Rupa Marya v. Warner Chappell Music Inc
Filing
200
OPPOSITION to MOTION for Order for to Exclude Evidence 197 /Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence filed by Defendants Summy-Birchard Inc, Warner Chappell Music Inc. (Attachments: # 1 Declaration Declaration of Jeremy Blietz ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 2 Declaration Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 3 Exhibit Ex. A to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 4 Exhibit Ex. B to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 5 Exhibit Ex. C to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 6 Exhibit Ex. D to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 7 Exhibit Ex. E to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 8 Exhibit Ex. 43 to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 9 Exhibit Ex. 94 to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 10 Exhibit Ex. 95 to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 11 Exhibit Ex. 98 to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 12 Exhibit Ex. 105 to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 13 Exhibit Ex. 108 to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 14 Exhibit Ex. 110 to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence, # 15 Exhibit Ex. 125 to Declaration of Kelly M. Klaus ISO Defendants' Opposition to Plaintiffs' Motion to Exclude Evidence)(Klaus, Kelly)
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GLENN D. POMERANTZ (State Bar No. 112503)
g1enmpornerantzrnto.com
KELLY M. KLAUS (State Bar No. 161091)
kelly.klausmto.com
MELINDAE. LeMOINE (State Bar No. 235670)
melinda. lemoine@mto.com
ADAM I. KAPLAN (State Bar No. 268182)
adam.kap1an(Zlrnto. corn
MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
Thirty-Fifth floor
Los Angeles, California 9007 1-1560
Telephone: (213)683-9100
Facsimile: (213) 687-3702
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Attorneys for Defendants
9 Warner/Chappell Music, Inc. and
Summy-Birchard, Inc.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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GOOD MORNING TO YOU
PRODUCTIONS CORP.; et al.,
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Plaintiffs,
v.
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WARNER/CHAPPELL MUSIC, INC.,
17 etal.,
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Defendants.
Lead Case No. CV 13-04460-GHK
(MRWx)
DECLARATION OF KELLY M.
KLAUS IN SUPPORT OF
DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION TO
EXCLUDE EVIDENCE
Hearing
Date:
Time:
Judge:
Courtroom:
February 9, 2015
9:30a.m.
Hon. George H. King,
Chief Judge
650
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KLAUS DECL, ISO OPP’N TO PLS.’ MOT. TO EXCLUDE
CASE NO. CV 13-04460-GHK (MRWx)
1 I, KELLY M. KLAUS, hereby declare:
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1.
I
am
a member of the firm Munger, Tolles & Olson LLP, counsel for
3 Defendants Warner/Chappell Music, Inc. and Summy-Birchard, Inc. (jointly,
4 “Warner/Chappell”). I am admitted to practice law in the State of California and
5 before this Court. I submit this declaration in support of Wamer/Chappell’s
6 Opposition to Plaintiffs’ Motion to Exclude Evidence. Except where indicated, I
7 have personal knowledge of the facts stated herein. As to those matters stated on
$ information and belief, I am informed of the facts and believe them to be true. If
9 called upon as a witness to testify as to the contents of this declaration, I could and
10 would competently do so.
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2.
I am informed and believe that Plaintiffs first provided
12 Warner/Chappell with the documents that Plaintiffs submitted as summary judgment
13 Exhibits 44 and 48 when the parties met and conferred on October 30, 2014,
14 regarding their respective summary judgment motions.’
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3.
The fact discovery cut-off in this matter was July 11, 2014. Dkt. No.
4.
In March 2014, Warner/Chappell served Plaintiffs with a set of
16 106.
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1$ document requests that included a request for “[a]ll documents that refer or relate to
19 any of the copyright registrations and renewals referenced in [Plaintiffs’ Third
20 Amended Consolidated Complaint], including without limitation Registration Sos.
21 ES 1988 and ES 1990 and the renewals of each of the registrations.” In April 2014,
22 Plaintiffs agreed to produce such documents.
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‘The summary judgment exhibits referenced in this declaration are contained in the
amended loint evidentiary appendix that the parties filed on December 17, 2014
26 çDkts. 127-30, “Appendix”). Copies of these exhibits also are attached either to the
Declaration of Betsy C. Manifold in Support of Plaintiffs’ Motion to Exclude
27 Evidence (Dkt. 198, “Manifold Decl.”) or to this declaration. Each summary
judgment exhibit attached to this declaration is identified by the same number as in
28 the Appendix.
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KLAUS DECL. ISO OPP’N TO PLS.’ MOT. TO EXCLUDE
CASE NO. CV I 3-04460-GUK (MRWx)
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5.
The parties jointly filed their summary judgment papers on November
2 25,2014.
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6.
On December 2, 2014, Plaintiffs sent Warner/Chappell a meet-and-
4 confer letter regarding the matters raised in the instant motion to exclude evidence.
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Following receipt of Plaintiffs’ letter, Warner/Chappell contacted the
6 Copyright Office regarding the certificates of registration for copyright registrations
7 ES 1990 and E51988. On January 5, 2015, I spoke by telephone with a
8 representative of the Copyright Office. The representative told me that, under the
9 Office’s current regulations applicable to registrations originally made in 1935, the
10 Office deems a copy of the original application for copyright to be the registration
11 certificate. The representative further told me that the documents that the Office had
12 sent Wamer/Chappell in December 201 3—i. e., summary judgment Exhibits 101 and
13 103—are documents from the Copyright Office’s “Records Title Index Catalog
14 Cards” (“Catalog Cards”) for E51990 and ES 1988.
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Following the January 5, 2015 telephone conversation, the Copyright
16 Office sent me certified copies of the Catalog Cards for ES 1990 and E51988.
17 Attached hereto as Exhibit A is a true and collect copy of the certified copy of the
1$ Catalog Card for ES 1990. Attached hereto as Exhibit B is a true and correct copy
19 of the certified copy of the Catalog Card for E51988.2
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9.
