Eight Mile Style, LLC et al v. Apple Computer, Incorporated

Filing 107

MOTION to Strike 79 Statement, 74 Response to Motion,,,,,,,,,,,,, Declaration of Patrick Sullivan and Statement of Material Facts and Conditional Motion to Strike Plaintiffs' Late-Produced Documents by Aftermath Records, Apple Computer, Incorporated. (Attachments: # 1 Index of Exhibits TO DEFENDANTS AFTERMATH RECORDS AND APPLE INC.S MOTION TO STRIKE DECLARATION OF PATRICK SULLIVAN AND PLAINTIFFS STATEMENT OF MATERIAL FACTS AND CONDITIONAL MOTION TO STRIKE PLAINTIFFS LATE-PRODUCED DOCUMENTS, # 2 Exhibit Declaration of Melinda LeMoine In Support of Defendants Aftermath Records and Apple Inc.s Motion to Strike Declaration of Patrick Sullivan and Plaintiffs Statement of Material Facts and Conditional Motion to Strike Plaintiffs Late-Produced Documents, # 3 Exhibit 1-A: Excerpts of transcript pages from the depositions of Patrick Sullivan taken on September 18, 2008 and October 1, 2008, # 4 Exhibit 1-B: E-mail between Ramona DeSalvo and Patrick Sullivan, dated August 27, 2008, # 5 Exhibit 1-C: E-mail between Ramona DeSalvo and Patrick Sullivan, dated August 20, 2008, # 6 Exhibit 1-D: Plaintiff Eight Mile Style, LLCs Responses to Defendants First Set of Interrogatories, dated March 21, 2008, # 7 Exhibit 1-E: Plaintiff Martin Affiliated, LLCs Responses to Defendants First Set of Interrogatories, dated March 21, 2008, # 8 Exhibit 1-F: Plaintiff Eight Mile Style, LLCs Responses to the Defendants First Set of Requests for Production of Documents, dated March 21, 2008, # 9 Exhibit 1-G: Plaintiff Martin Affiliated, LLCs Responses to Defendants First Requests for Production of Documents, dated March 21, 2008, # 10 Exhibit 1-H: Plaintiff Eight Mile Style, LLCs Responses to the Defendants Second Set of Requests for Production of Documents, dated August 8, 2008, # 11 Index of Exhibits 1-I: Plaintiff Martin Affiliated, LLCs Responses to Defendants Second Set of Requests for Production of Documents, dated August 8, 2008, # 12 Exhibit 1-J: Plaintiff Eight Mile Style, LLCs Responses to Defendants Second Set of Interrogatories, dated August 8, 2008, # 13 Exhibit 1-K: Plaintiff Martin Affiliated, LLCs Responses to Defendants Second Set of Interrogatories, dated August 8, 2008, # 14 Exhibit 2: Anderson v. United States, 39 Fed. Appx. 132, 2002 WL 857742 (6th Cir. May 3, 2002)) (Klaus, Kelly)

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Eight Mile Style, LLC et al. v. Apple Computer Inc., et al. Case No. 2:07-CV-13164 EXHIBIT 1-F Plaintiff Eight Mile Style, LLC's Responses to the Defendants' First Set of Requests for Production of Documents, dated March 21, 2008 5005843.1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION EIGHT MILE STYLE LLC and MART1N AFFILIATED Plaintiffs LLC Case No 207-cv-13164 Diggs Taylor Judge Donald Scheer vs Hon Anna Magistrate APPLE COMPUTER INC and AFTERMATH AFTERMATH RECORDS db/a ENTERTAINMENT Defendants Howard Hertz Hertz Schram P26653 PC Road 300 48302 Richard Busch Ballow Street Street TN BPR14594 Plaza King 1760 South Telegraph Bloomfield Hills 1100 Union 315 Union Nashville MI 248 335-5000 TN 37201 hhertz@hertzschram.com 615 259-3456 rbuschkingballow.com Attorney for Plaintiffs PLAINTIFF EIGHT MILE STYLE LLCS RESPONSES TO THE OF DOCUMENTS objections DEFENDANTS FIRST SET OF REQUESTS Plaintiff FOR PRODUCTION provides the Eight Mile Style LLC Eight Mile for following and responses to the First Set of Requests Production of Documents Requests propounded by Defendants Apple Inc named as Apple Computer Inc and Aftermath Records cl/b/a Aftermath Entertainment GENERAL OBJECTIONS The following General Objections apply to and are incorporated in each and every response to each and every Request whether or not such General Objections are expressly incorporated by reference in such response Eight Mile objects to the Requests to the extent they collectively or individually seek information or documents subject to or protected by the attorney-client privilege the attorney work product privilege or any other privilege or protection from disclosure Eight Mile hereby invokes all such privileges to the extent implicated by each Request and exclude privileged and protected information from its responses to the Requests Any disclosure of information protected by those privileges is inadvertent and is not intended to waive any privilege or protection Eight Mile objects to the Requests to the extent they purport to impose on Plaintiff any obligations that are different from or greater than any duty imposed by the Federal Rules of Civil Procedure the Local Rules of the United States District Court for the Eastern District of Michigan or any other applicable law or rule Eight Mile objects to the Requests as duplicative unduly burdensome and harassing to the extent they seek information that is equally available to Defendants or information that could be derived or ascertained by Defendants with substantially the same effort that would be required of Plaintiffs from review of the documents produced in this case Eight Mile objects to the Requests to the extent they seek disclosure of items that are not in Eight Miles possession custody Mile or control or that are publicly available Eight objects to the Requests to the extent they seek