Bryan Pringle v. William Adams Jr et al

Filing 212

SUPPLEMENT to MOTION to Compel Supplemental Responses to Interrogatories and for Monetary Sanctions 156 , PLAINTIFF'S SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO COMPEL, 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
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION
)
)
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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, et al.,
)
)
Defendants.
)

16 BRYAN PRINGLE, an individual,

Case No. SACV 10-1656 JST(RZx)

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DISCOVERY MATTER

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PLAINTIFF’S SUPPLEMENTAL
BRIEF IN OPPOSITION TO
DEFENDANTS’ MOTION TO
COMPEL
DATE:
TIME:
CTRM:

January 23, 2012
10:00 a.m.
540

1 I.

INTRODUCTION

2

Defendants bring this motion because they lack a legitimate defense. Plaintiff has

3 responded fully to each interrogatory posed and has provided proper objections. That
4 Defendants do not like Plaintiff’s responses because they undercut Defendants’ theory is
5 not a valid reason to bring a motion to compel. Their contentions regarding Plaintiff’s
6 objections are particularly meritless given they have relied on identical objections in less
7 availing circumstances. Defendants are desperately fishing for any legitimate defense
8 and they cannot complain that their nets have come up empty. Their motion should be
9 denied.

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HAMPTONHOLLEY

FACTS

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

10 II.

Plaintiff has presented uncontroverted evidence that he wrote and recorded “Take

12 a Dive” and its derivative dance version in 1999. (Dickie Decl. ¶ 4)1 He has described
13 in painstaking detail why he wrote the song (SAF ¶115),2 how he created its component
14 sounds (SAF ¶¶ 116, 120, 124 and Dickie Decl. ¶ 4), and how he arranged these sounds
15 to create the final product (SAF ¶121). Plaintiff preserved the evidence of all of these
16 things and he produced uncontroverted evidence that the creation file for “Take a Dive”
17 was last accessed and modified on August 22, 1999. (Dickie Decl. ¶ 5, SAF ¶¶ 128,
18 181, 182, 190). Plaintiff has also detailed Defendants’ access to “Take a Dive.” He sent
19 it to Defendants Adams, UMG, Interscope and EMI and retained copies of his receipts.
20 (SAF ¶ 181, Dck. No. 157, p. 42). He sent it to the music production company co21 founded by Defendant Guetta and Joachim Garraud. (SAF ¶ 132). They liked it so
22 much they asked him to send them more material. (SAF ¶¶ 149, 150).
When the Black Eyed Peas released “I Gotta Feeling,” its similarities to “Take a

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24 Dive” were undeniable. Defendants’ deposition testimony confirmed why: Guetta and
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“Dickie Decl.” refers to the Declaration of Dean Dickie filed concurrently with
Plaintiff’s Portion of the Joint Stipulation, Dck. No. 157-3.
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“SAF” refers to Plaintiff’s Statement of Additional Facts
27 Opposition to Defendants’ Motion for Summary Judgment,filed concurrently with his
Dck. No. 197.
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1 Garraud, two recipients of “Take a Dive”, collaborated with Defendant Riesterer in
2 selecting the instrumental portion of “I Gotta Feeling.” (SAF ¶ 141). First, Garraud and
3 Riesterer worked on the song “Love is Gone” for Guetta’s album. (SAF ¶ 151).
4 Through their exchange of musical “sounds” and ideas, they came upon the “guitar
5 twang sequence” that Riesterer admitted was eventually used in “I Gotta Feeling.” (SAF
6 ¶¶ 153-154). Guetta and Riesterer used this same sequence again in 2008 on a song
7 called “David Pop GTR.” (SAF ¶¶ 157-158). It was around this time that Defendant
8 Adams asked Guetta to produce a song for the Black Eyed Peas like “Love is Gone”
9 because Adams loved its “guitar twang sequence.” (SAF ¶¶ 159-161). Guetta sent
10 “David Pop GTR” to Adams who thought it was “amazing” because of the “guitar chord

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HAMPTONHOLLEY

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

11 progression.” (SAF ¶ 157). Adams added his vocals and lyrics and “David Pop GTR”
12 became “I Gotta Feeling.” (SAF ¶ 168).
13

Defendants’ own expert concluded that “copying” was the only explanation for

14 the similarities between “Take a Dive” and “I Gotta Feeling.” (“Geluso Decl. ¶ 31 filed
15 concurrently with Defendants’ Motion for Summary Judgment, Dck. No. 162).
16 Backed into a corner, Defendants turned an about face and began to make the incredible
17 claim that Plaintiff somehow defied the time-space continuum by copying the “guitar
18 twang sequence” from “I Gotta Feeling” in 2009 and incorporating it into “Take a Dive”
19 which he created in 1999.
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Defendants have no evidence to support this theory and they cannot even explain

