Bryan Pringle v. William Adams Jr et al

Filing 141

EX PARTE APPLICATION for Protective Order for Postponing Depositions filed by Defendants Cherry River Music Co, EMI April Music Inc, Stacy Ferguson(collectively as the music group the Black Eyed Peas), Jaime Gomez(collectively as the music group the Black Eyed Peas), Headphone Junkie Publishing LLC, Jeepney Music Inc, William Adams Jr(individually), Allan Pineda(collectively as the music group the Black Eyed Peas), Tab Magnetic Publishing, Will.I.Am Music LLC. (Attachments: # 1 Declaration of Jonathan Pink, # 2 Exhibit 1-5 to Pink Decl, # 3 Proposed Order)(Pink, Jonathan)

1 BRYAN CAVE LLP

Jonathan Pink, California Bar No. 179685

2 3161 Michelson Drive, Suite 1500

Irvine, California 92612-4414

3 Telephone: [phone]

Facsimile: [phone]
[e-mail]

4 E-mail:

5 BRYAN CAVE LLP

Kara E. F. Cenar, (Pro Hac Vice)

6 Mariangela M. Seale, (Pro Hac Vice)

161 North Clark Street, Suite 4300

7 Chicago, IL 60601-3315

Telephone: [phone]

8 Facsimile: [phone]

E-mail:

Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

9

[e-mail]
[e-mail]

10 Attorneys for Defendants WILLIAM ADAMS; STACY FERGUSON; ALLAN

PINEDA; and JAIME GOMEZ, all individually and collectively as the music

11 group THE BLACK EYED PEAS; will.i.am music, llc; TAB MAGNETIC

PUBLISHING; CHERRY RIVER MUSIC CO.; HEADPHONE JUNKIE

12 PUBLISHING, LLC; JEEPNEY MUSIC, INC.; EMI APRIL MUSIC, INC.
13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

15 BRYAN PRINGLE, an individual,

Plaintiff,

16

v.

17

18 WILLIAM ADAMS, JR.; STACY

FERGUSON; ALLAN PINEDA; and

Case No. SACV10-1656 JST (RZx)
Hon. Josephine Staton Tucker
Courtroom 10A
DISCOVERY MATTER

FREDERICK RIESTERER; UMG

DECLARATION OF JONATHAN S.
PINK IN SUPPORT OF
DEFENDANTS’ EX PARTE
APPLICATION FOR A
PROTECTIVE ORDER

RECORDS; EMI APRIL MUSIC,

Hearing

PUBLISHING, LLC; WILL.I.AM.

Date:
Time:
Courtroom:

19 JAIME GOMEZ, all individually and

collectively as the music group the

20 Black Eyed Peas; DAVID GUETTA;
21 RECORDINGS, INC.; INTERSCOPE
22 INC.; HEADPHONE JUNKIE

23 MUSIC, LLC; JEEPNEY MUSIC,

INC.; TAB MAGNETIC

24 PUBLISHING; CHERRY RIVER

MUSIC CO.; SQUARE RIVOLI

25 PUBLISHING; RISTER EDITIONS;

and SHAPIRO, BERNSTEIN & CO.,

26

Defendants.

Complaint Filed:
Disc. Cutoff:
Pretrial Conf.:
Trial Date:

October 28, 2010
September 15, 2011
January 6, 2012
January 24, 2012

27
28
IR01DOCS496393.1

DECLARATION OF JONATHAN S. PINK

DECLARATION OF JONATHAN S. PINK

1
2

I, Jonathan S. Pink, declare:

3

1.

I am an attorney duly licensed to practice law before the courts of the

4 State of California and all federal courts in the State of California. I am an attorney
5 with the law firm of Bryan Cave LLP, counsel of record for Defendants WILLIAM
6 ADAMS; STACY FERGUSON; ALLAN PINEDA; and JAIME GOMEZ, all
7 individually and collectively as the music group THE BLACK EYED PEAS;
8 will.i.am music, llc; TAB MAGNETIC PUBLISHING; CHERRY RIVER MUSIC

Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

9 CO.; HEADPHONE JUNKIE PUBLISHING, LCC; JEEPNEY MUSIC, INC.; and
10 EMI APRIL MUSIC, INC. (“Defendants”). I have personal knowledge of the
11 matters set forth in this Declaration and, if called upon to testify regarding such
12 matters, I could and would competently do so.
13

2.

Plaintiff Bryan Pringle’s (“Plaintiff”) counsel in this case also

14 represents the plaintiffs in another copyright infringement lawsuit against
15 Defendants. Although they involve different musical works, the complaint in both
16 this case and in Batts v. Adams (C.D. Cal. Case No. CV 10-8123 JFW (RZx), are
17 near carbon copies of one another. Both assert a single claim of copyright
18 infringement, and generally assert a conspiracy amongst the Defendants to steal the
19 work of unknown artists. In this case, the work allegedly copied consists of a single
20 guitar chord progression featured in The Black Eyed Peas’ musical work, “I Got A
21 Feeling.” The Black Eyed Peas license the musical score used in that song from
22 David Guetta and Frederic Riesterer.
23

3.

