Rupa Marya v. Warner Chappell Music Inc
Filing
126
SUPPLEMENT to MOTION for Order for (i) OVERRULING DEFENDANTS' CLAIM OF PRIVILEGE IN DOCUMENTS PRODUCED BY A NON-PARTY, OR PERMITTING A SECOND RULE 30(b)(6) DEPOSITION TO DETERMINE THE FACTUAL BASIS FOR THAT CLAIM; (ii) GRANTING RELIEF FROM THE DISCOVERY CUTOFF 123 [REDACTED] filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Declaration Supplemental Decl of Betsy C. Manifold, # 2 Exhibit 13, # 3 Exhibit 14, # 4 Exhibit 15, # 5 Exhibit 16, # 6 Exhibit 17 [REDACTED & FILED UNDER SEAL])(Manifold, Betsy)
Exhibit 14
Ex. 14
25
Page 43
1
UNITED STATES DISTRICT COURT
2
CENTRAL DISTRICT OF CALIFORNIA
3
WESTERN DIVISION
4
5
------------------------------------------x
6
GOOD MORNING TO YOU PRODUCTIONS CORP.,
7
et al.,
8
Plaintiffs,
9
10
vs.
WARNER/CHAPPELL MUSIC INC., et al.,
11
Defendants.
12
------------------------------------------x
13
Lead Case No. CV 13-04460-GHK (MRWx)
14
15
16
V O L U M E
I I
17
CONTINUED VIDEOTAPED DEPOSITION
18
OF RICHARD REIMER
19
New York, New York
20
Monday, July 21, 2014
21
22
23
24
Reported by:
25
JOB 82467
David Henry
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2
3
July 21, 2014
4
4:30 p.m.
5
6
Continued Videotaped Deposition of
7
RICHARD REIMER, held at the offices of
8
Paul Weiss Rifkind Wharton & Garrison,
9
LLP, 1285 Avenue of the Americas, New
10
York, New York, pursuant to Notice,
11
before David Henry, a Certified Court
12
Reporter and Notary Public of the State
13
of New York.
14
15
16
17
18
19
20
21
22
23
24
25
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A P P E A R A N C E S:
2
3
4
5
WOLF HALDENSTEIN ADLER FREEMAN
& HERZ
Attorneys for Plaintiffs
270 Madison Avenue
New York, New York 10016
BY: MARK RIFKIN, ESQ.
6
7
8
9
MUNGER TOLLES & OLSON
Attorneys for Defendants
355 South Grand Avenue
Los Angeles, California 90017
BY: MELINDA EADES LeMOINE, ESQ.
(Present by teleconference)
10
11
12
13
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON
Attorneys for ASCAP and the Witness
1285 Avenue of the Americas
New York, New York 10019
BY: DARREN JOHNSON, ESQ.
14
15
16
17
ALSO PRESENT:
18
LEM LATTIMER, Videographer
19
20
21
22
23
24
25
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THE VIDEOGRAPHER:
This is the
2
tape number one of the videotaped
3
deposition of Richard Reimer in the
4
matter of Good Morning To You
5
Productions versus Warner/Chappell
6
Music.
7
record.
8
counsel please state their appearances
9
for the record.
10
11
The time is 4:33 p.m.
MR. RIFKIN:
Will
Mark Rifkin on
behalf of the plaintiffs.
12
13
We are now going on the
MS. LeMOINE:
Melinda LeMoine on
behalf of Warner/Chappell.
14
MR. JOHNSON:
Darren Johnson,
15
Paul Weiss Rifkind Wharton & Garrison
16
on behalf of ASCAP.
17
R I C H A R D
R E I M E R,
18
having first been duly sworn, was examined
19
and testified as follows:
20
CONTINUED EXAMINATION BY MR. RIFKIN:
21
Q.
Mr. Reimer, good afternoon.
22
A.
Good afternoon.
23
Q.
I have some follow-up questions
24
from your deposition which was taken on
25
July 11, 2014.
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about blanket licenses.
2
repeat the question for you and then we'll
3
follow up to clarify.
4
So let me try to
Since you have worked at ASCAP,
5
has any ASCAP member had the right to
6
instruct ASCAP how much to charge for the
7
blanket licenses?
