Brown v. Stroud et al

Filing 360

ORDER re 358 Parties' January 3, 2012 Discovery Status Report. Discovery Hearing set for 1/19/2012 at 10:00 a.m. before Magistrate Judge Donna M. Ryu.Signed by Magistrate Judge Donna M. Ryu on 01/05/2012. (dmrlc1, COURT STAFF) (Filed on 1/5/2012)

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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,

No. C-08-02348 JSW (DMR)
ORDER RE PARTIES’ JANUARY 3,
2012 DISCOVERY STATUS REPORT

v.

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ANDREW B. STROUD,

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Defendant.
___________________________________/

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The court is in receipt of the parties’ January 3, 2012 joint discovery status report. [Docket

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No. 358.] As a preliminary matter, the court notes that its November 3, 2011 Order [Docket No.

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345] modified an earlier Order directing the parties to file a joint report on the first court day of each

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month setting forth the status of discovery [Docket No. 335]. To clarify, the purpose of the monthly

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status report is to apprise the court of the discovery that has taken place during the previous month,

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what discovery remains outstanding, and any remaining discovery the party anticipates taking. It is

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not a forum to present discovery disputes. To the extent that discovery disputes arise, the parties are

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ordered to follow the procedure set forth in the court’s March 11, 2011 Notice of Reference and

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Order Re Discovery Procedures [Docket No. 266].

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Having reviewed the status report, as well as Defendant Stroud’s response to the court’s

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November 3, 2011 Order to Show Cause [Docket No. 344] and Counter-Defendant the Estate of

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Nina Simone’s response thereto [Docket No. 351], the court hereby orders the following:

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In ruling on Plaintiff Brown’s June 2010 Motion to Compel, this court previously determined

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that the scope of discovery “shall include all Nina Simone recordings listed with a date of fixation in

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the June 11, 2010 Order, as well as all Nina Simone recordings of any song title in the June 11, 2010

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Order where the date of fixation is not listed.” (Aug. 24, 2010 Order at 8 [Docket No. 204].)

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Accordingly, with respect to Plaintiff’s motion to compel further responses to Requests for

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Production 7 and 9, the court ruled that “Stroud shall produce all responsive documents, masters (or

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best copies where the master is unavailable), and tangible items indicated in Request for Production

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No. 9 in his possession, custody, or control that pertain to any recording listed with a date of fixation

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on the June 11, 2010 Order, or that pertain to any recording of a song title listed on the June 11,
2010 Order without a date of fixation, in which Stroud and/or Stroud Productions & Enterprises has

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For the Northern District of California

United States District Court

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claimed any interest at any point in time. This includes any such recordings in which Stroud and/or

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Stroud Productions & Enterprises has claimed an interest that was subsequently transferred to a third

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party.” Id. at 9.

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It appears that Defendant Stroud is arguing that certain recordings in his possession --

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“whether it is a tape of a Nina Simone home rehearsal that Stroud has never marketed or any other

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non-commercial recording that Stroud has never copyrighted or claimed an interest” (Def.’s Resp. to

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Order to Show Cause at 4) -- do not fall within the scope of the court’s August 24, 2010 Order and

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thus were not produced for inspection and copying, and may have been sold to third party ICU Ent.

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Dist. (“ICU”). To the extent that Defendant Stroud is making this argument, he is ordered to submit

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a letter brief that does not exceed three pages by no later than January 13, 2012 explaining and

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supporting this position. Defendant Stroud shall set forth with specificity which recordings he

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contends are not covered by the court’s Order regarding the scope of discovery and thus have not

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been produced. Defendant Stroud shall also clarify which, if any, recordings that fall into this

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category have been sold to third party ICU and are no longer in his possession, custody, or control.

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Plaintiff Brown, the Estate of Nina Simone, and Sony Music Entertainment may file a joint reply to

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Defendant Stroud’s submission that does not exceed three pages by no later than 12:00 p.m. on

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January 18, 2012.

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Counsel for the parties are directed to appear on January 19, 2012 at 10:00 a.m. in

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Courtroom 4 at the U.S. District Court, 1301 Clay Street, Oakland, California 94612, and shall be

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prepared to spend the entire day meeting and conferring, if necessary, to create two updated

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annotated stipulated inventories of disputed recordings. Dorothy M. Weber, counsel for the Estate

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of Nina Simone, may appear by telephone.

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Inventory A: the first inventory shall include all of the disputed recordings specified in the

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court’s June 11, 2010 Order [Docket No. 154], which formed the basis for the parties’ September 2,

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2010 joint Stipulation of Disputed Recordings [Docket No. 206], and appears to form the basis for

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Exhibit M to the November 23, 2011 Declaration of Melissa Newel in Support of Response to Order
to Show Cause [Docket No. 347-2]. The inventory shall be alphabetized by song title and

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For the Northern District of California

United States District Court

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numbered, and at a minimum, shall include the following information: song title; the date of

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fixation, if any; any and all physical locations of the recording, including box number(s); and if the

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recording has been produced for inspection, the production date.

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Consistent with this court’s August 24, 2010 Order, the scope of discovery includes all

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versions of titles listed on the parties’ September 2, 2010 joint Stipulation of Disputed Recordings

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that do not have a specific fixation date (e.g., “1969” or “Pre 2/15/72”). Therefore, if there are

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multiple recordings of a particular title with no fixation date, each version must have a separate entry

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on the inventory. Similarly, if there are multiple versions of a disputed recording with a specific

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date of fixation, each version must have a separate entry. In other words, multiple recordings of one

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song title may not be grouped together in the same entry.

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Inventory B: to the extent that the Estate of Nina Simone has put additional recordings at

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issue in this litigation, beyond those specified in the court’s June 11, 2010 Order and set forth in the

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parties September 2, 2010 joint Stipulation of Disputed Recordings (see Sept. 2, 2010 Submission of

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Counter-Def. the Estate of Nina Simone’s Pursuant to the Order of the Court Dated June 11, 2010

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and exhibits thereto [Docket Nos. 205, 205-1, 205-2]), the parties shall create a separate annotated

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stipulated inventory of those recordings, complete with the same information set forth above. If

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there is overlap with the recordings that appear on Inventory A, Inventory B shall indicate those

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recordings which appear on both inventories.

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The parties have failed to provide the status of production and copying of the recordings

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already produced by Defendant Stroud. By no later than January 13, 2011, the parties shall

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submit a joint letter, not to exceed three pages, that sets forth the status of the inspection and

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copying of all recordings in Defendant Stroud’s counsel’s possession in Berkeley, California.

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Finally, by no later than January 20, 2012, Defendant Stroud shall submit a letter from his

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primary care physician, Rachel B. Rosansky, M.D., providing her medical opinion regarding

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Defendant Stroud’s physical capacity to be deposed in this action. Specifically, Dr. Rosansky shall

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provide her opinion regarding 1) whether Defendant Stroud must be deposed at his home or may be

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deposed at another location; 2) the maximum length of time during which Defendant Stroud may be
deposed on any one day, including any breaks; and 3) how often Defendant Stroud would need to

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For the Northern District of California

United States District Court

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take a break during the deposition and the necessary duration of any such breaks.

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IT IS SO ORDERED.

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Dated: January 5, 2012

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DONNA M. RYU
United States Magistrate Judge

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