Rupa Marya v. Warner Chappell Music Inc

Filing 240

DECLARATION of Betsy C. Manifold in Support of EX PARTE APPLICATION for Leave to file Response under L.R. 7-10 239 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(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)
DECLARATION OF BETSY C.
MANIFOLD IN SUPPORT OF
PLAINTIFFS’ EX PARTE
APPLICATION SEEKING LEAVE TO
FILE RESPONSE UNDER L.R. 7-10
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 declaration in support of Plaintiffs’ Ex Parte Application

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seeking leave to file a response to Defendants’ Reply Memorandum (“the Reply”) in

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Support of Motion for Leave to File Supplemental Evidence in Support of Motion for

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Summary Judgment (“Defendants’ Motion”). See Dkt. 237. A copy of Plaintiffs’

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proposed response is attached hereto as Exhibit A. Defendants’ Motion is currently

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set for a hearing on August 31, 2015, prompting the need for ex parte relief so the

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Court may consider the response before the hearing date.

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NOTICE OF EX PARTE APPLICATION PURSUANT TO L.R. 7-19.1

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3.

Pursuant to Local Rule 7-19.1, on August 20, 2015 at 4:22 p.m.,

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Plaintiffs informed counsel for Defendants (Adam Kaplan) by leaving a voice mail

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message that they intended to file this ex parte application on August 21, 2015.

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Shortly thereafter at 4:49 p.m. on the same day, Plaintiffs sent a detailed e-mail to all

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Defendants’ counsel identified on Defendants’ Motion. A copy of the e-mail is

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attached as Exhibit B to the Manifold Declaration.

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4.

In response to the e-mail, Plaintiffs received an automated message that

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Mr. Klaus was out of the country until August 21st and Ms. LeMoine was traveling

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with limited availability until September 8, 2015. At 5:32 p.m., I received an e-mail

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from Glenn Pomerantz also advising me that Adam Kaplan was out of the office, that

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Mr. Klaus was out of the country, and that Defendants would contact Plaintiffs’

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counsel on August 21, 2015. On August 21, 2015, Defendants’ counsel (Adam

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Kaplan) contacted plaintiff’s counsel via electronic mail and advised them that the

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Defendants would oppose this application. On the same day, I advised Mr. Kaplan

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that Plaintiffs would serve and file their application on August 24, 2015.
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On August 24, 2015, Plaintiffs electronically served a copy of this ex

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parte application and supporting papers on Defendants’ counsel prior to filing.

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PROCEDURAL BACKGROUND

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The Court initially set the fact discovery deadline for June 27,

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2014. (Dkt. 92), which was extended by Magistrate Judge Wilner, in connection

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with this Court and at the request of both parties, to July 11, 2014. (Dkt. 106).

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Summary Judgment Briefing

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On November 25, 2014, the parties filed Joint Cross-Motions for

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Summary Judgment (Dkts. 179, 181, 182), a Joint Statement of Uncontroverted Facts

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(Dkts. 180, 183), and an extensive Joint Evidentiary Appendix (Dkts. 167-178)

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(which was amended by Court Order and re-filed). (Dkts. 185, 187-195). Oral

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argument was held on March 23, 2015. (Dkt. 207).
8.

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On May 18, 2015, the Court ordered further briefing on the issue of

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abandonment (Dkt. 215) which was submitted pursuant to Stipulation and Court

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Order by the parties on June 15, 2015 (Dkt. 217, 219). In the May 18, 2015 Order,

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the Court stated that “[t]he Parties shall not submit any new evidence.” Dkt. 215 at

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1. Oral argument on the Supplemental Briefing was heard on July 29, 2015. (Dkt.

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229).

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Supplemental Production by Defendants

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Nearly one year after the close of fact discovery, on July 9, 2015,

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Defendants advised Plaintiffs that they were providing a supplemental production of

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documents. Due to technical issues, Plaintiffs were unable to access the secure

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production link until July 13, 2015.

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10.

On July 13, 2015, Plaintiffs were finally able to access the secure

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database link of approximately 500 pages of documents.

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Defendants’ Motion to Supplement the Record
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On July 23, 2015, Defendants filed their Motion and asked the Court to

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consider some British copyright records as support for their argument that Ex. 106 is

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a copy of the work deposited with the registration for E51990. See Dkt. 223 at 3-

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5. On August 10, 2015, Plaintiffs opposed Defendants’ Motion. See Dkt. 236. In

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Defendants’ reply filed on August 17, 2015 (Dkt. 237), Defendants added a new

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argument that the scope of the copyright covered by E51990 is broader than the

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application or the registration certificate and covers work not done by Mr. Orem and

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cited, for the first time, two cases that supposedly support their argument that the

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copyright covers work not done by Mr. Orem. See Dkt. 237 at 4 (citing Sylvestre v.

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Oswald, No. 91 Civ. 5060 (JSM), 1993 U.S. Dist. LEXIS 7002, at *3-6 (S.D.N.Y.

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May 18, 1993) and Williams v. Bridgeport Music, Inc., No. LA CV13-06004 JAK

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(AGRx), 2014 U.S. Dist. LEXIS 182240, at *25 (C.D. Cal. Oct. 30, 2014)).
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The hearing on Defendants’ motion is set for August 31, 2015. It is

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likely that the Court will take this motion under advisement and Plaintiffs will not

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have an opportunity to address Defendants’ new arguments.

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12.

Plaintiffs are not at fault in the need for this ex parte relief; any

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prejudice to Defendants was created by their own conduct in raising new argument

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and law in the Reply.

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EXHIBITS

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Attached hereto are true and correct copies of the following

documents:
Exhibit A: Plaintiffs’ Sur-Reply in Opposition to Defendants’ Motion for
Leave to File Supplemental Evidence.

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Exhibit B: Electronic Mail dated August 20, 2015 from Plaintiffs’ counsel

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(Betsy C. Manifold) to Defendants’ counsel (Kelly Klaus, Adam Kaplan, Glenn

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Pomerantz and Melinda LeMoine).

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I declare under penalty of perjury that the foregoing is true and correct.

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Executed this 24th day of August 2015, in the City of San Diego, State of California.

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By:

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WARNER/CHAPPELL:22077.decl.bcm

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/s/ Betsy C. Manifold
BETSY C. MANIFOLD