SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

NURIA SCHOENBERG NONO, RONALD R. SCHOENBERG, LAWRENCE A. SCHOENBERG, individuals, Plaintiffs,

vs.

UNIVERSITY OF SOUTHERN CALIFORNIA, a nonprofit corporation; and DOES 1 through 10, inclusive, Defendants.

CASE NO: BC131528
(Assigned to Hon. William C. Beverly, Jr. - Department 46)

NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF INTERNAL MEMOS WITHHELD ON ACCOUNT OF PRIVILEGE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF LAWRENCE A. SCHOENBERG AND E. RANDOL SCHOENBERG IN SUPPORT THEREOF

Date: April 15, 1996
Time: 8:30 a.m.
Dept.: 46
Trial Date: None
Motion Cutoff: None
Discovery Cutoff: None

TO DEFENDANT UNIVERSITY OF SOUTHERN CALIFORNIA AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 15, 1996 at 8:30 a.m. in Department 46 of the Los Angeles Superior Court located at 111 N. Hill St., Los Angeles CA 90012-3117, Plaintiffs Nuria Schoenberg Nono, Ronald R. Schoenberg and Lawrence A. Schoenberg ("Schoenbergs") shall and hereby do move for an order compelling the production of the following documents identified on defendant's privilege log:

From To Date Subject
Zukofsky Armstrong 3/30/95 Schoenberg dispute
Zukofsky Armstrong 4/3/95 Schoenberg dispute
Zukofsky Armstrong 4/17/95 Schoenberg dispute
Zukofsky Armstrong 4/25/95 Schoenberg dispute
Zukofsky Armstrong 7/7/95 Schoenberg dispute

The grounds for the motion are that the withheld documents do not appear to be privileged since they are communications between the Director of the Arnold Schoenberg Institute, Paul Zukofsky, and the University Provost, Lloyd Armstrong, regarding the present dispute. The documents were apparently withheld because they were "cc'ed" to University General Counsel Robert Lane. This motion shall be based on this notice of motion and motion, the attached memorandum of points and authorities and declaration of E. Randol Schoenberg, as well as the pleadings and other papers on file herein, oral argument of counsel, and all other matters that properly come to the attention of the Court.

KATTEN MUCHIN ZAVIS & WEITZMAN
By: E. Randol Schoenberg
Attorneys for plaintiffs
NURIA SCHOENBERG NONO, RONALD R. SCHOENBERG and LAWRENCE A. SCHOENBERG

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION.

This action concerns the breach of a 23-year-old Agreement between the University of Southern California and the family of the world-renowned composer Arnold Schoenberg, who resided in Los Angeles from 1934 until his death in 1951. In 1973, the Schoenbergs and the University entered into an Agreement to Establish the Arnold Schoenberg Institute at USC. The Schoenbergs agreed to donate their father's manuscripts to the University and the University agreed to build and operate an Institute dedicated to furthering research and promoting understanding of Schoenberg's works.

In the past several years, the Institute Director, Paul Zukofsky, has -- in the most Machiavellian way -- engineered a total breakdown of relations between the Schoenbergs and the University, primarily in order to protect himself from criticism of his performance as Director. Mr. Zukofsky's plan was to get the University to force the Schoenbergs to give up their contractual rights to participate in the governance of the Institute, as set forth in his rambling, slanderous, and in many cases deliberately false memo dated December 8, 1994:

A third strategy would be for a small group (1 or 2 from the Provost's office, plus yourself) to decide what USC can live with, and then tell the Schoenbergs to agree or leave. In principle, we should not alter the contract, as doing so makes it easier for the Schoenbergs to blame USC, but if in fact it is decided that that is what is needed, we should attempt to do so. (Ex. R, p. 5.)

Mr. Zukofsky's intentions toward the Agreement with the Schoenbergs are further set forth in his April 26, 1995 memo:

In my opinion, "in for a penny - in for a pound", i.e. we are already in breach, therefore it hardly matters if we are somewhat more in breach. The next logical place to "violate" the contract concerns the use of the Institute's performance hall. . . . I see no reason why the hall could not be used for various University-wide events, including Library fundraisers, University lectures, etc. (Ex. S (emphasis added).)