items that are confidential proprietary trade secret information andlor competitively sensitive material Eight Mile will disclose such responsive non-privileged information only upon entry of and in accordance with the terms of an appropriate protective order To the extent that the Requests seek information concerning an identified contention or factual issue Eight Mile objects on the grounds that Eight Mile has not completed its investigation of the facts relevant to this case Eight Miles responses are necessarily preliminary and are made without prejudice to its right to disclose introduce or rely upon information or documents that may be later discovered or produced Eight Mile will make reasonable efforts to search for information in the places where it is reasonably likely to be found and Eight Mile objects to the Requests to the extent they purport to require broader search In responding to the Requests Eight Mile does not waive or intend to waive any privilege or objection including but not limited to any objections to the competency relevance materiality or admissibility of any of the items disclosed in response to the Requests No objection or response made in these responses and objections shall be deemed to constitute representation by Eight Mile as to the existence or non-existence of the items requested Eight Mile objects to Requests containing the defined term documents the term as as vague ambiguous overly broad and unduly burdensome to the extent that used in any Request expands Eight Miles duty to produce documents or items beyond the scope required of the Federal Rules of Civil Procedure Eight Mile also objects to Requests containing the defined term documents is to the extent that any Request containing the defined term seeks information that privileged protected and confidential Eight Mile also objects to the extent use of the defined term documents is intended to seek information or items that are not reasonably calculated to lead to the discovery of admissible evidence of information 10 Eight Mile objects to the Requests as vague Mile to ambiguous overly broad and unduly burdensome to the extent any Request requires Eight provide information that is different from or at different time than as required under Federal Rule of Civil Procedure 26a2 broad and unduly 11 Eight Mile objects to the Requests as vague ambiguous overly burdensome to the extent any Request commands or requires Eight Mile to provide responses or items in any manner or to any extent that is different that the scope provided by Rules 33 and 34 of the Federal Rules of Civil Procedure 12 Eight Mile objects to Requests containing the defined term Eminem as vague ambiguous overly broad and unduly burdensome to the extent the term includes any persons or entity or entities other than the individual Marshall Mathers III professionally known as Eminem 13 Mile the definition Eight objects to contained in paragraph 10 of Defendants Definitions and Instructions as vague ambiguous overly broad unintelligible and unduly burdensome Eight Mile interprets defined terms as set forth herein and other terms according to its best understanding of such terms including the Federal Rules of Civil Procedure OBJECTIONS REQUEST All AND RESPONSES TO REQUESTS NO.1 documents that You reviewed or relied upon in drafting Your Complaint in this action ANSWER TO REQUEST Eight NO.1 its Mile incorporates General Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request as vague ambiguous overly broad and unduly burdensome Eight Mile further objects to this Request to the extent the information requested is within the possession custody or control of Defendants Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not been already produced REQUEST NO.2 that All documents You refer to in Your Complaint ANSWER TO REQUEST Eight NO.2 its Mile incorporates General Objections above Eight Mile specifically objects to this Request to the extent the information requested is within the possession custody or control of Defendants Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not been already produced REQUEST All NO.3 documents that You refer to in any of Your responses to Defendants First Set of Interrogatories served concurrently with these Requests for Production ANSWER TO REQUEST Eight NO.3 its Mile incorporates General Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request to the extent the information requested is within the possession custody or control of Defendants Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not been already produced REQUEST All NO.4 documents that You reviewed or relied upon in preparing Your responses to Defendants First Set of Interrogatories ANSWER TO REQUEST Eight NO.4 its Mile incorporates General Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request as vague ambiguous overly broad and unduly burdensome Eight Miles further objects to this Request to the extent the information requested is within the possession custody or control of Defendants Subject to and without waiver of the foregoing General and Specific Objections Plaintiffs will produce relevant non-privileged documents responsive to this request to the extent they have not been already produced REQUEST NO.5 that All documents You refer to in Your Initial