As Plaintiff’s counsel has already indicated, the allegations in each

24 complaint are sufficiently similar that Plaintiff’s counsel will ask questions in the
25 depositions noticed for this case that relate to the allegations in Batts, and visa26 versa. Given the limited availability of the individual band members (who are
27 currently on a world tour), the Defendants were agreeable to this.
28

4.
IR01DOCS496393.1

The Black Eyed Peas return to the United States for a single week in
1
DECLARATION OF JONATHAN S. PINK

1 the end of July. Defendants isolated this week in their schedules, and agreed to
2 produce them then – for 7 hours each – during which time Plaintiff in this case (and
3 in Batts) can ask all the questions they believe are necessary to prosecute their
4 claims in both cases.
5

5.

Defendants reasonably believe that for nearly every one of the

6 Defendants, 7 hours on the record will be more then sufficient to question the band
7 members about the issues at hand. Nonetheless, to the extent it is not, Defendants
8 offered to provide plaintiffs in both actions with additional time to question the band

Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

9 members on August 29-September 1, 2011, after they return from tour.
10

6.

Attached as Exhibit “1” is a true and correct copy of the deposition

11 notices issued by the plaintiffs in Batts on May 25, 2011 for the Black Eyed Peas’
12 depositions, along with the enclosure letter sent by Plaintiff’s counsel.
13

7.

On June 13, 2011, Plaintiff’s counsel sent me a letter with amended

14 deposition notices for Defendants enclosed. The subject line of the letter, and the
15 caption of the deposition notices, only referenced this matter. Attached as Exhibit
16 “2” is a true and correct copy of the letter I received on June 13, 2011 from
17 Plaintiff’s counsel along with the deposition notices enclosed.
18

8.

The following day, on June 14, 2011, Plaintiff’s counsel sent an email

19 correspondence to me and several other attorneys in this matter wherein he informed
20 us for the first time of his intent to move to compel The Black Eyed Peas’
21 depositions in the Batts matter. Attached to that email was Plaintiff’s draft of their
22 section of the Joint Stipulation. Thereafter, several of us began to email Plaintiff’s
23 counsel to inquire about the basis of the motion and the complete lack of a meet and
24 confer on the issues, as counsel never contacted Defendants for an in-person or
25 telephonic conference to resolve any further disputes. Had the Batts plaintiffs
26 alerted us there were still outstanding issues, Defendants would have met and
27 conferred in an effort to resolve any remaining dispute. Presently, the Motion to
28 Compel in Batts is scheduled to be heard by this Court on July 25, 2011. Attached as
IR01DOCS496393.1

2
DECLARATION OF JONATHAN S. PINK

1 Exhibit “3” is a true and correct copy of the emails exchanged with Plaintiff’s
2 counsel on June 14, 2011.
3

9.

Defendants remain ready and able to appear at their depositions in this

4 matter and the Batts matter during the week of July 22-27. Defendants are ready
5 and able to appear for a second set of depositions on their next available dates of
6 August 29, 2011 through September 1, 2011. Practically speaking, it makes sense
7 for Plaintiff’s counsel to use the August dates for this lawsuit and the July dates for
8 Batts. Nonetheless, for whatever reason, Plaintiff’s counsel has refused to take that

Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

9 approach, insisting on deposition in this case in July (and that the proffered dates in
10 August are too late for use in the Batts matter). Again, this is a conflict of Plaintiff’s
11 counsels’ own making. If Plaintiff’s counsel (or this Court) would simply postpone
12 the deposition dates in this case from July to August, the Batts plaintiffs would use
13 the July dates to depose The Black Eyed Peas, thus eliminating the need for motion
14 practice in both cases. Yet, almost immediately after the August dates were
15 provided to Plaintiff on July 1, 2011, Plaintiff’s counsel refused to use them for this
16 matter (or the Batts matter). Attached as Exhibit “4” is a true and correct copy of
17 the email correspondence exchanged with Plaintiff’s counsel on July 1, 2011.
18

10.

The outstanding, and conflicting deposition notices for the Black Eyed

19 Peas do not take into account the availability of the Defendants or their counsel’s
20 ability to appear and defend depositions in each case. For illustration purposes,
21 attached as Exhibit “5” is a true and correct copy of a chart created for the Court’s
22 reference that evidences the conflicting dates and times of the depositions set by
23 Plaintiff’s counsel in this matter and the Batts matter.
24

11.

Defendants met and conferred with Plaintiff’s counsel regarding the

25 conflicting deposition notices on June 14, 2011, June 15, 2011, and June 22, 2011;
26 they met and conferred on this Motion on July 1, 2011. During the meet and confer
27 process, Plaintiff’s counsel indicated that while he had no intention of going forward
28 with the depositions notices in Batts, the plaintiffs in that case would not withdraw
IR01DOCS496393.1

3
DECLARATION OF JONATHAN S. PINK

1 the depositions notices because doing so would negatively impact their pending
2 Motion to Compel.
3

12.

To date, Plaintiff has conducted minimal written discovery. Plaintiff

4 has not served requests for admissions on any of the Black Eyed Peas. Plaintiff has
5 not propounded any interrogatories on the Black Eyed Peas except a single set of
6 interrogatories propounded on William Adams.
7

13.

estimate that Defendants will conservatively have spent $5,000 to

8 bring this ex parte application.

Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

9

I declare under penalty of perjury under the laws of the State of California

10 and the United States of America that the foregoing is true and correct.
11

Executed this 5th day of July, 2011, at Irvine, California.

12

/s/ Jonathan Pink__________
Jonathan S. Pink

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IR01DOCS496393.1

4
DECLARATION OF JONATHAN S. PINK