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)

Founded in 1852
by Sidney Davy Miller
KATHARINE N. DUNN
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Miller, Canfield, Paddock and Stone, P.L.C.
225 W. Washington, Suite 2600
Chicago, Illinois 60606
TEL [phone]
FAX [phone]
www.millercanfield.com

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July 8, 2011
Via Email
Kara Cenar, Esq.
BRYAN CAVE LLP
161 North Clark Street
Suite 4300
Chicago, IL 60601-3315
Re:

Civil Action No. SACV10-1656 JST (RZx) Bryan Pringle – Discovery

Dear Counsel:
We write in response to your June 30, 2011 letter which was sent in followup to the parties’ meet and confer on Plaintiff’s discovery pursuant to the Local
Rules and Rules 11 and 37 Fed.R.Civ.P. (the “Letter”). Of note, we received your
12-page letter on the eve of the 4th of July weekend and have been working to
respond to it and your requests since that time. Unfortunately, since that time we
have also been forced to respond to Defendants’ ex parte motion in this matter on
an emergent basis. Accordingly, this letter responds to the multiple issues raised
in your Letter and we are working to obtain supplemental responses to discovery
from Mr. Pringle. Your demands that we do so by today, July 8, 2011, are
unreasonable given the circumstances.
Due to the length of the Letter and amount of information requested, we will
address each portion of your Letter by answering directly to the appropriate
corresponding section. With respect to the sections of your Letter that are longer
in length, we have directly inserted the relevant portions of your Letter (in italics)
so that we may directly respond to each point accordingly.
Generally speaking, your letter is yet another example of your continued
practice of misrepresenting and twisting of facts in order to conform them to a
favorable conclusion for Defendants. Accordingly, responding to what we believe
to be inaccurate summaries of statements made during the parties’ meet and
confer is unreasonable.
Nonetheless, we are providing responses to those
statements. We disagree with the vast majority of statements made in your Letter
and we will highlight those contradictions here.

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

Kara Cenar, Esq.
July 8, 2011
Page 8

The only portion where there is no presumption of validity is the guitar twang
sequence.
As to the validity of the guitar twang sequence, Mr. Pringle will testify that
he: (a) independently composed the guitar twang sequence; and (b) backed up the
derivative version of “Take a Dive” to an .NRG file on or around August 22, 1999.
We have also provided you with the findings of our computer expert’s analysis,
which will confirm Mr. Pringle’s testimony, that the .NRG file containing derivative
version of “Take a Dive” (i.e. the guitar twang sequence), was created on
August 22, 1999, and burned to the disc in our expert’s possession on
September 9, 1999, both of which predate the creation of “I Gotta Feeling” by
approximately ten years.
In addition, we have offered, on multiple occasions, to provide your
computer forensics expert access to inspect both the original back-up disc
containing the .NRG file with the derivative version of “Take a Dive,” and the
relevant portions of Mr. Pringle’s current computer hard drive, at the office of our
computer forensics expert, Mr. David Gallant, and under Mr. Gallant’s
supervision. Thus far, you have not made any efforts to schedule any such
ma
inspection.
A.

Plaintiff Has Not Refused To Sit For His Deposition
Bryan Pringle has been identified as the only witness with
knowledge of the basis of his claims. See Initial Disclosures,
para 1, a, p. 2. No other witness has been identified in the initial
disclosures as having any knowledge of facts relevant to this
claim. Plaintiff confirmed in response to Interrogatory Nos. 5-6,
that no one other than himself assisted with, participated in, or
has knowledge concerning the creation of the musical
composition or sound recording for Take A Dive.