21 how they might have created the “guitar twang sequence.” Adams has no idea where it
22 came from and he carefully specified that Guetta merely “represented” that he
23 composed it himself. (SAF ¶169). Guetta quickly claimed it “came from Riesterer.”
24 (SAF ¶170). Riesterer offered two wholly contradictory explanations but ultimately
25 admitted that he “doesn’t know exactly” how the sequence was created. (SAF ¶ 173).
26 Rather than face these facts, Defendants have gone fishing for new ones. Plaintiff
27 should not be penalized because the truth belies their theory.
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1 III.

ARGUMENT

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The Federal Rules clearly set forth that a party may only obtain discovery

3 regarding matters relevant to the actual claims and defenses involved in an action.3
4 Fed.R.Civ.P. 26(b)(1), Sierrapine v. Refiner Products Mfg. Inc., 275 F.R.D. 604 (E.D.
5 Cal. 2011). A party cannot “go on a fishing expedition to try to find evidence for a
6 claim that is pure conjecture.” Finneman v. U.S. Dept. of Transp., 1994 WL 172253
7 (N.D. Cal. Apr. 7, 1994) affd, 74 F.3d 1245 (9th Cir. 1996). Plaintiff has responded to
8 each interrogatory fully and testified consistently in his deposition. Defendants are not
9 entitled to relief simply because his responses undermine their theory, or because
10 Plaintiff responded subject to and without waiving legitimate objections.
A. Plaintiff Has Properly Objected To Defendants’ Requests. Defendants’

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HAMPTONHOLLEY

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

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12 contentions about Plaintiff’s objections are confusing, hypocritical and unfounded. For
13 starters, Defendants contend that Plaintiff’s use of “overly broad and unduly
14 burdensome” objections is improper. But courts have consistently held that requests
15 that are neither limited in time nor scope are overly broad and unduly burdensome. See,
16 e.g., Fisher v. Felker, 2011 WL 39124 (E.D. Cal. Jan. 5, 2011). Courts have also
17 consistently held that requests for information about an issue that is not germane to a
18 case are vague, overbroad and unduly burdensome. See, e.g., Superior Communications
19 v. Earhugger, Inc., 257 F.R.D. 215, 220 (C.D. Cal. 2009) (“[the] requests seek
20 information about all of defendant’s products, not just the “Accused Products”… thus,
21 the requests are vague and unduly burdensome and must be limited to the “Accused
22 Products”…). Defendants’ requests consistently went beyond those bounds.

For

23 example, their requests for information relating to every song Plaintiff has ever
24 downloaded, sampled or purchased were objectionable because they were not in any
25 way limited in time or scope to the songs at issue in this case. (Dck. No. 157, pp. 1526 21).
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See also Advisory Committee Notes to the 2000 Amendment to Fed.R.Civ.P. 26(b)(1).

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Courts have also consistently held that the use of omnibus terms in requests like

2 “any and all” and “each and every” or phrases like “all information referring to” or
3 “relating to” or “pertaining to” a general category are consistently deemed unduly
4 burdensome on their face. See, e.g., Echostar Satellite LLC v. Freetech, Inc., 2009 WL
5 8398695 (N.D. Cal. May 18, 2009).4

Defendants’ requests are replete with such

6 examples and Plaintiff properly objected to those requests seeking “each and every,”
7 “all FACTS” or “a full and complete factual basis” supporting a given proposition.
8 (Dck. No. 157, pp. 43, 56-61).
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What is most confusing about Defendants’ contentions is the extent to which they

10 have already used and relied upon identical objections. Each of the Defendants used the

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HAMPTONHOLLEY

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

11 same general objections months before Plaintiff did. (Id. at 14). They also each
12 objected and refused to respond to interrogatories seeking information relating to other
13 allegations of infringement made against the Black Eyed Peas on the grounds of
14 relevance, overbreadth and privilege, among others. (Id. at 17). Defendant Adams
15 objected and refused to identify information related to his alleged creation of “I Gotta
16 Feeling” on the grounds of “vagueness” and “relevance.” (Id. at 34). Adams’ counsel
17 also objected to questions about sampling on the grounds of “vagueness.” He then
18 stated that the term meant different things to different musicians.

(Id. at 17).

