Batiste v. Lewis et al
Filing
125
ORDER AND REASONS GRANTING 104 Motion to Exclude the report, opinions, and testimony of Archie K. Milton. Signed by Judge Martin L.C. Feldman on 4/10/19. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PAUL BATISTE d/b/a ARTANG
PUBLISHING, LLC
CIVIL ACTION
V.
NO. 17-4435
RYAN LEWIS, ET AL.
SECTION “F”
ORDER AND REASONS
Before the Court is the defendants’ motion to exclude the
report, opinions, and testimony of Archie K. Milton, a purported
expert musicologist, from consideration on summary judgment or at
trial.
For the reasons that follow, the motion is GRANTED.
Background
A New Orleans jazz musician accuses an internationally famous
hip-hop duo of copyright infringement of eleven original songs.
This litigation followed.
Paul Batiste is a member of The Batiste Brothers Band, a New
Orleans jazz band founded in 1976.
Publishing, LLC.
Batiste also owns Artang
Between 1997 and 2002, Batiste composed several
original songs, entitled Hip Jazz, Kids, Starlite Pt. 1, World of
Blues, Love Horizon, Tone Palette, My Bad, Salsa 4 Elise (Fur
Elise), Drowning in My Blues, Sportsman’s Paradise, and Move That
Body.
Batiste has registered each song with the United States
Copyright Office.
1
Ryan Lewis and Ben Haggerty form the hip-hop duo known as
“Macklemore and Ryan Lewis.”
The duo has achieved international
stardom and is best known for the singles “Thrift Shop” and “Can’t
Hold Us,” which were the most popular songs in the United States
and Australia after their releases in 2012 and 2016. 1
The duo also
received several Grammy awards, including those for best new
artist, best album, and best rap performance.
On May 1, 2017, Batiste 2 sued Ryan Lewis and Ben Haggerty,
alleging they infringed on his copyrights by using unauthorized
samples and by copying elements of eleven of his original songs in
the composition of their songs Thrift Shop, Can’t Hold Us, Need to
Know, Same Love, and Neon Cathedral.
Batiste also sued Andrew
Joslyn and Allen Stone, who are credited with writing the hip-hop
songs, as well as the publishing companies who own rights to the
compositions,
including
Macklemore
Publishing,
Ryan
Lewis
Publishing, DB Joslyn Music, and Sticky Stones, LLC.
The defendants moved to dismiss the complaint on September
11, 2017, but ultimately withdrew that motion after the plaintiff
filed an amended complaint.
The defendants then moved to dismiss
the amended complaint on November 15, 2017, but again voluntarily
dismissed it after the plaintiff was granted leave to file a second
1
“Thrift Shop” has garnered 1.1 billion views on YouTube.
The complaint styles the plaintiff as Paul Batiste,
business as Artang Publishing, LLC.
2
2
doing
amended complaint on January 19, 2018.
Thereafter, on February
20, 2018, the defendants moved to dismiss the second amended
complaint.
denied
In its Order and Reasons dated May 17, 2018, this Court
the
defendants’
motion
to
dismiss,
holding
that
the
plaintiff’s complaint plausibly alleges the three requirements to
a
successful
claim
of
copyright
infringement:
(1)
a
valid
copyright; (2) factual copying (through allegations of striking
similarity); and (3) substantial similarity.
Six months later, on November 25, 2018, Batiste disclosed a
68-page report signed by Archie K. Milton, an alleged expert
musicologist, in an effort to buttress his copyright infringement
claims.
The report purports to analyze elements of “copying” and
“digital sampling” and to demonstrate similarities between the
defendants’ and the plaintiff’s musical works through the use of
various computer software programs. 3
Contending that the report
was ghost-written by the plaintiff, the defendants now seek to
exclude
Milton’s
report,
opinions,
and
testimony
from
consideration on summary judgment or at trial, pursuant to Rule 37
of the Federal Rules of Civil Procedure and Rule 702 of the Federal
Rules of Evidence.
3
Specifically, the report provides that it was prepared using the
following programs: Celemony Melodyne, Ableton Live, Blue Cat
Oscilloscope,
Sonic
Visualization,
Sony
Spectralayers,
Spectrograms, and Finale.
3
I.
A.
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure
requires the disclosure of an expert witness’s identity to be
accompanied by a “written report – prepared and signed by the
witness” that contains:
(i) a complete statement of all opinions the witness
will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in
forming them;
(iii) any exhibits that will be used to summarize or
support them;
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the
previous 4 years, the witness testified as an expert at
trial or by deposition; and
(vi) a statement of the compensation to be paid for the
study and testimony in the case.
Rule 37(c), in turn, vests the Court with authority to exclude
expert testimony for violations of Rule 26(a), “unless the failure
was substantially justified or is harmless.”
