Bryan Pringle v. William Adams Jr et al

Filing 110

JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 10 days, filed by Plaintiff Bryan Pringle.. (Hampton, George)

1 Dean A. Dickie (appearing Pro Hac Vice)
[e-mail]
2 Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
[e-mail]
3 MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
225 West Washington Street, Suite 2600
4 Chicago, IL 60606
Telephone: [phone]
5 Facsimile: 312.460.4288
6 Ira Gould (appearing Pro Hac Vice)
[e-mail]
7 Ryan L. Greely (appearing Pro Hac Vice)
[e-mail]
8 GOULD LAW GROUP
120 North LaSalle Street, Suite 2750
9 Chicago, IL 60602
Telephone: [phone]
10 Facsimile: 312.726.1328
11 George L. Hampton IV (State Bar No. 144433)
[e-mail]
12 Colin C. Holley (State Bar No. 191999)
[e-mail]
13 HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
14 Corona del Mar, California 92625
Telephone: [phone]
15 Facsimile: 949.718.4580
16 Attorneys for Plaintiff
BRYAN PRINGLE
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
BRYAN PRINGLE, an individual,

) Case No. SACV 10-1656 JST(RZx)
)
Plaintiff,
) JOINT RULE 26 REPORT
)
v.
)
)
WILLIAM ADAMS, JR.; STACY
)
FERGUSON; ALLAN PINEDA; and
)
JAIME GOMEZ, all individually and
)
collectively as the music group The Black )
Eyed Peas, et al.,
)
)
Defendants.
)
)

1
Plaintiff Bryan Pringle (“Plaintiff”) and Defendants, William Adams, Stacy

2

3 Ferguson, Allan Pineda, Jaime Gomez, individually and professionally known as the
4 musical group The Black Eyed Peas, Tab Magnetic Publishing, Headphone Junkie
5 Publishing, LLC, will.i.am. music, llc, Jeepney Music, Inc., Cherry River Music Co.,
6 EMI April Music, Inc., UMG Recordings, Inc., Interscope Records, Shapiro,
7 Bernstein & Co., Inc, and David Guetta (together “Defendants”)1 jointly submit the
8 following report pursuant to Rule 26(f) of the Federal Rules of Civil Procedure,
9 Local Rule 26-1, and this Court’s Order dated December 15, 2010.
A.

10

Statement of the Case

The following constitutes a separate statement of the case by Plaintiff and

11

12 Defendants:
(i)

13

Plaintiff’s Statement of the Case

Pringle wrote and recorded the song “Take a Dive,” an original work, in 1998.

14

15 He registered a claim for “Take a Dive,” along with the other songs of the CD Dead
16 Beat Club: 1998, with the United States Copyright Office. Approximately a year
17 later, Pringle made a slightly different derivative work of “Take a Dive,” to, among
18 other things, add what can best be described as a repeating eight-bar melody, using a
19 “guitar twang” instrument, utilizing a total of four notes (D4, C4, B3 and G3), in the
20 following progression: D4-C4-B3-C4-B3-C4, (in the key of G3) (the “guitar twang
21 sequence”). This “guitar twang sequence” of notes was modeled after “Take a
22 Dive’s” progression of notes in the chorus vocals, sung by Pringle. Pringle
23 registered the derivative version of “Take a Dive” in November 2010.
24
25
26

1

Each of the Defendants has answered Plaintiff’s Amended Complaint. Plaintiff’s
Amended Complaint lists other individuals and entities as defendants, who have not
27 yet been properly served.
28
2

1

Since 1999, Pringle has been, and still is, the proprietor of the statutory

2 copyright in the musical composition and sound recording for “Take a Dive.” From
3 1994 to 2008, Pringle regularly submitted demo CDs of his original music to many
4 entities and individuals in the music industry, including Defendants UMG,
5 Interscope and EMI, in the hopes of promoting his work, becoming signed as an
6 artist to a major label, or selling his songs to publishing companies and/or other
7 already established artists. He also advertised his music on the internet via multiple
8 music websites, and had his music played internationally via radio and internet.
9

