Rupa Marya v. Warner Chappell Music Inc

Filing 233

DECLARATION of Betsy C. Manifold in Further Support of EX PARTE APPLICATION MOTION for Consideration of Newly Discovered Evidence "Mistakenly" Withheld by Defendants During Discovery EX PARTE APPLICATION for Summary Judgment as to First Claim for Relief 224 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Exhibit G, # 2 Exhibit H, # 3 Exhibit I, # 4 Exhibit J, # 5 Exhibit K, # 6 Exhibit L)(Manifold, Betsy)

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8 FRANCIS M. GREGOREK (144785) BETSY C. MANIFOLD (182450) RACHELE R. RICKERT (190634) MARISA C. LIVESAY (223247) WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 9 Interim Lead Class Counsel for Plaintiffs and Proposed Class 1 2 3 4 5 6 7 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 WESTERN DIVISION 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) Plaintiffs, ) ) v. ) WARNER/CHAPPELL MUSIC, ) ) INC., et al., ) ) Defendants. ) ) ) ) ) ) ) ) ) ) ) ) GOOD MORNING TO YOU PRODUCTIONS CORP., et al., Lead Case No. CV 13-04460-GHK (MRWx) SUPPLEMENTAL DECLARATION OF BETSY C. MANIFOLD IN FURTHER SUPPORT OF PLAINTIFFS’ EX PARTE APPLICATION TO HAVE THE COURT CONSIDER NEWLY DISCOVERED EVIDENCE “MISTAKENLY” WITHHELD BY DEFENDANTS DURING DISCOVERY AND ENTER SUMMARY JUDGMENT IN PLAINTIFFS’ FAVOR Judge: Courtroom: Fact Discovery Cutoff: MSJ Hearings Pretrial Conference: Trial: Hon. George H. King, Chief Judge 650 July 11, 2014 March 23, 2015 and July 29, 2015 N/A N/A 1 I, Betsy C. Manifold, hereby declare as follows: 2 1. I am an attorney duly licensed to practice law in the States of California, 3 New York, and Wisconsin, and before this Court. I am a partner with the law firm 4 Wolf Haldenstein Adler Freeman & Herz LLP, interim lead class counsel for 5 Plaintiffs and the class. I have personal knowledge of the following facts, and if 6 called upon to do so, I could and would competently testify as to them. 7 2. I submit this supplemental declaration in further support of Plaintiffs’ 8 Ex Parte Application to have the Court Consider Newly Discovered Evidence 9 “Mistakenly” Withheld by Defendants during Discovery and Enter Summary 10 Judgment in Plaintiffs’ Favor. At the Hearing for Supplemental Briefing Re: Motion 11 for Summary Judgment held on July 29, 2015, the Court directed Plaintiffs to file 12 their reply within seven days thereof. Dkt. 229. This reply is submitted at the 13 Court’s direction. 14 NOTICE OF SUPPLEMENTAL EVIDENCE 15 3. On August 3, 2015, I notified Defendants’ counsel, Kelly Klaus and 16 Adam Kaplan, that Plaintiffs intended to provide additional documents in further 17 support of their ex parte application asking the Court to consider newly discovered 18 evidence mistakenly withheld by Defendants during discovery as well as evidence 19 discovered by Plaintiffs directly related to Defendants’ newly discovered evidence 20 and to enter summary judgment in Plaintiffs’ favor based on the applicable 21 law. Scanned versions of the relevant pages to be submitted were sent by me to 22 Defendants’ counsel at the same time. Defendants have consented to the inclusion of 23 the attached relevant documents in the reply. 24 admissible evidence and necessary to inform the Court’s review of the evidence and 25 Defendants’ response to the Ex Parte Application. 26 PROCEDURAL UPDATE 27 28 4. The additional documents are On July 28, 2015, Defendants submitted their opposition to Plaintiffs Ex Parte Application with no declaration. Dkt. 226. Defendants’ assertion of work -1- 1 product protection in their opposition (Dkt. 226 at 5:23-6:7) is not supported by the 2 discovery record in this case. Fact discovery concluded on July 11, 2014. Dkt. 106. 3 After a search of the privilege logs provided by Defendants, they never identified the 4 documents withheld in their supplemental production and at issue here in any 5 privilege log, which is inconsistent with their assertion that in 2013 they considered 6 the documents in question to be work product. 7 NEED FOR EXTRORDINARY RELIEF REMAINS 8 5. Absent the relief Plaintiffs seek, the Court will waste judicial resources 9 in determining the extensive cross-motions for summary judgment filed by the 10 parties in November 2014 and supplemented in May 2015. Here, evidence withheld 11 by Defendants during discovery and during the extensive briefing of the cross- 12 motions and newly discovered evidence by Plaintiffs directly related to Defendants’ 13 supplemental production readily resolves the key issues in Plaintiffs’ favor and 14 should be considered in the interest of justice. 15 6. In their Opposition to Plaintiffs’ Ex Parte Application, Defendants do 16 not argue that Plaintiffs are in any way responsible or at fault in their need for this ex 17 parte relief. Defendants do not claim any prejudice. As the Court noted at the July 18 29, 2015 hearing, Defendants also fail to provide a declaration in support of their 19 opposition. No declaration means that Defendants have not explained their alleged 20 “mistake” in withholding this evidence and fail to justify their concurrent failure to 21 identify these allegedly “privileged” documents on any privilege log. 22 7. Under L.R. 56-3, any party who opposes summary judgment based on 23 disputes of material fact (whether Summy was authorized to permit the 1922 24 publication) must convert such material facts “by declaration or other written 25 evidence filed in opposition.” No declaration or written evidence was submitted here. 26 Furthermore, at the hearing on July 29, 2015, Defendants offered no declaration or 27 written evidence relating to the disputed material fact, but relating only to the 28 circumstances of their discovery in 2013 of the Good Morning and Birthday Song in the Everyday Song Book published by The Cable Co. (“Cable Co.”) in 1927. -2- 1 2 8. Good cause exists for the review of this newly discovered evidence by the Court and the grant of Summary Judgment in Plaintiffs’ favor. EXHIBITS 3 4 9. 5 Exhibit G: The Everyday Song Book (5th ed. 1922), published by Cable Co.; 6 Exhibit H: The Everyday Song Book (6th ed. 1927), published by Cable Co.; 7 Exhibit I: 8 9 10 11 12 13 14 15 16 Attached hereto are true and correct copies of the following documents: Copyright registration A453345 dated December 28, 1916 for the The Everyday Song Book; Exhibit J: Copyright registration A624750 dated October 10, 1921 for The Everyday Song Book; Exhibit K: The Everyday Song Book (2d ed. 1922) deposit copy for Copyright A624750; and Exhibit L: Golden Song Book of Favorite Songs (1915), published by Hall & McCreary Company. I declare under penalty of perjury that the foregoing is true and correct. Executed this 5th day of August 2015, in the City of San Diego, State of California. 17 By: 18 19 20 21 22 23 24 25 26 27 28 WARNER/CHAPPELL:22000.decl.bcm -3- /s/ Betsy C. Manifold BETSY C. MANIFOLD

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