Fed. R. Civ. Proc.
37(c)(1); see Honey-Love v. United States, 664 F. App’x 358, 362
(5th Cir. 2016) (per curiam) (emphasizing that, “under Rule 37(c),
the presumptive sanction for failing to disclose a testifying
expert or supply a required expert report . . . is to exclude or
limit the expert’s testimony”).
B.
Federal Rule of Evidence 702 provides for the admission of
expert testimony that will assist the trier of fact to understand
4
the evidence or to determine a fact in issue.
Under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), district
courts are tasked with making a preliminary assessment as to the
reliability and relevance of proffered expert testimony.
fulfilling
this
“gatekeeping”
function,
the
trial
court
In
must
determine “whether the reasoning or methodology underlying the
testimony is scientifically valid and [] whether that reasoning or
methodology properly can be applied to the facts in issue.”
Id.
at 592-93.
II.
A.
While not directly addressed by the Fifth Circuit, courts
within this circuit have recognized that a ghost-written expert
report fails to comply with the disclosure requirements of Rule 26
and calls into question the reliability of the proposed testimony.
See United States ex rel. Wall v. Vista Hospice Care, 319 F.R.D.
498 (N.D. Tex. 2016); Seahorn Invs., LLC v. Fed. Ins. Co., No.
1:13CV320, 2015 U.S. Dist. LEXIS 120662 (S.D. Miss. Sep. 10, 2015);
O’Hara v. Travelers, No. 2:11-CV-208, 2012 U.S. Dist. LEXIS 104048
(S.D. Miss. July 26, 2012); Transcon. Gas Pipeline Corp. v. Societe
d’Exploitation du Solitaire, S.A., No. 05-1295, 2007 U.S. Dist.
LEXIS 67691 (E.D. La. Sep. 11, 2007) (Berrigan, J.); DirecTV, Inc.
v. Henley, No. 04-CA-83-OG, 2005 U.S. Dist. LEXIS 46847 (W.D. Tex.
Jan. 31, 2005).
5
“To prove ghostwriting, the party seeking exclusion must use
the available documents to show that the non-moving party provided
the substance of the opinions of the testifying expert[], not just
editorial assistance.”
Transcon. Gas Pipeline Corp., 2007 U.S.
Dist. LEXIS 67691, at *10-11 (citations and alterations omitted);
see also United States ex rel. Wall, 319 F.R.D. at 510; Seahorn
Invs., 2015 U.S. Dist. LEXIS 120662, at *26.
In other words,
although an expert may receive some assistance in preparing his or
her report, the expert must “substantially participate[] in the
preparation.”
Tech Pharm. Servs., LLC v. Aliza Rx LLC, No. 4:15-
CV-766, 2017 U.S. Dist. LEXIS 122231, at *7-8 (E.D. Tex. Aug. 3,
2017) (internal citations omitted).
For example, in O’Hara v. Travelers, the U.S. District Court
for the Southern District of Mississippi excluded expert reports
where the purported expert “testified that he did not prepare or
assist in the preparation of the expert reports disclosed by the
Plaintiff” and that he “merely signed them at the Plaintiff’s
request.”
No. 2:11-CV-208, 2012 U.S. Dist. LEXIS 104048, at *23-
24 (S.D. Miss. July 26, 2012).
The O’Hara court reasoned that
such ghost-writing “conflicts with Rule 26(a)(2)(B)’s requirement
that the expert ‘prepare’ the report” and “taints the proposed
expert
testimony
questioned.”
to
a
degree
that
Id.
6
its
reliability
may
be
Similarly, in Seahorn Investments, LLC v. Federal Insurance
Company, the Southern District of Mississippi excluded proffered
expert testimony where a ghost writer had “provided the actual
substantive content and engineering calculations central to the
conclusions” in the expert’s report.
U.S. Dist. LEXIS 120662, at *27.
Seahorn Invs., LLC, 2015
Finding that “it was actually .
. . the disclosed expert[] who provided editorial assistance to .
. . the undisclosed structural engineer, who prepared and wrote
the Original Report,” the Seahorn court held that the report did
not conform to the disclosure requirements of Rule 26(a).
Id. at
*27-28; Cf. Zoch v. Daimler, A.G., No. 4:17-CV-578, 2018 U.S. Dist.
LEXIS 164500, at *22 (E.D. Tex. Sept. 25, 2018) (declining to
exclude expert testimony where the expert “testified that the
report
accurately
reflect[ed]
his
opinion,”
and
the
evidence
revealed that the expert “took notes, generated the formulation
and written concepts of his opinion, and discussed his opinion
with the attorney who drafted the report”).
B.
