan. AFM sought to introduce the email to show that Kohan reached out to Paramount about which musicians to hire. Paramount objected that the email was not authenticated and was inadmissible hearsay. The district court sustained [*16]  the objection, but did not explain its grounds for exclusion. Neither of Paramount's objections withstands scrutiny.

To authenticate evidence, a party must "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). "A party 'need only make a prima facie showing of authenticity so that a reasonable juror could find in favor of authenticity or identification.'" United States v. Estrada-Eliverio, 583 F.3d 669, 673 (9th Cir. 2009) (quoting United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996)). Paramount contends that AFM's failure to elicit deposition testimony about the email is fatal to its authenticity. However, Paramount itself produced the email, which includes Toth's Paramount email signature and Paramount email address. Given the "contents, substance . . . [and] other distinctive characteristics of the item," Fed. R. Evid. 901(b)(4), plus the fact that it was produced by Paramount in discovery, a reasonable juror could find that the email is what AFM claims it is.

The Toth email is also not inadmissible hearsay. First, Toth's statements in the email are non-hearsay as opposing party statements because the email establishes that Toth sent it in her capacity as a Paramount employee. See Fed. R. Evid. 801(d)(2)(D). Second, Kohan's statement to Toth, the second layer of potential hearsay, is not offered for [*17]  its truth. AFM states that it included the email to show that Kohan called Paramount to inquire about the hiring of scoring musicians, which was relevant to the issues in Paramount's summary judgment motion.5 For that reason, Kohan's statement is admissible as verbal acts evidence. See Fed. R. Evid. 801(c), advisory committee's note. The district court abused its discretion in excluding the Toth email.

B. Expert Report

The district court also excluded an expert report prepared by Harris Tulchin because "the report itself [was] not submitted under penalty of perjury." Tulchin signed the report, although not under penalty of perjury. Attached to Tulchin's expert report was a declaration in which he attested under penalty of perjury that he prepared the report and would testify "consistent with [its] conclusions and opinions."

For purposes of Federal Rule of Civil Procedure 56(c)(4),6 there is no meaningful distinction between an expert report accompanied by a sworn declaration and an expert report that is itself sworn. The out-of-circuit cases relied on by the district court, and cited again by Paramount on appeal, are easily distinguishable. For example, in Fowle v. C & C Cola, a Div. of ITT-Continental Baking Co., 868 F.2d 59 (3d Cir. 1989), only the plaintiff's attorney — not the expert himself — attested to the veracity of the [*18]  report. Id. at 67. See also Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 1000 (5th Cir. 2001) (excluding unsworn expert report where there was no indication that the expert had attached a sworn declaration). By contrast, Tulchin swore in a declaration that he would testify in accordance with the report, which satisfies the functional concerns behind Rule 56(c)(4) — that Tulchin is competent to testify to the conclusions and opinions in the report. The district court thus abused its discretion by excluding Tulchin's expert report on the basis that the report itself was not signed under penalty of perjury.

 


As defined in the Basic Agreement, orchestration is "the art of assigning, by writing in the form of an orchestra score, the various voices of an already written composition complete in form."

The signatory studios are referred to throughout the Basic Agreement as "Producers." To be clear: the term "Producer" is distinct from the term "produced" in Article 3. Thus, it is not the case that a Producer — a signatory — "produces" within the meaning of Article 3 anytime a Producer is involved with a motion picture. When a Producer "produces" is disputed, but the parties do not dispute that Paramount is a "Producer" as a signatory to the Basic Agreement.

SKODAM Films is not a signatory to the Basic Agreement and AFM did not send a similar letter to SKODAM Films.

The district court initially issued its order under seal, and issued a redacted order two weeks later. On appeal, the parties filed two versions of their briefs; an unredacted set under seal and a redacted set on the public docket.

In its brief and at oral argument, Paramount could not identify how AFM was offering Kohan's statement for its truth. If AFM were offering Kohan's statement to show that he "wanted" to talk about which musicians to hire, the statement would be offered for its truth. But that is not why AFM seeks to include the email.

"An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).

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