While Mr. Zukofsky was successful in poisoning the relationship between the Schoenbergs and USC, he has not succeeded in forcing the Schoenbergs to give up their contractual rights, which form the basis of this action. The documents sought by this motion, five memos from Mr. Zukofsky to the University Provost Lloyd Armstrong, are highly relevant and potentially explosive documents that the University understandably is not eager to produce. However, the University's claims of privilege are not valid and the Court should compel disclosure, or at the very least review the documents in camera and order their production with the redaction of any privileged communications.

II. FACTUAL AND PROCEDURAL BACKGROUND.

In response to a deliberate breach of contract by the University, the Schoenbergs have brought this action in order to maintain the integrity of the Arnold Schoenberg Institute until it can be transferred to a new location pursuant to the Agreement between the Schoenbergs and USC, a copy of which is attached as Exhibit A. The Institute houses the archives of the composer, Arnold Schoenberg, which were donated by the plaintiffs to USC subject to the Agreement. The Institute is located in a unique, free-standing building located on the campus of USC, which was built especially for the Institute. (Exs. C and D.)

Originally, the dispute arose in December 17, 1994, when the Schoenbergs notified the University that it was in breach of the Agreement based on its failure to hold required meetings of the Institute Advisory Board (on which the Schoenbergs hold three of seven seats) and the Institute Academic Committee. (Ex. F.) Rather than hold the required meetings, the University decided to demand that the Schoenbergs modify the Agreement and give up most of their contractual rights, as well as the copyrights which were expressly retained by the Schoenbergs under the Agreement. Primary among these requested "modifications" was the elimination of the contractual right to have the Institute building used "exclusively" for Institute purposes. (Ex. H.) After meeting briefly with the Schoenbergs to discuss modifying the Agreement, on April 6, 1995, Provost Armstrong wrote the Schoenbergs that

. . . it appears that absent agreement or modification of the manner in which the Institute will be operated and housed here at the University, we must conclude that your Notice of Breach is a decision by the Schoenberg family that you desire to relocate your father's collection. . . . we stand ready to discuss with you how the separation shall occur and over what time period. (Ex. I.)

The Provost informed the Board of Trustees of this decision on April 11, 1995:

We have communicated the message to the Schoenbergs that unless they are prepared to completely rewrite our agreement, they should begin the process of moving the archives to another tax-exempt organization as specified in the original agreement. (Ex. J.)

The Schoenbergs immediately acknowledged the University's decision, and stated that they intended in the future to exercise their contractual right to transfer the Institute to another location based on the University's refusal to cure a material breach. (Ex. K.)

The Agreement was not terminated. Indeed, USC stated it would continue to operate and retain the Institute through at least June, 1997. (Ex. O.) On May 15, 1995, the Schoenbergs wrote to President Sample, informing him that while they were looking for a new site for the Institute and intended to exercise their rights to transfer the Institute to another institution, "[u]ntil we do, USC is still required to comply with all the terms of our agreement, including housing of the archives, staffing, and exclusivity of the use of the building." (Ex. M.) On May 26, 1995, Mr. Lane responded on behalf of the University,

the University does not feel restrained as to the use of the building in which the Archives are stored. Accordingly, the University cannot abide by your statement in your letter that all prior conditions must be maintained by the University while you determine a suitable location for the Archives. (Ex. N.)

Further, on July 14, 1995, Mr. Lane wrote to the Schoenbergs' counsel, "It is the position of the university that this structure may be utilized for any purpose the university sees fit. . . ." (Ex. P (emphasis added).)

Despite the Provost's earlier assurances, the University refused to negotiate with the Schoenbergs to discuss the mechanics of the transfer, or to resolve issues such as the use of the facilities prior to transfer of the Institute, and the disposition of after-acquired materials housed with the Schoenberg collection. (Ex. P.) In order to prevent further violation of the Agreement and the dismantling of the Institute by USC, on July 19, 1995 the Schoenbergs sought and obtained a temporary restraining order preventing USC from using the Institute building for purposes unrelated to the Institute and from removing and copying materials in the Institute. A USC employee admitted that the Schoenbergs had been "deliberately provoked" to take such action. (Ex. Q.) On September 22, 1995, the Hon. Diane Wayne issued a preliminary injunction enjoining the University from (1) failing to protect the Collection, (2) using the Institute facilities for any purposes not reasonably related to the Collection, as defined in paragraph 9 of the 1985 Understandings between the parties, and (3) publishing or copying materials with permission. (Ex. T.)

