Bryan Pringle v. William Adams Jr et al

Filing 214

Objection in support re: MOTION for Summary Judgment 159 Evidentiary Objections to the Declaration of Jeffrey Pringle filed by Defendants David Guetta, Frederick Riesterer, Shapiro Bernstein and Co. (Miller, Donald)

1 DONALD A. MILLER (SBN 228753)
[e-mail]
2 BARRY I. SLOTNICK (Pro Hac Vice)
[e-mail]
3 TAL E. DICKSTEIN (Pro Hac Vice)
[e-mail]
4 LOEB & LOEB LLP
10100 Santa Monica Boulevard, Suite 2200
5 Los Angeles, California 90067-4120
Telephone: [phone]
6 Facsimile: 310-282-2200
7 Attorneys for SHAPIRO, BERNSTEIN
& CO., INC., FREDERIC
8 RIESTERER, AND DAVID GUETTA
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

13 BRYAN PRINGLE, an individual,
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Plaintiff,
v.

16 WILLIAM ADAMS, JR.; STACY
FERGUSON; ALLAN PINEDA; and
17 JAIME GOMEZ, all individually and
collectively as the music group The
18 Black Eyed Peas, et al.,
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Defendants.

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Case No. SACV 10-1656 JST(RZx)
Hon. Josephine Staton Tucker
Courtroom 10A
EVIDENTIARY OBJECTIONS TO
THE DECLARATION OF JEFFREY
PRINGLE [DOC. 190] IN
OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT BY
DEFENDANTS SHAPIRO,
BERNSTEIN & CO, INC.,
FREDERIC RIESTERER AND
DAVID GUETTA
Complaint Filed: October 28, 2010
Trial Date: March 27, 2012
Hearing Date: January 30, 2012
10:00 AM

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EVIDENTIARY OBJECTIONS TO
JEFFREY PRINGLE DECLARATION

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Pursuant to Rule 56 of the Federal Rules of Civil Procedure and the Court’s

2 Initial Standing Order at 11(c)(iii), Defendants Shapiro, Bernstein & Co, Inc.,
3 Frederic Riesterer and David Guetta (collectively, “Defendants”) respectfully
4 submit these Evidentiary Objections to the Declaration of Jeffrey Pringle in
5 Opposition to Defendants’ Motion for Summary Judgment (Doc. 190) (“Jeffrey
6 Pringle Decl.”).
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8 A.
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GENERAL OBJECTIONS

Jeffrey Pringle’s Declaration Should be Stricken Because Plaintiff Failed
To Disclose Him As A Witness With Discoverable Information
Rule 26 provides that “a party must, without awaiting a discovery request,

11 provide to the other parties [] the name and, if known, the address and telephone
12 number of each individual likely to have discoverable information—along with the
13 subjects of that information—that the disclosing party may use to support its claims
14 or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P.
15 26(a)(1)(A) (emphasis added). Rule 37, in turn, provides that if a party fails to
16 comply with Rule 26(a), “the party is not allowed to use that [] witness to supply
17 evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
18 justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
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Plaintiff violated Rule 26(a) by failing to disclose his brother, Jeffrey Pringle,

20 as a witness with discoverable information. Plaintiff never included Jeffrey Pringle
21 in any of his disclosures or discovery responses, and Jeffrey Pringle’s name was
22 never mentioned at all until Plaintiff’s own deposition—and then only in the briefest
23 passing. Moreover, Plaintiff never provided Jeffrey Pringle’s contact information—
24 which, given that Jeffrey Pringle has filed a declaration in this case, Plaintiff
25 unquestionably has in his possession.
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EVIDENTIARY OBJECTIONS TO
JEFFREY PRINGLE DECLARATION

1

Jeffrey’s Pringle’s Declaration is, quite literally, the only purported

2 “evidence” Plaintiff has to “corroborate” his own self-serving testimony as to
3 whether any Defendant had access to Plaintiff’s allegedly infringed work. Jeffrey
4 Pringle’s Declaration therefore goes to the heart of Plaintiff’s claim. But by failing
5 to disclose Jeffrey Pringle as an affirmative fact witness and failing to provide any
6 contact information for him, Defendants were unable to depose Jeffrey Pringle
7 regarding some of the most fundamental issues in the case. This failure cannot be
8 deemed “harmless,” and Jeffrey Pringle’s testimony must be excluded. See, e.g.,
9 Brady v. Potter, 476 F.Supp.2d 745, 749 (N.D. Ohio 2007) (disregarding testimony
10 of undisclosed witness on summary judgment).
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INDIVIDUAL OBJECTIONS
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Evidence submitted in opposition to a motion for summary judgment must

13 meet the same requirements for admissibility as evidence offered at trial. See
14 Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-1182 (9th Cir. 1988)
15 (“It is well settled that only admissible evidence may be considered by the trial court
16 in ruling on a motion for summary judgment.”); Travelers Cas. & Sur. Co. of Am. v.
17 Telstar Const. Co., Inc., 252 F. Supp. 2d 917, 923 (D. Ariz. 2003) (same re. Rule 12
18 motions). In particular, testimonial evidence must be based on the personal
19 knowledge of the witness offering the evidence (Fed. R. Evid. 602, 701) and
20 relevant to the claims and defenses of the case. Fed. R. Evid. 401, 403; McCormick
21 v. City of Lawrence, Kan., 2007 WL 38400, at *3 (D. Kan. Jan. 5, 2007). Hearsay
22 evidence is inadmissible unless it has been defined as non-hearsay, or the proponent
23 establishes that one or more exceptions apply. Fed. R. Evid. 801-804. Testimony
24 requiring scientific, technical, or other specialized knowledge may be given only by
25 an expert witness with the requisite knowledge, skill, experience, training, or
26 education, and opinion testimony is not permitted of a lay person. Fed. R. Evid.
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EVIDENTIARY OBJECTIONS TO
JEFFREY PRINGLE DECLARATION

1 701, 702. Even if this Court does not disregard the entirety of the Jeffrey Pringle
2 Declaration, several portions are patently inadmissible as specified below:
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Pringle Declaration

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4. More specifically I DJ’d, hosted other
radio programs where music was played,
and provided music to other DJ’s in
Amsterdam, the Netherlands from June
1993 until June 1996; Paris, France from
September 1996 to April 1999; and
Toronto, Canada from August 1999 to June
2002.

