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

Filing 423

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

Doc. 423

1 IRELL & MANELLA LLP Steven A. Marenberg (101033) [e-mail] 2 Elliot Brown (150802) [e-mail] Brian D. Ledahl (186579) [e-mail] 3 Benjamin Glatstein (242034) [e-mail] 1800 Avenue of the Stars, Suite 900 4 Los Angeles, California 90067-4276 Telephone: [phone] Facsimile: [phone] 6 Attorneys for Plaintiffs 7 ADDITIONAL COUNSEL LISTED ON SIGNATURE PAGE 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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UMG RECORDINGS, INC., et al., Plaintiffs, vs. VEOH NETWORKS, INC., et al., Defendants.

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Case No. CV 07-5744 AHM (AJWx) JOINT REPORT PURSUANT TO APRIL 6, 2009 ORDER Date: Time: Ctrm: Judge: None None 14 Hon. A. Howard Matz

JOINT REPORT PURSUANT TO APRIL 6, 2009 ORDER 1985765

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Pursuant to the Court's Minute Order of April 6, 2009, the parties hereby

2 submit this joint report regarding scheduling and possible adjustments to the case 3 schedule. The parties have conferred regarding possible adjustments to the schedule 4 consistent with the Court's Order, but have not reached agreement regarding 5 appropriate adjustments. As a result, Plaintiffs and Defendants present their 6 respective proposals below. 7 I. 8 PLAINTIFFS' PROPOSAL Plaintiffs (collectively "UMG") respectfully submit that the appropriate

9 mechanism to address issues with the case schedule is to simply extend the dates in 10 that schedule by eight (8) weeks. Adjusting the schedule in this manner is 11 consistent with the practice the Court has previously articulated and eliminates 12 problems created by Defendants' unduly complicated proposal. 13 UMG's proposal would accommodate the Court's anticipated timing of 14 resolving the pending motion to dismiss by some defendants within the next three 15 weeks, and provide a brief period to complete discovery after that resolution. 16 Defendants, by contrast, propose a partial adjustment of certain dates, accompanied 17 by some additional period for discovery contingent upon the outcome of the pending 18 motion to dismiss. This "Rube Goldberg" adjustment to the schedule will create 19 conflicts that will likely result in the need for further intervention from the Court. 20 Defendants would shift certain dates, but attempt to retain others. This 21 approach would result in a collision of dates. Specifically, Defendants contemplate 22 moving certain current dates regarding discovery, expert discovery, and motion cut23 offs by three weeks. This would result in a new motion cut-off date of May 18, 24 2009. Under such a schedule, even if motions were calendared for hearing on only 25 21-days notice, such motions could not be heard until June 8, 2009, after the current 26 deadline to meet and confer in advance of the pretrial conference (which Defendants 27 propose to keep). Further, expert discovery would continue until July 6, 2009 under 28 defendants' proposal, after the current deadline for submission of the pretrial
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1 conference order, witness lists, exhibit lists, and long after the filing deadline for 2 motions in limine. Such conflicts illustrate why UMG's approach to adjustment is 3 more appropriate. 4 Defendants also propose to create a separate track of discovery and motion 5 practice should the Court deny the pending motion to dismiss. Defendants suggest 6 that discovery involving the defendants who have moved to dismiss should be 7 completed within two weeks of the Court's ruling on the motion. These defendants 8 further suggest that any motions regarding those defendants should be filed within 9 30 days of the Court's ruling on the motion to dismiss. These proposals present 10 several problems. First, Defendants' suggest that discovery as to the moving 11 defendants should be completed on the same day that they would be obliged to 12 answer the Complaint.1 Thus, Defendants suggest that UMG should not be 13 permitted to take any discovery regarding any as-yet-unasserted defenses by these 14 defendants. UMG's proposal, by contrast, contemplates a discovery period with 15 sufficient time to allow a brief, but fair, opportunity for UMG to take such 16 discovery. The second motion cut-off date that Defendants propose would also 17 present conflicts other parts of the Court's schedule. If the parties assume that the 18 Court will, as suggested in the April 6, 2009 Order, issue an Order regarding the 19 motion to dismiss in approximately 3 weeks, this would lead to a motion cut-off (as 20 to claims involving those defendants) of no earlier than May 25, 2009. Leading to a 21 hearing of any such motions (at the earliest) at least two weeks after the conference 22 in advance of the pre-trial conference, and concurrent with the deadline for 23 submission of motions in limine. Thus, Defendants' proposal creates even more 24 scheduling conflicts with regard to the parties to the pending motion to dismiss. 25 26 27 Under Fed R. Civ. P. 12(a), Defendants would have 10 court days after a ruling on the motion to dismiss to provide their answer. Thus, their answer would 28 be due on the same day they suggest discovery should be complete.
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The need to address these scheduling issues was not caused by UMG.

