Bryan Pringle v. William Adams Jr et al

Filing 211

SUPPLEMENT to MOTION to Compel Supplemental Responses to Interrogatories and for Monetary Sanctions 156 filed by Defendants Cherry River Music Co, EMI April Music Inc, Stacy Ferguson, Jaime Gomez, Headphone Junkie Publishing LLC, Jeepney Music Inc, William Adams Jr, Allan Pineda, Tab Magnetic Publishing, Will.I.Am Music LLC. (Attachments: # 1 Declaration of Jonathan S. Pink, # 2 Exhibit 1-3 to Pink Decl)(Pink, Jonathan)

1 Jonathan Pink, California Bar No. 179685

[e-mail]

2 Justin M. Righettini, California Bar No. 245305

[e-mail]

3 BRYAN CAVE LLP

3161 Michelson Drive, Suite 1500

4 Irvine, California 92612-4414

Telephone: [phone]
[phone]

5 Facsimile:

6 Kara Cenar, (Pro Hac Vice)

[e-mail]

7 Mariangela Seale, (Pro Hac Vice)

[e-mail]

8 BRYAN CAVE LLP

161 North Clark Street, Suite 4300

9 Chicago, IL 60601-3315
Bryan Cave LLP
3161 Michelson Drive, Suite 1500
Irvine, California 92612-4414

Telephone: [phone]

10 Facsimile: [phone]
11 Attorneys for Defendants

WILLIAM ADAMS; STACY FERGUSON; ALLAN PINEDA; and JAIME

12 GOMEZ, all individually and collectively as the music group THE BLACK EYED

PEAS; will.i.am music, llc; TAB MAGNETIC PUBLISHING; CHERRY RIVER

13 MUSIC CO.; HEADPHONE JUNKIE PUBLISHING, LLC; JEEPNEY MUSIC,

INC.; EMI APRIL MUSIC, INC.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION
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BRYAN PRINGLE, an individual,
Plaintiff,

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v.

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WILLIAM ADAMS, JR.; STACY
FERGUSON; ALLAN PINEDA; and
JAIME GOMEZ, all individually and
collectively as the music group the
Black Eyed Peas; DAVID GUETTA;
FREDERICK RIESTERER; UMG
RECORDINGS, INC.; INTERSCOPE
RECORDS; EMI APRIL MUSIC,
INC.; HEADPHONE JUNKIE
PUBLISHING, LLC; WILL.I.AM.
MUSIC, LLC; JEEPNEY MUSIC,
INC.; TAB MAGNETIC
PUBLISHING; CHERRY RIVER
MUSIC CO.; SQUARE RIVOLI
PUBLISHING; RISTER EDITIONS;
and SHAPIRO, BERNSTEIN & CO.,

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Case No. SACV10-01656 JST (RZx)
Hon. Ralph Zarefsky
Courtroom 540
DISCOVERY MATTER
DEFENDANTS’ SUPPLEMENTAL
MEMORANDUM OF LAW IN
SUPPORT OF JOINT
STIPULATION ON MOTION TO
COMPEL SUPPLEMENTAL
RESPONSES TO
INTERROGATORIES AND FOR
MONETARY SANCTIONS
Date: January 23, 2012
Time: 10:00 a.m.
Pretrial Conf.:
Trial Date:

March 12, 2012
March 27, 2012

Defendants.

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IR01DOCS524953.7

DEFENDANTS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF JOINT STIPULATION ON
MOTION TO COMPEL INTERROGATORY RESPONSES

1

Pursuant to Local Rule 37, Defendants William Adams; Stacy Ferguson;

2 Allan Pineda; and Jaime Gomez, all individually and collectively known as the
3 music group The Black Eyed Peas; will.i.am music, llc; Tab Magnetic Publishing;
4 Cherry River Music Co.; Headphone Junkie Publishing, LLC; Jeepney Music, Inc.;
5 EMI April Music, Inc. (collectively, “Defendants”) submit this Supplemental
6 Memorandum of Law in support of the Joint Stipulation on Defendants’ Motion to
7 Compel further responses to interrogatories propounded by Defendant Stacy
8 Ferguson and Defendant Headphone Junkie Publishing, LLC, to strike or otherwise

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

9 overrule Plaintiff's meritless objections to certain interrogatories, and for an award
10 of sanctions for the attorneys’ fees to bring this Motion in the amount of $15,000.00.
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13 Dated: January 9, 2012
14

Kara Cenar
Jonathan Pink
BRYAN CAVE LLP

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By: /s/ Jonathan Pink
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.

