UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al

Filing 188

UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al

Doc. 188

1 Steven A. Marenberg (101033) ([e-mail]) 2 3 4 5 6

Elliot Brown (150802) ([e-mail]) Brian D. Ledahl (186579) ([e-mail]) Benjamin Glatstein (242034) ([e-mail]) IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: [phone] Facsimile: [phone]

7 Attorneys for Plaintiffs 8 9 10 11 12

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-07-05744 AHM (AJWx) DECLARATION OF BRIAN LEDAHL IN SUPPORT OF UMG'S OPPOSITION TO VEOH'S EX PARTE APPLICATION REGARDING DISCOVERY Filed concurrently herewith: UMG's Opposition to Veoh's Ex Parte Application Regarding Discovery Magistrate: Hon. Andrew Wistrich Date: TBD Time: TBD Ctrm: 690 Discovery Cutoff: January 12, 2009 Pretrial Conference: April 6, 2009 Trial Date: April 21, 2009

13 UMG RECORDINGS, INC., et al., 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiffs, v. VEOH NETWORKS, INC., et al., Defendant.

DECLARATION OF BRIAN LEDAHL IN SUPPORT OF UMG'S OPPOSITION TO VEOH'S EX PARTE APPLICATION REGARDING DISCOVERY 1950587

Dockets.Justia.com

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DECLARATION OF BRIAN LEDAHL I, Brian D. Ledahl, declare as follows: 1. I am an attorney at the law firm of Irell & Manella LLP, counsel of

4 record for plaintiff UMG Recordings, Inc. and other affiliated UMG entities 5 ("UMG") in this case. I am a member in good standing of the State Bar of 6 California and have been admitted to practice before this Court. This declaration is 7 submitted in support of UMG's Opposition to Veoh's Ex Parte Application 8 Regarding Discovery. I have personal knowledge of the facts set forth below and if 9 called as a witness, I could and would testify to these same facts under oath. 10

2.

In addition to the documents produced by UMG in the MySpace and · John Bartelson, Vice President, New Media Marketing, Def Jam; · Steve Berman, President, Sales & Marketing, IGA; · Andrew Mains, Director, New Media, Interscope; · David Spingarn, Vice President, New Ventures & Strategic Investments, IGA; and · Jordan Walker, Artist Development Coordinator, Universal Motown/Universal Republic.

11 Grouper litigations, UMG has also searched the files of five additional custodians: 12 13 14 15 16 17 18 19

UMG also re-searched the files of all its custodians with various additional · ((DMCA OR "digital mill*") AND (notice* OR violat* OR infring* OR demand* OR request* OR claim* OR "take down" OR remov* OR pull*) AND (copyright*) AND ("AIMPages.com" OR "Bebo.com" OR "BlackPlanet.com" OR "Bolt.com" OR "Break.com" OR "Broadcaster.com" OR "Classmates.com" OR "cyworld.com" OR "dailymotion.com" OR "facebook.com" OR "flickr.com" OR "friendster.com" OR "grouper.com" OR "hi5.com" OR "ilike.com" OR "imeem.com" OR "last.fm" OR "linkedin.com" OR "livejournal.com"
-1DECLARATION OF BRIAN LEDAHL IN SUPPORT OF UMG'S OPPOSITION TO VEOH'S EX PARTE APPLICATION REGARDING DISCOVERY

20 search terms: 21 22 23 24 25 26 27 28

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OR "mog.com" OR "mystrands.com" OR "orkut.com" OR "photobucket.com" OR "piczo.com" OR "reunion.com" OR "revver.com" OR "rockyou.com" OR "secondlife.com" OR "sixdegrees.com" OR "slide.com" OR "tagworld.com" OR "windows live spaces" OR "spaces.live.com" OR "xanga.com" OR "yahoo!360" OR "youtube.com")) · gracenote OR "grace note" · notice AND "take down" · Veoh* 3. UMG and Grouper filed a stipulation to make additional productions,

11 which was entered by the Court on November 8, 2007. UMG produced the 12 materials called for by this stipulated order in the MySpace and Grouper matters, 13 and has produced such documents to Veoh in this case as well. 14

4.

