Massoli v. Regan Media, et al

Filing 81

Massoli v. Regan Media, et al

Doc. 81

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STEPTOE & JOHNSON LLP Collier Center 201 East Washington Street, Suite 1600 Phoenix, Arizona 85004-2382 Telephone: [phone] Facsimile: [phone] David J. Bodney (006065) Dennis K. Blackhurst (021678) Attorneys for Defendants/Counterclaimants Regan Media, Inc. and Judith Regan UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JENNA MASSOLI p/k/a JENNA JAMESON, Plaintiff, vs. " EGAN MEDIA," JUDITH R and REGAN, an individual, Defendants. REGAN MEDIA, INC., a New York corporation, and JUDITH REGAN, an individual, Defendants/Counterclaimants, vs. JENNA MASSOLI p/k/a JENNA JAMESON, an individual, Plaintiff/Counterdefendant, and JAY GRDINA, an individual, and DOLCE AMORE, INC., a Colorado corporation, Counterdefendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 05-0854 PHX EHC RULE 37.1 STATEMENT IN SUPPORT OF REGAN MEDIA' S SECOND MOTION TO COMPEL AND REQUEST FOR SANCTIONS (ORAL ARGUMENT REQUESTED) (Assigned to the Honorable Earl H. Carroll)

Case 2:05-cv-00854-EHC

Document 81

Filed 02/17/2006

Page 1 of 18
Dockets.Justia.com

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Pursuant to Local Rule 37.1, Defendant/Counterclaimant Regan Media, Inc. (" egan Media" submits this Rule 37.1 Statement in Support of its Motion to Compel and R ) Request for Sanctions. Request for Production No. 1 All documents reflecting, identifying or relating to any amounts of money or other compensation received by Jameson, Grdina or Dolce Amore in connection with the A&E Contract. Counterdefendants' Response: As set forth in Counterdefendants' response to Interrogatory No. 1, Dolce Amore received $150,000 from A&E in February 2005 pursuant to the A&E Contract. Counterdefendants have been unable to locate a copy of that check, and do not know that a copy was even made. Counterdefendants have produced no bank records or any other documents relating to the $150,000 payment from A&E. Counterdefendants' response to Request No. 1 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from

Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 1. Request for Production No. 2 All documents relating to any communications between any of the Counterdefendants, on the one hand, and A&E, on the other, relating to the Agreement, the A&E Contract or any proposed television program featuring Jameson.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. 2.

Counterdefendants' Response: E-mails previously disclosed and produced, as well as those attached to this document, are responsive to this Request. Counterdefendants have produced some e-mails with A&E responsive to this Request. Counterdefendants' response to Request No. 2 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made inadequate effort to locate documents responsive to Request

Request for Production No. 3 All documents relating to any communications between any of the Counterdefendants, on the one hand, and any of the Counterclaimants, on the other, relating to the Agreement, the A&E Contract or any proposed television program featuring Jameson. Counterdefendants' Response: E-mails previously disclosed and produced, as well as those attached to this document, are responsive to this Request. Counterdefendants have produced some communications responsive to this Request. Counterdefendants' response to Request No. 3 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that

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Counterdefendants have made inadequate effort to locate documents responsive to Request No. 3. Request for Production No. 5 All documents relating to any communications between any of the Counterdefendants, on the one hand, and VH1, on the other, relating to the one-hour special featuring Jameson broadcast by VHI on or about August 16, 2004, including, without limitation, any videotape, digital images or other photographic depictions of or relating to that VH1 feature. Counterdefendants' Response: E-mails previously disclosed and produced, as well as those attached to this document, are responsive to this Request. Counterdefendants have produced some e-mails responsive to this Request, but did not produce a copy of the VH1 special featuring Jameson. Counterdefendants' response to Request No. 5 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made inadequate effort to locate documents responsive to Request No. 5. Request for Production No. 6 All documents relating to the relationship between Jameson and Dolce Amore, including, without limitation, the " xclusive Acting Services E Agreement" between Jameson and Dolce Amore as referenced in the A&E Contract. Counterdefendants' Response: OBJECTION: Overly broad. Massoli' relationship with Dolce Amore s dates back to Dolce Amore' incorporation in November 1999. Not s everything having to do with that relationship constitutes discoverable 4
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evidence, or constitutes evidence reasonably calculated to lead to discoverable evidence. Without waiving that objection, however, Counterdefendants respond as follows: as of this date, and other than the Exclusive Acting Services Agreement itself, Counterdefendants have been unable to locate any documents that are responsive to this Request. Counterdefendants' objection to Request No. 6 is improper. Counterdefendants' written response to Regan Media' Request for Production was served over two months s late; therefore, any objections to Regan Media' Request for Production is waived. See s Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (" is It well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection" ). Moreover, Counterdefendants' response to Request No. 6 is deficient. Counterdefendants failed to produce the " xclusive Acting Services Agreement" E referenced. Counterdefendants' response to Request No. 6 is also deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 6. Request for Production No. 7 All documents reflecting, identifying or relating to any amounts of money or other compensation received by Jameson from Dolce Amore from its incorporation to the present.