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IR01DOCS524953.7

DEFENDANTS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF JOINT STIPULATION ON
MOTION TO COMPEL INTERROGATORY RESPONSES

1 I.

SUMMARY OF ARGUMENTS

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The Motion to Compel should be granted, and Plaintiff should be ordered to

3 provide responses to the following three relevant categories of discovery requested
4 or be precluded from presenting the issues at trial: (a) Plaintiff’s claimed creation of
5 the guitar twang sequence (which includes issues regarding Plaintiff disposing of
6 computer hard drives during the litigation) (Dkt 157, pages 15-39, Irog Nos. 1- 4,
7 16-19, 21, and 22) (hereinafter Category No. 1), (b) Plaintiff’s sampling claim
8 (Dkt 157, pages 39-42, Irog. No. 18) (hereinafter Category No. 2), and (c) the

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

9 Plaintiff's lack of evidence of access by the Defendants to Plaintiff's work. (Dkt 157,
10 Page 42-55, Irog Nos. 5- 8, 12-5, and 25) (hereinafter Category 3). General Issues
11 are addressed below as well. (Hereinafter General Issues).

Regarding Category No. 1: Whether Plaintiff copied Defendants’ work (not

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13 vice-versa) and whether Plaintiff has engaged in backdating computer files are very
14 much long standing issues and defenses in this case that surfaced back in July 23,
15 2010 in a pre-suit letter requesting preservation of computer hard drive evidence.
16 (See Dkt 157-1, Pink. Decl. ¶ 4, Exhibit 1.)

2

The identification and location of

17 Pringle’s hard drives has been an issue as far back as the initial scheduling
18 conference. (See Dkt 157-1, Pink Decl. ¶¶ 6-7, Exhibit 3). Specific evidence
19 supporting that Pringle copied from Defendants is presently before the Court. (See
20 Dkt 162, Geluso Decl. ¶¶10-13.) Specific computer forensic expert evidence on
21 Pringle’s inability to authenticate the dates on his NRG files (i.e., the backdating
22 issues) is presently before the Court as is the issue of Plaintiff disposing of hard
23 drives. (See e.g., Dkt 22-2, Laykin Decl. at C, ¶¶ 1-4; see also Dkt 157-1, Pink
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Defendants believe the hard drives contained the instrumental “stem” of

25 Defendants’ work that Plaintiff obtained from the Internet and placed into his work
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in an effort to manufacture this lawsuit.
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Plaintiff’s counsel’s inflammatory declaration attempting to paint this issue as

27 “just surfacing since learning of Bryan Pringle’s destruction of computer hard drives
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during the litigation,” is entirely unfounded.
IR01DOCS524953.7

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DEFENDANTS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF JOINT STIPULATION ON
MOTION TO COMPEL INTERROGATORY RESPONSES

1 Decl. ¶ 11, Exhibit 7 at pages 34:2-49:20; 190:6-191:23.) Plaintiff and his counsel
2 may "disagree" with Defendants’ theory – i.e., that Plaintiff accessed and copied
3 Defendants’ work, but their disagreement is not a valid basis to object and withhold
4 discovery relevant to that defense. Rule 26 firmly provides Defendants are entitled
5 to this discovery. See FRCP 26(b)(1)(“Parties may obtain discovery regarding any
6 nonprivileged matter that is relevant to any party's claim or defense.”)

Moreover, the hard drives that are the subject of the discovery requests in the

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8 Motion admittedly contain evidence relevant to issues of creation and authenticity of

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

9 the NRG files relied upon by Plaintiff to support his assertion of creation in 1999,
10 and the alleged creation of the isolated guitar twang given to Plaintiff’s experts. See
11 Pink Decl., ¶ 2, Ex. 1 at 55:18-57:4; see also id. at ¶ 3, Ex. 2 (“Link files and meta
12 data entries on the system originally creating the CD are also obvious choices to
13 consider.”). The hard drives also contain evidence of Pringle’s creation of the
14 deposit copy in 2010, as opposed to 1999, which he used to obtain the registration in
15 2010 to commence this suit. The questionable deposit copy relates to Defendants’
16 affirmative defenses 4, 5, 7, and 17. See Dkt 105.

