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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_____________________________________ 1 2 3 4 5 6 7 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 8 Attorneys for Defendants 9 Warner/Chappell Music, Inc. and Summy-Birchard, Inc. 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 11 12 13 GOOD MORNING TO YOU PRODUCTIONS CORP.; et al., 14 15 Plaintiffs, v. 16 WARNER/CHAPPELL MUSIC, INC., 17 etal., 18 19 20 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 21 22 23 24 25 26 27 28 KLAUS DECL, ISO OPP’N TO PLS.’ MOT. TO EXCLUDE CASE NO. CV 13-04460-GHK (MRWx) 1 I, KELLY M. KLAUS, hereby declare: 2 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. 11 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.’ 15 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. 17 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. 23 24 ‘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. 25 -1— KLAUS DECL. ISO OPP’N TO PLS.’ MOT. TO EXCLUDE CASE NO. CV I 3-04460-GUK (MRWx) 1 5. The parties jointly filed their summary judgment papers on November 2 25,2014. 3 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. 5 7. 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. 15 8. 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 20 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 26 2 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. 3 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. 7 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. 13 12. 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.” 18 13. 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. 22 14. 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 25 26 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. 27 -3- KLAUS DECL. ISO OPP’N TO PLS. MOT. TO EXCLUDE CASE NO. CV I 3-04460-GHK (MRWx) 1 Wamer/Chappell made in April 20 14 when it produced the “Confidential 2 Information Memorandum” to Plaintiffs. 3 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 5 identified by the same number as it appears in the Appendix. 6 Exhibit 43: Copy of the sheet music deposited and registered as Reg. No. 7 E51988 (WC0000413-414) (App’x at 3:623-24, Dkt. 189-3); 8 Exhibit 94: Plaintiffs’ Requests for Production of Documents to 9 Defendants — Set No. One dated February 12, 2014 (App’x at 5:1072-82, Dkt. 10 191-1); 11 Exhibit 95: Excerpts from Defendants’ Objections and Responses to 12 Plaintiffs’ First Set of Requests for Production of Documents dated March 21, 13 2014 (App’x at 5:1084-94, Dkt. 191-1); 14 Exhibit 9$: Plaintiffs’ Receipt for Additional Certificates of Registration of a 15 Claim to Copyright for E 51988 & 7 Others from the Records Research and 16 Certification Section, Office of Public Records and Repositories, U.S. 17 Copyright Office dated June 12, 2014 (P006370)(App’x at 5:1118, Dkt. 191- 18 1); 19 Exhibit 105: Record of the Filing of Copyright Deposits under the Act 20 of March 4, 1909 (P003299) (App’x at 6:1219, Dkt. 192-1); 21 Exhibit 10$: Declaration of Thomas B. Marcotullio in Support of 22 Defendants’ Motion for Summary Judgment (App’x at 7:1542-45, Dkt. 193- 23 1); 24 Exhibit 110: (Excerpts only) Excerpts of Deposition Transcript of Plaintiffs’ 25 Expert Witness, Joel Sachs, Ph.D., taken on September 9, 2014 (App’x at 26 7:1567-1622, Dkt. 193-1); and 27 28 -4- KLAUS DECL. ISO OPP’N TO PLS.’ MOT. TO EXCLUDE CASE NO. CV 13-04460-GHK (MRWx) 1 Exhibit 125: Letter from United States Copyright Office to Lisa Minnerly 2 (Wamer/Chappell Music, Inc.) dated December 9, 2013 (WC0002098) 3 (App’x at 8:1937, Dkt. 194-1). 4 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. 7 8 9 Kelly M. Klaus 10 11 12 -5- KLAUS DECL, ISO OPP’N TO PLS.’ MOT. TO EXCLUDE CASE NO. CV 13-04460-GHK (MRWx)

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