In response, Pringle received rejections, including a handwritten letter, from

10 representatives at Interscope, UMG and EMI, informing him that while his music
11 was of good quality, the labels were not currently interested in signing him as an
12 artist or purchasing any of his music. Pringle has alleged that one or more of the
13 Black Eyed Peas Defendants, Defendant Guetta, and/or Defendant Riesterer accessed
14 one or more of Pringle’s demo CDs that included one or more of his derivative
15 versions of “Take a Dive,” listened to the song, and directly copied significant
16 portions of the song when they wrote and recorded “I Gotta Feeling.”
17

Pringle further alleges that Defendants UMG and Interscope are, upon

18 information and belief, also direct infringers due to their conspiracy with the
19 members of the Black Eyed Peas to conduct an ongoing pattern and practice of
20 intentional copyright infringement. EMI, Headphone Junkie, Will.I.Am Music,
21 Jeepney Music, Tab Magnetic, Cherry River Music, Square Rivoli, Rister and
22 SB&Co., are all contributory or vicarious infringers as all had some degree of
23 supervisory control over the release, performance, sale and distribution of the single
24 “I Gotta Feeling,” and the Black Eyed Peas’ album, The E.N.D., which contains the
25 song “I Gotta Feeling,” and all obtained direct financial benefit from doing so.
26
27
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3

(ii)

1
2

Defendants’ Statement of the Case 2

This case involves a single claim of copyright infringement related to

3 Defendants’ song “I Gotta Feeling.” Although Plaintiff’s assertions have evolved
4 over the course of these proceedings, Plaintiff presently asserts that the song “I Gotta
5 Feeling” is an infringement of: (a) the musical composition of a song titled “Take a
6 Dive,” which Plaintiff allegedly created in 1998 and which is allegedly covered by
7 Copyright Registration No. SRu387-433, (b) the unregistered musical composition of
8 a derivative version of “Take A Dive,” which Plaintiff allegedly created in 1999
9 (“‘Take a Dive’ Derivative”), and which the Copyright Office refused to register, and
10 (c) the sound recording of “Take a Dive” Derivative allegedly covered by Copyright
11 Registration No. SR 659-360, with an effective date of November 15, 2010.
12

As detailed in the prior motions presented to this Court, there are material

13 factual, evidentiary and legal issues regarding almost every aspect of Plaintiff’s
14 claim, including (i) whether Mr. Pringle created the works at issue using material that
15 is original to him, including the authenticity and proffered dates of certain compluter
16 files related to Mr. Pringle’s alleged creation of these works, (ii) the copyrightability
17 of Mr. Pringle’s asserted works and the validity of the registration, or lack of
18 required registration, for such works, (iii) Mr. Pringle’s allegation that he distributed
19 his works and that Defendants had access to those works, and (iv) whether
20 Defendants infringed any of the works at issue. There will also be factual and
21 evidentiary issues regarding Defendants’ defenses, including fraud on the Copyright
22 Office, copyright misuse and unclean hands.
23
24

B.

Legal Issues

25
2
For additional background regarding the issues involved in this case, Defendants
26 respectfully refer the Court to their briefing on their prior Motions to Dismiss and to
27 Strike, and on Plaintiff’s Ex Parte Application for a Temporary Restraining Order
and Motion for a Preliminary Injunction.

28
4

1

Plaintiff submits that the legal issues currently include whether: (a) Plaintiff

2 has established a claim for copyright infringement against each of the Defendants;
3 (b) Plaintiff can establish that Defendants intentionally infringed on his copyright,
4 and (c) Plaintiff can establish his claim for damages.
5

Defendants submit that,3 although the parties do not dispute the basic elements

6 of a claim for copyright infringement under Ninth Circuit authority, there is dispute
7 over several subsidiary legal issues, including (a) the test for infringement with
8 respect to the alleged sampling of a sound recording, (b) whether Plaintiff’s
9 infringement claim with respect to “Take a Dive” Derivative musical composition is
10 barred by the Copyright Office’s refusal to register such composition, (c) whether the
11 asserted registration for a 2010 sound recording of “Take a Dive” Derivative validly
12 protects Plaintiff’s sound recording allegedly created in 1999, (d) whether Plaintiff
13 can establish that Defendants had access to the works at issue under established
14 Ninth Circuit authority, (e) whether Plaintiff’s claim for attorney’s fees and statutory
15 damages are barred by delinquent registration of copyright under 17 USC § 411, and
16 (f) whether Plaintiff’s claim is barred by Defendants’ defenses, including copyright
17 misuse, fraud on the Copyright Office and unclean hands.
18
19

C.

