Fahmy v. Jay-Z et al

Filing 447

MINUTES OF Motion Hearing held before Judge Christina A. Snyder: On 11/24/2014, Magistrate Judge Patrick J. Walsh ordered defendant to produce the amount of revenue he earned from concerts where he performed "Big Pimpin'" in order to allow plaintiff Osama Ahmed Fahmy to calculate his damages. The Court DENIES defendant Shawn C. Carter's, performing as Jay Z's, motion for review of Judge Walshs ruling #439 . Defendant is directed to produce all responsive documents which are the subject of this order within 30 days of the date of the order. Court Reporter: Laura Elias. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Title

OSAMA AHMED FAHMY v. JAY-Z ET AL.

Present: The Honorable

Date

‘O’

January 12, 2015

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Laura Elias
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendant:

Keith Wesley

Eric Pettit
Linda Burrow
David Steinberg

Proceedings:

I.

DEFENDANT JAY Z’S CORRECTED MOTION FOR REVIEW
OF NON-DISPOSITIVE RULING OF MAGISTRATE (Dkt. 439,
filed December 8, 2014)

INTRODUCTION

This action arises from defendant Shawn C. Carter’s, professionally known as Jay
Z’s, alleged unauthorized sampling of “Khosara, Khosara” from the 1960 Egyptian film
Fata Ahlami in his 2000 hit song “Big Pimpin’.” On November 24, 2014, Magistrate
Judge Patrick J. Walsh ordered defendant to produce the amount of revenue he earned
from concerts where he performed “Big Pimpin’ in order to allow plaintiff Osama Ahmed
Fahmy to calculate his damages. Dkt. 436.
On December 8, 2014, defendant filed a motion for review of Judge Walsh’s order
under Federal Rule of Civil Procedure 72(a) and Local Rule 72-7, dkt. 439, and on
December 11, 2014, he filed a corrected motion requesting the same relief, dkt. 442.
Plaintiff filed an opposition to the motion on December 16, 2014, dkt. 443, and defendant
filed a reply in support of the motion on December 23, 2014, dkt. 444. On January 12,
2015, the Court held a hearing on the matter. For the reasons stated below, the Court
DENIES the motion.
II.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 72(a), a party may file objections to a
magistrate judge’s non-dispositive order within ten days, and “[t]he district judge to
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

January 12, 2015

OSAMA AHMED FAHMY v. JAY-Z ET AL.

whom the case is assigned shall consider such objections and shall modify or set aside
any portion of the Magistrate Judge’s order found to be clearly erroneous or contrary to
law.” Rule 3.3.1 of the Local Rules Governing Duties of Magistrate Judges sets forth the
same standard. See also 28 U.S.C. § 636(b)(1)(A); Grimes v. City and Cnty. of San
Francisco, 951 F.2d 236, 241 (9th Cir. 1991).
III.

DISCUSSION

In his motion for review, defendant argues that the magistrate judge misinterpreted
the Court’s December 9, 2011 Order, dkt. 309, as a ruling that plaintiff is entitled to
discover his revenue from concerts at which he performed “Big Pimpin’,” thereby
relieving plaintiff of his burden of proving a causal nexus between the infringement and
any profits therefrom. Dkt. 442 at 10-12. Defendant also emphasizes that he already
produced evidence of the income he receives from venues that perform “Big Pimpin’.”
Id. at 13. He denies the relevance of the amount of revenue he receives from concerts
because plaintiff cannot divide the portion of the revenue derived from the sample of
“Khosara, Khosara” from the portion of the revenue driven by other factors, such as the
popularity of other works produced by defendant and his co-performers. Id. at 13-15. He
contends that the burden of attempting to distinguish the additional factors influencing
the revenue far outweighs the discovery’s minimal relevance. Id. at 17-20.
Plaintiff responds that he is not required to prove a causal nexus between the
infringement and the profits as a gateway to discovery. Dkt. 443. According to plaintiff,
“the entire raison d’etre of discovery is to aid a party in unearthing evidence that will
assist in proving a claim; it is not a reward to a party who demonstrates he can already
prove his claim.” Id. at 3-6. Plaintiff argues that he nonetheless succeeded in showing a
causal nexus because defendant performs “Big Pimpin’” at most of his concerts, uses the
song in his advertising, and reaps the benefit of its effect on his career. Id. at 7-9.
Further, Plaintiff disputes that the burden of discovery far outweighs its relevance
because defendant’s evidence addressing the burden consists of a self-interested
declaration from his accountant, defendant is financially well positioned to withstand any
burden, and the challenge of apportionment is not reasonable grounds for denial of all
discovery on the issue. Id. at 9-12.
Judge Walsh’s order was not “clearly erroneous or contrary to law.” The order
states that defendants “cite the Court’s summary judgment order and argue that it
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:07-cv-05715-CAS(PJWx)

Date

Title

‘O’

January 12, 2015

OSAMA AHMED FAHMY v. JAY-Z ET AL.

supports their position that additional discovery is not warranted because Plaintiff has
failed to establish a nexus between his song and any concert revenues,” that Judge Walsh
“reads the December 9, 2011 Order more broadly than Defendants,” and that he bases his
ruling on his “reading of that order.” Dkt. 436 at 1-2. Judge Walsh’s order is not
tantamount to a holding that plaintiff need not demonstrate the relevance of the requested
discovery regarding concert revenue. Moreover, plaintiff satisfies the test for relevance
because the discovery of concert revenue “appears reasonably calculated to lead to the
discovery of admissible evidence” concerning the existence and amount of damages.
Fed. R. Civ. P. 26(b)(1). Finally, the evidence is insufficient to conclude that the burden
of production is “undue.” Fed. R. Civ. P. 26(c)(1).
IV.

CONCLUSION

In accordance with the foregoing, the Court DENIES defendant Shawn C. Carter’s,
performing as Jay Z’s, motion for review of Judge Walsh’s ruling. Defendant is directed
to produce all responsive documents which are the subject of this order within thirty (30)
days of the date of the order.
IT IS SO ORDERED.
00
Initials of Preparer

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