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Counterdefendants' Response: OBJECTION: Overly broad. Massoli' relationship with Dolce Amore s dates back to Dolce Amore' incorporation in November 1999. Not s everything having to do with that relationship constitutes discoverable evidence, or constitutes evidence reasonably calculated to lead to discoverable evidence. Without waiving that objection, however, Counterdefendants respond as follows: as of this date, and other than the Exclusive Acting Services Agreement itself, Counterdefendants have been unable to locate any documents that are responsive to this Request. Counterdefendants' objection to Request No. 7 is improper. Counterdefendants' written response to Regan Media' Request for Production was served over two months s late; therefore, any objections to Regan Media' Request for Production is waived. See s Richmark, 959 F.2d at 1473. Moreover, Counterdefendants' response to Request No. 7 is deficient. Counterdefendants failed to produce the " xclusive Acting Services Agreement" E referenced or any other documents, such as bank or financial records, evidencing any payments from Dolce Amore to Jameson. Counterdefendants' response to Request No. 7 is also deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 7. Request for Production No. 8 All documents relating to the relationship between Grdina and Dolce Amore.

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Counterdefendants' Response: OBJECTION: Overly broad. Grdina'relationship with Dolce Amore dates s back to Dolce Amore' incorporation in November 1999. Not everything s having to do with that relationship constitutes discoverable evidence, or constitutes evidence reasonably calculated to lead to discoverable evidence. Without waiving that objection, however, Counterdefendants respond as follows: as of this date, and other than the Exclusive Acting Services Agreement itself, Counterdefendants have been unable to locate any documents that are responsive to this Request. Counterdefendants' objection to Request No. 8 is improper. Counterdefendants' written response to Regan Media' Request for Production was served over two months s late; therefore, any objections to Regan Media' Request for Production is waived. See s Richmark, 959 F.2d at 1473. Counterdefendants have produced some documents relating to Grdina'relationship s with Dolce Amore. Counterdefendants' response to Request No. 8 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 8. Request for Production No. 9 All documents reflecting, identifying or relating to any amounts of money or other compensation received by Grdina from Dolce Amore from its incorporation to the present. Counterdefendants' Response: OBJECTION: Overly broad. Grdina'relationship with Dolce Amore dates s back to Dolce Amore' incorporation in November 1999. Not everything s 7
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having to do with that relationship constitutes discoverable evidence, or constitutes evidence reasonably calculated to lead to discoverable evidence. Without waiving that objection, however, Counterdefendants respond as follows: as of this date, and other than the Exclusive Acting Services Agreement itself, Counterdefendants have been unable to locate any documents that are responsive to this Request. Counterdefendants' objection to Request No. 9 is improper. Counterdefendants' written response to Regan Media' Request for Production was served over two months s late; therefore, any objections to Regan Media' Request for Production is waived. See s Richmark, 959 F.2d at 1473. Moreover, Counterdefendants' response to Request No. 9 is deficient. Counterdefendants failed to produce any documents, such as bank or financial records, evidencing any payments from Dolce Amore to Grdina. Counterdefendants' response to Request No. 9 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 9. Request for Production No. 10 All documents relating to the organizational structure of Dolce Amore, including, without limitation, any documents reflecting the incorporation, ownership, offices and directors of Dolce Amore. Counterdefendants' Response: Documents relating to Dolce Amore'incorporation are attached. s