2 Among other things, certain defendants initially refused to schedule depositions 3 noticed by UMG prior to resolution of the motion to dismiss.2 As UMG pointed out 4 in opposing those defendants' ex parte application for a protective order, the 5 depositions are relevant to UMG's claims against Veoh, as well as the other 6 defendants. The Court denied the ex parte application, but some additional time is 7 needed to permit the depositions to take place (none of the moving defendants have 8 yet suggested a time when they are prepared to produce the subpoenaed witnesses). 9 UMG is willing to work with Defendants in scheduling such discovery, but UMG 10 should not be prejudiced in its ability to prepare its case as a consequence. While 11 UMG regrets the need to submit competing proposals to the Court, UMG 12 respectfully submits that Defendants' proposal creates at least as many problems as 13 it attempts to solve. UMG explained these problems to Defendants in making its 14 proposal, but they nonetheless rejected UMG's proposal. 15 II. 16 INVESTOR DEFENDANTS' POSITION In the Court's April 6, 2009 order denying the Investor Defendants' motion to

17 reset certain deposition and summary judgment deadlines, the Court directed UMG 18 and the Investor Defendants to propose an alternative schedule with respect to three 19 20 Veoh's suggestion that UMG has in some way dragged out this litigation is 21 patently false. Among other things, Magistrate Judge Wistrich recently granted 22 UMG additional time to identify infringing videos on the Veoh system because Veoh failed to provide key data about videos on its system for more than a year after 23 it was requested by UMG. Indeed, some of the delay was caused by Veoh's destruction of the data during the pendency of this litigation ­ data that had to later 24 be recreated. Similarly, Magistrate Judge Wistrich recently ruled that "The court is 25 concerned about what appear to be unreasonably narrow interpretations by Veoh of some of UMG's discovery requests . . . , a practice which calls into question the 26 completeness of its entire production. Anomalies in Veoh's production, which may or may not have an entirely innocent explanation, heighten that concern." (Dkt. 27 #401). Veoh's discovery conduct, and its failure to make timely and fair disclosures in response to discovery, are, more than any other factor, the cause of any purported 28 delay or need for additional time in this action.
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1 (3) ­ and only three ­ specific scheduled items: 1) fact discovery cutoff, 2) motion 2 cutoff, and 3) expert discovery cutoff. 3 As directed by the Court's order, the parties have met and conferred regarding 4 what adjustments should be made to the schedule. The Investor Defendants submit 5 that their proposed schedule, set forth below, should be entered for at least the 6 following reasons: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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(1)

It is consistent with the Court's April 6, 2009 order and extends a limited number of deadlines a short period of time, leaving the trial and related pre-trial dates as currently set;

(2) (3)

It allows UMG to take, in short order, the depositions it has argued it will need, regardless of the Court's ruling on the motion to dismiss; It briefly extends the summary judgment deadline to allow for UMG to utilize any discovery obtained in those depositions (while still maintaining the trial date);

(4)

It ensures that the parties and court will utilize their resources in the most efficient manner, by keying the deadlines for the Investor Defendants depositions of UMG and summary judgment motions between UMG and the Investor Defendants off of the Court's decision on the motion to dismiss. There is no dispute that, should the Court grant the motion to dismiss the Second Amended Complaint, the Investor Defendants need not take these depositions of UMG and no further summary judgment motions between UMG and the Investor Defendants would need to be prepared and filed. Further, even if all claims against the Investor Defendants are not dismissed, this schedule promotes efficiency as it allows the Investor Defendants to tailor the depositions and any subsequent motions to whatever claim or claims may remain after the Court's ruling on the motion to dismiss.
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Specifically, the Investor Defendants submit the following, limited changes to · The present fact discovery cutoff of April 13th would be extended three weeks (to May 4, 2009) to allow UMG to take the depositions of the three investor defendants whose depositions were noticed via subpoena on March 31, 2009. · As between UMG and Veoh, the present summary judgment motion cutoff date of April 27th would be extended to two weeks after the conclusion of the deposition period in item (1) above, such that the summary judgment motions as between UMG and Veoh would be extended from April 17, 2009 to May 18, 2009. · As between UMG and the Investor Defendants, the Rule 30(b)(6) depositions of UMG noticed by the Investor Defendants on March 27, 2009 would be convened within two weeks of the Court's ruling on the pending Motion to Dismiss ("MTD") if the Court denied the MTD. · As between UMG and the Investor Defendants, any motions for summary judgment would be due 30 days after the Court's ruling on the MTD if the Court denied the MTD. (Badal Decl, ¶ 5 & Ex. C.)3 Other than as described above, all other dates set out in the Court's original While the Court directed the parties to provide alternative dates relating to

2 the existing schedule are all that is necessary:

