Fahmy v. Jay-Z et al

Filing 637

MINUTES (IN CHAMBERS) EX PARTE APPLICATION FOR LEAVE TO SUBMIT SUPPLEMENTAL MATERIALS TO THE EXPERT REPORT OF SCOTT MARCUS (Filed 09/25/15) #627 by Judge Christina A. Snyder: the Court finds that plaintiffs request is well taken and is therefore GRANTED. Plaintiff shall serve Marcus supplemental report on defendants no later than October 2, 2015. Plaintiff is further ordered to make Marcus available for deposition regarding the additions to his expert report no later than October 8, 2015. Rebuttal report on plaintiff no later than October 7, 2015 and make Ferrara available for deposition no later than October 12, 2015. #627 (pj)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

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

Title

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

Present: The Honorable

Date

October 1, 2015

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

I.

(IN CHAMBERS) - EX PARTE APPLICATION FOR LEAVE TO
SUBMIT SUPPLEMENTAL MATERIALS TO THE EXPERT
REPORT OF SCOTT MARCUS (Filed 09/25/15)[627]

INTRODUCTION AND BACKGROUND

In its order of September 25, 2015, the Court granted in part and denied in part
defendants’ motion to exclude or limit the testimony of plaintiff’s expert witness Scott
Marcus (“Marcus”). Dkt. 626, at 36. Specifically, the Court ruled that “to the extent
Marcus’ testimony regarding similarities between Big Pimpin’ and Khosara relies on . . .
sound recordings, plaintiff may not offer that testimony at trial.” Id. The Court further
stated: “To the extent, based on this ruling, it is necessary for plaintiff to supplement
Marcus’ expert report, plaintiff may request additional time to do so and defendants may
request the opportunity to depose Marcus regarding any additions to his testimony or
expert report.” Id.
Plaintiff now requests that he be permitted to supplement the expert report of
Marcus. Dkt. 627., at 1. Defendants’ oppose this request. Dkt. 630.
II.

DISCUSSION

In its prior order the Court expressly invited plaintiff to file a supplement to
Marcus’ expert report. Dkt. 626, at 36. Nonetheless, defendants argue that plaintiff
should not be permitted to supplement Marcus’ report because they believe that
supplementation is not necessary and would be improperly cumulative of the testimony
of plaintiff’s other expert witness Judith Finell (“Finell”). Opp’n., at 2-3. As the Court
previously explained, Marcus’ original report was based, in part, on a comparison
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

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

Date

Title

October 1, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

between defendants’ allegedly infringing work Big Pimpin’ and a sound recording of
Khosara Khosara (“Khosara”). Dkt. 626, at 36-37. However, because plaintiff
conceded that his copyright in the Khosara musical composition did not cover sound
recordings of Khosara, the Court determined that it would be improper for Marcus to
testify regarding similarities between Big Pimpin’ and a sound recording of Khosara. Id.
at 37. Nonetheless, the Court found that Marcus was otherwise qualified to testify as a
musicologist, and therefore determined that he “may still testify regarding similarities
between the written composition of Khosara and Big Pimpin’.” Id. In the instant
request, plaintiff merely seeks to tailor Marcus’ report to comply with the Court’s ruling.
Accordingly, the Court finds that plaintiff’s request is well taken and is therefore
GRANTED. Moreover, to the extent Marcus’ testimony may be cumulative of Finell’s
testimony, that concern is more appropriately addressed within the context of trial.1
Plaintiff shall serve Marcus’ supplemental report on defendants no later than
October 2, 2015. Plaintiff is further ordered to make Marcus available for deposition
regarding the additions to his expert report no later than October 8, 2015.
In addition, defendants shall have the opportunity for their own expert
musicologist, Ferrara, to respond and address any supplemental opinions by Marcus. To
the extent defendants determine that such a response is necessary, they shall serve a

1

Defendants also argue that Marcus should be precluded from referencing any
documents or materials in his expert report that were not disclosed during fact discovery.
Opp’n., at 3-4. Specifically, defendants identify several documents which they assert
were untimely disclosed by plaintiff, but that Marcus intends to rely upon in his
supplemental report. Id. However, defendants have not identified any prejudice they will
suffer from permitting Marcus to reference these materials in his report or testimony.
Moreover, the Court in its September 25, 2015 order denied a similar objection from
plaintiff that defendants’ expert Lawrence Ferrara (“Ferrara”) should be precluded from
referencing prior art that had only been disclosed for the first time at his deposition. Dkt.
626, at 10. Accordingly, defendants’ objection is overruled.
CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 2 of 3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

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

Date

Title

October 1, 2015

OSAMA AHMED FAHMY V. JAY-Z, ET AL.

rebuttal report on plaintiff no later than October 7, 2015 and make Ferrara available for
deposition no later than October 12, 2015.
IT IS SO ORDERED.
00
Initials of Preparer

CV-90 (06/04)

CIVIL MINUTES - GENERAL

:

00

CMJ

Page 3 of 3