Disclosures in this action ANSWER TO REQUEST Eight NO.5 its Mile incorporates General Objections above Eight Mile specifically objects to this Request to the extent the information requested is within the possession custody or control of Defendants Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not been already produced REQUEST NO.6 that relate to All documents any of Your allegations in Your Complaint ANSWER TO REQUEST Eight NO.6 its Mile incorporates General Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request as vague ambiguous relate overly broad and unduly burdensome in that it does not define what it means to to any of Eight Miles allegations in the Complaint Eight Mile further objects to this Request to the extent the information requested is within the possession custody or control of Defendants Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not been already produced REQUEST All NO.7 documents that support or that are contrary to Your contention that Apple has distributed Eminem recordings embodying the works that are the subject of your Complaint pursuant to purported license with Universal as alleged by You in Paragraph 12 of Your Complaint ANSWER TO REQUEST Eight NO.7 its Mile incorporates General Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request as vague ambiguous overly broad and unduly burdensome Eight Mile objects to the language contrary to as vague and ambiguous and would involve analysis by counsel which is protected by the work product doctrine Eight Mile further objects to this Request to the extent the information requested is within the possession custody or control of Defendants Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not been already produced REQUEST NO.8 that All documents support or that are contrary to Your contention that Eight Mile and Martin have never authorized Universal to license the works to Apple as alleged by You in Paragraph 12 of Your Complaint ANSWER TO REQUEST Eight NO.8 its Mile incorporates General Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request as vague ambiguous overly broad and unduly burdensome Eight Mile objects to the language contrary to the as vague and ambiguous and would involve analysis by counsel which is protected by work product doctrine Eight Mile further objects to this Request to the extent the information requested is within the possession custody or control of Defendants Eight Mile further objects to the extent the request seeks expert testimony or opinion Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not been already produced REQUEST NO.9 that All documents support or that are contrary to Your contention that Eight Mile and Martin have never authorized Universal to engage in reproduction or distribution of the digital transmissions through third parties or otherwise as alleged by You in Paragraph 12 of Your Complaint ANSWER TO REQUEST See Response to NO.9 Request No REQUEST NO 10 that All documents support or that are contrary to Your contention that Universal has on any number of occasions asked Eight Mile and Martin to execute agieements allowing Apple to reproduce and distribute the digital transmissions but Eight Mile and Martin have not provided that permission as alleged by You in Paragraph 12 of Your Complaint ANSWER TO REQUEST See Response to NO 10 Request No REQUEST NO 11 that All documents support or that are contrary to Your claim that You have suffered damages including without limitation any actual damages that you may seek under 17 U.S.C 504 as result of any of Defendants actions ANSWER TO REQUEST See Response to NO 11 No Request REQUEST NO 12 that All documents constitute refer to or relate to communications You have had with any Person including without limitation Eminem or any of Eminems et representatives regarding this lawsuit or the lawsuit captioned Productions LLC at Aftermath Records d/b/a Aftermath Entertainment et at Case No CV-07-03314 C.D Cal or any of the matters alleged in either action ANSWER TO REQUEST Eight NO 12 General Mile incorporates its Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request as vague ambiguous overly broad unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence Eight Mile further objects to this Request to the extent the information requested is within the possession custody or control of Defendants Eight Mile further objects to the extent that such documents are not relevant to the claims in the above-captioned matter Eight Mile further objects to this Interrogatory to the extent it seeks discovery in separate action entitled F.B.T Productions LLCJ et at Aftermath Records d/b/a Aftermath Entertainment et al Case No CV-07-033 14 C.D Cal scheduling to which Eight Mile is not party and which such discovery is subject to separate order inapplicable to this action Eight Mile further objects to the extent the request seeks expert testimony or opinion Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not been already produced REQUEST NO 13 communications All documents that constitute refer to or relate to You have had with any Person regarding Eminem ANSWER TO REQUEST Eight NO 13 General Mile incorporates its Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request as vague ambiguous overly 10 broad unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence in that it does not define or limit communications with any Person the or regarding Eminem within the Eight Mile further objects to this Request to the extent information requested is possession custody or control of Defendants Eight Mile further objects to the extent the request seeks expert testimony or opinion Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not already been produced REQUEST NO 14 communications All documents that constitute refer to or relate to You have had with Eminem or any of Eminems representatives ANSWER TO REQUEST See NO 14 13 Response to Request REQUEST NO 15 that All documents discuss refer to or relate to the March 1998 Agreement including without limitation Paragraph thereof ANSWER TO REQUEST Eight NO 15 its Mile incorporates General Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request as vague ambiguous overly broad unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence Eight Mile further objects to this Request to the extent the information requested is within the possession custody or control of Defendants Eight Mile further objects to the extent 11 the request seeks expert testimony or opinion Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not already been produced REQUEST NO 16 that All documents discuss refer to or relate to the July 2003 Agreement including without limitation Paragraph thereof ANSWER TO REQUEST See NO 16 15 Response to Request REQUEST All NO 17 that documents discuss refer to or relate to the distribution of Eminem sound recordings that embody any of the works that are the subject of your Complaint including the distribution of the same as digital downloads mastertones ringtones or digital streams ANSWER TO REQUEST See Response to NO 17 15 Request REQUEST NO 18 sufficient to All documents identi all Persons that have an ownership interest in each of the works for which You seek damages through Your Complaint ANSWER TO REQUEST Eight NO its 18 General Mile incorporates Objections above Subject to and without waiver of the foregoing General Objections Eight Mile responds that relevant information that may be within the scope of this Request may be determined by Defendants examination of the Complaint filed in this matter in particular paragraph and 12 collective Exhibit attached to the Complaint Defendants are in possession of the Complaint and Exhibit referenced therein and the burden of deriving that information is substantially the same for Defendants as for Eight Mile and therefore Eight Mile refers Defendants to same Further see Schedule Plaintiffs Compositions attached to Eight Miles htenogatory Responses Notwithstanding the foregoing Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not already been produced REQUEST NO 19 sufficient to identify All documents any predecessors successors parents subsidiaries divisions affiliates or other entities within the operation or control of Plaintiff ANSWER TO REQUEST Eight NO 19 General Mile incorporates its Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request as vague ambiguous overly broad unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence Eight Mile will produce relevant non-privileged documents responsive to this request to the extent they have not been already produced REQUEST NO 20 that All documents discuss relate to or refer to any expert witnesses that You have communicated with regarding the claims in this action including without limitation all correspondence billing records documents received from such expert witness documents relied upon by such expert witness in forming his or her opinion and curriculum vitae for such expert witness retained by You 13 ANSWER TO REQUEST Eight NO 20 its Mile incorporates General Objections above Eight Mile specifically objects to this Request to the extent it calls for information protected by the attorney-client privilege and work product doctrine Eight Mile further objects to this Request as vague ambiguous overly broad unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence The expert witness disclosure deadline has not yet occurred and any request for such information is premature Subject to and without waiver of the foregoing General and Specific Objections Eight Mile will produce relevant and discoverable documents at the appropriate time DATED March 21 2008 Respectfully submitted Richard Busch Street Street TN Bar No 014594 1100 Union 315 Union Plaza Nashville TN 37201 615 259-3456 rbuschkingballow.com Howard Hertz Esq P26653 Jay Hertz Yasso Esq Schram P45484 PC 1760 Telegraph Rd MS Suite 300 Bloomfield Hills 48302 248 335-5000 hhertz@hertzschram.com jyassohertzschram.com Attorneys for Plaintiffs 14 CERTIFICATE OF SERVICE foregoing The postage undersigned hereby certifies to that the document was served via U.S Mail pre-paid and via e-mail the following Counsel Daniel On Quick Esq Wright behalf of Apple Computer Inc and Aftermath Records dlb/a Aftermath Dickinson 38525 PLLC Ave Entertainment Woodward Suite 2000 Bloomfield Hills MI 48304 248 433-7200 dquickdickinsonwright.com Kelly Klaus Tolles Esq Olson LLP Munger 355 South Grand Suite 3500 Ave Los Angeles CA 90071-1560 213 683-9238 kelly.klausmto.com this 21st day of March 2008 15

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