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

Filing 606

Attachment 19
MEMORANDUM in Opposition to MOTION for Attorney Fees and Costs (REDACTED) 587 filed by Plaintiffs Songs of Universal, Inc., Universal-Polygram International Publishing, Inc., Rondor Music International, Inc., Universal Music - MGB NA LLC, UMG Recordings, Inc., Universal Music - Z Tunes LLC, Universal Music - MBG Music Publishing Ltd., Universal Music Corp.. (Attachments: # 1 Declaration of Brian D. Ledahl in Support of UMG's Opposition, # 2 Exhibit A to Ledahl Decl., # 3 Exhibit B to Ledahl Decl., # 4 Exhibit C to Ledahl Decl., # 5 Exhibit D to Ledahl Decl., # 6 Exhibit E to Ledahl Decl., # 7 Exhibit F to Ledahl Decl., # 8 Exhibit G to Ledahl Decl., # 9 Exhibit H to Ledahl Decl., # 10 Exhibit I to Ledahl Decl., # 11 Exhibit J to Ledahl Decl., # 12 Exhibit K to Ledahl Decl., # 13 Exhibit L to Ledahl Decl., # 14 Exhibit M to Ledahl Decl., # 15 Declaration Carter R. Batsell in Support of UMG's Opposition, # 16 Exhibit A to Batsell Decl., # 17 Exhibit B to Batsell Decl., # 18 Exhibit C to Batsell Decl., # 19 Exhibit D to Batsell Decl., # 20 Exhibit E to Batsell Decl., # 21 Exhibit F to Batsell Decl., # 22 Exhibit G to Batsell Decl., # 23 Exhibit H to Batsell Decl., # 24 Exhibit I to Batsell Decl., # 25 Exhibit J to Batsell Decl., # 26 Exhibit K to Batsell Decl., # 27 Exhibit L to Batsell Decl., # 28 Exhibit M to Batsell Decl., # 29 Exhibit N to Batsell Decl., # 30 Exhibit O to Batsell Decl., # 31 Exhibit P to Batsell Decl.)(Batsell, Carter)

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UMG Recordings, Inc. et al v. Veoh Networks, Inc. et al Doc. 606 Att. 19 1 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 PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING; TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE. APPEARANCES: COURT REPORTER: COURTROOM DEPUTY: TRANSCRIBER: SEE NEXT PAGE RECORDED; COURT SMART YSELA BENAVIDES DOROTHY BABYKIN COURTHOUSE SERVICES 1218 VALEBROOK PLACE GLENDORA, CALIFORNIA (626) 963-0566 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION UMG RECORDINGS, INC., ET AL., ) ) PLAINTIFFS, ) ) VS. ) ) ) VEOH NETWORKS, INC., ET AL., ) ) ) DEFENDANTS. ) ______________________________) CASE CV 07-5744-AHM(AJWX) LOS ANGELES, CALIFORNIA AUGUST 25, 2008 (10:07 A.M. TO 11:17 A.M.) HEARING BEFORE THE HONORABLE ANDREW J. WISTRICH UNITED STATES MAGISTRATE JUDGE 91740 Exhibit D Page 25 ockets.Justia.com D 2 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 APPEARANCES: (CONTINUED) FOR THE PLAINTIFF: IRELL & MANELLA BY: BRIAN D. LEDAHL STEVEN A. MARENBERG ANJULI MC REYNOLDS ATTORNEYS AT LAW 1800 AVENUE OF THE STARS SUITE 900 LOS ANGELES, CALIFORNIA 90067 FOR THE DEFENDANTS: WINSTON & STRAWN BY: JENNIFER A. GOLINVEAUX ATTORNEY AT LAW 101 CALIFORNIA STREET 39TH FLOOR SAN FRANCISCO, CALIFORNIA 94111 WINSTON & STRAWN BY: REBECCA LAWLOR CALKINS ATTORNEY AT LAW 333 SOUTH HOPE STREET 38TH FLOOR LOS ANGELES, CALIFORNIA 90071 WINSTON & STRAWN BY: THOMAS P. LANE ATTORNEY AT LAW 200 PARK AVENUE NEW YORK, NEW YORK 10166 Exhibit D Page 26 3 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 INDEX CASE NO. CV 07-5744-AHM(AJWX) PROCEEDINGS: AUGUST 25, 2008 PLAINTIFF'S MOTION TO COMPEL DISCOVERY RESPONSES FROM VEOH DEFENDANTS' MOTION TO COMPEL FURTHER RESPONSES AND FOR PRODUCTION OF DOCUMENTS FROM PLAINTIFFS. Exhibit D Page 27 19 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 GOING TO REQUIRE BOTH SIDES TO EXCHANGE CUSTODIANS AND SEARCH TERMS ACROSS THE BOARD SO THAT EVERYONE WILL HAVE THAT INFORMATION. SO, LET'S TAKE THAT AS A GIVEN. OKAY. MS. CALKINS: THE COURT: NOW, WOULDN'T IT MAKE SENSE FOR ME TO DENY YOUR MOTION WITHOUT PREJUDICE AND LET YOU BRING SUCH PARTS OF IT AS ARE STILL RELEVANT AFTER YOU'VE REVIEWED THEIR PRODUCTION. MS. CALKINS: I WOULD ASK THAT YOUR HONOR -- I THINK IN MY OPINION IF WE CONTINUED THE HEARING PERHAPS AND IN THE MEANTIME IN ADDITION TO THE SEARCH TERMS, UMG WOULD PROVIDE US -THE COURT: HERE'S THE PROBLEM I HAVE WITH THAT. I THOUGHT ABOUT THAT BECAUSE I DON'T WANT TO INCONVENIENCE YOU OR CAUSE DELAY. THIS JOINT STIPULATION EXCEEDS 300 PAGES. HUNDREDS OF REQUESTS IN THERE. IT'S GOT AND IT WAS MY SENSE THAT MANY OF THEM PROBABLY HAVE BEEN LARGELY SATISFIED AT THIS POINT. PERHAPS NOT ALL. IT'S VERY CUMBERSOME FOR ME TO DEAL WITH SOMETHING LIKE THIS. SO, I THINK REALLY IF YOU REDID IT IN LIGHT OF WHAT YOU'VE LEARNED NOW THAT YOU'VE REVIEWED THEIR PRODUCTION, WE CAN FOCUS ON WHAT REALLY NEEDS TO BE DECIDED WITHOUT HAVING TO WADE THROUGH THIS VERY LENGTHY PIECE OF PAPER. MS. CALKINS: I WOULD JUST ASK THEN ANOTHER WAY TO Exhibit D Page 28 20 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 IN PART? EXPEDITE IT IN ADDITION TO THAT, YOUR HONOR, WOULD BE FOR UMG TO PRODUCE A LIST OR IDENTIFY WHICH OTHER DOCUMENTS CORRELATE TO WHICH OF OUR REQUESTS. THAT WOULD BE -- THAT WAY WE CAN AT LEAST UNDERSTAND WHAT THEY HAVE PRODUCED IN RESPONSE TO PARTICULAR REQUESTS. MATTER. OTHERWISE, WE'RE LEFT WITH AN EXTREMELY LARGE VOLUME OF DOCUMENTS WITHOUT KNOWING WHERE THEY HAVE DECIDED TO PRODUCE IN RESPONSE TO REQUESTS THEY PREVIOUSLY REFUSED. WE JUST HAVE NO SENSE FOR WHERE THEY HAVE COMPLIED AND WHAT TO BRING BEFORE YOUR HONOR SUBSEQUENTLY. THE COURT: WELL, THAT'S NOT VERY HELPFUL TO ME. THEY CAN BE CATEGORIZED FOR THAT YOU HAVE NO SENSE OF WHERE THEY'VE COMPLIED AND WHERE THEY HAVEN'T. MS. CALKINS: THE COURT: WELL -- OTHER THAN HAVING THEM ORGANIZE THE WHOLE PRODUCTION IN THE WAY THAT YOU WOULD FIND