Arista Music et al v. Radionomy, Inc. et al

Filing 64

STIPULATION AND ORDER Regarding Standstill Agreement and Adjustment of Case Schedule. Jury Selection/Trial set for 2/5/2018 at 09:00 AM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Pretrial Conference set for 1/11/2018 at 10:00 AM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Signed by Judge Richard Seeborg on 11/8/16. (cl, COURT STAFF) (Filed on 11/8/2016)

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DAVID R. SINGH (SBN 300840)
[e-mail]
WEIL, GOTSHAL & MANGES LLP
Silicon Valley Office
201 Redwood Shores Parkway, 6th Floor
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]

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GREGORY S. SILBERT (SBN 207971)
[e-mail]
BENJAMIN E. MARKS (admitted pro hac vice)
[e-mail]
WEIL, GOTSHAL & MANGES LLP
New York Office
767 Fifth Avenue, 34th Floor
New York, NY 10153
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants RADIONOMY, INC.,
RADIONOMY SA, and RADIONOMY GROUP, B.V.

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TODD A. ROBERTS (SBN 129722)
NICOLE S. HEALY (SBN 157417)
ROPERS, MAJESKI, KOHN & BENTLEY
1001 Marshall Street, Suite 500
Redwood City, CA 94063-2052
Telephone: [phone]
Facsimile: [phone] Email: [e-mail]
[e-mail]
Attorneys for Defendant
ALEXANDRE SABOUNDJIAN
JEFFREY G. KNOWLES (State Bar No. 129754)
JULIA D. GREER (State Bar No. 200479)
SCOTT C. HALL (State Bar No. 232492)
COBLENTZ PATCH DUFFY & BASS LLP
One Montgomery Street, Suite 3000
San Francisco, California 94104
Telephone: [phone]
Facsimile: 415.989.1663
Email: [e-mail]
[e-mail],
[e-mail]
Attorneys for Plaintiffs ARISTA MUSIC,
ARISTA RECORDS, LLC, LAFACE RECORDS LLC,
SONY MUSIC ENTERTAINMENT, SONY MUSIC
11325.004 3574610V1 STIPULATION AND

[PROPOSED] ORDER SELECTING ADR
PROCESS

CASE NO. 16-CV-00951-RS

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ENTERTAINMENT US LATIN LLC, AND
ZOMBA RECORDING LLC

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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ARISTA MUSIC, ARISTA RECORDS, LLC,
LAFACE RECORDS LLC, SONY MUSIC
ENTERTAINMENT, SONY MUSIC
ENTERTAINMENT US LATIN LLC, and
ZOMBA RECORDING LLC,

Case No. 16-cv-00951-RS
STIPULATION AND [PROPOSED] ORDER
REGARDING STANDSTILL AGREEMENT
AND ADJUSTMENT OF CASE SCHEDULE

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Plaintiff,
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Place: Courtroom 3, 17th floor
Judge: Honorable Richard Seeborg

vs.
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RADIONOMY, INC., RADIONOMY SA,
RADIONOMY GROUP, B.V., and
ALEXANDRE SABOUNDJIAN, an individual,

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Defendants.
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STIPULATION AND [PROPOSED] ORDER
REGARDING STANDSTILL AGREEMENT &
ADJUSTMENT OF CASE SCHEDULE

CASE NO. 16-CV-00951-RS

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The undersigned counsel for the parties in the above-captioned action hereby stipulate and
agree, pursuant to Civil Local Rule 6-2, as follows:
WHEREAS, on February 26, 2016, Plaintiffs filed a Complaint for Copyright Infringement
and Unfair Competition (the “Complaint) against Defendants [Dkt. 1];

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WHEREAS, on May 9, 2016, Radionomy Group, B.V. filed a motion to dismiss pursuant to

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Rule 12(b)(2) and Radionomy Group B.V. Radionomy, S.A. and Radionomy, Inc. filed a motion to

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dismiss pursuant to Rule 12(b)(6) [Dkt. 32], and Alexandre Saboundjian filed a motion to dismiss

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pursuant to Rule 12(b)(2) and 12(b)(6) [Dkt. 31];

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WHEREAS, on May 23, 2016, Plaintiffs filed an opposition to Defendants’ motions to

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dismiss and requested permission to conduct limited discovery to develop further the record

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establishing personal jurisdiction [Dkt. 41];

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WHEREAS, on June 8, 2016, the Court entered an order, among other things: (i) denying

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Defendants’ motions to dismiss without prejudice; (ii) granting Plaintiffs’ request for limited

