Brown v. Stroud et al

Filing 346

Report and Recommendation re Case Management Schedule 303 . Signed by Magistrate Judge Donna M. Ryu on 11/07/2011. (dmrlc1, COURT STAFF) (Filed on 11/7/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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STEVEN AMES BROWN,

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Plaintiff,

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No. C-08-02348 JSW (DMR)
REPORT AND RECOMMENDATION
RE CASE MANAGEMENT SCHEDULE

v.

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ANDREW B. STROUD,

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Defendant.
___________________________________/

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The parties requested that the Honorable Jeffrey S. White continue the current case

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management schedule, including discovery deadlines. [Docket No. 302 at 2.] Judge White referred

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the matter to this court to prepare a report and recommendation “regarding the length of an

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appropriate continuance.” [Docket No. 303.] This court held a hearing on the matter on September

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22, 2011, and ordered the parties to submit a joint report by October 3, 2011 providing detailed

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descriptions of the discovery each party needs in this case, including time estimates for all

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discovery. [Docket Nos. 335 and 336.] The parties submitted the joint report on October 3, 2011.

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Having reviewed all submissions, the court makes the following recommendations.

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Under the current case management schedule, the last day for non-expert discovery is

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January 31, 2012. The last day to disclose experts is December 1, 2011, and the last day for expert

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discovery is March 30, 2012. A five-day trial is scheduled to start on July 30, 2012. [Docket No.

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265.]

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This litigation involves the rights to over 160 Nina Simone recordings and works, many of

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which are decades old. The case was filed in May 2008. A number of factors have contributed to

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the already lengthy pendency of this case. The parties and the pleadings have been in flux since the

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case was filed. The Estate of Nina Simone was not joined until July 2009 [Docket No. 72], and

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Sony Music Entertainment was not joined until October 2009 [Docket No. 82]. The parties have

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filed more than ten separate motions to dismiss. Most recently, Defendant Stroud filed his fourth

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amended counterclaims [Docket No. 297] in July 2011, adding yet another new party, Andy Stroud

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Inc. On October 3, 2011, the court entered an order granting Brown and the Estate’s motion to

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dismiss the fourth amended counterclaims by Defendants Stroud and Stroud Productions &
Enterprises with prejudice, and dismissing the claims brought by Andy Stroud Inc. [Docket No.

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For the Northern District of California

United States District Court

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337.]

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The discovery process has also been marked by delay. Pursuant to the Standing Order of the

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previous presiding judge, the Hon. Vaughn R. Walker, the parties were required to seek leave before

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filing any discovery motions, which delayed resolution of several discovery disputes for a

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significant period of time. The matter was referred to the undersigned for discovery purposes on

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May 28, 2010, two years after the original complaint was filed. Since that date, this court and Judge

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Walker have issued a number of orders resolving various discovery disputes.

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In June 2010, Judge Walker issued an order specifying the titles of the Nina Simone

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performances at issue. [Docket No. 154.] On August 24, 2010, this court held that the scope of

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discovery would be limited to those recordings identified by Judge Walker in the June 2010 order,

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and ordered Defendant Stroud to produce all responsive documents, masters, and tangible items

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requested by Brown. [Docket No. 204.] Although the court orders narrowed the scope of discovery,

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they did not fully resolve the issue of the production of the disputed recordings. In January 2011,

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Judge Walker issued an order on Plaintiff Brown’s request for sanctions against Defendant Stroud

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and his counsel regarding their alleged failure to meet and confer regarding the production of the

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disputed recordings, in which he pointed out that both parties were “equally to blame” for failing to

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comply with the undersigned’s August 2010 order. [Docket No. 251 at 27.]

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In addition, there have been a number of motions to compel responses to discovery filed in

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this case, all against Stroud. The court has found in favor of the moving parties in virtually all

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instances. See, e.g., Docket No. 204 (Order Granting in Part and Denying in Part Plaintiff’s Motion

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to Compel Document Production and Motion to Compel Further Interrogatory Responses); Docket

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No. 335 (Order Regarding July 27, 2011 Joint Discovery Letter).

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Recently, the undersigned ordered that the parties meet and confer on October 6, 2011 at the

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courthouse in order to produce a definitive stipulated inventory of all disputed works, including their

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current location and whether they have been tendered for copying. Although this meeting generally

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was productive, the process suffered another setback when it was revealed that Defendant Stroud
had transferred the Nina Simone works in his possession to a third party through an October 1, 2011

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For the Northern District of California

United States District Court

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sale agreement. Concerned about possible gamesmanship on Defendant Stroud’s part, the

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undersigned issued an Order to Show Cause on November 3, 2011 as to why Stroud and/or his

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counsel should not be sanctioned for violation of court orders to produce the disputed recordings and

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failure to meet and confer in good faith. The undersigned has also ordered Stroud and his counsel to

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submit detailed information regarding this abrupt and unexpected turn of events so that the parties

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may finally finish the process of identifying the location and condition of the recordings at issue in

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order to move the process of production along. [Docket No. 344.]

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In light of the foregoing, the undersigned recommends a further extension of one year for

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fact discovery, followed by 60 days for expert discovery, with a trial date in late Spring 2013. The

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court makes this recommendation for the following reasons. The location and condition of many of

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the disputed works are still at issue, although the parties should now be close to reaching a definitive

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understanding of these basic facts. Many of the works may be in fragile or compromised condition.

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Once the works have been located and produced, it will likely take several months or more for the

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recordings to be copied, and if necessary, restored to prevent further damage. From that point, it

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will likely take many months for the parties to litigate the dates of fixation, dates of creation of

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derivative works, existence and extent of any alterations, and chains of title to the recordings. This

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process may well involve third party discovery; many of the works are several decades old, adding

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layers of complication to locating production and title-related documents. Given the nature of the

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litigation, expert discovery is also highly likely. Finally, the normal pace of discovery has been

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somewhat impeded and will continue to be impeded by the fact that Defendant Stroud is elderly,

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suffers from a severe heart condition, and has been hospitalized for long periods of time during this

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litigation. Most recently, Defendant Stroud was hospitalized for over twelve weeks from April

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through July 2011. See Docket 302 at 9-10.

D
RDERE

DONNA M. RYU
u
a M. y
United States MagistratenJudgeR
ge Don
Jud

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R NIA

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OO
IT IS S

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Dated: November 7, 2011

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For the Northern District of California

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RT
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NO

United States District Court

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within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a);
S DISTRICT
N.D. Civ. L.R. 72-2.
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Any party may file objections to this report and recommendation with the district judge

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expert discovery cut-off date of January 8, 2013.

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In sum, the court recommends a fact discovery cut-off date of November 9, 2012, and an

UNIT
ED

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