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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 STEVEN AMES BROWN, 12 13 Plaintiff, No. C-08-02348 JSW (DMR) ORDER RE PARTIES’ JANUARY 3, 2012 DISCOVERY STATUS REPORT v. 14 ANDREW B. STROUD, 15 Defendant. ___________________________________/ 16 17 The court is in receipt of the parties’ January 3, 2012 joint discovery status report. [Docket 18 No. 358.] As a preliminary matter, the court notes that its November 3, 2011 Order [Docket No. 19 345] modified an earlier Order directing the parties to file a joint report on the first court day of each 20 month setting forth the status of discovery [Docket No. 335]. To clarify, the purpose of the monthly 21 status report is to apprise the court of the discovery that has taken place during the previous month, 22 what discovery remains outstanding, and any remaining discovery the party anticipates taking. It is 23 not a forum to present discovery disputes. To the extent that discovery disputes arise, the parties are 24 ordered to follow the procedure set forth in the court’s March 11, 2011 Notice of Reference and 25 Order Re Discovery Procedures [Docket No. 266]. 26 Having reviewed the status report, as well as Defendant Stroud’s response to the court’s 27 November 3, 2011 Order to Show Cause [Docket No. 344] and Counter-Defendant the Estate of 28 Nina Simone’s response thereto [Docket No. 351], the court hereby orders the following: 1 In ruling on Plaintiff Brown’s June 2010 Motion to Compel, this court previously determined 2 that the scope of discovery “shall include all Nina Simone recordings listed with a date of fixation in 3 the June 11, 2010 Order, as well as all Nina Simone recordings of any song title in the June 11, 2010 4 Order where the date of fixation is not listed.” (Aug. 24, 2010 Order at 8 [Docket No. 204].) 5 Accordingly, with respect to Plaintiff’s motion to compel further responses to Requests for 6 Production 7 and 9, the court ruled that “Stroud shall produce all responsive documents, masters (or 7 best copies where the master is unavailable), and tangible items indicated in Request for Production 8 No. 9 in his possession, custody, or control that pertain to any recording listed with a date of fixation 9 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 11 For the Northern District of California United States District Court 10 claimed any interest at any point in time. This includes any such recordings in which Stroud and/or 12 Stroud Productions & Enterprises has claimed an interest that was subsequently transferred to a third 13 party.” Id. at 9. 14 It appears that Defendant Stroud is arguing that certain recordings in his possession -- 15 “whether it is a tape of a Nina Simone home rehearsal that Stroud has never marketed or any other 16 non-commercial recording that Stroud has never copyrighted or claimed an interest” (Def.’s Resp. to 17 Order to Show Cause at 4) -- do not fall within the scope of the court’s August 24, 2010 Order and 18 thus were not produced for inspection and copying, and may have been sold to third party ICU Ent. 19 Dist. (“ICU”). To the extent that Defendant Stroud is making this argument, he is ordered to submit 20 a letter brief that does not exceed three pages by no later than January 13, 2012 explaining and 21 supporting this position. Defendant Stroud shall set forth with specificity which recordings he 22 contends are not covered by the court’s Order regarding the scope of discovery and thus have not 23 been produced. Defendant Stroud shall also clarify which, if any, recordings that fall into this 24 category have been sold to third party ICU and are no longer in his possession, custody, or control. 25 Plaintiff Brown, the Estate of Nina Simone, and Sony Music Entertainment may file a joint reply to 26 Defendant Stroud’s submission that does not exceed three pages by no later than 12:00 p.m. on 27 January 18, 2012. 28 2 1 Counsel for the parties are directed to appear on January 19, 2012 at 10:00 a.m. in 2 Courtroom 4 at the U.S. District Court, 1301 Clay Street, Oakland, California 94612, and shall be 3 prepared to spend the entire day meeting and conferring, if necessary, to create two updated 4 annotated stipulated inventories of disputed recordings. Dorothy M. Weber, counsel for the Estate 5 of Nina Simone, may appear by telephone. 6 Inventory A: the first inventory shall include all of the disputed recordings specified in the 7 court’s June 11, 2010 Order [Docket No. 154], which formed the basis for the parties’ September 2, 8 2010 joint Stipulation of Disputed Recordings [Docket No. 206], and appears to form the basis for 9 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 11 For the Northern District of California United States District Court 10 numbered, and at a minimum, shall include the following information: song title; the date of 12 fixation, if any; any and all physical locations of the recording, including box number(s); and if the 13 recording has been produced for inspection, the production date. 14 Consistent with this court’s August 24, 2010 Order, the scope of discovery includes all 15 versions of titles listed on the parties’ September 2, 2010 joint Stipulation of Disputed Recordings 16 that do not have a specific fixation date (e.g., “1969” or “Pre 2/15/72”). Therefore, if there are 17 multiple recordings of a particular title with no fixation date, each version must have a separate entry 18 on the inventory. Similarly, if there are multiple versions of a disputed recording with a specific 19 date of fixation, each version must have a separate entry. In other words, multiple recordings of one 20 song title may not be grouped together in the same entry. 21 Inventory B: to the extent that the Estate of Nina Simone has put additional recordings at 22 issue in this litigation, beyond those specified in the court’s June 11, 2010 Order and set forth in the 23 parties September 2, 2010 joint Stipulation of Disputed Recordings (see Sept. 2, 2010 Submission of 24 Counter-Def. the Estate of Nina Simone’s Pursuant to the Order of the Court Dated June 11, 2010 25 and exhibits thereto [Docket Nos. 205, 205-1, 205-2]), the parties shall create a separate annotated 26 stipulated inventory of those recordings, complete with the same information set forth above. If 27 there is overlap with the recordings that appear on Inventory A, Inventory B shall indicate those 28 recordings which appear on both inventories. 3 1 The parties have failed to provide the status of production and copying of the recordings 2 already produced by Defendant Stroud. By no later than January 13, 2011, the parties shall 3 submit a joint letter, not to exceed three pages, that sets forth the status of the inspection and 4 copying of all recordings in Defendant Stroud’s counsel’s possession in Berkeley, California. 5 Finally, by no later than January 20, 2012, Defendant Stroud shall submit a letter from his 6 primary care physician, Rachel B. Rosansky, M.D., providing her medical opinion regarding 7 Defendant Stroud’s physical capacity to be deposed in this action. Specifically, Dr. Rosansky shall 8 provide her opinion regarding 1) whether Defendant Stroud must be deposed at his home or may be 9 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 11 For the Northern District of California United States District Court 10 take a break during the deposition and the necessary duration of any such breaks. 12 13 IT IS SO ORDERED. 14 15 Dated: January 5, 2012 16 DONNA M. RYU United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?