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Counterdefendants did produce the articles of incorporation for Dolce Amore. Counterdefendants' response to Request No. 10 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 10. Request for Production No. 11 Tax returns filed on behalf of Dolce Amore from its incorporation to the present. Counterdefendants' Response: Dolce Amore'federal tax returns from 2003 and 2002 are attached. s Counterdefendants' response to Request No. 11 is deficient. Counterdefendants' fail to produce returns from 1999, when Dolce Amore was incorporated, through 2001, or from 2004, the most relevant time period. Request for Production No. 12 All documents relating to Dolce Amore' bank accounts from its s incorporation to the present, including, without limitation, monthly and annual account statements, summaries of account activity, deposit slips and canceled checks. Counterdefendants' Response: OBJECTION: Overly broad. Dolce Amore has been in existence since November 1999. Not all information having to do with Dolce Amore' s financial activities constitutes discoverable evidence, or constitutes evidence reasonably calculated to lead to discoverable evidence. Without waiving that objection, however, Counterdefendants respond as follows: as of this 9
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date, Counterdefendants have been unable to locate any documents that are responsive to this Request. Counterdefendants' objection to Request No. 12 is improper. Counterdefendants' written response to Regan Media' Request for Production was served over two months s late; therefore, any objections to Regan Media' Request for Production is waived. See s Richmark, 959 F.2d at 1473. Regardless, the documents requested are relevant (1) to trace any amounts received under the A&E Contract, and (2) to establish a number of factors relevant to Counterclaimants' alter ego allegations, including the capitalization of Dolce Amore, commingling of funds and property, the operation of Dolce Amore as a separate entity, etc. Counterdefendants' production is deficient because it includes no bank records or other documents responsive to Request No. 12. Counterdefendants' response to Request No. 12 is also deficient because it does not indicate that responsive documents do not exist, that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 12. Request for Production No. 13 All books, records and documents relating to the financial condition of Dolce Amore for the fiscal years 2003 to the present, including, without limitation: a. financial statements; b. journals (or other books of original entry) and ledgers, including cash receipts journals, cash disbursements journals, sales journals, general 10
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journals, general ledgers, trial balance sheets and supporting workpapers; charts of accounts with a description of each account; general correspondence and administrative files; a list of all bank accounts, including names of banks, account numbers and addresses; stock ownership records, including the name and address of the registrar and transfer agent; charts, graphs and other documents showing the organizational relationship between, or ownership of, Dolce Amore and its parent, subsidiary and affiliate companies; and documents relating to transactions between Dolce Amore and its officers, directors and affiliates, including documents showing direct and indirect compensation, remuneration, dividends, bonuses, interest, profits and employment contracts.

Counterdefendants' Response: OBJECTION: Overly broad and unduly burdensome. Dolce Amore has been in existence since November 1999. Not all information requested above constitutes discoverable evidence, or constitutes evidence reasonably calculated to lead to discoverable evidence. Without waiving that objection, however, Counterdefendants respond as follows: as of this date, and other than the Minutes of Organizational Action attached, Counterdefendants have been unable to locate any documents that are responsive to this Request. Counterdefendants' objection to Request No. 13 is improper. Counterdefendants' written response to Regan Media' Request for Production was served over two months s late; therefore, any objections to Regan Media' Request for Production is waived. See s Richmark, 959 F.2d at 1473. Regardless, the documents requested are relevant (1) to trace any amounts received under the A&E Contract, and (2) to establish a number of factors relevant to Counterclaimants' alter ego allegations, including the capitalization of Dolce Amore, commingling of funds and property, the operation of Dolce Amore as a separate entity, etc. 11
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Counterdefendants' production is deficient because it includes no financial documents responsive to Request No. 13. Counterdefendants' response to Request No. 13 is also deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 13. Request for Production No. 14 All minutes of meetings of the board of directors, executive committee or stockholders of Dolce Amore from its incorporation to the present, including, without limitation, all data used or presented and notes taken at those meetings. Counterdefendants' Response: OBJECTION: Overly broad. Dolce Amore has been in existence since November 1999. Not all of the minutes of meetings referred to in this Request constitute discoverable evidence, or constitute evidence reasonably calculated to lead to discoverable evidence. Without waiving that objection, however, Counterdefendants respond as follows: as of this date, and other than the Minutes of Organizational Action attached, Counterdefendants have been unable to locate any documents that are responsive to this Request. Counterdefendants' objection to Request No. 14 is improper. Counterdefendants' written response to Regan Media' Request for Production was served over two months s late; therefore, any objections to Regan Media' Request for Production is waived. See s Richmark, 959 F.2d at 1473. Regardless, the documents requested are relevant to factors relevant to Counterclaimants'alter ego allegations, such as Jameson' and Grdina' s s

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control over Dolce Amore, Dolce Amore'operation as an instrumentality of Jameson and s Grdina, the extent of Dolce Amore'independence, etc. s Counterdefendants' have produced no corporate minutes for Dolce Amore, although they reference " inutes of Organizational Action" their response. Moreover, M in Counterdefendants' response to Request No. 14 is deficient because it does not indicate that no responsive documents exist, that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from

Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 14. Request for Production No. 15 All annual and interim reports to shareholders of Dolce Amore from its incorporation to the present. Counterdefendants' Response: As of this date, Counterdefendants have been unable to locate any documents that are responsive to this Request. Counterdefendants' response to Request No. 15 is deficient because it does not indicate that no responsive documents exist, that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 15. 13
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Request for Production No. 16 All documents relating to web log, journal or other postings on any website owned or controlled by Jameson, Dolce Amore, Jennasis Entertainment, Inc. or any other entity in which Jameson owns any interest, relating to the Agreement, the A&E Contract or the one-hour VH1 special, or containing any reference to a reality television series involving Jameson. Counterdefendants' Response: As of this date, Counterdefendants have been unable to locate any documents that are responsive to this Request. Counterdefendants' response to Request No. 16 is deficient because it does not indicate that no responsive documents exist, that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. Regan Media specifically requested the production of electronic documents, including hard drives. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 16. Request for Production No. 17 Any videotape, digital images or other photographic depiction of or relating to the pilot created or other preliminary filming or footage taken in connection with the A&E Contract. Counterdefendants' Response: As of this date, Counterdefendants have been unable to locate any documents that are responsive to this Request. Counterdefendants have confirmed that a pilot of the program was filmed, but have failed to produce a copy. Counterdefendants' response to Request No. 17 is deficient 14
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because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. Request for Production No. 18 All documents relating to any efforts by Counterdefendants, or any of them acting solely or in concert with one another, to market a potential realitybased television program featuring Jameson or Grdina. Counterdefendants' Response: E-mails previously disclosed and produced, as well as those attached to this document, are responsive to this Request. Counterdefendants have produced some e-mails and other documents responsive to this Request. Counterdefendants' response to Request No. 18 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 18. Request for Production No. 19 All documents relating to any communications between any of the Counterdefendants, on the one hand, and any media outlet, on the other, relating to an actual or potential television program featuring Jameson or Grdina. Counterdefendants' Response: E-mails previously disclosed and produced, as well as those attached to this document, are responsive to this Request.

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Counterdefendants have produced some e-mails and other documents responsive to this Request. Counterdefendants' response to Request No. 19 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 19. Request for Production No. 20 All documents referring to Regan or Regan Media and relating to a potential reality-based television program featuring Jameson or a potential one-hour special featuring Jameson. Counterdefendants' Response: E-mails previously disclosed and produced, as well as those attached to this document, are responsive to this Request. Counterdefendants have produced some documents responsive to this Request. Counterdefendants' response to Request No. 20 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 20. Request for Production No. 21 All documents relating to, supporting, identified in or referred to in drafting your response to Defendants/Counterclaimants' First Set of Interrogatories. 16
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Counterdefendants' Response: As of this date, and other than those previously disclosed and produced, as well as those documents attached to this document, Counterdefendants did not rely upon any documents that are responsive to this Request. Counterdefendants' response to Request No. 21 is deficient because it does not indicate that all responsive documents have been produced or that Counterdefendants have conducted a reasonable search to locate responsive documents. In light of the sparse production of documents received from Counterdefendants, Regan Media believes that Counterdefendants have made little or no effort to locate documents responsive to Request No. 21. Respectfully submitted this 17th day of February, 2006. STEPTOE & JOHNSON LLP By: /s/ David J. Bodney David J. Bodney Dennis K. Blackhurst Collier Center 201 East Washington Street Suite 1600 Phoenix, Arizona 85004-2382 Attorneys for Defendants/ Counterclaimants Regan Media, Inc. and Judith Regan

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CERTIFICATE OF SERVICE I hereby certify that on the 17th day of February, 2006, I caused the attached document to be electronically transmitted to the Clerk'Office using the CM/ECF System s for filing and transmittal of a Notice of Electric Filing to the following CM/ECF Registrants: James L. Blair Roger William Hall Renaud Cook Drury Mesaros, PA Phelps Dodge Tower One North Central, Suite 900 Phoenix, AZ 85004-4417 Attorneys for Plaintiff/Counterdefendant and Third-Party Counterdefendant I hereby certify that on the 17th day of February, 2006, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Bernard M. Brodsky Jeffrey F. Reina Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP 42 Delaware Avenue, Suite 300 Buffalo, NY 14202-3857 Attorneys for Plaintiff/Counterdefendant and Third-Party Counterdefendant

/s/ Beth Gibson Beth Gibson

491772

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