19 Defendants are judicially estopped from obtaining any relief from the Court for
20 Plaintiff’s legitimate use of these objections when they themselves have stated and
21 relied upon them even though Plaintiff’s discovery requests were far more meritorious.
22 Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001) (“Judicial
23 estoppel is an equitable doctrine that precludes a party from gaining an advantage by
24 asserting one position and then later seeking an advantage by taking a clearly
25 inconsistent position.”).
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4
See
Deluxe Financial
Inc., 217 F.R.D. 533 (D. Kan. 2003);
27 Moss also Aikens v. and Blue Shield ofServices, Inc., 241 F.R.D. 683 (D. Kan. 2007).
v. Blue Cross
Kansas,
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1

B.

Plaintiff’s Responses Were Complete.

Plaintiff answered each of

2 Defendants’ interrogatories subject to and without waiving the aforementioned
3 objections. Plaintiff has consistently answered the precise interrogatory posed despite
4 his objections. Defendants complain because Plaintiff’s responses often contradict
5 Defendants’ theory. Defendants apparently seek to compel Plaintiff to provide only
6 responses that bolster Defendants’ theory of the case. For example, Defendants asked
7 Plaintiff to identify “each and every creation date, access date, and modified date for the
8 correct NRG file.” Plaintiff responded that the file was created, accessed and last
9 modified on August 22, 1999 at 12:54 p.m. (Dck. No. 157, pp. 34-36). He never
10 accessed or modified the file after that moment. Defendants cannot cry foul because

LLP

HAMPTONHOLLEY

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

11 this response undercuts their theory or because Plaintiff has not provided modification
12 and access information for 2010 and 2011. (Id. at pp. 34-40).
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Defendants also complain about the fact that Plaintiff qualified some

14 interrogatory responses by stating that his investigation continued. As they are aware,
15 they are the very reason for this. They failed to produce the computers, hard drives and
16 equipment they allegedly used to create the instrumentation for “Love is Gone” and “I
17 Gotta Feeling,” claiming that Riesterer gave it all “to a friend.” (SAF ¶ 175). Many of
18 the purported creation files for “I Gotta Feeling” that they did produce were actually
19 created after the song was recorded and released, raising more questions about their
20 conduct, and they improperly marked them Attorneys’ Eyes Only.

(SAF ¶ 177).

21 Finally, Defendants Riesterer, Adams and Guetta all admitted months after they were
22 served with requests and purportedly responded that they (a) weren’t aware that they
23 had been asked to produce information and (b) did not conduct any search for same.
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Plaintiff understandably qualified his responses in light of Defendants’ conduct

25 and Defendants’ objection to same is unfounded.
26 IV.

CONCLUSION

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For each of these reasons, as set forth more fully in Plaintiff’s portion of the joint

28 stipulation, Defendants’ motion to compel should be denied.
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1 Dated: January 9, 2012
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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

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By: /s/ Dean Dickie
Attorneys for Plaintiff BRYAN PRINGLE

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LLP

HAMPTONHOLLEY

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

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CERTIFICATE OF SERVICE
On January 9, 2012, I electronically filed the foregoing PLAINTIFF’S
SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO
COMPEL using the CM/ECF system which will send notification of such filing to
the following registered CM/ECF Users:

6 Barry I. Slotnick
[e-mail]
[e-mail], [e-mail]
7 Donald A. Miller
Ira P. Gould
[e-mail]
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Tal Efriam Dickstein
[e-mail]
[e-mail], [e-mail],
9 Linda M. Burrow
[e-mail], [e-mail]
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Ryan Christopher Williams [e-mail]
[e-mail]
11 Kara E. F. Cenar
Ryan L. Greely
[e-mail]
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Robert C. Levels
[e-mail]
13 Kathleen E. Koppenhoefer [e-mail]
Rachel Aleeza Rappaport [e-mail]
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Jonathan S. Pink [e-mail], [e-mail]
15 Dean A. Dickie
[e-mail], [e-mail],
[e-mail], [e-mail],
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[e-mail], [e-mail]
17 Edwin F. McPherson
[e-mail],
[e-mail]
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Joseph G. Vernon
[e-mail]
19 Justin Michael Righettini [e-mail]
Tracy B. Rane
[e-mail]
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Thomas D. Nolan
[e-mail]
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I am unaware of any attorneys of record in this action who are not registered

2 for the CM/ECF system or who did not consent to electronic service.
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I certify under penalty of perjury under the laws of the United States of

4 America that the foregoing statements are true and correct.
5 Dated: January 9, 2012
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/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