Bryan Pringle v. William Adams Jr et al

Filing 161

DECLARATION of Tal Dickstein In Support of MOTION for Summary Judgment 159 filed by Defendants David Guetta, Frederick Riesterer, Shapiro Bernstein and Co. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q)(Miller, Donald)

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From: Ira Gould <goulda,igouldlaw.com>
Date: July 29, 2010 11:20:04 AM EDT
To: "Cenar, Kara" <Kara.CenarAbryancaye.com>
Cc: "Seale, Merili" <Merili.Sealea,bryaneaye.com>, "[e-mail]"
<rgreelyaigouldlaw.com>
Subject: RE: Rule 408 Settlement Communication RE Pringle Matter
Ok, this is a very long way of saying that the date thing was a wild goose chase. The other
comments are just talk. If the guy wrote the song before your clients did, which is the
case, and it is what was sent to you, matter essentially over. You are going to get an
appropriate response to the various issues associated with the Pringle claim sometime
next week, separate and apart from the written response you will be getting re the
Batts/Mohr claim, and I am sure that these two responses will provide our best answers to
your issues, in which case there will be no need to discuss any substantive issue or
circumstance on the 16th. In advance of the meeting, my co-counsel and I would like to
know exactly what your positions are and for you to know exactly what our positions are
and have no further need to debate those subjects.

We are preserving evidence, of course, and I assume that all of your clients and the other
parties are preserving theirs based on the allegations set out in the proposed complaint
that you have.

Ira Gould

GOULD LAW GROUP
120 N. LaSalle St.
Suite 2750
Chicago, IL 60602

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From: Cenar, Kara [mailto:[e-mail]]
Sent: Wednesday, July 28, 2010 3:10 PM
To: Ira Gould
Cc: Seale, Merili; rcireely0igouldlaw.com
Subject: Re: Rule 408 Settlement Communication RE Pringle Matter

Ira,

Thank you for your email and Ryan's memo. Respectfully I disagree with your conclusion
that it bears no relevance to the NRG files or the issues of the integrity (or lack thereof) of
the claim.

Both your email and Ryan's memo confirm your acknowledgement and now direct firsthand
knowledge that computer files, including music files and data files when saved, converted,
imaged, or otherwise transferred can be altered or modified intentionally or unintentionally.
Ryan's memo provides an example of a trained lawyer copying computer files and because
of whatever computer program he was using (his suspicion is iTunes computer code) a
creation date 16 years earlier was attached to the file unintentionally. I directed you to
computer software and Internet references where creation, modification and access dates
can be changed and modified intentionally.
It is obvious how this information (the ease at which intentional and unintentional acts can
alter dates on music and computer files) is directly relevant to the question of the infirmity
of the "creation date" of the NRG file you are representing was in 1999.

As for my request for preservation of evidence of Mr Pringle's computer files, it remains.
Please make sure that the computer files are preserved prior to addressing altered or
tampered creation dates.

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Responding to your threat of Rule 11 sanctions, please review the Rule. I am not filing
anything with a court, but instead bringing a serious matter to your attention before you file
something with the Court.

It is you that has indicated an intention to file a complaint based on an alleged claim that is
dependent on a computer file date. Based on all the facts and information you have shared
with us to date (which you should revisit) there are serious issues of whether that date is
actual or fabricated. You now have proven to yourself how easily a fabricated date can be
created unintentionally. Since the information Mr Pringle's computers is available to you
my view is you have an obligation to preserve evidence and an obligation to determine the
fabrication issue before bringing the complaint.

As for keeping a record of time spent and expert time spent investigating your claim prefiling, I think that is a good thing as it will provide documented records of what was done,
and not done, by you pre filing notwithstanding being put on notice of this issue.

As for asserting defenses, why would there be a need to do that? If you want to effect a
business consideration of Mr Pringle's business proposal, it is up to him to show, without
question , title to the thing he represents he owns. If there are questions about his
representations he should have no hesitation in providing answers and clarity. If he does,
then you should be suspicious.

Finally, thank you for informing us that Ryan, and not Mr Pringle, made the CD in the
orange and purple case. That was not the representation made previously.

Please understand that while Mr Pringle is still able to alter the computer files (intentionally
or unintentionally) I am not comfortable sharing my complete basis and thoughts on why
the creation date is of concern. Thus you should not interpret my decision,right now, not to
provide further information, as anything more than an attempt to preserve evidence.

I look forward to candid dialog in the future.
Kara
On Jul 28, 2010, at 11:53 AM, Ira Gould <gouldajgouldlaw.com> wrote:

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Kara:

In advance of getting to you answers to some of your questions, as we said we
would, I would first like to dispose of the issue of the December 31, 1994
creation date of the CDA file of the dance version of "Take a Dive," which we
previously provided to you on the Orange Disc. We have examined this issue,
per your request, and it is perfectly clear that it is a false assertion as to what
the date means and is thus irrelevant to any issue or matter involving Mr.
Pringle's claim. Attached to this email is a short memo that Ryan gave to me
explaining his findings and those of our computer expert, who we asked to look
at the issue independently.

Looking at this issue, and disproving your assertion, took a combined time of
about an hour, including that of the expert. You have often brought up Rule 11
to us, with no restraint or shyness whatsoever, and pressed the issue of making
sure that we have done proper due diligence with respect to Mr. Pringle's
claim. Not to be cute or amusing, but Rule 11 runs both ways in a case.
Putting up a defense knowing that it is factually baseless and knowing the
actual truth is a violation of Rule 11. This particular charge is completely
bogus and stems from not understanding the nature of the issue and not having
someone with even the most basic knowledge of computers examine the issue
prior to bringing it to our attention. Similarly, arguing there was no access just
to see if someone can prove it, knowing that there was access, there is more
than enough circumstantial evidence to prove it, and that the law will presume
that there was, is impermissible and subject to sanctions. And the same is true
with respect to other assertions being made as to the Pringle matter. So if in the
end we cannot settle the Pringle matter and we litigate it and prevail, which we
will, we will seek reimbursement from all concerned under Rule 11 where such
is appropriate.

