Rupa Marya v. Warner Chappell Music Inc

Filing 146

DECLARATION of MARK C. RIFKIN in support of MOTION for Review of [REDACTED] MOTION FOR REVIEW OF MAGISTRATE JUDGE WILNERS ORDER RE: DISCOVERY MOTION DENYING PLAINTIFFS MOTION TO OVERRULE DEFENDANTS CLAIM OF ATTORNEY-CLIENT PRIVILEGE [FED. R. CIV. P. 72(a); L.R. 72-2.1] 145 [REDACTED] filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Manifold, Betsy)

EXHIBIT I

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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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1

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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1

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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1

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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1

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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1

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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1

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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Case 2:13-cv-04460-GHK-MRW Document 126-3 Filed 07/22/14 Page 23 of 25 Page ID
#:1428

Page 88
1

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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Case 2:13-cv-04460-GHK-MRW Document 126-3 Filed 07/22/14 Page 24 of 25 Page ID
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Page 89
1

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
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Case 2:13-cv-04460-GHK-MRW Document 126-3 Filed 07/22/14 Page 25 of 25 Page ID
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Page 91
1

I N D E X

2
3

CONTINUED EXAMINATION BY

4

MR. RIFKIN

5

EXAMINATION BY MS. LeMOINE

67

6

EXAMINATION BY MR. RIFKIN

70

46

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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