MOST CONVENIENT, WHICH PROBABLY IS NOT REALISTIC, WHAT ELSE COULD I DO TO SIMPLIFY THE SITUATION? MS. CALKINS: NO, YOUR HONOR, PERHAPS THEY COULD JUST IDENTIFY -- FOR EXAMPLE, THIS BATES RANGE RELATES TO VIRAL MARKETING, AND THAT IS OUR PRODUCTION ON VIRAL MARKETING. THAT WAY -ISN'T THAT A MATTER OF INTERPRETATION THE COURT: AND WOULD YOU THEN NECESSARILY AGREE WITH THEIR Exhibit D Page 29 21 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 POINT. CHARACTERIZATION? MS. CALKINS: WELL, THERE IS A LARGE -- VIRAL THEY HAVE A DIVISION THAT'S MARKETING IS LARGELY UNDISPUTED. DEVOTED TO VIRAL MARKETING. "VIRAL MARKETING." THEY HAVE DOCUMENTS ENTITLED, FOR THOSE AT A MINIMUM THEY COULD IDENTIFY, YES, THESE ARE -- THIS IS WHERE YOU GO TO LOOK TO SEE -- TO TEST THE QUALITY OF OUR PRODUCTION IN THIS PARTICULAR CATEGORY. AND I DON'T THINK THAT WOULD BE UNREASONABLE. THEY HAD TO ORGANIZE AND COLLECT AND GATHER THE DOCUMENTS IN A SIMILAR FASHION. AND THEY KNOW WHERE THEY WENT AND WHICH DOCUMENTS THEY PRODUCED TO WHICH -THE COURT: WHAT THEY DID, IS IT? WELL, THAT'S NOT THE WAY THEY DESCRIBE DIDN'T THEY SAY THEY USED SEARCH TERMS AND THEY -- WHICH WE DON'T KNOW WHAT THOSE TERMS ARE YET. SEARCHED ON THOSE. THEM. MS. CALKINS: AND WHEN THEY FOUND HITS, THEY PRODUCED WELL, I THINK YOUR HONOR MAKES A GOOD THEY -- THEY DON'T DESCRIBE WHAT THEY DID. THE COURT: ALL RIGHT. WELL, WE'RE GOING TO HAVE-- WE'LL GET PAST THAT BARRIER. OKAY. I THINK THE BEST THING, ALTHOUGH I DO IT WITH SOME RELUCTANCE, IS TO DENY YOUR MOTION TO COMPEL WITHOUT PREJUDICE TO YOUR RENEWING SUCH PARTS OF IT AS ARE NECESSARY TO RENEW AFTER YOU'VE COMPLETED YOUR REVIEW OF Exhibit D Page 30 22 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 THEIR PRODUCTION. MS. CALKINS: YOUR HONOR, THERE ARE CERTAIN CATEGORIES OF REQUESTS ALSO THAT THEY COMPLETELY REFUSED TO PRODUCE DOCUMENTS IN RESPONSE TO THAT WOULD ALSO BE INDEPENDENT OF -- I APPRECIATE YOUR HONOR'S -THE COURT: I'M HAPPY TO ADDRESS THAT, BUT I'M NOT GOING TO WADE THROUGH OVER 300 PAGES TRYING TO FIND THEM. AND I'M NOT GOING TO ASK YOU TO TRY TO LIST THEM FOR ME ON THE RECORD. AND IN RESPONSE TO MOST OF THE REQUESTS -- I MEAN, I THINK IN ONE OF THE CATEGORIES YOU PROVIDED -- I LIKE CATEGORIES, BUT YOURS WERE SO BROAD THAT THEY REALLY WEREN'T MEANINGFUL. YOU KNOW, GROUPINGS OF RELATED REQUESTS. YOU HAVE 50, 60 PAGES OF REQUESTS AND THEN ONE PAGE OF ARGUMENT. AND THAT REALLY DOES NOT HELP ME IN UNDERSTANDING WHAT YOUR CONCERN IS AND TRYING TO GET A HANDLE ON WHAT I SHOULD OR SHOULDN'T DO. I'M SURE YOU'LL DO A BETTER JOB WITH THIS NEXT TIME, AND IT WILL BE MORE CONCISE. BETTER ON WHAT'S REALLY AT ISSUE. THANK YOU. MS. CALKINS: MORE THING? THE COURT: YES. WE HAVE INTERROGATORIES ALSO THAT ARE YOUR HONOR, MAY