UMG has searched its custodians' files for documents containing the

15 terms Bolt*, Grouper*, MySpace*, Veoh*, and YouTube*. UMG has produced 16 responsive documents identified by these and other searches, including any 17 documents captured by these searches addressing the "promotional value" of 18 websites offering "video sharing" capabilities. 19

5.

UMG has produced extensive documents about its finances, including

20 documents regarding UMG's quarterly profits and losses, revenues from digital 21 downloads, revenues from video streaming, and revenues by licensing partner. 22 UMG has also produced over 50 license agreements, including agreements for video 23 streaming, which include the financial terms that determine UMG's revenues from 24 video streaming. 25

6.

When Veoh first produced a spreadsheet to UMG containing a list of

26 links to the Flash format versions of its videos, the information Veoh provided 27 regarding how to access these videos was inaccurate. Veoh only provided workable 28
DECLARATION OF BRIAN LEDAHL IN SUPPORT OF UMG'S OPPOSITION TO VEOH'S EX PARTE APPLICATION REGARDING DISCOVERY

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1 access to these videos after I contacted Veoh's counsel to note UMG's inability to 2 access videos in the manner identified by Veoh. 3

7.

Once UMG obtained access to these videos, and began its automated

4 searches of Veoh's video files for UMG's videos, Jennifer Golinveaux, counsel for 5 Veoh, wrote me to indicate that Veoh had unilaterally terminated UMG's access to 6 Veoh's video files, purportedly because UMG's requests to access the video files 7 were too frequent. Veoh demanded that UMG slow its database accesses to 8 approximately one request per second. 9

8.

The spreadsheet Veoh provided UMG containing data about Veoh's

10 video files excluded the substantive data about videos returned by the Audible 11 Magic filtering software. Ms. Golinveaux informed me that this data was excluded 12 from the spreadsheet because Veoh stores the Audible Magic metadata in separate 13 log files. Veoh only agreed to produce this material when UMG threatened motion 14 practice. 15

9.

When Veoh finally produced additional materials containing Audible

16 Magic metadata, on October 14, 2008, Veoh only produced imaged printouts of the 17 log files, not the electronic files themselves. Moreover, the printouts were missing 18 much of the basic information provided by Audible Magic, including the song title 19 and performing artist of works identified by the filter. 20

10.

When I noted, in a letter to Ms. Golinveaux, that this information was

21 missing from Veoh's production, Ms. Golinveaux acknowledged that Veoh has 22 implemented a system that does not retain some of the data returned to it by Audible 23 Magic about each video that matches a fingerprint in the Audible Magic database. 24

11.

On October 17, 2008, UMG received a production of documents from

25 Veoh, including Veoh's terms of use, "Frequently Asked Questions," financial 26 presentations, valuations of Veoh, and other documents. Many of these documents 27 bear Bates-stamps indicating that they were produced by Veoh in its Io Group 28 litigation.
DECLARATION OF BRIAN LEDAHL IN SUPPORT OF UMG'S OPPOSITION TO VEOH'S EX PARTE APPLICATION REGARDING DISCOVERY

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1

12.

Attached hereto as Exhibit 1 is a true and correct copy of the relevant

2 portions of the transcript of the August 25, 2008 hearing before Judge Andrew J. 3 Wistrich. 4

13.

Attached hereto as Exhibit 2 is a true and correct copy of UMG

5 Recordings, Inc.'s Supplemental Response to Veoh Networks, Inc.'s Interrogatory 6 No. 18. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DECLARATION OF BRIAN LEDAHL IN SUPPORT OF UMG'S OPPOSITION TO VEOH'S EX PARTE APPLICATION REGARDING DISCOVERY

Executed on October 21, 2008, at Los Angeles, California. I declare under penalty of perjury that the foregoing is true and correct. /s Brian D. Ledahl Brian D. Ledahl

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