20 December 23, 2008 scheduling order would remain unchanged. 22 three specific cut-off dates, Plaintiff's response is to request an across the board 23 eight week delay of all existing dates in the Court's scheduling order. There is 24 simply no basis for such a sweeping change to the schedule. In particular, the 25 Court's indication that it could take as much as three weeks (from April 6th, i.e., 26 After receiving the Investor Defendants' proposal, counsel for UMG asked 27 whether Investor Defendants would also agree that the expert and mediation completion deadlines be extended by two weeks, to which the Investor Defendants 28 readily agreed. (Badal Decl., ¶¶ 6-7 & Ex. D.)
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1 two weeks after the close of fact discovery) to issue an order on the motion to 2 dismiss surely does not provide justification for an eight week extension of every 3 item in the entire schedule. Nor do Plaintiffs provide any explanation as to why 4 they need eight weeks to take three depositions and produce witnesses in response to 5 three identical 30(b)(6) deposition notices (one for each Investor Defendant). 6 Moreover, contrary to Plaintiffs suggestion, the need to address these 7 scheduling issues was no doubt created by Plaintiffs, who indisputably ­ but 8 inexplicably ­ waited until the last possible day to move to amend the initial 9 complaint, refused to agree to stay as to the Investor Defendants, and then again 10 waited until the last possible day to file the Second Amended Complaint. 11 Plaintiffs' cries of delay on the part of the Investor Defendants also ring 12 hollow. First, if these depositions were so critical to Plaintiffs case, they would no 13 doubt have taken them nearly a year ago, when they first served deposition 14 subpoenas on the Investor Defendants. Instead, Plaintiffs summarily took those 15 depositions off calendar, and did not even suggest a deposition would be necessary 16 until nine months later, when notices were served on March 31, 2009 ­ less than 17 two weeks before the close of fact discovery. While the Investor Defendants 18 promptly notified Plaintiffs that their witnesses were not available on the noticed 19 dates, Plaintiffs never responded or proposed an alternative date for these 20 depositions. It is Plaintiffs ­ not defendants ­ who at every turn have attempted to 21 prolong this litigation, no doubt hoping that the expense of the litigation will drive 22 Veoh out of business. 23 In sum, the Investor Defendants have carefully crafted and proposed very 24 limited adjustments to the schedule as requested by the Court. These proposed 25 adjustments take into consideration the Court's order, the procedural posture and 26 existing deadlines in this case, and the discovery that remains to be taken. The 27 Investor Defendants respectfully submit that the Court should enter an Amended 28
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1 Schedule utilizing the deadlines set forth above, and, thereby, decline Plaintiffs 2 invitation to unnecessarily prolong this costly litigation. 3 III. 4 VEOH'S POSITION Veoh supports the Investor Defendants' proposal as discussed above. At the

5 same time, Veoh is adamantly opposed to UMG's blanket request for an across-the6 board eight week extension, one which would carry discovery in this matter 7 needlessly into the summer. 8 UMG filed this suit on September 4, 2007. As a result, it has had more than 9 sufficient time to take discovery of Veoh. Indeed, during the discovery period it has 10 issued 209 individual document requests, served multiple sets of interrogatories, and 11 taken eight depositions. With the exception of two depositions pending4 and 12 compliance with current orders issued by Magistrate Judge Wistrich, discovery 13 between UMG and Veoh is complete, and should not be extended. UMG continues 14 to use this litigation ­ and drag it out ­ to effectively bleed Veoh dry through 15 litigation costs and fees. Veoh respectfully requests that the Court adopt the 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 One of these depositions, of an UMG employee, is scheduled for tomorrow, 26 April 16, 2009. The other relates to UMG's request that Veoh produce its former head of business development, Lew Roth, for deposition. In the alternative, UMG 27 has asked that Veoh agree to waive any authenticity objection to approximately 1,700 pages of documents. Veoh is conducting that review now and this issue will 28 be resolved shortly.
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1 Investor Defendants' proposal, and keep the close of discovery in effect between 2 UMG and Veoh. 3 4 5 6 Dated: April 15, 2009 7 8 9 10 11 12 Dated: April 15, 2009 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted, IRELL & MANELLA LLP

By:

/s Steven A. Marenberg Attorneys for Plaintiffs

WINSTON & STRAWN LLP

By:

/s (with permission) Thomas Lane Attorneys for Defendant Veoh Networks, Inc.

Dated: April 15, 2009

WILMER CUTLER PICKERING HALE AND DORR LLP ORRICK HERRINGTON & SUTCLIFFE LLP

By:

/s (with permission) Robert G. Badal Attorneys for Defendants Shelter Capital Partners, LLC, and Shelter Venture Fund, L.P.

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1 Dated: April 15, 2009 2 3 4 5 6 7 8 Dated: April 15, 2009 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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KULIK, GOTTESMAN, MOUTON & SIEGEL, LLP

By:

/s (with permission) Alisa S. Edelson Attorneys for Defendant The Tornante Company LLC

WILMER CUTLER PICKERING HALE AND DORR LLP

By:

/s (with permission) Maria Vento Attorneys for Defendants Spark Capital, LLC, and Spark Capital, L.P.

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