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discovery of facts relating to personal jurisdiction and (iii) and requiring such discovery to be

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completed within the next 45 days; i.e., by July 25, 2016 (the “Order”) [Dkt. 46];

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WHEREAS, on July 8, 2016, the Court issued an order, pursuant to the parties' stipulation,

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extending Defendants' deadline for producing documents responsive to Plaintiffs' jurisdictional

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discovery requests until August 25, 2016, and for completion of jurisdictional depositions until

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October 14, 2016 [Dkt. 55];

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WHEREAS, due to disputes between the parties over jurisdictional and merits depositions,

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the parties have not yet completed jurisdictional depositions, which depositions have now been

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ordered by the Court to be completed by November 10, 2016 [Dkt. 60];

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WHEREAS, on July 19, 2016, the parties participated in a mediation, which mediation was
not successful in resolving the action;
WHEREAS, on August 11, 2016, the Court issued a Case Management Scheduling Order
setting forth the following case deadlines:
December 30, 2016 – completion of all non-expert discovery
STIPULATION AND [PROPOSED] ORDER
REGARDING STANDSTILL AGREEMENT &
ADJUSTMENT OF CASE SCHEDULE

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CASE NO. 16-CV-00951-RS

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February 16, 2017 – designation of expert witnesses

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March 15, 2017 – designation of supplemental and rebuttal expert witnesses

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April 14, 2017 – completion of all expert discovery

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June 29, 2017 – deadline for hearing on all dispositive pretrial motions

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August 17, 2017 – final pretrial conference

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September 11, 2017 – commencement of jury trial

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WHEREAS, the parties have worked in good faith to complete jurisdictional and fact

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discovery and meet case deadlines, but, due to (1) the volume of requested and produced discovery,

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(2) complexities in the collection and production of documents and information located in foreign

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countries, including but not limited to European data privacy laws or blocking statutes and foreign-

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language translation of documents, and (3) discovery disputes between the parties regarding the

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proper scope of and sufficient compliance with requested discovery and depositions, anticipate

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needing additional time to complete discovery beyond the current case deadlines;

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WHEREAS, Defendants have stated that they intend to renew their motions to dismiss the
complaint following completion of jurisdictional discovery;

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WHEREAS, the parties have continued to propose and discuss terms of settlement that may

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resolve this matter without the need for further litigation and believe that they are reasonably close

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to reaching mutually agreeable terms of settlement;

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WHEREAS, the resources of the Court and the parties will be conserved if the parties are
able to reach settlement without further litigation.
NOW, THEREFORE, IT IS HEREBY STIPULATED by and between the parties, through
their respective counsel that:
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The parties have agreed to enter into a 21-day Standstill Agreement to conserve

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resources of the Court and the parties while the parties attempt to resolve outstanding issues and

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reach a settlement of this action. For the avoidance of doubt, this Standstill Agreement applies to

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all third party discovery, including non-party Vivendi S.A.’s obligation to produce documents in

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STIPULATION AND [PROPOSED] ORDER
REGARDING STANDSTILL AGREEMENT &
ADJUSTMENT OF CASE SCHEDULE

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CASE NO. 16-CV-00951-RS

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response to the subpoena issued by Plaintiffs in connection with this case. This stipulation shall be

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without prejudice to Plaintiffs' right to pursue remedies for deficiencies in Defendants' jurisdictional

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discovery and to complete open jurisdictional depositions. The 21-day standstill period ("Standstill

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Period") will expire on November 30, 2016. Jurisdictional discovery will expire on December 16,

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2016, and Defendants will produce any already noticed witnesses for deposition on or before

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December 8, 2016. Any motions addressed to the sufficiency of Defendants’ compliance with

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jurisdictional discovery shall be timely if made by December 16, 2016.

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If the Standstill Period expires without the parties reaching a settlement, the parties

stipulate and propose that the following deadlines should apply:

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January 15, 2017 – production of documents pursuant to subpoena by non-party

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Vivendi, subject to resolution, if necessary, of any issues presented by any

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applicable European blocking statutes

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April 30, 2017 – completion of all non-expert discovery

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June 30, 2017 – designation of expert witnesses

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July 30, 2017 – designation of supplemental and rebuttal expert witnesses

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August 30, 2017 – completion of all expert discovery

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November 15, 2017 – deadline for hearing on all dispositive pretrial motions

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January 11, 2018 – final pretrial conference

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February 5, 2018 – commencement of jury trial