Subsequent to these rulings the parties agreed to a stay of the action and a voluntary mediation with the Hon. Aviva Bobb, which was scheduled to take place on January 8, 1996. However, on Wednesday, January 3, 1996, USC gave written notice that it intended to use the Institute building for general music classes, recitals and concerts beginning the very next week. This belated notice itself violated paragraph 2 of the 1985 Understandings and the repeated assurances of counsel for the University that the Schoenbergs would be told at the planning stage of any plans to use the Institute building for any purpose. (Ex. E, | 2.) Because of the last-minute notice, the Schoenbergs were forced once again to make an ex parte application to prevent further violation of the Agreement and the preliminary injunction. On January 5, 1996, the Schoenbergs obtained a second temporary restraining order from the Hon. Robert H. O'Brien. The TRO was ultimately converted into a second preliminary injunction, which was issued on February 1, 1996. (Ex. U.) The University has filed a notice of appeal of the second preliminary injunction and that appeal is still pending.

The instant motion concerns the University's document production. The Schoenbergs have requested the production of all documents in the possession of Provost Armstrong which relate to the Institute. (See Separate Statement.) The University has produced documents responsive to this request, with the exception of several documents for which the University claims a privilege. On about March 12, 1996, the University delivered a revised "privilege log," listing responsive documents withheld on account of a purported privilege. (Ex. V.) This privilege log lists several memos from Mr. Zukofsky to Provost Armstrong, dated March 30, April 3, April 17, April 25 and July 7, 1995 regarding the dispute with the Schoenbergs. These documents are apparently being withheld based on a purported attorney-client privilege because copies of the documents were also sent to the University General Counsel, Robert Lane. The parties have written several meet and confer letters and have agreed that this issue must be resolved by the Court. (Ex. W, X, Y and Z.) Under Judge Aviva Bobb's February 7, 1996 Minute Order lifting the stipulated stay of the action, the Schoenbergs were given 45 days, until March 22, 1996, to make such a motion to compel. (Ex. AA.)

III. LEGAL ARGUMENT.

There can be no denying that the subject memos from Mr. Zukofsky to Provost Armstrong are highly relevant and discoverable documents. The March 30 and April 3 memos immediately precede Provost Armstrong's April 6, 1995 letter to the Schoenbergs informing them that they could remove the Institute from USC. (Ex. I.) The April 17 and April 25 memos concern the University's response to adverse publicity after its decision became public. The July 7, 1995 memo probably deals with the University's threat to use the Institute building for purposes unrelated to the Institute, or its efforts to illegally copy all of the materials in the Institute, the discovery of which led to the filing of this lawsuit. All of the memos were written prior to the filing of this lawsuit and were certainly instrumental in directing the University's actions which necessitated it. The University maintains that because the memos were "cc'ed" to University Counsel Robert Lane, the memos are absolutely and completely privileged. This is an incorrect application of the law. University employees cannot protect relevant communications from disclosure merely by sending copies to their in-house attorneys.

The attorney-client privilege is set forth in Evidence Code section 954. "The attorney-client privilege defined by Evidence Code section 954 authorizes a client to refuse to disclose, and to prevent others from disclosing, information communicated in confidence to the attorney and legal advice received in return." People v. Superior Court (Bauman & Rose), 37 Cal.App.4th 1757, 1765 (1995). "[S]ince the privilege serves to suppress relevant facts, it is to be strictly construed." Id. at 1767. The general rule is that a document does not become privileged merely by sending it to an attorney. Wegner, Fairbank, Epstein & Chernow, Cal. Practice Guide: Civil Trials & Evidence, (The Rutter Group 1993), 8:2042; Montebello Rose Co. v. Agricultural Labor Relations Bd., 119 Cal.App.3d 1, 32 (1981). In order for the privilege to apply, the dominant purpose of the communication has to be to seek or receive advice from an attorney. Holm v. Superior Court, 42 Cal.2d 500, 507 (1954). "A document or report prepared for a dual purpose is privileged, or not privileged, depending on the 'dominant purpose' behind its preparation." City of Hemet v. Superior Court, 37 Cal.App.4th 1411, 1419 (1995). The trial court is required to determine which purpose predominates. Holm, 42 Cal.2d at 507.