Pringle’s disposing of the hard drives (two while the litigation is pending: one

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18 in January 2011 and one in August 2011) not only bears directly on the issue of
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19 unclean hands (9 defense) and estoppel (15 defense) but also raises issues of
20 spoliation and Pringle and his counsel’s duty to candidly inform the Court and
21 Defendants that the hard drives were destroyed. See Keithley v. Homestore.com,
22 Inc., 629 F. Supp. 2d 972, 977 (N.D. Cal. 2008) (duty to candidly inform Court and
23 opposing counsel about spoliation). It is precisely such conduct, apparently
24 intended to hamper legitimate discovery, that necessitated this Motion and justifies
25 an award of sanctions, including dismissal. Indeed, Plaintiff’s conduct here mirrors
26 the conduct of the plaintiffs in Fharmacy Records v. Nassar, 2010 WL 2294538 (6th
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In between Plaintiff seeking a Temporary Restraining Order and seeking a
Preliminary Injunction. (See Dkt 15 and 73.)

IR01DOCS524953.7

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DEFENDANTS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF JOINT STIPULATION ON
MOTION TO COMPEL INTERROGATORY RESPONSES

1 Cir. 2010), who destroyed and fabricated evidence in a copyright infringement case
2 involving a musical “beat.” There, the plaintiffs failed to produce key evidence and
3 discovery revealed: there was no evidence of the original recording; the recording
4 produced was created from some other, non-original sources; key forensic evidence
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5 was intentionally destroyed; and the computer files were backdated. Id. at *3-4.
6 The case was dismissed without prior warning because the “conduct at issue is not
7 merely contestable, but in contravention of basic notions of fairness and professional
8 responsibility. A party does not need formal notice to know that spoliation of

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

9 evidence and misrepresentations may lead to dismissal.” Id. at *5. Similar
10 sanctions, including dismissal, are justified here.

Regarding Category No. 2: Plaintiff is also playing fast and loose with the

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12 issue of whether his sampling claim is or is not being pursued in this case (flip
13 flopping between the two positions when it is convenient), and why. (See Dkt 191,
14 Koppenhoefer Decl. ¶ 2 (claiming prior representations regarding withdrawal of this
15 claim were never made).) In the current Motion, Plaintiff states he is “not seeking
16 to recover” for this claim, now contending there is some unknown “willful refusal to
17 disclose evidence.” Dkt. No. 157 at 37:21. This assertion is wrong and is an attempt
18 to deflect from the fact that the sampling claim was a sham from the outset. A
19 sample claim (as opposed to a copyright composition claim) requires Plaintiff to
20 show that there was some physical appropriation of a specific sound recording
21 physically present in the accused sound recording. See e.g., Newton v. Diamond, 204
22 F.Supp.2d 1244, 1252-57 (C.D. Cal. 2002). The master recordings of the accused
23 sound recording are in the custody of UMG defendants and were produced and
24 made available to Plaintiff’s counsel back in the summer when discovery opened.
25 Both fact and expert discovery is closed, and there has been no identification of
26 Plaintiff’s specific sound recording nor any trial expert disclosures showing such
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As noted, Pringle destroyed the hard drives that could have conclusively
established Pringle’s own backdating of the NRG files.

IR01DOCS524953.7

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DEFENDANTS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF JOINT STIPULATION ON
MOTION TO COMPEL INTERROGATORY RESPONSES

1 claimed sample is physically present in the accused work. The refusal to respond to
2 discovery or to formally withdraw the claim is improper. An order compelling a
3 response is required for purposes of removing an unnecessary issue from trial and to
4 support an objective unreasonableness determination for fees under 17 U.S.C. §505.