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If the Standstill Period expires without the parties reaching a settlement, the parties

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stipulate that Plaintiffs may amend the complaint, without prejudice to Plaintiffs' right to seek leave

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for further amendments. Plaintiffs' amendment need not identify all allegedly infringed works that

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Plaintiffs will seek to establish at trial. No later than February 15, 2017, Defendants will produce

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all documents sufficient to identify all sound recordings and album cover artwork used in

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connection with Defendants' online service, including documents maintained in the ordinary course

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of business, from January 1, 2009 to the present. Plaintiffs will have until March 1, 2017 to identify

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STIPULATION AND [PROPOSED] ORDER
REGARDING STANDSTILL AGREEMENT &
ADJUSTMENT OF CASE SCHEDULE

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CASE NO. 16-CV-00951-RS

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by track title and artist all allegedly infringed works on which they will seek to establish

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infringement and damages, including those not specifically identified in the complaint, except to the

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extent that Defendants' deficient or incomplete discovery responses prevent the identification of all

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infringed works.

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4.

Defendants agree to produce Alexandre Saboundjian and Thierry Ascarez for merits

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depositions in the U.S. for a minimum of seven (7) hours each in the U.S. (not counting translation

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time), without prejudice to Plaintiffs' right to seek additional time if warranted. Defendants agree to

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produce a witness or witnesses pursuant FRCP 30(b)(6), on behalf of Radionomy Inc., Radionomy

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S.A. and Radionomy Group B.V., for depositions on merits issues in addition to jurisdictional

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issues. Defendants will produce 30(b)(6) witnesses on all topics identified in the deposition notices,

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and will not decline to produce a witness prepared on any given topic based on a position that the

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issue has already been covered in a topic identified in earlier deposition notices or examinations.

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The 30(b)(6) designated witness or witnesses for merits issues shall be made available in the U.S.

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for a minimum of fourteen (14) hours of testimony between the three entities (not counting

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translation time). Fourteen hours will not be a presumptive minimum, but will be subject to good

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faith discussions among the parties in the event Plaintiffs believe more testimonial time is

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warranted. In the event the parties are unable to agree, the Court will determine the appropriate

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length of merits depositions. Defendants’ agreement to produce witnesses for merits depositions

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does not waive any objections Defendants may have to duplicative or harassing questions.

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5.

Defendants agree not to use the Standstill Agreement or the Standstill Period as a

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basis for any argument of waiver, prejudice or unreasonable delay.

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Dated: November 7, 2016

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WEIL, GOTSHAL & MANGES LLP

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By: /s/ David R. Singh
DAVID R. SINGH

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Attorneys for Defendants RADIONOMY, INC.,
RADIONOMY S.A., and RADIONOMY GROUP,
B.V.

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Respectfully Submitted,

STIPULATION AND [PROPOSED] ORDER
REGARDING STANDSTILL AGREEMENT &
ADJUSTMENT OF CASE SCHEDULE

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CASE NO. 16-CV-00951-RS

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Dated: November 7, 2016

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ROPERS, MAJESKI, KOHN & BENTLEY

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By: /s/ Todd A. Roberts
TODD A. ROBERTS

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Attorneys for Defendant ALEXANDRE
SABOUNDJIAN

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Respectfully Submitted,

Dated: November 7, 2016

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Respectfully Submitted,
COBLENTZ PATCH DUFFY & BASS LLP

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By: /s/ Jeffery G. Knowles
JEFFREY G. KNOWLES

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Attorneys for Plaintiffs ARISTA MUSIC, ARISTA
RECORDS, LLC, LAFACE RECORDS LLC, SONY
MUSIC ENTERTAINMENT, SONY MUSIC
ENTERTAINMENT US LATIN LLC, and ZOMBA
RECORDING LLC

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ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1

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I, David R. Singh, am the ECF user whose identification and password are being used to file

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this Stipulation and [Proposed] Order Regarding Standstill Agreement and Adjustment of Case

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Schedule. In compliance with Civil Local Rules 5-1(c)(4) and 5-1(i)(3), I hereby attest that Todd

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A. Roberts and Jeffrey G. Knowles concurred in this filing.

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Dated: November 7, 2016

/s/ David R. Singh

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated:____________________
11/8/16

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Honorable Richard Seeborg
United States District Court Judge

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STIPULATION AND [PROPOSED] ORDER
REGARDING STANDSTILL AGREEMENT &
ADJUSTMENT OF CASE SCHEDULE

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CASE NO. 16-CV-00951-RS