Damages

Plaintiff seeks permanent injunctive relief to enjoin Defendants from

20 infringing his copyright, including the imposition of a constructive trust over
21 wrongfully made profits during the pendency of the litigation. Plaintiff also seeks
22 actual damages, including lost profits and disgorgement of Defendants’ profits, and
23 songwriting credit for the infringing song “I Gotta Feeling,” in turn entitling him to
24 future revenue from the song.
25
3
For additional discussion
26 respectfully refer the Court of the legal issues involved in this caseDefendants and to
to their briefing on their prior Motions to Dismiss
Strike, and on Plaintiff’s Ex Parte Application for a Temporary Restraining Order
27 and Motion for a Preliminary Injunction.

28
5

1

Defendants seek recovery of their attorneys’ fees and costs under the

2 Copyright Act, as well as any and all other relief to be granted by the Court.
D.

3

Insurance

4

Plaintiff has no applicable insurance coverage.

5

Defendants do not have applicable insurance coverage.
E.

6
7

Motions

On February 13, 2011, Defendants moved to dismiss or strike Plaintiff’s

8 Amended Complaint and for a more definite statement, which motions were denied
9 on January 27, 2011. Plaintiff moved for an Ex Parte Application for Temporary
10 Restraining Order on November 19, 2010, which was denied on November 20, 2010.
11 Plaintiff filed a Motion for Preliminary Injunction on January 7, 2010, which motion
12 was denied on February 8, 2011 following a hearing on January 31, 2011.
13

While the parties do not currently anticipate filing such motions, they

14 nonetheless reserve their respective rights to move for leave, or to oppose a motion
15 for leave, to file amended pleadings or to add additional parties or claims as
16 discovery proceeds or as additional new relevant parties are discovered. Neither
17 party anticipates moving for transfer of venue. Defendants anticipate that they may
18 file dispositive motions on one or more issues in this case.
F.

19
20

Manual for Complex Litigation

The parties agree that this is not a complex case and the Manual for Complex

21 Litigation will not be necessary, except Defendants submit that, as discussed in
22 Section H below, phased discovery would be appropriate
G.

23
24

Status of Discovery

The parties have not yet exchanged written discovery, nor have the parties

25 commenced oral discovery. The parties anticipate having exchanged their respective
26 initial disclosures prior to the March 7, 2011 Initial Scheduling Conference in this
27 matter.
28

H.

Discovery Plan
6

1

Rule 26(f)(3)(A) – Changes in Timing, Form or Requirement for

2 Disclosures:
3

Plaintiff and Defendants agree that Initial Disclosures pursuant to Rule

4 26(a)(1)(A) be made on February 28, 2011, fourteen days after the parties’ Rule 26(f)
5 conference, as provided in Rule 26(a)(1)(C).
6

Rule 26(f)(3)(B) – Subjects and Schedule for Discovery:

7

Plaintiff proposes a discovery cutoff of July 29, 2011.