At the same time that the Copyright Office sent me certified copies of
21 the Catalog Cards, the Office sent me certified copies of pages from the 1935
22 Catalog of Copyright Entries for Musical Compositions, which contain the entries
23 for ES 1990 and ES 1988. Attached hereto as Exhibit C isa true and correct copy of
24 certified copies of pages from the 1935 Catalog of Copyright Entries for Musical
25 Compositions, which contain the entry for ES 1990. Attached hereto as Exhibit B is
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The original certified copies of the documents the Copyright Office sent to me are
2$ being manually lodged and filed with the Court
KLAUS DECL. ISO OPP’N TO PLS.’ MOT. TO EXCLUDE
CASE NO. CV 13-04460-GHK (MRWx)
_____________________
1 a true and correct copy of certified copies of pages from the 1935 Catalog of
2 Copyright Entries for Musical Compositions, which contain the entry for E5 1988.
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10.
I am informed and believe that Plaintiffs did not question the
4 authenticity or admissibility of summary judgment Exhibit 106—a copy of the sheet
5 music for Happy Birthday to You!—until November 2014, when the parties
6 exchanged draft motions for summary judgment and draft statements of facts.
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11.
I am informed and believe that Plaintiffs raised new allegations
8 regarding what they claimed to be specific gaps in Wamer/Chappell’s chain of title
9 throughout the exchange of drafts of the parties’ respective sections of the joint
10 summary judgment submission. Wamer/Chappell produced additional documents
11 during the period of exchanging summary judgment drafts to address Plaintiffs’ new
12 allegations.
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In February 2014, Plaintiffs requested that Wamer/Chappell produce
14 “[t]he due diligence file and all other documents including without limitation,
15 reports, opinion letters, audit documents and representations of warranty in
16 connection with Warner/Chappell’s acquisition of Birchtree Limited in or around
17 1988.”
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In April 2014, in response to the document request described in
19 Paragraph 12, Warner/Chappell produced to Plaintiffs the document from which
20 summary judgment Exhibit 119 was excerpted (for confidentiality reasons)—a 3321 page “Confidential Information Memorandum” dated October 1988.
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Attached hereto as Exhibit E is a true and correct copy of eight pages
23 from the “Confidential Information Memorandum” from which Exhibit 119 was
24 excerpted. The redactions that appear in Exhibit E are privilege redactions that
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The original certified copies of the of pages from the 1935 Catalog of Copyright
Entries for Musical Compositions that the Copyright Office sent me in January 2015
28 will be manually lodged and filed with the Court.
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KLAUS DECL. ISO OPP’N TO PLS. MOT. TO EXCLUDE
CASE NO. CV I 3-04460-GHK (MRWx)
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Wamer/Chappell made in April 20 14 when it produced the “Confidential
2 Information Memorandum” to Plaintiffs.
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15.
Attached hereto are true and correct copies of the following summary
4 judgment exhibits, which were contained in the Appendix. Each of these exhibits is
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identified by the same number as it appears in the Appendix.
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Exhibit 43: Copy of the sheet music deposited and registered as Reg. No.
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E51988 (WC0000413-414) (App’x at 3:623-24, Dkt. 189-3);
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Exhibit 94: Plaintiffs’ Requests for Production of Documents to
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Defendants
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Set No. One dated February 12, 2014 (App’x at 5:1072-82, Dkt.
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191-1);
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Exhibit 95: Excerpts from Defendants’ Objections and Responses to
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Plaintiffs’ First Set of Requests for Production of Documents dated March 21,
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2014 (App’x at 5:1084-94, Dkt. 191-1);
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Exhibit 9$: Plaintiffs’ Receipt for Additional Certificates of Registration of a
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Claim to Copyright for E 51988 & 7 Others from the Records Research and
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Certification Section, Office of Public Records and Repositories, U.S.
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Copyright Office dated June 12, 2014 (P006370)(App’x at 5:1118, Dkt. 191-
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1);
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Exhibit 105: Record of the Filing of Copyright Deposits under the Act
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of March 4, 1909 (P003299) (App’x at 6:1219, Dkt. 192-1);
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Exhibit 10$: Declaration of Thomas B. Marcotullio in Support of
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Defendants’ Motion for Summary Judgment (App’x at 7:1542-45, Dkt. 193-
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1);
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Exhibit 110: (Excerpts only) Excerpts of Deposition Transcript of Plaintiffs’
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Expert Witness, Joel Sachs, Ph.D., taken on September 9, 2014 (App’x at
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7:1567-1622, Dkt. 193-1); and
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KLAUS DECL. ISO OPP’N TO PLS.’ MOT. TO EXCLUDE
CASE NO. CV 13-04460-GHK (MRWx)
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Exhibit 125: Letter from United States Copyright Office to Lisa Minnerly
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(Wamer/Chappell Music, Inc.) dated December 9, 2013 (WC0002098)
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(App’x at 8:1937, Dkt. 194-1).
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I declare under penalty of perjury under the laws of the United States that the
5 foregoing is true and correct. Executed this 16th day of January 2015, at San
6 Francisco, California.
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Kelly M. Klaus
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KLAUS DECL, ISO OPP’N TO PLS.’ MOT. TO EXCLUDE
CASE NO. CV 13-04460-GHK (MRWx)
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