Here, the dominant purpose of Mr. Zukofsky's memos was to communicate information to Provost Armstrong. Mr. Zukofsky certainly knew how to write the General Counsel, Robert Lane, directly, as he did on 3/18/94, 3/22/94, 11/22/94, 05/10/95, 07/14/95, and 07/20/95. (Ex. V.) In the case of the memos to Provost Armstrong, Mr. Zukofsky chose to send "cc" copies to other interested parties, Mr. Lane and Mr. Sipe, the Acting University Librarian. The mere "cc" transmittal to an attorney is not enough to create a privilege. Otherwise, all large corporations could seal their internal memos from discovery by simply cc'ing their in-house counsel on every memo. When the dominant purpose of the communication is not to obtain legal advice, the privilege does not apply. Of course, there is no way for the Schoenbergs, or the Court, conclusively to determine the dominant purpose of the memos without actually reviewing them. Therefore, an in camera inspection of the five memos is warranted to determine whether the privilege applies.

IV. CONCLUSION.

The subject memos from Mr. Zukofsky to Provost Armstrong contain highly relevant information which must be disclosed unless the dominant purpose of the memos was to seek legal advice. In any case, only the portions of the memos which pertain to legal advice may be shielded from disclosure. The Court should review the memos in camera and determine which portions must be produced in response to the Schoenbergs' discovery requests.

KATTEN MUCHIN ZAVIS & WEITZMAN
 

By:  E. Randol Schoenberg
Attorneys for Plaintiffs
 

DECLARATION OF LAWRENCE A. SCHOENBERG

I, Lawrence A. Schoenberg, declare as follows:

1. I am the son of Arnold Schoenberg and, along with my brother and sister, am a plaintiff in this action against the University of Southern California to enforce the terms of our Agreement to Establish the Arnold Schoenberg Institute. I have personal knowledge of the facts stated herein, and if called upon to testify, I would testify competently to these facts.

2. My brother Ronald R. Schoenberg, my sister Nuria Schoenberg Nono and I are the children of Arnold Schoenberg, who is considered the most influential composer of the Twentieth Century. He is often referred to as "the father of modern music." He discovered and developed what is commonly called "twelve-tone music." He wrote operas, symphonies, choral works and chamber music, all of which are widely performed around the world. His works and his life are the subjects of continuing scholarship at academic institutions. He was also an accomplished artist.

3. Our father kept, organized, classified, and collected all of his manuscripts, writings and other documents throughout his life. He developed methods of classification for organizing his collection and designed and constructed special furniture to store his scores, artifacts and other items. He never seemed to throw anything away and was a genuine "recycler" of materials. He managed to bring over from Nazi Germany to the United States his complete collection of manuscripts, library, furniture and other materials by first having them moved to Paris in 1933 and later shipped to the United States. In Los Angeles from 1934 to his death in 1951 he continued to augment and preserve his collection. After he died in 1951, our mother continued in the same way to protect the collection. She was unwilling to separate any of his legacy and resisted many offers to purchase selected manuscripts. When our mother died in 1967, we inherited this responsibility of keeping the collection intact, again resisting offers from various individuals and organizations to purchase materials from the collection.

4. In the early 1970's, we decided to donate our father's legacy to a qualified institution on the conditions that the legacy be well conserved and catalogued and that it be made readily accessible to students and scholars. We received many attractive offers from around the world and ultimately entered an agreement with the University of Southern California ("USC").

5. On December 11, 1973, we entered into an agreement with USC, which was amended in 1975 and 1976. The agreement, as amended, is attached as Exhibit A, and is referred to as the "Agreement." The promises by USC in the Agreement were essential to us and, in our view, necessary for the conservation and for the use of the collection. One of the essential terms in the Agreement was that the Institute building would be used exclusively for the Arnold Schoenberg Institute and not for other USC functions. This insures that activities in the Institute are related to Arnold Schoenberg and insures the safety and security of the collection. The University received numerous donations which helped pay for the erection of the Institute building to be used pursuant to our Agreement. The staffing of the Institute was funded by a consortium of other local universities who had an interest in keeping the collection in Los Angeles.

6. Under the Agreement, the Schoenbergs hold three of seven seats on the Board of Advisors of the Institute. The mandated meetings of this committee were to enable us to provide input and oversight regarding use of the facility and to insure that adequate attention be given to the care, organization, development and promotion of the collection. All of the terms of the Agreement were dedicated to fulfilling what the Agreement specifies as "its underlying purpose, namely the preservation of the ARNOLD SCHOENBERG Archives as a single collection available for study by qualified scholars." (Ex. A, | 7.1.)