8

Plaintiff anticipates written and oral discovery will include discovery on the

9 following subjects: (a) validity of Plaintiff’s copyright; (b) willfulness of
10 Defendants’ conduct; (c) publication of “Take a Dive”; (d) damages; (e) access by
11 Defendants to “Take a Dive”; (f) creation of “I Gotta Feeling”; (g) Defendants’
12 pattern and practice of intentional infringement; and (h) Defendants’ business
13 practices regarding intentional infringement of others’ intellectual property. Plaintiff
14 reserves the right to take discovery on additional topics as information is uncovered
15 during the course of discovery. Plaintiff anticipates taking 10 fact witness
16 depositions.
17

Defendants submit that they have been unable to prepare a comprehensive

18 discovery plan because Plaintiff’s counsel refused to engage in a meaningful
19 discussion of the nature and extent of Mr. Pringle’s electronically stored information
20 (ESI), as is required by Rule 26(f)(3)(C), during the Rule 26(f) conference between
21 the parties. Mr. Pringle’s ESI will likely play a crucial role in discovery in this
22 action, as it goes directly to the threshold issues of Plaintiff’s ownership of a valid
23 copyright, including, the dates and manner of Plaintiff’s alleged creation of “Take a
24 Dive” and “Take a Dive” Derivative, and the validity of Plaintiff’s asserted copyright
25 registrations of those works. Plaintiff’s counsel’s refusal to discuss the nature and
26 extent of Mr. Pringle’s ESI, what form it takes, and how difficult it will be to inspect,
27 produce and review, makes it impossible to realistically assess the amount of time
28 that will be needed to complete discovery. Defendants respectfully seek the Court’s
7

1 assistance regarding Plaintiff’s refusal to provide the required information.
2 However, without waiving their rights to propose an alternate schedule following
3 Plaintiff’s compliance with Rule 26(f)(3)(C), Defendants propose the discovery
4 schedule below.
5
6 Matter

Defendants’ Proposed Dates

7 Deadline for dispositive motions

January 6, 2012

8
November 25, 2011
9 Deadline for depositions of expert
witnesses who served reports on issues as
10 to which the party does not bear the
11 burden of proof; Close of all discovery
12 Deadline to serve responsive Rule
13 26(a)(2) expert reports on issues as to
which the party does not bear the burden
14 of proof

October 28, 2011

15
September 30, 2011
16 Deadline for depositions of expert
witnesses who served reports on issues as
17 to which the party bears the burden of
18 proof
19

Deadline to serve affirmative Rule
September 2, 2011
20 26(a)(2) expert reports on issues as to
21 which the party bears the burden of proof
22 Fact discovery cut-off
23
Deadline to amend the pleadings
24
Rule 26(a)(1)(A) Initial Disclosures
25
26
27
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August 5, 2011
June 10, 2011
February 28, 2011

Because Mr. Pringle’s ESI goes directly to the issue of his ownership of valid
copyrights, which, as the Court recognized in its decision denying Plaintiff’s Motion
8

1 for Preliminary Injunction, is a threshold issue in this case, Defendants submit that it
2 would be appropriate to conduct discovery as to Mr. Pringle’s ESI before engaging
3 in discovery of other issues, such as access, copying, similarity and damages.
4 Discovery on those other issues is likely to be burdensome for both the parties and
5 the Court, as there are likely to be disputes about, among other things, the scheduling
6 and location of depositions (particularly given the native of Defendants’ work and
7 Plaintiff’s stated desire to take discovery abroad), the extent of discovery into alleged
8 infringements of works not involved in this case, and the entry of a protective order
9 governing confidential financial information. Conducting discovery first as to
10 Plaintiff’s ESI will therefore allow the parties to address the threshold issue of
11 Plaintiff’s copyright ownership, and likely save valuable party and Court resources.
12

Following discovery on that threshold issue, Defendants anticipate that, if

13 necessary, discovery will take place on the following subjects: (1) alleged access to
14 the works at issue, (2) alleged copying of the works at issue, (3) alleged similarity of
15 the works at issue, (4) independent creation of “I Gotta Feeling”, (5) alleged
16 sampling of “Take a Dive” Derivative, (6) financial issues related to Plaintiffs’
17 claims of actual damages, (7) financial issues related to Plaintiffs’ claims directed to
18 Defendants’ profits. Discovery will also be taken on issues related to Defendants’
19 defenses, including laches, unclean hands, unjust enrichment, copyright misuse,
20 setoff, estoppel, and waiver. Defendants submit that discovery on Plaintiffs
21 proposed topics (b), (g), and (h) above are not relevant to the single claim of
22 copyright infringement, as state of mind is not relevant where, as here, statutory
23 damages are unavailable. Defendants reserve the right to take up to 10 depositions,
24 excluding expert depositions.
25