8
9
A.
And by blanket license I assume
you mean a license to perform all of the
10
works in the ASCAP repertory, is that
11
correct?
12
Q.
Correct.
13
A.
I don't think that one could
14
characterize the relationship between ASCAP
15
and its members as giving the member the
16
right to instruct ASCAP.
17
Q.
Now, you said in answering that
18
question earlier that ASCAP sometimes
19
receives instruction from individual
20
members to license individual works.
21
understand that correctly?
22
A.
23
possibility.
24
Q.
Did I
25
I said that that is a
Are you aware of any instance
when ASCAP has ever been instructed to
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2
3
A.
I don't know what you mean by
worked on.
Q.
Have you collaborated with any of
4
the members to compose music, ASCAP?
5
other words has ASCAP collaborated with any
6
of its members to compose new music?
7
MR. JOHNSON:
8
A.
Objection,
foundation.
9
In
Again, that has no meaning to me.
10
I don't know how ASCAP as an entity would
11
work with members to create music.
12
Q.
I'm asking you if you are aware
13
of any instance when ASCAP has collaborated
14
with any of its members to compose new
15
music.
16
can say no.
17
If you are, great; if not, then you
MS. LeMOINE:
18
A.
Asked
and answered.
19
Objection.
Mr. Rifkin, ASCAP is an
20
organization.
21
the best way I can answer that question.
22
Q.
It's not a composer.
That's
Has ASCAP or anyone at ASCAP
23
collaborated with any of its members or any
24
individual composers who are employed by
25
any of its members to create new music?
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2
MR. JOHNSON:
and answered.
3
4
Objection, asked
MS. LeMOINE:
A.
Join.
Anyone at ASCAP is a very broad
5
statement or description.
6
board of directors.
7
is 12 writers and 12 publishers.
8
to guess that many or all of the writers
9
who are currently members of the board of
ASCAP has a
The board of directors
I venture
10
directors or have been in the past have
11
collaborated with others in creating new
12
music.
13
Q.
And when they have done so in
14
those instances, are you aware of them
15
having done so in their official capacity
16
on behalf of ASCAP?
17
18
19
A.
I doubt that they were doing it
as an ASCAP officer or director.
Q.
Okay, thank you.
Since you have
20
worked at ASCAP, has ASCAP helped any of
21
its members register copyrights in new
22
music?
23
A.
Again, if I understand the
24
question correctly, to the extent that one
25
significant aspect of ASCAP's operation is
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from members as to how to properly go about
2
registering their works with the copyright
3
office.
4
Q.
Are you aware of any instance
5
when that has happened during the 43 years
6
you've worked for ASCAP?
7
A.
I certainly am aware.
I can't
8
give you specifics, but I know that that's
9
one of the functions performed by the staff
10
members of the two departments I've
11
identified.
12
Q.
You're not able to identify a
13
single instance when someone at ASCAP has
14
helped one of ASCAP's members to register a
15
copyright with the copyright office?
16
MS. LeMOINE:
17
and answered.
18
A.
Objection, asked
If by identify you mean a
19
specific instance in which a specific
20
member sought help for registering a
21
specific work, the answer is no.
22
23
24
25
Q.
Okay.
You did prepare for
today's resumed deposition, correct?
A.
By reading the questions that
were agreed upon, yes, that's correct.
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question when you read it, you didn't do
2
any additional research to inform yourself
3
of information pertinent to the question.
4
MR. JOHNSON:
5
form.
6
A.
Correct.
7
Q.
Okay.
Objection to
Since you have worked at
8
ASCAP, has ASCAP helped any of its
9
publisher members acquire new music?
10
A.
Well, without restating one of
11
the prior answers I gave, let me just say
12
that I do view the industry events that I
13
described as opportunities for publishers
14
to acquire music.
15
example there were a workshop and publisher
16
representatives were attending the workshop
17
as well as composers or songwriters, I
18
assume that one of the outcomes would be
19
that the publishers, one of the publishers
20
would acquire new music.
21
Q.
In other words if for
Are you aware of any instance
22
during the time you've worked at ASCAP when
23
anyone from ASCAP working on ASCAP's behalf
24
has identified new music to a publisher
25
member of ASCAP?
