Bryan Pringle v. William Adams Jr et al

Filing 188

OBJECTIONS to Evidence Defendants Filed in Connection with their Motion for Summary Judgment re: MOTION for Summary Judgment 159 filed by Plaintiff Bryan Pringle. (Holley, Colin)

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

LLP

HAMPTONHOLLEY

2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

6 George L. Hampton IV (State Bar No. 144433)
[e-mail]
7 Colin C. Holley (State Bar No. 191999)
[e-mail]
8 HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
9 Corona del Mar, California 92625
Telephone: [phone]
10 Facsimile: 949.718.4580
11 Attorneys for Plaintiff
BRYAN PRINGLE
12
13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15

SOUTHERN DIVISION
)
)
)
Plaintiff,
)
)
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.
)

16 BRYAN PRINGLE, an individual,

Case No. SACV 10-1656 JST(RZx)

17

PLAINTIFF BRYAN PRINGLE'S
OBJECTIONS TO EVIDENCE
DEFENDANTS FILED IN
CONNECTION WITH THEIR
MOTION FOR SUMMARY
JUDGMENT

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4838-3377-1790 - v. 1

DATE: January 30, 2012
TIME: 10 a.m.
CTRM: 10A

Plaintiff Bryan Pringle hereby objects to the Motion for Summary Judgment

1

2 brought by defendants Shapiro Bernstein & Co, Inc., David Guetta and Frederic
3 Riesterer (collectively, the “Moving Defendants”), as well as to particular facts
4 presented by the Moving Defendants in support of their motion for summary
5 judgment, on the following grounds:
6 Fact/Evidence

Grounds for Objection

7 Declaration of Erik Laykin (“Laykin

Rule 602 of the Federal Rules of

8 Declaration”), p. 9, lines 3-5: “Pringle

Evidence (“FRE”) -- Lacks foundation as

9 thus likely had access to old CDs from

Mr. Laykin lacks any personal

LLP

HAMPTONHOLLEY

knowledge as to whether Mr. Pringle had

11 to burn the NRG discs in 2009 or 2010.”
2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10 the late 1990s which he could have used

access to “old CDs from the late 1990s”

12

in 2009 or 2010.

13

FRE 701 702, 703-- Improper opinion

14

evidence. The statement that Mr. Pringle

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“likely had access to old CDs” is a

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statement of opinion that falls well

17

outside the scope of Mr. Laykin’s

18

expertise as an information technology

19

forensic investigator. Moreover, this

20

testimony is not “based on sufficient

21

facts or data” regarding Mr. Pringle’s

22

belongings, nor is it “the product of

23

reliable principles and methods” -- both

24

requirements under Rule 702.1

25

Rule 402, 403.

26
27

1

Citations to Rule 702 as amended effective December 1, 2011.

28
1
4838-3377-1790 - v. 1

1 Fact/Evidence

Grounds for Objection

2

FRE 602 -- Lacks foundation as Mr.

Laykin Declaration, p. 11, lines 1-

3 2: “Instead, it appears that Pringle

Laykin lacks any personal knowledge as

4 disposed of his hard drives such that the

to the facts and circumstances that led to

5 information on them could never be

Mr. Pringle’s disposing of a hard drive

6 recovered.”

that had suffered mechanical failures

7

during the warranty period and contained

8

no music files relating to "I Gotta

9

Feeling.”

LLP

HAMPTONHOLLEY

FRE 701, 702, 703-- Improper opinion

11
2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10

evidence. This testimony is a statement

12

of opinion regarding Mr. Pringle’s

13

motives and state of mind, which falls

14

well outside the scope of Mr. Laykin’s

15

expertise as an information technology

16

forensic investigator. Moreover, this

17

testimony is not “based on sufficient

18

facts or data” regarding Mr. Pringle’s

19

motives and the mechanical failures

20

suffered by Mr. Pringle’s hard drives, nor

21

is it “the product of reliable principles

22

and methods” -- both requirements under

23

Rule 702.

24

FRE 402, 403.

25 Laykin Declaration, p. 11, line 25 to p.
26 12, line : “Indeed, it appears that Pringle

FRE 602 -- Lacks foundation as Mr.

27 has used the simplest ‘anti-forensics’
28

to the facts and circumstances that led to

Laykin lacks any personal knowledge as

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4838-3377-1790 - v. 1

1 Fact/Evidence

Grounds for Objection

2 technique available to him to prevent the

Mr. Pringle’s disposing of a hard drive

3 Defendants and this Court from learning

that had suffered mechanical failures

4 the true nature of the activity that took

during the warranty period and contained

5 place on Pringle’s computers, and thus

no music files relating to "I Gotta

6 whether or not his claims have any

Feeling.”