Plaintiff intends to file Supplemental Rule 26 Disclosures, pursuant to Rule
26(e) Fed.Rules.Civ.P., identifying additional parties that may have knowledge of
facts alleged in the FAC, which have been revealed to him over the course of
discovery. However, no further individuals will be named that have knowledge
regarding Plaintiff’s creation of the musical composition or sound recording for
“Take a Dive.”
In discovery Bryan Pringle was noticed for deposition for July 14,
2011, but based upon representations of Plaintiff’s counsel
Katharine Dunn and Ryan Greely during a telephonic meet and
confer held on June 28, 2011, and again on June 30, 2011,
Mr. Pringle is refusing to appear for his deposition on that date,
or in this District for a deposition. As part of our meet and confer,
we request confirmation that Mr. Pringle’s deposition will go

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

Kara Cenar, Esq.
July 8, 2011
Page 14

response. We request that the response be supplemented to
reflect counsel’s representations so that the request can be used
as part of the evidentiary record in this case.
To clarify, Plaintiff’s counsel never represented that “there are no backup
files of the NRG file,” as the NRG file itself is the backup file of the derivative
version of “Take a Dive.”
Again, this request for confirmation that Plaintiff’s music equipment is no
longer in his possession and that he has no backup files of said equipment does
not fall under any of your existing Interrogatories or other written discovery
requests. Please provide us with the above request in the form of a formal written
discovery request, and Plaintiff will gladly provide you with said information.
Otherwise, you can obtain said information from Plaintiff at his deposition.
F.

Plaintiff’s Sampling and Copying Of The Black Eyed Peas’ Work To
Make A Version Of Take A Dive
In Requests Nos. 35, 36, 37, 38, and 40, Plaintiff was asked to
produce documents on his computer hardware, software, and
computer files regarding “every version” of Take a Dive created
up to and through December 2010. Plaintiff’s responses to these
Requests are incomplete and evasive. We know, as do you, that
Plaintiff Bryan Pringle created a version of Take a Dive with the
vocals of The Black Eyed Peas’ I Gotta Feeling sampled over or
within it. Mr. Pringle posted that version of Take a Dive on the
internet, on his personal website, and Plaintiff’s counsel Miller
Canfield linked to such postings on their law firm’s website. See
prior correspondence between Mr. Dean Dickie and Ms. Cenar on
this topic. The computer records regarding Mr. Pringle’s access
to, copying of and use of The Black Eyed Peas’ vocal track in this
instance (as well as every other instance prior to this time frame),
are materially relevant to Mr. Pringle’s access to, sampling of
and copying of the song I Gotta Feeling, as well as the unclean
hands defense.

As stated to you on both meet and confer calls, this request for documents
or information relating to where and how Mr. Pringle obtained the Black Eyed
Peas’ music does not fall under any of your existing Interrogatories or other written
discovery requests. Please provide the above request in the form of a formal
written discovery request, and Plaintiff will gladly provide you with an appropriate
response. Otherwise, the requested information can be obtained from Plaintiff at
his deposition.
Further, we have offered, on multiple occasions, to provide your computer
expert with access to the relevant portions of Mr. Pringle’s current computer hard

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

Kara Cenar, Esq.
July 8, 2011
Page 15

drive containing his music files, which would allow you to access said information.
To date, you have not made any attempts to schedule that inspection by your
computer expert.
Plaintiff’s counsel Katharine Dunn and Ryan Greely took the
position that the “version” of Take A Dive that Pringle made with
The Black Eyed Peas vocal track is not a “version” of Take a
Dive. We deem this assertion to be entirely without merit. These
same Plaintiff’s counsel refused to produce the files from
Pringle’s computer system, but offered to make the entire hard
drive available for inspection. In light of that offer, please provide
the details of the computer system sufficient so that our computer
expert can obtain a flash copy of Mr. Pringle’s hard drive. Please
provide this information no later than July 8, 2011 so that we
may make necessary arrangements.
The MP3 of the derivative version of “Take a Dive” with the Black Eyed Peas’
vocal track of “I Gotta Feeling” placed over it is not a version of “Take a Dive.”
Mr. Pringle did not compose, author or record the accapella for “I Gotta Feeling,”
and thus it is not a version of his song. Again, we ask that you provide the above
request in the form of a formal written discovery request, and Plaintiff will provide
an appropriate response.
Counsel for Plaintiff has never refused to produce the files from Mr. Pringle’s
computer. We simply stated that there are no documents or ESI related to
Mr. Pringle’s obtaining any of the Black Eyed Peas’ music that could be accessed
without forensic inspection of Mr. Pringle’s hard drive. Contrary to your assertion,
we agreed to produce all relevant files related to all versions of “Take a Dive” from
Mr. Pringle’s computer in a supplemental production by July 15, 2011.
During the meet and confer, Plaintiffs counsel Ryan Greely
represented that Mr. Pringle obtained new computer equipment
sometime in 2007, and thus computer records of Mr. Pringle’s
access and copying of The Black Eyed Peas’ music appears to
still exist. The scope of the aforementioned Requests necessarily
includes production of all current computed files, electronic
information and the like as to how Mr. Pringle obtained The
Black Eyed Peas’ music to sample, how many times he has
engaged in this activity, as well as to the issue of the source or
originality of Mr. Pringle’s “guitar twang sequence” or whether he
copied it from some other sources. See e.g, Request No. 3. As
part of this final meet and confer we ask that these Requests for
Production be supplemented with respect to Mr. Pringle’s current
computer files. We request the supplemental responses no later
than July 8, 2011.