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A.
Again, with reference back to my
2
earlier answers, I am certainly aware that
3
that has occurred.
I don't have any
4
specifics for you.
In fact it is one of
5
the functions of the membership staff to
6
facilitate the -- not only the creation of
7
new music to the extent that they
8
participate in the kinds of events that
9
I've described, but also in their
10
relationship between songwriters and
11
composers on the one hand and music
12
publishers on the other.
13
Q.
But you're not able to identify
14
any instance in which ASCAP has identified
15
new music for a publisher?
16
MR. JOHNSON:
Objection.
17
MS. LeMOINE:
Objection, asked
18
and answered.
19
A.
Again, the same answer that I've
20
given previously, I did not specifically
21
conduct any research to come up with a
22
specific example for you.
23
Q.
Are you aware of any instance
24
when ASCAP has acquired new music on behalf
25
of a publisher?
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A.
ASCAP does not acquire music.
2
Q.
Okay.
Have you acquired new
3
music on behalf of, and by you I mean has
4
ASCAP -- let me rephrase the whole
5
question.
6
During the time you have worked
7
at ASCAP, are you aware of any instance
8
when ASCAP has acquired any new music on
9
behalf of any publisher member?
10
11
THE WITNESS:
the question.
12
13
Would you reread
(The pending question was read.)
A.
Again, my immediately prior
14
answer stands.
15
music.
16
Q.
Okay.
ASCAP does not acquire
Since you have worked at
17
ASCAP, has ASCAP provided quality control
18
services to any of its members?
19
A.
If you would explain to me what
20
you mean when you use the phrase quality
21
control.
22
Q.
Well, using it in its broadest
23
possible sense, for example, are you aware
24
of any instance when ASCAP has instructed
25
any of its members on changes to the music
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1
2
that its members create or publish?
A.
I'm aware of no instance when
3
ASCAP would have advised anyone to change
4
music.
5
Q.
And I don't mean to imply that
6
there would be such an instance.
7
asking you if you are aware any instance.
8
So in another sense has ASCAP provided any
9
proof-reading service or any other service
I'm
10
to publisher members, for example
11
suggesting that some of the music is
12
published with typographical errors or any
13
other kind of printing error for the
14
publisher members of ASCAP?
15
A.
Well, again, this is an instance
16
where I'm certain that some staff members
17
at ASCAP have done precisely what you've
18
suggested.
19
however.
20
Q.
I'm not aware of the specifics,
And when they have done that,
21
have they done that in their official
22
capacity on behalf of ASCAP?
23
24
25
A.
I would assume in some instances
certainly, yes.
Q.
But you're not able to identify
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any instance in which that has happened as
2
you sit here today, correct?
3
A.
That is certainly not an area
4
that I would have had direct involvement in
5
and so therefore I have no specific
6
examples for you.
7
Q.
Since you have worked at ASCAP,
8
has ASCAP provided any design services to
9
any of its individual members?
10
A.
Again, would you give me an
11
example of what you mean by design
12
services.
13
Q.
For example illustrations that
14
accompany CD's, or back in the old days
15
albums, that sort of thing, cover artwork,
16
anything like that?
17
18
19
A.
I can't conceive of ASCAP being
involved in cover artwork.
Q.
Okay.
Or liner notes or anything
20
like that back in the day when those things
21
were issued, are you aware of any instance
22
when ASCAP has provided any design service
23
to any of its individual members on liner
24
notes or anything accompanying the --
25
A.
As far as design services are
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concerned as you've defined them, I am
2
aware of no such instances.
3
Q.
Okay.
Or in any broader sense,
4
are you aware of ASCAP providing any design
5
services to any of its members?
6
A.
Again, your use of the phrase
7
design services leads me to answer that I
8
am not aware of any such circumstances.
9
Q.
Okay.
During the time you've
10
work at ASCAP, has ASCAP provided any, what
11
we call artist and repertoire services to
12
any of its individual members, A&R
13
services?
14
A.
If your use of the phrase as I
15
understand it, A&R or artist and repertory
16
refers to recordings, the answer is ASCAP
17
is not involved at all in recording rights,
18
and so therefore I think the answer is no.