7 merit.”

FRE 701, 702, 703-- Improper opinion

8

evidence. This testimony is a statement

9

of opinion regarding Mr. Pringle’s

LLP

HAMPTONHOLLEY

motives and state of mind, which falls

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2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10

well outside the scope of Mr. Laykin’s

12

expertise as an information technology

13

forensic investigator. Moreover, this

14

testimony is not “based on sufficient

15

facts or data” regarding Mr. Pringle’s

16

motives and the mechanical failures

17

suffered by Mr. Pringle’s hard drives, nor

18

is it “the product of reliable principles

19

and methods” -- both requirements under

20

Rule 702.

21

FRE 402, 403.

22 Declaration of Paul Geluso (“Geluso
23 Declaration”), p. 5, line 26 to p. 6, line 3:

FRE 702: In setting forth one possible

24 “Because, as explained above, the
25 creators of ‘I Gotta Feeling’ could not

guitar twang sequences, and describing it

explanation for the similarity of the

as “the only apparent explanation,” Mr.

26 have sampled the guitar twang sequence Geluso has unjustifiably extrapolated
27 from ‘Take A Dive’ (Dance Version), the from the facts to an unfounded
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4838-3377-1790 - v. 1

1 Fact/Evidence

Grounds for Objection

2 only apparent explanation for this

conclusion. See Gen. Elec. Co. v. Joiner,

3 identity is that Mr. Pringle sampled the

522 U.S. 136, 146, 139 L. Ed. 2d 508,

4 isolated guitar twang sound file from

118 S. Ct. 512 (1997) (noting that in

5 Beatport.com (or from one of the re-

some cases a trial court “may conclude

6 mixes that sampled the Beatport.com

that there is simply too great an

7 sound file), and inserted the guitar twang

analytical gap between the data and the

8 sequence into his ‘Take a Dive’ (Dance

opinion proffered”). Nor has Mr. Geluso

9 Version).”

adequately accounted for obvious

LLP

HAMPTONHOLLEY

alternative explanations for the similarity

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2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10

between the tracks; indeed, Mr. Geluso

12

does not account for any alternate

13

explanations. See, e.g., Claar v.

14

Burlington N.R.R., 29 F.3d 499, 502 (9th

15

Cir. 1994) (testimony excluded where the

16

expert failed to make “any effort to rule

17

out other possible causes”).

18

FRE 402, 403.

19 Geluso Declaration, p. 16, lines 13-15:
20 “Thus, the only explanation for the

FRE 702: In setting forth one possible

21 correlation between these sounds is that
22 Pringle sampled the guitar twang

guitar twang sequences, and describing it

23 sequence from the isolated stems that
24 were available on Beatport.”

has unjustifiably extrapolated from the

25

Gen. Elec., 522 U.S. at 146 (noting that

26

in some cases a trial court “may conclude

27

that there is simply too great an

explanation for the similarity of the

as “the only explanation,” Mr. Geluso

facts to an unfounded conclusion. See

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4838-3377-1790 - v. 1

1 Fact/Evidence

Grounds for Objection

2

analytical gap between the data and the

3

opinion proffered”). Nor has Mr. Geluso

4

adequately accounted for obvious

5

alternative explanations for the similarity

6

between the sequences; indeed, Mr.

7

Geluso does not account for any alternate

8

explanations. See, e.g., Claar, 29 F.3d at

9

502 (testimony excluded where the

LLP

HAMPTONHOLLEY

expert failed to make “any effort to rule

11
2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10

out other possible causes”).

12

FRE 402, 403.

13 Geluso Declaration, p. 19, lines 18-25:
14 “Thus, the only apparent explanation for

FRE 702: In setting forth one possible

15 the near identity between the guitar
16 twang samples in Mr. Pringle’s NRG file

guitar twang sequences, and describing it

17 and Defendants’ isolated guitar twang
18 sequence that was available at

has unjustifiably extrapolated from the

explanation for the similarity of the

as “the only explanation,” Mr. Geluso

facts to an unfounded conclusion. See

19 Beatport.com is that Mr. Pringle acquired Gen. Elec., 522 U.S. at 146 (noting that
20 a copy of the guitar twang sequence in
in some cases a trial court “may conclude
21 the clear (such as from the Beatport.com that there is simply too great an
22 stem or from one of the ‘I Gotta Feeling’
23 re-mixes that featured the guitar twang

analytical gap between the data and the

24 sequence in the clear) and sampled each
25 of the chords that comprise the guitar

adequately accounted for obvious

opinion proffered”). Nor has Mr. Geluso

alternative explanations for the similarity

26 twang sequence into his ASR10 which he between the sequences; indeed, Mr.
27 then used to create the derivative ‘Take a Geluso does not account for any alternate
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1 Fact/Evidence

