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)

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1 Dean A. Dickie (appearing Pro Hac Vice) Dickie@MillerCanfield.com 2 Kathleen E. Koppenhoefer (appearing Pro Hac Vice) Koppenhoefer@MillerCanfield.com 3 MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. 225 West Washington Street, Suite 2600 4 Chicago, IL 60606 Telephone: 312.460.4200 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) ghampton@hamptonholley.com 7 Colin C. Holley (State Bar No. 191999) cholley@hamptonholley.com 8 HAMPTONHOLLEY LLP 2101 East Coast Highway, Suite 260 9 Corona del Mar, California 92625 Telephone: 949.718.4550 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 DISCOVERY MATTER 18 19 20 21 22 23 24 25 26 27 28 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. LLP HAMPTONHOLLEY FACTS 11 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 23 24 Dive” were undeniable. Defendants’ deposition testimony confirmed why: Guetta and 25 1 “Dickie Decl.” refers to the Declaration of Dean Dickie filed concurrently with Plaintiff’s Portion of the Joint Stipulation, Dck. No. 157-3. 26 2 “SAF” refers to Plaintiff’s Statement of Additional Facts 27 Opposition to Defendants’ Motion for Summary Judgment,filed concurrently with his Dck. No. 197. 28 -1- 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 LLP 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. 20 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. 28 -2- 1 III. ARGUMENT 2 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’ LLP HAMPTONHOLLEY 2101 East Coast Highway, Suite 260 Corona del Mar, California 92625 11 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). 27 3 See also Advisory Committee Notes to the 2000 Amendment to Fed.R.Civ.P. 26(b)(1). 28 -3- 1 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). 9 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 LLP 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.”). 26 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, 28 -4- 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). 13 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. 24 Plaintiff understandably qualified his responses in light of Defendants’ conduct 25 and Defendants’ objection to same is unfounded. 26 IV. CONCLUSION 27 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. -5- 1 Dated: January 9, 2012 2 3 4 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 5 6 7 By: /s/ Dean Dickie Attorneys for Plaintiff BRYAN PRINGLE 8 9 10 LLP HAMPTONHOLLEY 2101 East Coast Highway, Suite 260 Corona del Mar, California 92625 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 1 2 3 4 5 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 bslotnick@loeb.com dmiller@loeb.com, vmanssourian@loeb.com 7 Donald A. Miller Ira P. Gould gould@igouldlaw.com 8 Tal Efriam Dickstein tdickstein@loeb.com wilson@caldwell-leslie.com, burrow@caldwell-leslie.com, 9 Linda M. Burrow popescu@caldwell-leslie.com, robinson@caldwell-leslie.com 10 Ryan Christopher Williams williamsr@millercanfield.com kara.cenar@bryancave.com 11 Kara E. F. Cenar Ryan L. Greely rgreely@igouldlaw.com 12 Robert C. Levels levels@millercanfield.com 13 Kathleen E. Koppenhoefer koppenhoefer@millercanfield.com Rachel Aleeza Rappaport rrappaport@loeb.com 14 Jonathan S. Pink jonathan.pink@bryancave.com, elaine.hellwig@bryancave.com 15 Dean A. Dickie dickie@millercanfield.com, frye@millercanfield.com, deuel@millercanfield.com, smithkaa@millercanfield.com, 16 seaton@millercanfield.com, williamsr@millercanfield.com 17 Edwin F. McPherson emcpherson@mcphersonrane.com, astephan@mcphersonrane.com 18 Joseph G. Vernon vernon@millercanfield.com 19 Justin Michael Righettini justin.righettini@bryancave.com Tracy B. Rane trane@mcphersonrane.com 20 Thomas D. Nolan tnolan@loeb.com 21 22 23 24 25 26 27 28 1 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. 3 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 6 /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: 949.718.4550 Facsimile: 949.718.4580 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 ND: 4833-3883-8536, v. 1

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