19
Q.
Okay.
And since you have worked
20
at ASCAP, has ASCAP licensed individual
21
works of any ASCAP members?
22
A.
ASCAP licenses all of the works
23
of its members except in the circumstance
24
that I've described previously.
25
Q.
And during the 43 years that
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A.
Yes, I am.
2
Q.
Have you ever done that for the
3
song Happy Birthday To You?
4
A.
I have not.
5
Q.
And has ASCAP ever done that for
6
7
the song Happy Birthday To You?
A.
Mr. Rifkin, over the course of
8
more than the 43 years that I've been at
9
ASCAP, ASCAP has brought literally
10
thousands of infringement actions.
11
know whether Happy Birthday was among them.
12
Q.
I don't
You said that ASCAP is interested
13
in the validity of copyrights in its
14
repertory, correct?
15
A.
Correct.
16
Q.
What did ASCAP do to determine
17
the validity of the copyright to Happy
18
Birthday To You?
19
20
21
A.
I don't know that ASCAP has done
anything.
Q.
When you say that ASCAP is
22
interested in the validity of its
23
copyrights, what did you mean by that?
24
25
A.
I thought I gave a fairly
complete answer.
Could we read it back?
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ASCAP would make such a determination.
2
don't think ASCAP would make that
3
determination.
4
MR. JOHNSON:
I
Can I just --
5
before you go on, I've been trying to
6
give you a little bit of latitude, but
7
I think you're veering very close to
8
going beyond the scope that we agreed
9
to and beyond the scope of the cross
10
that Ms. LeMoine asked.
11
that caution, please go ahead.
12
MR. RIFKIN:
So just with
I'm trying to
13
clarify some of the questions that
14
Ms. LeMoine asked and some of the
15
answers that Mr. Reimer gave, but
16
thank you.
17
Q.
I'll keep that in mind.
Mr. Reimer, if two members of
18
ASCAP dispute the validity of a copyright,
19
member A says it's my copyright, member B
20
says no, no, no, it's my copyright, how do
21
you pick which member to side with?
22
MR. JOHNSON:
Can you just
23
identify, which specific question or
24
answer are you trying to clarify with
25
that question?
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MR. RIFKIN:
ASCAP's role in
2
having some, to use Mr. Reimer's
3
words, interest in the validity of the
4
copyrights.
5
Q.
I'm just curious how in the
6
instance of two competing members with
7
competing claims to the same copyright, how
8
ASCAP would resolve that.
9
A.
ASCAP would not resolve that.
10
Q.
Why not?
11
A.
I think the very reason is
12
implied by your question.
13
between two members.
14
resolve it or let a court resolve it.
15
Q.
It's a dispute
Let the members
Are you aware of any instance
16
when ASCAP has either prosecuted or
17
defended a copyright infringement action to
18
determine the validity of a disputed
19
copyright?
20
A.
21
action.
22
Q.
No, I am not aware of any such
Are you aware of any instance
23
when ASCAP has been joined as a party in
24
any such litigation where there's been a
25
dispute over the validity of a copyright?
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A.
I am aware that ASCAP has been a
2
party to such litigation only to the extent
3
of its obligation to one or the other of
4
the disputants to pay royalties based on
5
public performances of those works.
6
7
Q.
Pursuant to the blanket license,
correct?
8
A.
That's correct.
9
Q.
And you said that ASCAP engages
10
in privileged communications with its
11
members regarding the validity of
12
copyrights.
13
A.
Do you recall saying that?
I think what I said was that I
14
was virtually certain that such
15
communications had occurred.
16
Q.
And you understand that if ASCAP
17
had engaged in such communications, you
18
would be obligated to maintain the
19
privileged nature of those communications?
20
A.
Correct.
21
Q.
And you regard yourself as a
22
reasonably cautious attorney, correct?
23
MR. JOHNSON:
24
form.
25
Objection to
sense?
Reasonably cautious in what
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Q.
In the sense that you would abide
2
by your professional obligation to maintain
3
the confidence of such a privileged
4
communication, if there was one, correct?
5
6
7
A.
Yes, and particularly if a member
had the same view.
Q.