There will be expert discovery involved in this case, and related expert

26 discovery and depositions are expected.
27

Rule 26(f)(3)(C) – Issues About Electronically Stored

28 Information:
9

1

Plaintiff proposes, over Defendants’ objection, that production of

2 electronically stored information will be produced in TIFF format, in a Concordance
3 load file (*.lfp or *.opt) in a format capable of being uploaded into counsel’s
4 systems. If an issue arises about metadata, the parties have agreed to meet and
5 confer and then, if necessary, bring the issue to the Magistrate. Plaintiff proposes
6 that the parties will not be required to OCR the TIFF files produced, however, the
7 parties agree to exchange OCR data as available.
8

Plaintiff further proposes that with respect to discovery requests of any sound

9 files or music files, the parties anticipate that such production will be in native
10 format, but reserve the right to revisit this issue with respect to sound files or music
11 files and meet and confer, and then if necessary bring the issue to the Magistrate.
12

Defendants submit that there has not been the required Rule 26(f) conference

13 on the topic of Mr. Pringle’s ESI, thereby making it impossible to formulate
14 appropriate ESI procedures. Without a full discussion of these issues and
15 implementation of appropriate ESI procedures, Defendants’ ability to obtain
16 important evidence without engaging in expensive and time-consuming motion
17 practice (which Plaintiffs’ proposal would entail), will be impaired. In particular,
18 Defendants believe that metadata for many files will be required, and that in addition
19 to sound and music files, there are other categories of ESI in Mr. Pringle’s
20 possession, that will need to be produced in native form or forensically examined.
21 Moreover, Plaintiff’s counsel has refused to even confirm the existence of certain
22 categories of ESI, including (i) computer equipment and files related to Mr. Pringle’s
23 alleged creation of the works at issue in 1998 and 1999, (ii) back up discs, old hard
24 drives or other ESI related to Mr. Pringle’s alleged creation of these works, and (iii)
25 computer systems used by Mr. Pringle subsequent to his alleged creation of the
26 works at issue, which may contain evidence refuting the alleged creation dates and
27 showing that Mr. Pringle had access to Defendants’ works prior to creating his own
28 works. Plaintiff’s refusal to engage in a meaningful discussion of these ESI issues
10

1 has made it impossible for Defendants to know what additional categories of ESI will
2 need to be produced in native format or forensically examined, or to assess the
3 timing or costs involved in possible review of native files or forensic examination.
4 Therefore, adoption of Plaintiff’s above proposal for production of ESI will
5 materially prejudice Defendants access to important evidence. Defendants
6 respectfully reserve their right to submit a proposal under this section after a proper
7 disclosure and discussion regarding Plaintiff’s ESI has occurred.
8

Rule 26(f)(3)(D) – Issues About Claims of Privilege or

9 Protection:
10

Plaintiff does not anticipate any particular problems regarding production of

11 privileged documents that relate to this case. Both parties reserve the right to raise
12 these issues with the Judge or Magistrate if they arise during the course of discovery.
13

Defendants have been informed by Plaintiff’s counsel that Plaintiff will

14 oppose any request for a protective order governing confidential information
15 produced during discovery, or relating to potential claw-back of inadvertently
16 produced privileged documents, without even seeing a draft of the proposed order.
17 Defendants believe that Plaintiff’s position makes it likely that the parties will have a
18 dispute related to the handling of confidential information and/or inadvertently
19 produced privileged documents, and that motions for protective orders will be
20 necessary.
21

Rule 26(f)(3)(E) – Changes to Discovery Limitations in Federal

22 Rules:
23

Plaintiff does not propose any limitations or modification to the discovery

24 rules outside of those limitations already in place pursuant to the Federal Rules of
25 Civil Procedure and the Local Rules of this Court.
26

Defendants propose that, given the nature of Defendants’ work and related

27 travel, and the fact that they have a world-tour scheduled in 2011, no depositions be
28 scheduled by merely issuing a Notice under Rule 34. Instead, the parties should be
11

