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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FRANCIS M. GREGOREK (144785)
[e-mail]
BETSY C. MANIFOLD (182450)
[e-mail]
RACHELE R. RICKERT (190634)
[e-mail]
MARISA C. LIVESAY (223247)
[e-mail]
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

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Interim Lead Class Counsel for Plaintiffs and Proposed Class

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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Plaintiffs,
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v.
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WARNER/CHAPPELL MUSIC, )
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INC., et al.,
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Defendants.
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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

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I, Betsy C. Manifold, hereby declare as follows:

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I am an attorney duly licensed to practice law in the States of California,

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New York, and Wisconsin, and before this Court. I am a partner with the law firm

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Wolf Haldenstein Adler Freeman & Herz LLP, interim lead class counsel for

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Plaintiffs and the class. I have personal knowledge of the following facts, and if

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called upon to do so, I could and would competently testify as to them.

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2.

I submit this supplemental declaration in further support of Plaintiffs’

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Ex Parte Application to have the Court Consider Newly Discovered Evidence

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“Mistakenly” Withheld by Defendants during Discovery and Enter Summary

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Judgment in Plaintiffs’ Favor. At the Hearing for Supplemental Briefing Re: Motion

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for Summary Judgment held on July 29, 2015, the Court directed Plaintiffs to file

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their reply within seven days thereof. Dkt. 229. This reply is submitted at the

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Court’s direction.

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NOTICE OF SUPPLEMENTAL EVIDENCE

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3.

On August 3, 2015, I notified Defendants’ counsel, Kelly Klaus and

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Adam Kaplan, that Plaintiffs intended to provide additional documents in further

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support of their ex parte application asking the Court to consider newly discovered

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evidence mistakenly withheld by Defendants during discovery as well as evidence

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discovered by Plaintiffs directly related to Defendants’ newly discovered evidence

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and to enter summary judgment in Plaintiffs’ favor based on the applicable

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law. Scanned versions of the relevant pages to be submitted were sent by me to

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Defendants’ counsel at the same time. Defendants have consented to the inclusion of

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the attached relevant documents in the reply.

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admissible evidence and necessary to inform the Court’s review of the evidence and

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Defendants’ response to the Ex Parte Application.

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PROCEDURAL UPDATE

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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
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product protection in their opposition (Dkt. 226 at 5:23-6:7) is not supported by the

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discovery record in this case. Fact discovery concluded on July 11, 2014. Dkt. 106.

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After a search of the privilege logs provided by Defendants, they never identified the

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documents withheld in their supplemental production and at issue here in any

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privilege log, which is inconsistent with their assertion that in 2013 they considered

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the documents in question to be work product.

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NEED FOR EXTRORDINARY RELIEF REMAINS

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5.

Absent the relief Plaintiffs seek, the Court will waste judicial resources

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in determining the extensive cross-motions for summary judgment filed by the

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parties in November 2014 and supplemented in May 2015. Here, evidence withheld

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by Defendants during discovery and during the extensive briefing of the cross-

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motions and newly discovered evidence by Plaintiffs directly related to Defendants’

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supplemental production readily resolves the key issues in Plaintiffs’ favor and

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should be considered in the interest of justice.

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6.

In their Opposition to Plaintiffs’ Ex Parte Application, Defendants do

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not argue that Plaintiffs are in any way responsible or at fault in their need for this ex

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parte relief. Defendants do not claim any prejudice. As the Court noted at the July

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29, 2015 hearing, Defendants also fail to provide a declaration in support of their

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opposition. No declaration means that Defendants have not explained their alleged

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“mistake” in withholding this evidence and fail to justify their concurrent failure to

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identify these allegedly “privileged” documents on any privilege log.

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7.

Under L.R. 56-3, any party who opposes summary judgment based on

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disputes of material fact (whether Summy was authorized to permit the 1922

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publication) must convert such material facts “by declaration or other written

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evidence filed in opposition.” No declaration or written evidence was submitted here.

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Furthermore, at the hearing on July 29, 2015, Defendants offered no declaration or

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written evidence relating to the disputed material fact, but relating only to the

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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.
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Good cause exists for the review of this newly discovered evidence by

the Court and the grant of Summary Judgment in Plaintiffs’ favor.
EXHIBITS

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Exhibit G: The Everyday Song Book (5th ed. 1922), published by Cable Co.;

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Exhibit H: The Everyday Song Book (6th ed. 1927), published by Cable Co.;

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Exhibit I:

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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.

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By:

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WARNER/CHAPPELL:22000.decl.bcm

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/s/ Betsy C. Manifold
BETSY C. MANIFOLD