And in this case, and I mean the
8
case that brings us here today, the Good
9
Morning to All Productions case, you
10
knowingly produced the 1979 letter from
11
Mrs. Sengstack to Mr. Korman, correct?
12
A.
That's correct, but I did so, as
13
you well know from the letter that I wrote
14
to you on May 22nd, inadvertently.
15
Q.
Well, when you say inadvertently,
16
did you mistakenly include that in the
17
group in the sense that you meant to
18
exclude it but somehow through a copying
19
error it was included in the group?
20
A.
When I said inadvertently, I
21
meant it is the privilege as far as I'm
22
concerned of the member to claim, and
23
having been so advised, if the member
24
viewed it as a privileged communication,
25
that it should not have been produced.
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Q.
So if you sent an e-mail to me,
2
you would have sent an e-mail to
3
Warner/Chappell?
4
A.
I believe so.
5
Q.
And until you and I spoke about
6
withdrawing the confidentiality designation
7
to those documents, Warner/Chappell had not
8
informed you that Warner/Chappell claimed a
9
privilege in those documents, is that
10
correct?
11
A.
I believe so.
12
Q.
So did you regard the documents
13
14
15
16
as privileged when you produced them to me?
A.
I frankly don't recall.
I don't
think I made that determination.
Q.
You recall telling me in advance
17
of producing the documents to me on May 9th
18
that you were including a detailed analysis
19
of the ownership history of the copyright?
20
21
22
A.
I don't recall the exact words of
our discussion.
Q.
But you recall telling me that in
23
substance before you produced the documents
24
to me on May 9, 2014, correct?
25
A.
That's correct.
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1
2
copyright is invalid?
A.
If you're talking about a single
3
copyright, I don't know the answer to that.
4
Certainly we can't license on behalf of
5
members if the members don't have the
6
rights.
7
Q.
Are you able to identify for me
8
any instance in which ASCAP has appeared in
9
any judicial proceeding to defend the
10
validity of any copyright on behalf of any
11
member during the entire period of your
12
employment at ASCAP?
13
MR. JOHNSON:
14
and answered.
15
A.
Objection, asked
I can't conceive of any reason
16
why ASCAP would appear in a proceeding to
17
defend a copyright.
18
members that are at stake.
19
20
It's the rights of the
MR. RIFKIN:
I have nothing
further.
21
MS. LeMOINE:
22
anything further.
23
24
25
MR. RIFKIN:
I don't have
Thank you,
Mr. Reimer.
(Time noted:
5:18 p.m.)
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A C K N O W L E D G M E N T
2
3
STATE OF NEW YORK
4
5
)
: ss
COUNTY OF
)
6
7
I, RICHARD REIMER, hereby certify
8
that I have read the transcript of my
9
testimony taken under oath in my deposition
10
of July 21, 2014; that the transcript is a
11
true, complete and correct record of my
12
testimony, and that the answers on the
13
record as given by me are true and correct.
14
15
16
__________________________
17
RICHARD REIMER
18
19
Signed and subscribed to before
20
me, this
day
21
of
, 2014.
22
23
24
________________________
25
Notary Public, State of New York
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C E R T I F I C A T E
2
3
STATE OF NEW YORK
4
5
)
) ss.:
COUNTY OF NEW YORK
)
6
7
I, DAVID HENRY, a Notary Public within
8
and for the State of New York, do hereby
9
certify:
10
That RICHARD REIMER, the witness whose
11
deposition is hereinbefore set forth, was
12
duly sworn by me and that such deposition
13
is a true record of the testimony given by
14
such witness.
15
I further certify that I am not
16
related to any of the parties to this
17
action by blood or marriage; and that I am
18
in no way interested in the outcome of this
19
matter.
20
IN WITNESS WHEREOF, I have hereunto
21
set my hand this 21st day of July, 2014.
22
23
24
-------------------------
25
DAVID HENRY
TSG Reporting - Worldwide
877-702-9580
Ex. 14
48
Page 91
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I N D E X
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CONTINUED EXAMINATION BY
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MR. RIFKIN
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EXAMINATION BY MS. LeMOINE
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EXAMINATION BY MR. RIFKIN
70
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TSG Reporting - Worldwide
877-702-9580
Ex. 14
49
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