I JUST ADDRESS ONE AND FOCUS THE COURT MS. CALKINS: Exhibit D Page 31 23 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 A PART OF THE MOTION TO COMPEL. THEY -- PLAINTIFF REFUSED TO ANSWER 24 OF OUR 18 INTERROGATORIES -THE COURT: 24 OF YOUR 18? EXCUSE ME. 18 OF OUR 24. MS. CALKINS: THE COURT: OKAY. AND THE REMAINING SIX CONTAINED MS. CALKINS: RESPONSES THAT IN OUR VIEW ARE EXTREMELY DEFICIENT. MAY WE PROCEED WITH THAT PORTION OF THE -THE COURT: YOU CAN FILE A SEPARATE MOTION ON THAT. I WANT YOU TO MAKE THIS -- THIS IS AN UNMANAGEABLE PACKAGE FOR ME OF THIS LENGTH OF THINGS GROUPED IN THESE VERY BROAD, UNHELPFUL CATEGORIES. I'M NOT TRYING TO BE UNKIND, BUT THIS IS REALLY POOR IN TERMS OF PRESENTING IT TO THE COURT. SO, PLEASE, IF YOU'RE NOT SATISFIED WITH THEIR INTERROGATORY RESPONSES, FILE A MOTION. SENSIBLE WAY NEXT TIME. MS. CALKINS: THE COURT: PLAINTIFFS' MOTION. MR. LEDAHL: YOUR HONOR, I'M HAPPY TO PROCEED OR IF THERE OKAY? THANK YOU, YOUR HONOR. LET'S TALK ABOUT BUT DO IT IN A ALL RIGHT. CATEGORY BY CATEGORY IF THE COURT WOULD PREFER. ARE PARTICULAR AREAS YOU'D LIKE ME TO FOCUS ON, I'M HAPPY TO DO THAT AS WELL. I THINK BASICALLY ONE OF OUR PRIMARY CONCERNS, AS Exhibit D Page 32 36 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 MOST OF WHAT THEY'RE SEEKING IN THIS MOTION FRANKLY. NEVER RESPONDED AT ALL. WHEN WE'RE ON THE PHONE SEVERAL WEEKS LATER, I REMINDED HIM THAT WE WERE WAITING FOR A RESPONSE, AND THAT WE WEREN'T GOING TO GO THROUGH AND REVIEW EMAIL COMMUNICATIONS, A VERY LARGE BODY OF EMAIL COMMUNICATIONS MULTIPLE TIMES SO I WANTED TO MAKE SURE WE HAD COME TO REASONABLE COMPROMISES. AND HE SAID HE UNDERSTOOD THAT WE WERE WAITING FOR A RESPONSE. BUT WE NEVER GOT A RESPONSE. INSTEAD, THEY FILED AND HE THEIR MOTION TO COMPEL I THINK THE DAY AFTER THEY DID THEIR MASSIVE DOCUMENT PRODUCTION. DELAY HERE. SO, THERE'S BEEN NO EFFORT TO WE'VE BEEN TRYING -- WE TRIED TO BE VERY REASONABLE ON THESE -THE COURT: WELL, THE ONLY THING I WOULD SAY IS I THINK THAT SOME OF WHAT YOU AGREE TO DO IN YOUR LETTER YOU SHOULD HAVE DONE FROM THE VERY BEGINNING. WHY YOU'RE STILL WAITING TO DO THAT. ON IT. I KNOW YOU TRIED TO WORK THINGS OUT. WANT TO DO THING MULTIPLE TIMES. CONCERNS. RELEVANT. WHAT ABOUT THE VIDEOS? MS. GOLINVEAUX: WELL, YOUR HONOR, WITH THE VIDEOS YOU DON'T AND I DON'T KNOW I MEAN, THAT'S MY TAKE I UNDERSTAND THOSE BUT SOME OF THIS MATERIAL IS VERY PLAINLY Exhibit D Page 33 59 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 DOROTHY BABYKIN ______________________________ FEDERALLY CERTIFIED TRANSCRIBER DOROTHY BABYKIN AUGUST 29, 2008 ___________ DATED I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. CERTIFICATE Exhibit D Page 34

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