Grounds for Objection

2 Dive’ (Dance Version) mix.”

explanations. See, e.g., Claar, 29 F.3d at

3

502 (testimony excluded where the

4

expert failed to make “any effort to rule

5

out other possible causes”).

6
7 Geluso Declaration, p. 20, lines 1-3: “It is FRE 702, 703: As explained in the above
8 therefore my professional opinion, to a
objections, Mr. Geluso’s conclusion that
9 high degree of certainty, that the guitar
Mr. Pringle sampled the guitar twang

LLP

HAMPTONHOLLEY

2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10 twang sequence was independently
11 created by Mr. Riesterer, and

sequence from the Black Eyed Peas is an

12 subsequently copied by Bryan Pringle.”
13

an analytical gap between the data and

14

U.S. at 146. Accordingly, his

15

“professional opinion . . . that the guitar

16

twang sequence was independently

17

created by Mr. Riesterer, and

18

subsequently copied by Bryan Pringle” is

19

not “the product of reliable principles and

20

methods” as is required by Rule 702.

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FRE 402, 403.

22 Declaration of Alain J. Etchart (“Etchart
23 Declaration”) (entirety)

Plaintiff asks the Court to strike the

24

entirety. Mr. Etchart was never

25

identified as a person having

26

discoverable information -- not in any of

27

the Moving Defendants’ initial

unsupported leap that leaves “too great

the opinion proffered.” Gen. Elec., 522

Declaration of Alain J. Etchart in its

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4838-3377-1790 - v. 1

Defendants’ subsequent discovery

4

responses. Consequently, plaintiff has

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not had the opportunity to cross-examine

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this witness, who is located in France.

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Moreover, because the Moving

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Defendants have procured Mr. Etchart’s

9

declaration in the summary judgment

10

context, the Moving Defendants have

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LLP

disclosures, nor in any of the Moving

3

HAMPTONHOLLEY

Grounds for Objection

2

2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

1 Fact/Evidence

effectively foreclosed any possibility for

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cross-examination of Mr. Etchart before

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plaintiff is required to respond to the

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motion for summary judgment, as Mr.

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Etchart must be subpoenaed using the

16

lengthy procedure proscribed under the

17

Hague convention.

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Cross-examination “is a fundamental

19

right that a court may abridge only to

20

curb abuse.” Jones, Rosen Wegner &

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Jones, RUTTER GROUP PRACTICE

22

GUIDE: FEDERAL CIVIL TRIALS

23

AND EVIDENCE (The Rutter Group

24

2010) (“The Rutter Guide”), ¶ 10:2

25

(citing Alford v. United States, 282 US

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687, 691-92, 51 S. Ct. 218, 219 (1931);

27

Deitchman v. E.R. Squibb & Sons, Inc.,

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4838-3377-1790 - v. 1

1 Fact/Evidence

Grounds for Objection

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740 F.2d 556, 562 (7th Cir. 1984);

3

Treharne v. Callahan, 426 F.2d 58, 62

4

(3rd Cir. 1970)). Accordingly, Mr.

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Etchart’s testimonial evidence should be

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stricken. See Brady v. Potter, 476 F.

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Supp. 2d 745, 749 (N.D. Ohio 2007)

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(disregarding all testimonial evidence in

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a declaration where witness was not

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HAMPTONHOLLEY

previously “identified as a person having

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2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10

discoverable information, and therefore,

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the plaintiff was without opportunity to

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cross-examine him”).

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See also, United States Constitution,

15

Fifth Amendment.

16

Rule 402, 403, 703

17
18 Declaration of Thibaud Fouet (“Fouet
19 Declaration”) (entirety)

Plaintiff asks the Court to strike the

20

entirety. Mr. Fouet was never identified

21

as a person having discoverable

22

information -- not in any of the Moving

23

Defendants’ initial disclosures, nor in any

24

of the Moving Defendants’ subsequent

25

discovery responses. Consequently,

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plaintiff has not had the opportunity to

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cross-examine this witness, who is

Declaration of Thibaud Fouet in its

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4838-3377-1790 - v. 1

1 Fact/Evidence

Grounds for Objection

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located in France. Moreover, because the

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Moving Defendants have procured Mr.