The defendants move to exclude the report and proffered
testimony of Archie K. Milton on the ground that the report was
ghost-written by the plaintiff.
Mr. Batiste concedes that he
“collaborated” with Milton to produce the report but insists that
he did not write the report for his expert witness.
Accordingly,
at issue in this case is whether Mr. Milton “was sufficiently
7
involved in the drafting of his expert report such that it was
‘prepared and signed by the witness’ as required by Rule 26.”
See
Zoch, 2018 U.S. Dist. LEXIS 164500, at *20.
During his deposition, Mr. Milton testified that he and
Batiste “collaborated” on the analysis contained in the report:
Q. Okay. And are all the words, were all of those words
typed by you?
A. Some were, yeah.
Q.
A.
And the ones that -We -- corroborated.
Q.
A.
You mean collaborated?
Collaborated.
However, when questioned about the extent of such collaboration
and what portions, if any, of the report he had created, Milton
was unable to take credit for any part of the analysis:
Q. As you sit here today, can you identify portions of
[the report] that were originally drafted by you as
opposed to Mr. Batiste? Or do you recall?
A. Now, that’s a hard one.
. . .
Q. So fair to say that claim 1 [on pp. 6-8] was the
product of Mr. Batiste’s analysis, not yours; correct?
A. Yeah.
. . .
Q. At the bottom of page 6 there’s also a reference to
Spectralayers.
This is also analysis done by Mr.
Batiste, not you; right?
A. Correct.
. . .
Q.
The language on page 16, that was written by Mr.
Batiste, not you; correct?
A. That’s not my wording.
8
Q. And the visual analysis, the wave, whatever that is,
that’s not yours either; right?
A. Correct.
Q. Skip ahead to page 19. The image that takes up about
three-quarters of the page looks like it shows three
different waves; this is not work you did; right?
A. Right.
. . .
Q. Page 21, that’s all Mr. Batiste’s transcription and
wave; it’s nothing you did; right?
A. Correct.
. . .
Q. So you have now had the opportunity to go through
page 23 of your report to the end. My question is, are
any of the transcriptions contained in the balance of
the report, were they created by you?
A. No. They were good.
Q.
A.
They’re created by Mr. Batiste, though, not you?
Yeah.
Q. And the wave analyses that are contained in various
forms, those were all done by Mr. Batiste, too; correct?
A. Correct.
. . .
Q.
And so none of this analysis was
independently created by you; correct?
A. Correct.
original
or
In addition to testifying that he did not independently create the
analyses, Mr. Milton conceded that he lacks access to the computer
programs used to generate the comparisons set forth in the report.
Relatedly, he admitted that he could not verify the accuracy of
Batiste’s work:
Q.
It says “The analysis in this document was made
using” and it identifies those programs. And so I am
just trying to understand what analysis you did, if any,
and what analysis Mr. Batiste did.
9
A.
I don’t have those programs.
. . .
Q. Okay. And because you don’t have the programs, you
couldn’t do anything to independently verify whether
this is accurate; right?
A. Correct. Now, when I got these, I also got an audio.
Here, like the experts in O’Hara and Seahorn, Milton testified
that none of the analysis contained in the 68-page report was the
product of his original work and that it was all created by
Batiste.
O’Hara, 2012 U.S. Dist. LEXIS 104048, at *23-26; Seahorn
Invs., LLC, 2015 U.S. Dist. LEXIS 120662, at *25-33.
Although
Milton stated that he and Batiste “collaborated” on the report, he
was unable to identify any portions that were drafted by him. 4
And
because the report substantively sets forth analyses generated by
computer programs to which Milton does not have access, Mr. Milton
also denied an ability to verify the accuracy of Batiste’s work.
In light of the above testimony, the Court is left to conclude
that Mr. Batiste “provided the actual substantive content and
[musical
[report]”
transcriptions]
and
assistance.”
*27.
that
central
Mr.
Milton
to
the
conclusions
provided
mere
in
the
“editorial
Seahorn Invs., LLC, 2015 U.S. Dist. LEXIS 120662, at
Because Mr. Batiste’s involvement in the preparation of
Milton’s
report
exceeds
the
permissible
4
bounds
of
“editorial
Batiste maintains in his opposition papers that he and Milton
“collaborated” on the report, contending that Milton analyzed the
report and rendered his own opinions. But Batiste points to no
evidence of record to support that contention.
10
assistance,” Milton’s report (and proffered testimony) must be
excluded
under
Rule
37(c)(1)
of
the
Federal
Procedure and Federal Rule of Evidence 702.
Rules
of
Civil
See id. at *26-27.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendants’ motion to exclude the expert witness report and
testimony of Archie K. Milton is hereby GRANTED.
New Orleans, Louisiana, April 10, 2019
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
11
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?