7. Even before the Agreement to Establish the Arnold Schoenberg Institute was signed, on November 5, 1973, USC's President John Hubbard wrote us: To house the materials comprising the library and archives, we will establish the Arnold Schoenberg Institute on our campus in cooperation with several local educational institutions. We intend to use funds and commitments we have already received for this purpose from internal and other educational and philanthropic sources and augment these in the months ahead to assure ourselves of the permanence of the Schoenberg Institute. However the University of Southern California is now prepared to assume the responsibility for constructing a free-standing structure adequate for the purpose, and provide funds for its director, librarian and such staff that might be required for the Institute. (Attached as Exhibit B is a true and correct copy of President Hubbard's November 5, 1973 letter to my brother.)

8. It was in reliance on these and similar promises that we entered into our Agreement with USC. The Agreement, executed one month after President Hubbard's letter, reaffirms his promise, stating: USC agrees that the building . . . shall be used exclusively for the ARNOLD SCHOENBERG INSTITUTE and that there shall be housed therein only the Archives and related Arnold Schoenberg materials. (Agreement, Ex. A, Article V, | 5.3.)

9. It was our intention, in setting up the Arnold Schoenberg Institute, to establish a permanent home for the legacy where it would become the center of a living memorial to our father. We used specific language both in our communications with prospective donees and finally in our contract with the University of Southern California to accomplish this purpose. In our Agreement with USC, we insisted that USC establish an institute to promote scholarship and understanding of our father's works. We insisted that a separate facility be constructed to house the legacy and the Institute. We insisted that the facility be used exclusively for the Institute and not become merely another university facility, as was the case with Schoenberg Hall at UCLA. We insisted that the Institute have an active program of concerts, lectures, symposia and publications directly related to Schoenberg. Attached as Exhibit C is a cover story from the USC Trojan Family, describing the activities of the Institute during the 1980s.

10. The reasons we insisted that the Institute building be used exclusively for the Institute were to provide a lasting memorial to our father and to protect the collection and assure its security and accessibility. The Institute building was designed (with our approval) to meet these needs. The building includes an archival vault, an archival work room, a library and study room, a seminar room, an exhibit/performance hall and administrative offices. (Attached as Exhibit D is a brochure of the award-winning Institute building.) We insisted that the Agreement provide for exclusive use of the building because we were concerned what future administrators might wish to do with the facility.

11. As it turned out, our concerns were well-justified. In the 1980's, under a new administration, the University began using the building for non-Institute purposes. These events, meetings, concerts, and lectures were programmed without any relation to the activities of the Institute and indeed prevented the Institute from using the facility for its own programs. In 1983, we notified the University that it was in breach of the Agreement, which resulted ultimately in 1985 in the parties signing a document entitled, "Understandings Underlying the Continued Commitment of the University of Southern California to the Arnold Schoenberg Institute." (A true and correct copy of the "1985 Understandings" are attached hereto as Exhibit E.) In that document USC stated that it reaffirms its commitment to the Arnold Schoenberg Institute (ASI) as an important continuing part of the University. This commitment is to be expressed not only in sustaining the ASI, but also in finding increased ways to stimulate scholarship on, public awareness of, and performances of Arnold Schoenberg's works. (Ex. E, | 1.) USC agreed to keep the Schoenberg family timely informed of all activities of the Institute; it agreed to a separate budget and to develop a number of specified activities; it agreed that the Board of Advisors would function as set forth in Section VII of the Agreement; it agreed to the formation and semi-annual meetings of an Academic Committee which would review proposed budgets and programs; it agreed that the budget was to reflect "all relevant items," including specified activities; it agreed to a specified number of staff members; it agreed not to use the Institute or the building for extraneous matters; and it agreed to encourage the development of additional sources of gifts and endowment income. Because of the 1985 Understandings, we did not exercise our right to transfer the Institute to another location at that time. The 1985 Understandings were an essential condition for USC retaining the Schoenberg collection at that time.

12. After attempting unsuccessfully for over a year to get the University to hold a long overdue meeting of the Institute Advisory Board, on December 17, 1994, we sent a Notice of Breach, informing the University that unless the meetings of the Advisory Board and the Academic Committee were convened, we would exercise our contractual rights to transfer the Institute collection to another institution. Attached as Exhibit F is a true and correct copy of the December 17, 1994 Notice of Breach.