1 required to meet and confer with respect to dates, times and locations of depositions,
2 and attempt to accommodate the work and travel schedules of the parties and their
3 counsel. If the parties cannot reach agreement in this manner, they should be
4 required to raise the issue with the Judge or Magistrate Judge before noticing
5 depositions.
6

Defendants are not presently able to assess whether any other changes should

7 be made to the limitations on discovery imposed under the Rules or the Local Rules,
8 given Plaintiff’s counsel’s refusal to participate in the required discussion of Mr.
9 Pringle’s ESI. Defendants reserve their rights to submit a supplemental proposal
10 under this section after proper disclosure and discussion regarding Plaintiff’s ESI has
11 occurred.
12

Rule 26(f)(3)(F) – Orders:

13

Plaintiff does not anticipate any particular problems regarding production of

14 privileged documents but reserves the right to raise these issues if they arise during
15 the course of discovery. Plaintiff does not propose any limitations or modification to
16 the discovery rules outside of those limitations already in place pursuant to the
17 Federal Rules of Civil Procedure and the Local Rules of this Court or those
18 specifically identified within this Report.
19

Defendants anticipate requesting a protective order pursuant to Rule

20 26(c)(1)(G) governing confidential information produced during discovery, pursuant
21 to Rule 26(c)(1)(B) regarding the time and place for depositions, and pursuant to
22 Rule 26(c)(1)(E) governing persons who may be present while discovery is
23 conducted. Defendants also anticipate that they will have to seek a protective order
24 pursuant to Rule 26(c)(1)(D), precluding Plaintiff from conducting discovery into
25 unrelated lawsuits that have been filed against certain of the defendants, which bear
26 no relevance to this action, and to prevent other burdensome, oppressive, and
27 potentially harassing discovery. In particular, Defendants intend to seek an order
28 precluding Plaintiff from seeking discovery as to matters involved in the case entitled
12

1 Batts v. Adams, C.D. Cal. Case No. CV 10-8123 (RZx). Counsel for Plaintiff in this
2 case also represents the Plaintiffs in the Batts case. (A copy of the Court’s order
3 Denying Motion for Preliminary Injunction in Batts is attached to this Report as
4 Exhibit “A”). Accordingly, permitting discovery as to the matters involved in the
5 Batts case will risk duplicative and potentially abusive discovery and circumvention
6 of the discovery Rules (including the seven-hour limit on depostions and the rule
7 limiting each party to a single deposition of each witness) and of the scheduling
8 orders discovery plans, and protective orders to be issued in the Batts case and in this
9 case
10

Defendants also submit that, unless Plaintiff’s counsel engages in an

11 informative and meaningful discussion of Mr. Pringle’s ESI, a motion to compel
12 discovery may be required.
13

I.

Discovery Cut-off

14

Plaintiff proposes a discovery cut-off date of July 29, 2011.

15

Defendants propose a fact discovery cut-off date of August 5, 2011 and an

16 expert discovery cut-off date of November 25, 2011, along with the other dates set
17 forth in the proposed schedule above.
18
19

J.

Dispositive motions

Plaintiff does not anticipate making any motions which may be dispositive or

20 partially dispositive at this time but reserves the right to do so as information is
21 developed through discovery.
22

Defendants anticipate moving for summary judgment on several issues,

23 including (i) (a) lack of copyright ownership, (b) lack of access, (c) failure to prove
24 copying,(d) lack of substantial similarity, and (e) failure to comply with statutory
25 registration requirements,
26

Defendants also anticipate filing motions under Daubert with respect to

27 Plaintiff’s expert disclosures, and motions in limine with respect to alleged
28
13

1 infringements of works not at issue in this action. Motions in limine may also arise
2 in connection with Mr. Pringle’s ESI.
3
4

K.

Settlement

The parties engaged in settlement discussions beginning in 2010 but were

5 unable to resolve the dispute. No settlement discussions are currently ongoing.
6 Plaintiff and Defendants elect private mediation for settlement.
7
8

L.