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

Kara Cenar, Esq.
July 8, 2011
Page 21

Interrogatory Nos. 5 and 6 relate directly to the fraud on the
Copyright Office affirmative defense, and also go directly to the
lack of authentication, and thus admissibility of the Ryan Greely
MP3(s). Request Nos. 35- 37 also requires production of all the
computer files of the individuals involved in creating the deposit
copy for the copyright application (and if Mr. Greely then his files
as well) and Mr. Pringle on the creation of the MP3s, including
the version made and submitted as a deposit copy to the
Copyright Office. We ask that a full and complete supplemental
response to Interrogatory Nos. 5 and 6 be provided as well as a
supplemental production of responsive documents to Request for
Production Nos. 35, 36, 37, 38, 40, and 41.
Again, just to clarify, Mr. Greely did not create any MP3s of any version of
“Take a Dive”; all MP3s and other sound recordings of the derivative version of
“Take a Dive,” including the one submitted to the Copyright Office, were created by
Mr. Pringle. With respect to your requests for computer files related to the
creation of the MP3s, there are none other than the MP3s themselves, which we
have agreed to provide to you in our supplemental production. To the extent that
mental
you seek metadata associated with the creation of any sound recording by
Mr. Pringle, that would require an inspection of Mr. Pringle’s computer hard drive,
which we have offered to provide for inspection at the offices of our computer
expert.
Also, there has not been a single document, item or other
corroborating piece of evidence produced or identified to support
the authentication of the NRG file, or its creation, or the MP3s, or
their date of creation. Request for Production Nos. 1, 2, 5, 35, 36,
37, 38, 40, and 41 call for such documents and things to be
produced in this case. Please, by July 8, 2011 provide the
accurate information regarding the individuals involved in the
creation of the MP3s submitted to the Copyright Office, and
otherwise in this case, and provide a supplemental production
regarding these items.
Again, Mr. Pringle was solely responsible for creation of all MP3s of any
version of “Take a Dive” and there are no documents or ESI related to the creation
of these MP3s, other than the MP3s themselves.
E.

Plaintiff Has Refused Discovery On And Is Unable To Prove Originality
Plaintiff confirmed in response to Interrogatory Nos. 5 and 6, that
no one other than himself assisted with, participated in, or has
knowledge concerning the creation of the musical composition or
sound recording for Take A Dive. He of course is refusing to
appear for his deposition. Plaintiff was asked in Interrogatory

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

Kara Cenar, Esq.
July 8, 2011
Page 22

No. 9 to state with specificity each element of the musical
composition of Take A Dive that was original to him. Plaintiff
objected to the interrogatory on the basis of “attorney client
privilege”, and then refused to provide an answer other than to
say “the entire musical composition of TAKE A DIVE” is original
to Plaintiff.” Plaintiff was asked to produce all of the things used
to create every version of Take A Dive (Dance Version) and Take
a Dive Dance Version and nothing was produced.
Again, there is no need for supplementation.
Very truly yours,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

Katharine N. Dunn
KND/bs
cc: Counsel of Record

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.