13. At first, the University promised to hold the required meeting of the Advisory Board. Attached as Exhibit G is a true and correct copy of University General Counsel Robert Lane's December 22, 1994 letter. However, the meeting was not scheduled as we had been promised.

14. On February 8, 1995, we received a letter from Mr. Lane (a true copy of which is attached hereto as Exhibit H) proposing changes to the Agreement. As a result, in late February, my brother and I met with the Provost Lloyd Armstrong and Mr. Lane for approximately one hour, wherein we discussed USC's proposed modifications of the Agreement, including eliminating the restriction on the exclusive use of the Institute building. However, we would not agree to modify the Agreement.

15. On April 6, 1995, the Provost sent a letter to Ronald Schoenberg, a true copy of which is Exhibit I hereto, in which he stated, in effect, that USC would no longer abide by the Agreement and would permit the Schoenbergs to transfer the Institute to a new institution. On April 11, 1995, Provost Armstrong informed the Board of Trustees of his decision, as evidenced by Exhibit J attached hereto. In his letter to the Trustees, Provost Armstrong wrote: We have communicated the message to the Schoenbergs that unless they are prepared to completely rewrite our agreement, they should begin the process of moving the archives to another tax-exempt organization as specified in the original agreement. (Ex. J.)

16. On April 12, 1995, we sent a letter to USC, a true copy of which is attached hereto as Exhibit K, in which we stated our intention to transfer the Institute pursuant to paragraph 8.6 of the Agreement. On May 11, 1995, the Provost sent a letter to Ronald Schoenberg, a true copy of which is attached hereto as Exhibit L, in which he acknowledged the Schoenbergs' intent to transfer the Institute pursuant to paragraph 8.6. On May 15, 1995, we sent a letter to USC, a true copy of which is attached hereto as Exhibit M, in which we informed USC that we would hold them to the Agreement pending the transfer.

17. On May 26, 1995, Mr. Lane sent a letter to us, a copy of which is attached as Exhibit N, in which he declared the contract "terminated" and stated that "the University does not feel restrained as to the use of the building in which the Archives are stored." On July 5, 1995, Mr. Lane wrote to our attorney, Richard Mosk, stating that the university intends to maintain the institute at its current level of activity through June 30, 1997, but would in the meantime convert the building to its own purposes. (A true and correct copy of Mr. Lane's July 5, 1995 letter is attached as Exhibit O.) The University subsequently refused efforts to meet and discuss their decision as evidenced by Exhibit P, a July 14, 1995 letter from Mr. Lane to our attorney.

18. Finally, on July 19, 1995 we sought and obtained a temporary restraining order preventing the University from using the Institute building for non-Institute purposes.

19. In the past several years, the Institute Director, Paul Zukofsky, has -- in the most Machiavellian way -- engineered a total breakdown of relations between the Schoenbergs and the University, primarily in order to protect himself from criticism of his performance as Director. The then acting assistant archivist at the Institute, Stephen Davison, admits as follows: The current situation has been engineered almost entirely by Paul Zukofsky. He has deliberately provoked the family into taking the action they have by refusing to call a meeting of the advisory board, which is the only official forum that the family has to voice their concerns. A true and correct copy of Mr. Davison's May 8, 1995 e-mail to Bob Kosovsky is attached as Exhibit Q.

20. Mr. Zukofsky's plan was to get the University to force the Schoenbergs to give up their contractual rights to participate in the governance of the Institute, as further evidenced by his rambling, slanderous and in many cases deliberately false memo dated December 8, 1994, which sets out this plan: A third strategy would be for a small group (1 or 2 from the Provost's office, plus yourself) to decide what USC can live with, and then tell the Schoenbergs to agree or leave. In principle, we should not alter the contract, as doing so makes it easier for the Schoenbergs to blame USC, but if in fact it is decided that that is what is needed, we should attempt to do so. (Ex. R, p. 5.) A true and correct copy of Mr. Zukofsky's December 8, 1995 memo is attached hereto as Exhibit R.

21. Mr. Zukofsky's intentions toward the Agreement with the Schoenbergs are set forth in Exhibit S, his April 26, 1995 memo to Acting Director of the University Library Lynn Sipe: In my opinion, "in for a penny - in for a pound", i.e. we are already in breach, therefore it hardly matters if we are somewhat more in breach. The next logical place to "violate" the contract concerns the use of the Institute's performance hall. . . . I see no reason why the hall could not be used for various University-wide events, including Library fundraisers, University lectures, etc. (Ex. S (emphasis added).)

