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LN/SK in new war of words over destroyed evidence

Live Nation's lawyer has welcomed the latest ruling in its antitrust case with Songkick, but the latter accuses him of misrepresenting the ruling

By Jon Chapple on 14 Nov 2016

Dan Wall, Latham & Watkins, Live Nation (LN) v Songkick (SK)

Live Nation's attorney, Dan Wall


image © Latham & Watkins LLP/The Recorder

A Californian magistrate has rejected claims by Songkick that Live Nation destroyed evidence relating to the companies’ ongoing anti-competition lawsuit.

Judge Alicia G. Rosenberg, of the central district court of California, ruled on Thursday that Live Nation/Ticketmaster had no duty to retain the documents in question, which include a February 2014 letter from Complete Entertainment Resources (Songkick) regarding Ticketmaster’s fan-club policy, and denied a request by Songkick for a forensic search.

“There is no indication in the record before the court that any party — Songkick, Ticketmaster or Live Nation — failed to preserve documents regarding Songkick’s compliance with Ticketmaster fan-club policies regarding artist presales after 3 February 2014,” she wrote. “To the extent Songkick argues that [the letter] triggered a duty to preserve documents regarding the antitrust claims that Songkick filed over a year later on 22 December 22, Songkick’s argument is rejected.”

Songkick and Live Nation have been locked in a legal battle since December over the former’s claims the latter “exploited their monopoly power” to stifle competition by attempting to force the Songkick to pay service fees for artist-to-fan presales and intimidate concert venues and artists into not working with Songkick and other rival ticket agencies. In May, a judge dismissed a claim by Songkick challenging the 2010 merger of Live Nation and Ticketmaster, handing an early victory to the defendant.

Live Nation welcomed the most recent ruling. “The absurd contention that Live Nation failed to preserve documents was thoroughly rejected,” Dan Wall, of Live Nation’s lawyers, Latham & Watkins, tells Law360. “The rest of the rulings were run-of-the-mill discovery issues of no great import. Songkick wasted its time and money, and got nothing meaningful for it.”

“The absurd contention that Live Nation failed to preserve documents was thoroughly rejected. … Songkick wasted its time and money, and got nothing meaningful for it”

Songkick, however, disputes Live Nation’s version of events. In a statement, a spokeswoman tells IQ:

“Live Nation and Ticketmaster have admitted to Songkick and to the court that they deleted an incredibly large number of documents in 2015, including by adopting a new email retention policy in June 2015 which automatically deleted executives’ emails after 30 days unless archived by the executive.

“The issue in front of the Court was whether the court should order a forensic search of defendants’ systems and whether they should be sanctioned for the document destruction. Contrary to the statement by Mr Wall, the court did not ‘thoroughly reject’ the ‘absurd contention’ that Live Nation failed to preserve documents.

“First, at the hearing, Live Nation and Ticketmaster’s counsel admitted for the first time that they had been able to locate what appears to be some of the deleted documents on a former employee’s personal computer, as the result of a subpoena that Songkick itself served on the former employee out of an abundance of caution. Whether those emails actually include materials responsive to Songkick’s discovery requests in this case remains to be seen, and the court explicitly invited the parties to revisit the issue if they do not. Second, the court found there was no need to rule on Ticketmaster and Live Nation’s duty to preserve documents relating to Songkick’s compliance with Ticketmaster’s fan-club policies for artist presales, based on a representation by Latham & Watkins – the defendants’ lawyers – that all such documents had been preserved. The relevant portion of the ruling is:

“‘Even assuming, without deciding, that a duty to preserve was triggered by Weiss’ 6 February 2014 [letter], the scope of that duty to preserve reasonably encompassed, at most, Songkick’s compliance with Ticketmaster’s fan club policies regarding artist presales […] Ticketmaster’s counsel represented at oral argument that Ticketmaster had preserved documentation within that scope…’

“Songkick is pleased with its three victories in this court order, and it is vigorously pursuing a clarification from Live Nation and Ticketmaster’s lawyers before deciding its course of action on the fourth claim”

“Songkick has requested, but not yet seen the evidence supporting the representation made to the court. If the evidence is not found to support this representation to the court, Songkick may seek reconsideration of the ruling.

“The other three rulings that were part of this motion to compel were all won by Songkick. These rulings, made in Songkick’s favour, require Live Nation and Ticketmaster, pursuant to court order to produce the vast bulk of Ticketmaster’s ticketing data from 2011–2015, production of which they were unnecessarily delaying before; to re-review approximately 82,000 documents collected from Live Nation custodians and produce documents relevant/responsive to several of Songkick’s claims; and provide critical information in response to an interrogatory Songkick served months ago.

“Songkick is pleased with its three victories in this court order, and it is vigorously pursuing a clarification from Live Nation and Ticketmaster’s lawyers before deciding its course of action on the fourth claim. Songkick will continue to invest its time and resources to pursue its claims, in hopes of bolstering fair competition and creating more value for artists and fans.”

 


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