F.B.T. Productions LLC et al v. Aftermath Records et al

Filing 15

OBJECTION to 14 Magistrate's Order Denying Mr. Jobs's Motion for Protective Order to Quash "Apex" Deposition Subpoena filed by Steve Jobs. (Attachments: # 1 Proposed Order, # 2 Signature Page (Declarations/Stipulations) Declaration of Eddy Cue, # 3 Signature Page (Declarations/Stipulations) Declaration of Kevin Saul, # 4 Signature Page (Declarations/Stipulations) Declaration of Colin B. Vandell, # 5 Exhibit Exhibit Cover Sheet, # 6 Exhibit Exhibit A, # 7 Exhibit Exhibit B, # 8 Exhibit Exhibit C, # 9 Exhibit Exhibit D, # 10 Exhibit Exhibit E, # 11 Exhibit Exhibit F, # 12 Exhibit Exhibit G, # 13 Exhibit Exhibit H, # 14 Exhibit Exhibit I)(Riley, George) (Filed on 5/15/2008)** Modified on 5/16/2008. Document posted is an objection, not a motion** (dhm, COURT STAFF).

LATHAM & WATKINS
DANIEL SCOTT SCHECTER (S.B. #I 71472) - [e-mail]
COLIN B. VANDELL (S.B. #240653)
633 West Fifth Street, Suite 4000
Los Angeles, California 90071-2007
Telephone: [phone]
Facsimile: [phone]
GEORGE A. RILEY (S.B. #I 18304) - [e-mail]
O'MELVENY & MYERS LLP
Embarcadero Center West
275 Battery Street
San Francisco, California 94111-3305
Telephone: [phone]
Facsimile: [phone]
Attorneys for Non-Party Deponent
Steve Jobs

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
IN THE MATTER OF A DEPOSITION
SUBPOENA SERVED IN:

Case No. 08-80040 Misc. RMW (PVT)
[Related to Case No. CV 07-3314 PSG
(MANX)(C.D. Cal.)]

F.B.T. PRODUCTIONS, LLC AND EM2M,
LLC,

DECLARATION OF KEVIN SAUL IN
SUPPORT OF NON-PARTY'S
OBJECTION TO ORDER DENYING
NON-PARTY'S MOTION FOR
PROTECTIVE ORDER TO QUASH
"APEX" DEPOSITION SUBPOENA

Plaintiffs,
v.
AFTERMATH RECORDS, INTERSCOPE
RECORDS, UMG RECORDING, INC., and
ARY, INC.,
Defendants.

I

SAUL DECL. IN SUPPORT OF OBJECTION
CASE NO. 08-80040 Misc. RMW (PVT)

DECLARATION OF KEVIN SAUL
(I)

I am Senior Director in the Legal Department of Apple Inc. ("Apple'). Among

other duties, I have the responsibility for providing legal support to the iTunes business. I am
licensed to practice law in the State of California. I have personal knowledge of the matters set
forth herein, and would competently testify thereto under oath if called as a witness. I submit this
declaration in support of the Objection to the Magistrate Judge's Order denying deponent's
motion for a protective order to prevent the deposition of Steve Jobs, Apple's founder, Chairman
and chief executive officer.
(2)

Apple is not a party to the underlying proceeding, F.B. T. Productions, LLC v.

Aftermath Records, Case No. CV07-3314 PSG (MANX)(C.D. Cal.) (the "FBT Action").
(3)

Mr. Jobs and Apple are not parties to any agreements (the "UMG Agreements")

between Plaintiffs and Defendants Aftermath Records, Interscope Records, UMG Recordings,
Inc. and Ary, Inc. (the "UMG Defendants") regarding master recordings of performances by
Marshall Mathers (the "Eminem Masters").
(4)

Neither Jobs nor Apple had any role in negotiating, drafting, or executing the

UMG Agreements between Plaintiffs and Defendants.
(5)

Apple has no agreements with Plaintiffs regarding the Eminem Masters for the

delivery of music purchased on iTunes. Content owned or controlled by UMG Defendants is sold
through iTunes pursuant to a series of confidential master online distribution agreements with
Apple entitled "Digital Music Download Sales Agreements" ("Download Agreements"). The
Download Agreements relate generally to the large catalog of records owned or controlled by
UMG and do not specify Eminem or any other particular individual artists or specific content.
(6)

The first Download Agreement was entered into on December 13,2002.

Negotiations for this agreement began in the latter half of 2002. A team of negotiators was
assembled to work through the technical and legal details. The team consisted of Eddy Cue, Bud
Tribble, James Higa, Jeff Robbin and me. Steve Jobs was not part of the negotiating team and did
not attend the team's negotiating sessions.
(7)

Apple's negotiating team represented a variety of disciplines. Eddy Cue was vice
1

SAUL DECL. IN SUPPORT OF OBJECTION
CASE NO. 08-80040 Misc. RMW (PVT)

president of Applications and Internet Services. Bud Tribble was vice president of Software
Technology. James Higa was Senior Director, Office of the CEO. Jeff Robbin was Vice
President of Engineering for the Applications Group. I was legal counsel to Apple. Apple did
not have the assistance of outside counsel in negotiating this agreement.
(8)

The negotiations over the Download Agreement were complex and protracted.

My primary contact at UMG was David Weinberg, who was vice president, Business and Legal
Affairs for Universal's digital arm, eLabs. The negotiations covered all the details that appeared
in the final Download Agreement, including the legal terms governing the scope of authority
granted to Apple for the distribution of content owned by UMG.. The structure of the agreement,
its legal requirements, the definition of terms appearing in the agreement, and all other legal and
technical requirements were the respoilsibility of the negotiating team. Mr. Jobs, to the extent he
had any involvement in negotiating this agreement, was engaged solely providing direction in
determining business points such as price. Apple's negotiating team, and not Mr. Jobs, resolved
the form and legal content of the final agreement through extensive discussions with UMG. Mr.
Weinberg and I were responsible for drafting the final terms of the Download Agreement.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

Executed this -day of May, 2008 in Cupertino, California.

SAUL DECL. IN SUPPORT OF OBJECTION
CASE NO. 08-80040 Misc. RMW (PVT)

THESAULS

Apple did not have the assistance of outside counsel in negotiating this agreement.

(8)

The negotiations over the Download Agreement were complex and protracted.

My primary contact at UMG was David Weinberg, who was vice president, Business and

Legal Affairs for Universal's digital arm. etabs. The negotiations covered all the details that
appeared in the final Download Agreement, including the legal terms govcming the scopc of
authority granted to Apple for the distribution of content owned by UMG.. The structure of
the agreement, its legal requirements. the definition of terms appearing in the agreement, and all

other legal and technical requirements were the responsibility of the negotiating team. Mr.
Jobs, to the extent he had any involvement in negotiating this agreement, was engaged solely
providing direction in determining business points such as price. Apple's negotjating team,
and not Mr. Jobs, resolved the rum arid legal content of thc final agreement through extensive
discussions with UMG. Mr. Weinberg and I were responsible for drafting the final terms of
the Down load Agreement.

I declare under penalty o f perjury under the laws o f the State of California that the
foregoing i s true and correct.

Executed this d a y of May, 2008 i

PAGE

01