Trial Estimate

Each party has made a jury demand. Plaintiff estimates that the trial of this

9 matter will take ten (10) days to complete due to the nature of the claims and the
10 number of defendants. Plaintiff further estimates that he will call a minimum of ten
11 (10) to fifteen (15) witnesses at the trial of this matter. Plaintiff proposes a trial date
12 of November 11, 2011.
13

Defendants estimate that the trial of this matter will take no more than seven

14 (7) days. Defendants estimate that they will call approximately seven (7) witnesses.
15 Defendants propose a February 24, 2012 trail date because Judge Walker has set a
16 trial date of January 24, 2012 in the Batts case, which involves a majority of the
17 Defendants in this case, and both Plaintiff’s and many of the same Defendants’
18 counsel. In addition, as Plaintiffs’ counsel were informed during the scheduling
19 conference in this action and in the Batts case, The Black Eyed Peas, key defendants
20 in this case, have long been committed to a 2011 tour schedule, which includes travel
21 in the Middle East in and around the November 11, 2011 trial date suggested by
22 Plaintiffs. A tour of this magnitude requires a commitment of substantial financial
23 and human resources. If forced to return to the United States for trial during the tour,
24 Defendants (and dozens of other unrelated individuals) would incur significant undue
25 financial hardship associated with delay, rerouting of equipment and personnel, and
26 breached touring agreements (all of which could amount to many hundreds of
27 thousands of dollars, or more). In light of the foregoing, the individual members of
28 The Black Eyed Peas, who will be traveling in connection with the tour in and
14

1 around November 2011, will be prejudiced in their ability to prepare for trial if it
2 were to commence in November 2011.
3

Plaintiff proposes the following schedule:

4
Matter

5

Plaintiff’s Proposed Dates

6 Trial date (jury) (court) Estimated length: 10
days
7
Final Pretrial Conference; Hearing on Motions
8 in Limine; File Agreed Upon Set of Jury
Instructions and Verdict Forms and Joint
9 Statement re Disputed Instructions and Verdict
Forms; File Proposed Voir Dire Qs and Agreed10 to Statement of Case

November 11, 2011

11 Lodge Pretrial Conference Order

October 21, 2011

October 28, 2011

12 File Memo of Contentions of Fact and Law;
Exhibit List; Witness List; Status Report re
13 Settlement
14 Last day for hand-serving Motions in Limine

October 7, 2011

15 Last day for hearing motions

September 23, 2011

16 Last day for hand-serving motions and filing
(other than Motions in Limine)
17
Rebuttal Expert Witness Disclosure
18
Opening Expert Witness Disclosure
19
Non-expert Discovery cut-off
20
Last Day to Conduct Settlement Conference
21
Last Day to Amend Pleadings or Add Parties
22

August 26, 2011

23
24
25

October 27, 2011
August 26, 2011
July 29, 2011
April 27, 2011
May 27, 2011

Defendants propose the following Schedule:4
Matter

Defendants’ Proposed Dates

26
4
A schedule
27 are particular specific to ESI may be required if after the required conference there
ESI issues identified.
28

15

1 Trial; (Estimated length no more than
February 24, 2012
seven (7) days)
2
Final Pretrial Conference; Hearing on
February 17, 2012
3 Motions in Limine; File Agreed Upon Set of
Jury Instructions and Verdict Forms and
4
Joint Statement re Disputed Instructions and
5 Verdict Forms; File Proposed Voir Dire Qs
6 and Agreed-to Statement of Case
February 10, 2012
Lodge Pretrial Conference Order
7
File Memo of Contentions of Fact and Law;
8 Exhibit List; Witness List; Status Report re
9 Settlement
Deadline for filing motions in limine
January 27, 2012
10
Deadline for filing dispositive motions
January 6, 2012
11
12 Deadline for depositions of expert
November 25, 2011
13 witnesses who served reports under on
issues as to which the party does not bear
14 the burden of proof; Close of all
15 discovery
16 Deadline to serve responsive Rule
17 26(a)(2) expert reports on issues as to
which the party does not bear the burden
18 of proof
19

October 28, 2011

September 30, 2011
20 Deadline for depositions of expert
witnesses who served reports on issues as
21 to which the party bears the burden of
22 proof
23

Deadline to serve affirmative Rule
September 2, 2011
24 26(a)(2) expert reports on issues as to
25 which the party bears the burden of proof
26
27
28

Close of fact discovery

August 5, 2011

Deadline to amend the pleadings

June 10, 2011
16

1 Service of Rule 26(a)(1)(A) initial
disclosures
2

February 28, 2011

3
4
5

M.