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Fouet’s declaration in the summary

5

judgment context, the Moving

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Defendants have effectively foreclosed

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any possibility for cross-examination of

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this witness before plaintiff is required to

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respond to the motion for summary

LLP

HAMPTONHOLLEY

judgment, as Mr. Fouet must be

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2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10

subpoenaed using the lengthy procedure

12

proscribed under the Hague convention.

13

Cross-examination “is a fundamental

14

right that a court may abridge only to

15

curb abuse.” The Rutter Guide, ¶ 10:2

16

(citing Alford, 282 US at 691-92;

17

Deitchman, 740 F.2d at 562; Treharne,

18

426 F.2d at 62). Accordingly, Mr.

19

Fouet’s testimonial evidence should be

20

stricken. Brady v. Potter, 476 F. Supp.

21

2d at 749.

22

See also, United States Constitution,

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Fifth Amendment.

24

Rule 402, 403, 703

25 Declaration of Jean-Charles Carre
26 (“Carre Declaration”) (entirety)

Plaintiff asks the Court to strike the

27

entirety. Mr. Carre was first identified

Declaration of Jean-Charles Carre in its

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4838-3377-1790 - v. 1

1 Fact/Evidence

Grounds for Objection

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by the Moving Defendants as a person

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having discoverable information in their

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supplemental initial disclosures, which

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were served the day after the Moving

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Defendants filed their motion for

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summary judgment. Consequently,

8

plaintiff has not had the opportunity to

9

cross-examine this witness, who is

LLP

HAMPTONHOLLEY

located in France. Moreover, because the

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2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10

Moving Defendants have procured Mr.

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Carre’s declaration in the summary

13

judgment context, the Moving

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Defendants have effectively foreclosed

15

any possibility for cross-examination of

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Mr. Carre before plaintiff is required to

17

respond to the motion for summary

18

judgment, as Mr. Carre must be

19

subpoenaed using the lengthy procedure

20

proscribed under the Hague convention.

21

Cross-examination “is a fundamental

22

right that a court may abridge only to

23

curb abuse.” The Rutter Guide, ¶ 10:2

24

(citing Alford, 282 US at 691-92;

25

Deitchman, 740 F.2d at 562; Treharne,

26

426 F.2d at 62). Accordingly, Mr.

27

Carre’s testimonial evidence should be

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4838-3377-1790 - v. 1

1 Fact/Evidence

Grounds for Objection

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stricken. Brady v. Potter, 476 F. Supp.

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2d at 749.

4

See also, United States Constitution,

5

Fifth Amendment.

6

Rule 402, 403, 703

7 Carre Declaration, p. 3, lines 17-19:
8 “Moreover, given the limited public

Rule 602 of the Federal Rules of
Evidence (“FRE”) -- Lacks foundation as

LLP

HAMPTONHOLLEY

2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

9 awareness of Gum Productions,
10 especially prior to 2007, it is highly

Mr. Carre lacks any personal knowledge

11 unlikely that Pringle, whom I understand
12 lives in Texas, would have even heard of

know or not know between 2001 and

13 Gum Productions between 2001 and
14 2004.”

FRE 701 -- Improper opinion evidence/

as to what Mr. Pringle was likely to

2004.

703, 402, 403.

15 The Moving Defendants’ Uncontroverted In addition to the objection (above) to the
16 Material Fact No. 53: “Garraud never
Carre Declaration as a whole, plaintiff
17 had access to Pringle’s songs; never
objects to the use of Mr. Carre’s
18 received music from Pringle; never heard Declaration to support this purported
19 of either “Take a Dive” or “Take a Dive” Uncontroverted Material Fact. The cited
20 (Dance Version); and never gave any of
testimony offered by Mr. Carre is
21 Pringle’s music to Guetta or Riesterer”
directly disputed by testimony by
22 (citing the Garraud, Riesterer, Guetta and plaintiff regarding correspondence with
23 Carre Declarations).
Mr. Garraud. Bona fide factual disputes
24

such as this may not be disposed of

25

through use of affidavits. Jackson v

26

Griffith, 480 F.2d 261, 267 (10th Cir.

27

1973). Instead, Mr. Carre’s testimony

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4838-3377-1790 - v. 1

1 Fact/Evidence

Grounds for Objection

2

shows the existence of a dispute over a

3

material issue of fact. Accord Castillo v.

