“Heartless” Ex Parte Motion for Sanctions Denied Because There Was No “Fire”

“Lawyers must understand that filing an ex parte motion … is the forensic equivalent of standing in a crowded theater and shouting, ‘Fire!’ There had better be a fire.” … There is no fire here.” Artis Revenue Advocates, LLC v. West, 2025 WL 2014311 (C.D. Cal. Jun. 26, 2025)(citation omitted).  Here, the ex parte motion was filed two days after opposing counsel’s wife had given birth.

Faced with a producing party’s “infuriating” and “woefully inadequate” responses, on the one hand, and a premature, ex parte motion, on the other, the court demanded a better factual predicate.  It wrote:

Something does not add up, but it is unclear whether it is spoliation, absurdly bad record keeping, failure to comply with this Court’s orders, or some combination of the three. Without that information, the Court is hard pressed to decide what sanctions are appropriate and why. For example, to decide whether there is prejudice from the acknowledged purging of email accounts, the Court needs some sense of what accounts those were, the information presumed to be there, and the circumstances under which they were purged.

To set the stage:  “This is a copyright case. Plaintiff Artists Revenue Advocates alleges that its copyrighted work was used without its permission in the songs Hurricane and Moon, leading tracks from Defendant Kanye West’s album Donda…. Defendants deny liability.”

The defendants are Kanye Omari West, Getting Out Our Dreams, Getting Out Our Dreams II, Yeezy, LLC, Yeezy Supply LLC, and OX Paha, Inc., “all entities associated with West.”

The Central District of California’s Local Rule 7-19 permits ex parte applications. Notice must be given to the opposing party.  Under L.R. 7-19.2, the Judge may hear the application without notice, upon a showing that doing so is in the interest of justice.  L.R. 37-3 states:

Unless the Court in its discretion otherwise allows, no discovery motions may be filed or heard on an ex parte basis absent a showing of irreparable injury or prejudice not attributable to the lack of  diligence of the moving party.

The West court explained the procedural history. Plaintiffs served a document request.  After several extensions of time and meet-and-confers, defendants responded with only objections.

After more attempts to resolve the matter, plaintiffs moved to compel. The court “largely” granted the motion and, after defendants asserted that “they had conducted a reasonable inquiry into materials within their possession but had found no responsive documents,” the West court ordered defendants to submit an affidavit showing their efforts to respond.

The court wrote: “The Court did not grant the request for a Rule 30(b)(6) deposition but warned Defendants that that relief would be on the table if the declaration was not adequate to the task.”

Next, defendants produced 63 pages and a declaration from Milo Yiannoploulos, once the chief of staff and now an “irregular consultant.”  In the declaration,  the defendants pointed to their information governance as an excuse.  The court wrote:

Mr. Yiannopolous states that, while Yeezy LLC is “scrupulous” about complying with tax, employment, and other “statutory matters,” it does not keep conventional business records….  He states that some records exist but are held by third parties…. He claims that some of the information Plaintiff seeks would be “injurious” to Plaintiff’s claims….  He claims that “entire contents of work email accounts [are] purged on a regular basis.”… He claims that “employees and contractors” have not provided requested documents in response to their requests….  He says, in some instances, he has looked and “finds no records.” … He claims that other instances that documents are simply “waiting to be discovered.” … Other things are a “mystery to everyone at Yeezy.” … Moreover, Mr. Yiannopoulos makes minimal efforts to explain which excuse applies to which missing discovery.

In the court’s words, the “declaration offers a bevy of excuses for why production has been slow in coming and minimal once it arrives. [The declarant] promises that more is on the way but warns that some of the requested items simply do not exist.”

After receipt of what the court called a “paltry production,” the plaintiffs filed an ex parte request for sanctions and spoliation, including terminating sanctions.  “As for the ex parte nature of the request, Plaintiff states that the approaching discovery cutoff (in mid-October 2025) justified moving ex parte.”

The court wrote:

There is no fire here. Plaintiff is frustrated, and rightly so. Plaintiff is concerned about the clock ticking on its discovery cutoff, and rightly so. If Defendants’ production continues at its current pace, they will not finish by the current discovery cutoff. Even so, an ex parte application is not the solution. There are still nearly four months in the discovery period. Motions can be decided on shortened time where an appropriate showing has been made.

It added:

The Court notes that Plaintiff filed this ex parte application knowing that this Court’s rules would require Defendants’ counsel to respond the next business day and knowing that Defendants’ lead counsel and his wife had welcomed their first child just two days earlier.

On those facts, the court added:

Pulling the trigger on an ex parte application too quickly is an error in legal judgment. Doing so under these circumstances is simply heartless and cannot be justified by any level of frustration with opposing counsel or his clients. [Emphasis added].

It wrote: “Next time there’s no fire, the application will be struck.”

On the merits, after finding the matter fully briefed, the court wrote: “Plaintiff jumps the gun in another sense: it requests spoliation sanctions, terminating sanctions, and evidentiary sanctions finding defenses to liability and privilege objections waived without adequately establishing the evidentiary basis for those requests.”

The West court wrote: “Saying that Kanye West is an artist who doesn’t really care about money and doesn’t really keep records is not an adequate excuse. Begging indulgence, forgiveness, and patience is likewise not appropriate; patience on all sides was exhausted long ago. The relevant discovery was requested in November 2024, and the Court and the parties still lack basic information about what records exist, whether any records were spoliated, and why existing discovery has not yet been produced.”

Defendants offered, and the court ordered, a deposition of the declarant.  The West court wrote: “Once Plaintiff has taken that deposition, it may move for whatever relief it deems appropriate.”  It concluded:

Defendants should not take denial of the full relief sought by Plaintiff as sanctioning their conduct. Defendants have repeatedly blown off this Court’s orders and substantial sanctions will almost certainly be warranted, particularly if Defendants take this deposition with the same seriousness as they have taken their other discovery obligations to date. If they are serious about trying to right the ship, now is the time to do so. [Emphasis added].

The court wrote that: “Serious sanctions may eventually be warranted in this case, but the Court will not grant such relief on this record, and on an ex parte basis. With the discovery cutoff still four months away, the Court grants an intermediate sanction and invites Plaintiff to return with a noticed motion, accompanied by a request to shorten time if necessary, supported by a greater evidentiary showing that the relief sought is appropriate. Further attempts to seek relief on an ex parte basis will be struck in the absence of a circumstance warranting such treatment.”

As to ex parte requests, the West court wrote:  “Hearing a motion on shortened time has a significantly different impact than an ex parte application does, both on counsel and on the Court, and is the more appropriate method to deal with time sensitive questions that are not emergencies.”

The following day,  the Court ordered Defendants to pay Plaintiff $52,105.  2025 WL2014460 (C.D. Cal. Jun. 27, 2025).