22. While Mr. Zukofsky was successful in poisoning the relationship between us and USC, he has not succeeded in forcing us to give up our contractual rights, which form the basis of this action.

23. The University has acknowledges that it has breached the Agreement and the 1985 Understandings, and that it has no intention of curing its breaches. As a result, we have notified the University that we intend to transfer the Institute to a new location. However, finding a new location for the Institute will take some time, and we have not yet exercised our right to transfer by informing the University of the name and location of the new donee. Until we do so, the University is obligated to abide by its Agreement and maintain the Institute in the manner to which it has agreed. Our right to transfer is non-exclusive of other remedies, including specific performance of the Agreement.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California, this ___ day of March, 1996.
_____________________________
LAWRENCE A. SCHOENBERG
 

DECLARATION OF E. RANDOL SCHOENBERG

I, E. Randol Schoenberg, declare as follows:

1. I am an attorney representing the plaintiffs, Nuria Schoenberg Nono, Ronald R. Schoenberg, Lawrence A. Schoenberg, in the above-referenced action. I am also the son of plaintiff Ronald R. Schoenberg. I have personal knowledge of the facts stated herein and if called upon to testify I would be able to testify competently to these facts.

2. The Schoenbergs have obtained two temporary restraining orders and two preliminary injunctions in this action. Attached hereto as Exhibit T is the first preliminary injunction issued by the Hon. Diane Wayne on September 22, 1995. The first preliminary injunction enjoining the University from (1) failing to protect the Collection, (2) using the Institute facilities for any purposes not reasonably related to the Collection, as defined in paragraph 9 of the 1985 Understandings between the parties, and (3) publishing or copying materials with permission.

3. Subsequent to these rulings the parties agreed to a stay of the action and a voluntary mediation with the Hon. Aviva Bobb, which was scheduled to take place on January 8, 1996. However, on Wednesday, January 3, 1996, USC gave written notice that it intended to use the Institute building for general music classes, recitals and concerts beginning the very next week. This belated notice itself violated paragraph 2 of the 1985 Understandings and the repeated assurances of counsel for the University that the Schoenbergs would be told at the planning stage of any plans to use the Institute building for any purpose. (Ex. E, | 2.) Because of the last-minute notice, the Schoenbergs were forced once again to make an ex parte application to prevent further violation of the Agreement and the preliminary injunction.

4. On January 5, 1996, the Schoenbergs obtained a second temporary restraining order from the Hon. Robert H. O'Brien. The TRO was ultimately converted into a second preliminary injunction, which was issued on February 1, 1996. Attached as Exhibit U is a true and correct copy of the second preliminary injunction, which limits the University's use of the Institute building The University has filed a notice of appeal of the second preliminary injunction and that appeal is still pending.

5. The instant motion concerns the University's document production. The Schoenbergs have requested the production of all documents in the possession of Provost Armstrong which relate to the Institute. (See the accompanying Separate Statement.) The University has produced documents responsive to this request, with the exception of several documents for which the University claims a privilege. On about March 12, 1996, the University delivered a revised "privilege log," listing responsive documents withheld on account of a purported privilege. A true and correct copy of the privilege log is attached hereto as Exhibit V. This privilege log lists several memos from Mr. Zukofsky to Provost Armstrong, dated March 30, April 3, April 17, April 25 and July 7, 1995 regarding the dispute with the Schoenbergs. These documents are apparently being withheld based on a purported attorney-client privilege because copies of the documents were also sent to the University General Counsel, Robert Lane.

6. The parties have written several meet and confer letters and have agreed that this issue must be resolved by the Court. True and correct copy of the meet and confer letters dealing with the Zukofsky-Armstrong memos are attached hereto as Exhibits W, X, Y and Z.

7. Under Judge Bobb's February 7, 1996 Minute Order lifting the stipulated stay of the action, the Schoenbergs were given 45 days, until March 22, 1996, to make such a motion to compel. A true and correct copy of Judge Bobb's February 7, 1996 Minute Order is attached hereto as Exhibit AA.

I declare under penalty of perjury that the foregoing is true and correct. Executed this ___ day of March, 1996 at Los Angeles, California.

_____________________________
E. Randol Schoenberg