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Harry Lillis Crosby, better known to the world as “Bing,” left behind a vast musical legacy when he died in 1977. But did he also leave an attorney-client privilege shielding his many recording contracts from discovery in subsequent litigation years after his death? That was the issue the California Supreme Court struggled with on Tuesday during the year’s first oral arguments in San Francisco. While the justices seemed concerned about letting the famous crooner’s attorney-client privilege survive his passing, they also appeared to recognize that the situation — involving a world-famous singer’s personal recordings — might call for a unique solution. Justice Marvin Baxter summed up that conflict succinctly. “It seems like both sides are arguing an all-or-nothing proposition here,” he said. “Is it appropriate for a trial judge to give some weight to the nature of the litigation in determining whether [the attorney-client privilege was] personal to Crosby or held by the [Bing Crosby] Enterprises?” The issue arose in 2000 — 23 years after Crosby’s death at age 74 — when HLC Properties Ltd., which handles Crosby’s entertainment empire, sued five recording companies, including MCA Records Inc. and Universal Studios Inc. HLC, successor to the loosely organized Bing Crosby Enterprises, contended that the companies owed at least $16 million in underpaid royalties on recording contracts dating back to about 1943. When the companies responded by trying to subpoena 59 documents that they believed would support their defense, HLC claimed all were protected by the attorney-client privilege. The companies argued that the privilege ceases to exist when an estate is closed and the decedent’s personal representative is discharged. Los Angeles’ Second District Court of Appeal disagreed in late 2003, ruling that “organizations,” such as HLC Enterprises, are listed along with guardians, conservators, successors and others that the state Evidence Code defines as a qualified holder of a deceased person’s attorney-client privilege. On Tuesday, MCA lawyer Steven Marenberg, a partner in L.A.’s Irell & Manella, told the justices that the case gives them the “important opportunity to clarify that the attorney-client privilege terminates after death.” But the justices questioned whether Bing Crosby Enterprises, created in 1946 and liquidated in 1954, hadn’t retained a privilege that could be passed on to HLC Properties. Justice Baxter also noted that some estates maintain a personal representative for years to take care of lingering affairs. Marenberg agreed that as long as there is a representative, the privilege exists. But he said that Bing Crosby Enterprises was a “fiction” that never truly existed except in “loose terminology” used by Crosby’s employees. The state Evidence Code doesn’t let someone retain a decedent’s privilege simply because he or she worked for him. “Everyone was working for Mr. Crosby,” he said. “The fact that Mr. Crosby signed the contracts himself means it was a personal business.” Along that line, Justices Ming Chin and Carlos Moreno challenged Los Angeles lawyer Mark Brodka about HLC’s legal status, based on the fact that the company wasn’t formed until after Crosby’s death. “Did it file separate tax returns?” Moreno asked. “Did the organization have business interests, assets or liabilities that were separate from Mr. Crosby’s?” followed Chin. Brodka said contracts had been entered, but argued that because of the passage of time it wasn’t clear what the agreements entailed. Even so, he argued, “You have to look at the nature of what the entity does, and what we have here is the management and control of an ongoing business, and that constitutes an organization” for Evidence Code purposes. Chin, however, pointed out that Bing Crosby Enterprises had been liquidated in 1954, a full 23 years before Crosby died and HLC was formed. “Are you suggesting to the court that we ignore that?” he asked. Howard Miller, a partner at L.A.’s Girardi & Keese who also represented HLC, pointed out that Bing Crosby Enterprises had entered into contracts with Decca Records, predecessor to MCA, as late as 1977. “What was this ‘magical’ organization if it did not exist?” he asked the justices. In rebuttal, Marenberg pleaded with the justices to recognize that Crosby had several employees working for him, but that there was no formal organization that could retain his attorney-client privilege. “These were contracts entered into by Harry L. Crosby,” he argued, “and nobody else.” A ruling in HLC Properties Ltd. v. Superior Court (MCA Records Inc.), S120332, is expected within 90 days.

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