You mentioned in your email that this 1994 creation date issue was only "one
of many concerns" that you have with Pringle's claim. Please tell us the rest of
those concerns so that we may properly address them forthwith and sufficiently
prior to our meeting on the 16th so that they do not linger in the air, whether the
issue favors your side or ours. If you do not let us know what these other
"concerns" are, we will assume that there are none and will not discuss them in
any context, with respect to any of the matters, whether before or during the
meeting on the 16th. By the 16th, all issues raised by you will have been
vetted, revetted and commented on in writing, for your consideration and that
of your clients.

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Ira Gould

GOULD LAW GROUP
120 N. LaSalle St.
Suite 2750
Chicago, IL 60602
Tel - [phone]
Fax - [phone]
Cell - [phone]
clouldAigouldlaw.com

*NOTE: The information contained in this e-mail is confidential and is for the use only of the
intended recipient. If you are not the intended recipient, any disclosure, copy, distribution or
other use of this information is prohibited. If you have received this communication in error
please notify us immediately by telephone and delete or discard this message immediately.

From: Cenar, Kara [mailto:[e-mail]]
Sent: Friday, July 23, 2010 7:22 PM
To: 'Ira Gould'; 'Ryan Greely'
Cc: Seale, Meri li
Subject: Rule 408 Pringle

Ira and Ryan,

I wanted you to know that I appreciated our meeting today.

I also wanted to follow up with you regarding the Pringle matter as I know you intend to
soon travel to meet him for the first time. During our meeting you affirmatively
represented to me that you would never bring a claim if there were questions about its
veracity. Your prior emails indicate your acknowledgement of the reputational harm
that could be caused to my clients by the mere filing of a claim (legitimate or not). I
share this information with you out of respect for you and Ryan and out of interest in
keeping illegitimate claims where they belong.

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I thought it was important to provide an example of the concerns I expressed during
our meeting today. I also wanted to provide you with one example of why I have
legitimate questions over the authenticity of Mr. Pringle's representations regarding the
dates of his computer files. There are more examples, but this one should be
sufficient. The basis for my concerns and my preservation request that follows is set
forth below.

On May 21, 2010 you sent me a letter with several sets of two disc's, each set had a
CD in an orange case and a CD in a purple case.

You said in your letter that the CD in the Orange case was the Dance Version of Take
a Dive, which was created in 1999. You represented that the CD in the purple case
was the "Original Version of Take a Dive" which was copyrighted in 1998. We
understand that these disc's were prepared by Mr. Pringle, and sent to you.

In the body of the May 21, 2010 letter you represent that Mr. Pringle wrote the Original
Version of Take a Dive in 1997, and the Original Version was copyrighted in 1998.

I attach a pdf of a screen shot of the properties files of set one of the orange disc you
sent me. The creation date and the modified date of this orange disc "Take a Dive
Dance Version" file is December 31, 1994 at 7:00:02 pm. This is at least 5 years
before you represent he allegedly created the Dance Version and three 3 years before
he even allegedly wrote the original version of Take a Dive. The orange disc from set
2 of your May 21, 2010 letter has a different creation time. Interestingly, if you copy
the file from the orange disc to your desk top, it changes these dates to the following:
Created today, with a last modified date of December 31, 1994.

Would you please provide me with an explanation of the 1994 creation date?

I hope you share our genuine concerns regarding the computer files Mr. Pringle is
using to try to convince you (and us) that his dates are what he is holding them out to
be. I am sure you are aware that there are easy ways for Mr. Pringle to modify the
Creation, Accessed and Modified dates of his computer files. There are software
programs available on the internet that permit it, and there are articles all over the web
with step by step instructions on how to alter these dates.

Since he is an "unsolicited client" from Texas that you have never represented before
or met before, I am not sure how you can confront Mr. Pringle with this information
without running the risk of him altering or tampering with computer files in the future to
try to "fix" things. Given that you have advanced a claim on his behalf I am sure you

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have already advised Mr. Pringle of his duty to preserve all computer records. Out of
caution, before Mr. Pringle is confronted with the topic of potential altered dates etc, it
is likely appropriate for you to have an independent forensic computer person
image his entire hard drive etc. to capture and preserve everything on his system
before you confront him. It will be something we will necessarily request in discovery
should this case ever reach a filed action. I leave the preservation mechanism to your
choice as long as there is a mechanism put in place to preserve the evidence before
he is alerted to concerns over his file dating practices and inconsistencies.

On behalf of my clients', as I am sure you understand, I have to formally make a
request for preservation of evidence. Please consider this email my formal request for
preservation of evidence.

I am happy to discuss this with you further. I am hopeful that you will be candid with
me. Since I am on the road, but still working (sigh), my cell number is the most
appropriate way to reach me.

Thanks

Kara
Kara E. F. Cenar I BRYAN CAVE LLP
Partner - Chicago

161 North Clark Street, Suite 4300 I Chicago, IL 60601-3315
312.602.5019 direct I 312.698.7419 direct fax
773.818.5272 cell

kara.cenarbrvancave.com
www.brvancave.com

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bc11p2010

<1994 Creation Date Merno.pdf