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Evidentiary Objections

Fed. R. Evid. 401, 402, 403, 602,
701
The statements are speculative and
lack foundation and specificity as to
what music Jeffrey Pringle himself
actually played (FRE 403), and are
speculative, lack foundation, and do
not appear to be based on the
witness’ personal knowledge as to
what other DJ’s actually played
(FRE 602, 701, 403).
5. During the period June 1993 to June
Fed. R. Evid. 401, 402, 403, 602,
1996 while I was in the Netherlands, a
701
fellow professional and part-time DJ and
The statements lack personal
former co-worker, Mr. Michael Scott
knowledge (FRE 602, 701) and
Brown played various songs written by
specificity (FRE 403) as to what
Bryan Pringle on the radio in Germany. I
music Michael Scott Brown played
originally provided Bryan’s music directly on the radio in Germany while
to Mr. Brown, but Bryan Pringle also
Jeffrey Pringle was in Netherlands.
provided additional music during
The statements lack personal
subsequent visits to Europe.
knowledge (FRE 602, 701, 403) as
to what Bryan Pringle provided to
Michael Scott Brown during
subsequent visits in Europe.
6. From September 1996 to April 1999, I Fed. R. Evid. 401, 402, 403, 602,
passed Bryan Pringle’s music CD’s to radio 701
stations, clubs, bars, and others connected
The statements lack specificity
to the music industry in order to get it
(FRE 403) as to what songs were on
played on the radio, in clubs, in bars, and
the “music CDs” Jeffrey Pringle
be heard by someone willing to sign him.
allegedly distributed, and to what
As I lived near Porte Maillot (Paris), I
people “connected to the music
would frequent bars and clubs around la
industry” those songs were given.
Hotel Concorde LaFayette, along the
The statements lack personal
Champs d’Elysses, and many other popular knowledge (FRE 602, 701) as to
areas of Paris. Additionally, Mr. Michael
what Michael Scott Brown played
Scott Brown played Bryan’s music
on the radio. The statements lack

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EVIDENTIARY OBJECTIONS TO
JEFFREY PRINGLE DECLARATION

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Pringle Declaration

Evidentiary Objections

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including cuts from the 1998 “Dead Beat
Club” copyrighted CD on Armed Forces
Network radio as well as Dutch and
German radio that broadcast in numerous
Western European countries, including
France, and on the Internet.
7. During the period August 1999 to June
2002 while performing as a professional
and part-time DJ and spoken-word radio
host, I personally played Bryan Pringle’s
music, including his song “Take a Dive”
(Dance Version) during numerous
programs on CHRY radio, during my
shows. These shows were broadcast live in
Toronto, Canada and via the Internet.
8. I am familiar with both the Black
Eyed Peas song “I Gotta Feeling” and
Bryan Pringle’s song “Take a Dive” (Dance
Version). Having performed as
professional and part-time DJ for years, it is
my professional opinion that “I Gotta
Feeling” and “Take a Dive” (Dance
Version are strikingly similar.

specificity (FRE 403) as to what
specific “cuts” were played on the
radio, and where and when those
radio programs were broadcast or
where on the Internet, and during
what time period.
Fed. R. Evid. 401, 402, 403, 602,
701
The statements lack specificity
(FRE 403) as to when these
“numerous” radio shows took place
and where the Toronto radio station
was allegedly broadcast on the
Internet.

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9. I can also attest to the fact that Bryan
Pringle delivered his Demo CDs, which
included songs that contained the “guitar
twang sequence” used in his song “Take a
Dive” (Dance Version), to several DJs at
various night clubs in Paris, France. This
included night clubs at locations in Paris
where David Guetta worked as a DJ, that
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Fed. R. Evid. 401, 402, 403, 602,
701, 702
These statements constitute
blatantly improper opinion
testimony of a lay person as to what
is or is not “strikingly similar.”
Jeffrey Pringle has not been
designated as an expert witness in
this case, nor has he presented a
sufficient foundation to support any
claimed expertise in musicological
analysis. Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 591
(1993); Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147-48
(1999).
Fed. R. Evid. 401, 402, 403, 602,
701
The statements lack personal
knowledge (FRE 602, 701) as to
what CDs Bryan Pringle delivered
or to whom, and as to Mr. Guetta’s
professional and performing history.
The statements lack specificity
EVIDENTIARY OBJECTIONS TO
JEFFREY PRINGLE DECLARATION

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Pringle Declaration

Evidentiary Objections

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were known by the names of “Rex Club,”
“Le Queen,” and “Le Palace”. On several
occasions, Bryan Pringle and I, along with
other friends, visited these same clubs.

(FRE 403) as to what “songs” were
on the alleged Demo CDs, and the
identities of the “several DJs” these
CDs were allegedly given to.

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Dated: January 9, 2012

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LOEB & LOEB LLP
By: /s/ Tal E. Dickstein
Donald A. Miller
Barry I. Slotnick
Tal E. Dickstein

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Attorneys for Defendants
SHAPIRO, BERNSTEIN & CO., INC.,
FREDERIC RIESTERER and DAVID
GUETTA

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EVIDENTIARY OBJECTIONS TO
JEFFREY PRINGLE DECLARATION