Regarding Category No. 3, Lack of Access to Pringle’s Works: The

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6 principle deficiencies regarding the interrogatory responses for access issues are: (a)
7 Plaintiff’s “investigation continues” response for individuals it concedes had no
8 access (Irog Nos. 6-9) thereby leaving the claim open ended and ever changing, (b)

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

9 Plaintiff’s failure to answer the interrogatory (by not providing where, when, how
10 and type of communication) regarding his claim that William Adams had access to
11 any work (Irog No. 5), (c) the failure to answer and attempt to co-mingle and blur
12 answers between Pringle’s contentions regarding access to the original Take a Dive
13 (which has no guitar twang), and access to Pringle’s other music or demo CD’s
14 (Irog 12-13), (d) the failure to answer and attempt to co-mingle and blur answers
15 between Pringle’s contentions regarding access to the derivative Take a Dive (which
16 is claimed to have a guitar twang), and access to Pringle’s Original work or other
17 music or demo CD’s (Irog 14), (e) the failure and willful omission of identification
18 of all individuals with knowledge of information relating to his claim of access by
19 any defendant (Irog 15) thereby leaving Defendants open to “surprise” witnesses
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20 and declarations after close of discovery , and (f) Pringle’s failure to provide a
21 complete factual basis for his claim of infringement (including access and copying)
22 of his alleged “other works,” claiming now it is not relevant. (See Complaint ¶ 56).
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Pringle submits the declaration of his brother Jeffrey Pringle to support his claim

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24 that Defendant Guetta had access. Failure to disclose this individual in response to

the interrogatory or in initial disclosures prevented any discovery from this person,

25 and discovery is now closed. See Dkt 190 at ¶ 9.
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Plaintiff actually concedes that he should supplement certain interrogatories
27 regarding Defendants’ alleged access to his works. That concession does not moot
this Motion for three reasons: (1) Plaintiff effectively concedes the Motion has
28 merit; (2) Plaintiff has yet to provide full and complete supplemental responses to
IR01DOCS524953.7

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DEFENDANTS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF JOINT STIPULATION ON
MOTION TO COMPEL INTERROGATORY RESPONSES

General Issues: Despite the relevance of the subject requests, Plaintiff

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2 contends he need not respond because the requests are objectionable. As the party
3 asserting the objections, Plaintiff bears the burden of justifying them. Blankenship
4 v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975). Plaintiff, however, makes no
5 attempt to support any of the individual objections asserted. Instead, he contends
6 that Defendants asserted their own objections in separate discovery responses, and
7 as such, he is somehow excused from responding to Defendants’ discovery. See
8 Dkt. No. 157, Joint Stipulation, 10:8-13; 12:6-7; 15:13-15; 31:3-11). This, of

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

9 course, is not the law in this Circuit, or anywhere else throughout the nation. See
10 National Academy of Recording Artists & Sciences, Inc. v. Point Events, LP, 256
11 F.R.D. 678, 680-81 (C.D. Cal. 2009). Discovery is not conducted on a “tit-for-tat”
12 basis. Id. citing Fed. R. Civ. P. 26(d)(2) (“[M]ethods of discovery may be used in
13 any sequence; and ... discovery by one party does not require any other party to
14 delay its discovery.”). Defendants have been forthright in their discovery responses.
15 Nonetheless, even if Plaintiff’s accusations regarding Defendants’ discovery
16 responses were correct, his “tit-for-tat” objections are not legitimate or legally
17 sufficient. Point Events, 256 F.R.D. at 680-81. Because Plaintiff has asserted
18 meaningless, improper, and unsupported objections, this Motion must be granted.
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26 any of the interrogatories in dispute; and (3) even if Plaintiff were to supplement

those responses prior to the hearing date, sanctions are still authorized and
27 warranted pursuant to FRCP Rule 37.
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IR01DOCS524953.7

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DEFENDANTS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF JOINT STIPULATION ON
MOTION TO COMPEL INTERROGATORY RESPONSES

1 II.

CONCLUSION

2

Defendants respectfully request that the Court grant their Motion, and order

3 any other relief including awarding Defendants sanctions for having to bring this
4 Motion in the amount of $15,000.00. (See Dkt. No. 157-1, Pink Decl. ¶ 16).
5
6 Dated: January 9, 2012
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Kara Cenar
Jonathan Pink
BRYAN CAVE LLP

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

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By: /s/ Jonathan Pink
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.

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DEFENDANTS’ SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF JOINT STIPULATION ON
MOTION TO COMPEL INTERROGATORY RESPONSES