Trial Counsel

Trial counsel for Plaintiff is Dean A. Dickie of Miller, Canfield, Paddock and

6 Stone, P.L.C.
7

Trial Counsel for Defendants Adams, Pineda, Gomez, Ferguson, will.i.am

8 music, llc, Jeepney Music, Tab Magnetic, Headphone Junkie, Cherry, EMI, are Kara
9 E.F.Cenar and Jonathan Pink of Bryan Cave LLP.
10

Trial Counsel for Defendants Universal Music and Interscope is Linda M.

11 Burrow of Caldwell, Leslie and Proctor, PC
12

Trial Counsel for Defendants Shapiro, Bernstein & Co., Inc. and David Guetta

13 is Barry I. Slotnick of Loeb & Loeb LLP.
N.
Independent Expert or Master
14
15

It is Plaintiff’s position that an independent scientific expert or master

16 pursuant to Fed. R. Civ. P. 53 is not necessary in this litigation. Defendants submit
17 that the issue of Mr. Pringle’s ESI could potentially require a Special Master.
O. Other Issues
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The parties anticipates that there will likely be disputes over entry of a

20 protective order governing confidential information, potential forensic ESI issues,
21 and proceeding with discovery in foreign jurisdictions, but do not anticipate other
22 issues affecting the status or management of the case at this time.
23

Defendants submit that there may be non-English speaking witnesses who will

24 require a translator for depositions and/or trial testimony.
25

As discussed above, Defendants request that discovery on Plaintiff’s ESI and

26 copyright ownership take place before discovery on other issues, and Defendants
27 reserve the right to seek bifurcation or severance of damages.
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Defendants state that Plaintiffs’ intention of conducting discovery on other

2 unrelated litigation and settlements, and on claims not asserted, but which would be
3 pre-empted under 17 U.S.C. 301 or are otherwise unavailable under California law,
4 will raise some unusual legal issues in this case.
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1 Dated: February 18, 2011
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Dean A. Dickie (appearing Pro Hac Vice)
Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
MILLER, CANFIELD, PADDOCK AND STONE,
P.L.C.
Ira Gould (appearing Pro Hac Vice)
Ryan L. Greely (appearing Pro Hac Vice)
GOULD LAW GROUP
George L. Hampton IV (State Bar No. 144433)
Colin C. Holley (State Bar No. 191999)
HAMPTONHOLLEY LLP
By: _\s\___________________________
Attorneys for Plaintiff BRYAN PRINGLE
BRYAN CAVE LLP
By:___\s\_____________________________
Kara E.F. Cenar
Jonathan Pink
Attorneys for Defendants WILLIAM ADAMS;
STACY FERGUSON; ALLAN PINEDA; and
JAIME GOMEZ, all individually and collectively as
the music group THE BLACK EYED PEAS;
will.i.am music, llc; TAB MAGNETIC
PUBLISHING; CHERRY RIVER MUSIC CO.;
HEADPHONE JUNKIE PUBLISHING, LLC;
JEEPNEY MUSIC, INC.; EMI APRIL MUSIC,
INC.
CALDWELL LESLIE AND PROCTOR PC

23

By:__\s\______________________________
Linda M Burrow
Attorneys for Defendants
UMG Recordings, Inc. Interscope Records

24

LOEB & LOEB LLP

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By: _\s\_________________________
Barry I. Slotnick
Tal E. Dickstein
Attorneys for Defendants Shapiro, Bernstein & Co.,
Inc. and David Guetta
19