4

United States, 34 F.3d 443, 445-46 (7th

5

Cir. 1994) (noting that the purpose of

6

inviting affidavits in summary judgment

7

proceedings is to determine whether

8

there is dispute over material issue of

9

fact, rather than to enable judge to

LLP

HAMPTONHOLLEY

resolve dispute by picking one affidavit

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2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10

over another that contradicts it) (citing

12

Anderson v. Liberty Lobby, Inc., 477 U.S.

13

242, 249, 91 L. Ed. 2d 202, 106 S. Ct.

14

2505 (1986); Jackson, 480 F.2d at 267.

15

FRE 402, 403, 701, 703

16 The Moving Defendants’ Uncontroverted In addition to the objection (above) to the
17 Material Fact No. 61: “There is no
Fouet Declaration as a whole, plaintiff
18 evidence that “Take a Dive” was ever
objects to the use of Mr. Fouet’s
19 publicly performed in the United States
20 France or in any European territory in

Declaration to support this purported

21 which SACEM operates” (citing the
22 Fouet Declaration).

testimony offered by Mr. Fouet is

23

Bryan Pringle and Jeffrey Pringle.

24

Mr. Fouet does not attach any

25

documentary evidence to his declaration

26

to support his testimony; thus, this is a

27

case of competing declarations. Bona

Uncontroverted Material Fact. The cited

directly disputed by The Declarations of

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4838-3377-1790 - v. 1

1 Fact/Evidence

Grounds for Objection

2

fide factual disputes such as this may not

3

be disposed of through use of

4

declarations or affidavits. Jackson, 480

5

F.2d at 267 (10th Cir. 1973). See also

6

Castillo, 34 F.3d at 445-46 (stating that

7

the purpose of inviting affidavits in

8

summary judgment proceedings is to

9

determine whether there is dispute over

LLP

HAMPTONHOLLEY

material issue of fact, rather than to

11
2101 East Coast Highway, Suite 260
Corona del Mar, California 92625

10

enable judge to resolve dispute by

12

picking one affidavit over another that

13

contradicts it).

14
15 Dated: December 19, 2011
16
17

Dean A. Dickie (appearing Pro Hac Vice)
Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
MILLER, CANFIELD, PADDOCK AND STONE,
P.L.C.
George L. Hampton IV (State Bar No. 144433)
Colin C. Holley (State Bar No. 191999)
HAMPTONHOLLEY LLP

18
19
20

By: /s/ Dean A. Dickie
Dean A. Dickie

21

Attorneys for Plaintiff
BRYAN PRINGLE

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4838-3377-1790 - v. 1

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CERTIFICATE OF SERVICE
On December 19, 2011, I electronically filed the foregoing PLAINTIFF
BRYAN PRINGLE’S OBJECTIONS TO EVIDENCE DEFENDANTS FILED IN
CONNECTION WITH THEIR MOTION FOR SUMMARY JUDGMENT using the
CM/ECF system which will send notification of such filing to the following
registered CM/ECF Users:

Barry I. Slotnick
[e-mail]
7 Donald A. Miller
[e-mail], [e-mail]
[e-mail]
8 Ira P. Gould
Tal Efriam Dickstein
[e-mail]
9
Linda M. Burrow
[e-mail], [e-mail],
[e-mail], [e-mail]
10
Ryan Christopher Williams [e-mail]
11
Kara E. F. Cenar
[e-mail]
[e-mail]
12 Ryan L. Greely
Robert C. Levels
[e-mail]
13
Kathleen E. Koppenhoefer [e-mail]
14 Rachel Aleeza Rappaport [e-mail]
Jonathan S. Pink [e-mail], [e-mail]
15
Dean A. Dickie
[e-mail], [e-mail],
16
[e-mail], [e-mail],
[e-mail], [e-mail]
17
Edwin F. McPherson
[e-mail],
18
[e-mail]
Joseph G. Vernon
[e-mail]
19
Justin Michael Righettini [e-mail]
20 Tracy B. Rane
[e-mail]
21
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23
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I am unaware of any attorneys of record in this action who are not registered
for the CM/ECF system or who did not consent to electronic service.

1

I certify under penalty of perjury under the laws of the United States of

2 America that the foregoing statements are true and correct.
3 Dated: December 19, 2011
4

/s/Colin C. Holley
George L. Hampton IV (State Bar No. 144433)
Colin C. Holley (State Bar No. 191999)
HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
Corona del Mar, California 92625
Telephone: [phone]
Facsimile: 949.718.4580

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ND: 4833-3883-8536, v. 1