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

Filing 108

Amended MOTION to Strike 79 Statement, 74 Response to Motion,,,,,,,,,,,,, by Aftermath Records, Apple Computer, Incorporated. (Attachments: # 1 Index of Exhibits to Corrected Motion to Strike, # 2 Exhibit Declaration of Melinda LeMoine, # 3 Exhibit 1-A Excerpts from Deposition of Patrick Sullivan, # 4 Exhibit 1-B E-Mail from DeSalvo to Sullivan dated Aug. 27, 2008, # 5 Exhibit 1-C Email from DeSalvo to Sullivan dated August 20, # 6 Exhibit 1-D Eight Mile Style's Responses to First Set of Interrogatories, # 7 Exhibit 1-E Martin Affiliated's Responses to First Set of Interrogatories, # 8 Exhibit 1-F Eight Mile Style's Responses to First Set of RFPs, # 9 Exhibit 1-G Martin Affiliated's Responses to First Set of RFPs, # 10 Exhibit 1-H Eight Mile Style's Responses to Second Set of RFPs, # 11 Exhibit 1-I Martin Affiliated'd Responses to Second Set of RFPs, # 12 Exhibit 1-J Eight Mile Style's Responses to Second Set of Interrogatories, # 13 Exhibit 1-K Martin Affiliated's Responses to Second Set of Interrogatories, # 14 Exhibit 2 - Anderson v. United States) (Lemoine, Melinda)

Eight Mile Style, LLC et al. v. Apple Computer Inc., et al. Case No. 2:07-CV-13164

EXHIBIT 1-G Plaintiff Martin Affiliated, LLC's Responses to Defendants' First Requests for Production of Documents, dated March 21, 2008

5005843.1

UNITED STATES DISTRICT COURT THE EASTERN DISTRICT OF MICHIGAN FOR

SOUTHERN DIVISION
EIGHT MILE STYLE LLC and MARTIN AFFILIATED LLC
Plaintiffs

Case

No

207-cv-l3164 Diggs Taylor Judge Donald
Scheer

vs

Hon Anna
Magistrate

APPLE

COMPUTER INC

and
cl/b/a

AFTERMATH AFTERMATH

RECORDS ENTERTAINMENT
Defendants

Howard
Hertz

Hertz

Schram

P26653 PC
Road

Richard

Busch Ballow
Street Street

TN BPR14594
Plaza

King

1760 South Telegraph

300

1100 Union 315 Union
Nashville

Bloomfield Hills MIl 48302

248

335-5000

TN

37201

[e-mail]

615

259-3456

rbuschkingballow.com
Attorney
for Plaintiffs

PLAINTIFF

MARTIN AFFILIATED LLCS RESPONSES TO DEFENDANTS REQUESTS FOR PRODUCTION OF DOCUMENTS
LLC

Martin

Affiliated

Martin
of

provides

the

following

objections

and responses

to

First

Set

of Requests

for

Production

Documents

Requests
and Aftermath

propounded

by

Defendants

Apple

Inc

named

as

Apple

Computer

Inc

Records

d/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

Martin 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

Martin

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

Martin objects

to

the

Requests

to

the

extent

they

purport

to

impose on Martin

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

Martin 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 Martin from review

of the documents

produced

in this

case

Martin objects

to

the Requests

to

the

extent

they

seek

disclosure

of items that

are

not

in

Martins

possession

custody

or control

or that

are

publicly

available

Martin objects

to

the

Requests

to

the

extent

they

seek

items that

are

confidential

proprietary

trade

secret

information

and/or

competitively

sensitive

material

Martin

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

Martin

objects

on the

grounds

that

Martin

has

not

completed

its

investigation

of the

facts

relevant

to

this

case

Martins

responses

are

necessarily

preliminary

and

are

made

without

prejudice

to

its

right

to

disclose

introduce

or rely

upon

information

that

may

be

later discovered

or

produced

Martin

will

make

reasonable

efforts

to

search

for

information

in

the places

where

it

is

reasonably

likely

to

be found

and Martin

objects

to

the Requests

to

the

extent

they

purport

to

require

broader

search

In responding

to

the

Requests

Martin

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 Martin

as to

the existence

or

non-existence

of the items requested

Martin

objects

to

Requests

containing

the

defined

term

documents
the

as

vague
in

ambiguous

overly

broad

and unduly

burdensome

to

the

extent

that

term

as

used

any

Request

expands

Martins

duty

to

produce documents

or

items beyond

the

scope

required

of the

Federal

Rules

of Civil

Procedure

Martin

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

Martin

also

objects

to

the extent

use

of the defined

term

documents
to

is

intended

to

seek

information

or

items that

are

not reasonably

calculated

to

lead

the discovery

of admissible

evidence

of information

10

Martin

objects

to

the

Requests

as

vague

ambiguous

overly

broad

and

unduly

burdensome

to

the

extent

any Request

requires

Martin

to

provide

information

that

is

different

from or

at

different

time

than

as required

under Federal

Rule of

Civil

Procedure

26a2
broad

11

Martin

objects

to

the

Requests

as

vague

ambiguous

overly

and unduly

burdensome

to

the

extent

any Request

commands

or

requires

Martin

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

Martin

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
Martin the
definition

objects

to

contained

in

paragraph

10

of

Defendants

Definitions

and

Instructions

as

vague

ambiguous

overly

broad

unintelligible

and

unduly

burdensome

Martin

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
Martin incorporates

NO.1
its

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the

extent

it

calls

for

infonnation

protected

by the

attorney-client

privilege

and work

product

doctrine

Martin

further

objects

to

this

Request

as

vague

ambiguous

overly

broad

and

unduly

burdensome

Martin

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

Martin

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
Martin incorporates

NO.2
its

General

Objections

above

Martin

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

Martin

will produce

relevant

non-privileged

documents

responsive

to

this

request

to

the

extent

they

have not been already

produced

REQUEST

NO.3
that

All documents

You

refer

to

in

any

of Your

responses

to

Defendants

First

Set of

Interrogatories

served

concurrently

with

these Requests

for

Production

ANSWER TO REQUEST
Martin incorporates

NO.3
its

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the

extent

it

calls

for

information

protected

by the

attorney-client

privilege

and

work

product

doctrine

Martin

ifirther

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

Martin

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
Martin
incorporates

NO.4
its

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the

extent

it

calls

for

information

protected

by the

attorney-client

privilege

and work

product

doctrine

Martin

further

objects

to

this

Request

as

vague
to

ambiguous

overly

broad

and

unduly

burdensome

Martin

further

objects

to

this

Request

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
Martin
incorporates

NO.5
its

General

Objections

above

Martin

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

Martin

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
Martin incorporates

NO.6
its

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the extent

it

calls

for

information

protected

by the

attorney-client

privilege

and work

product

doctrine

Martin

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

Martins

allegations

in

the Complaint

Martin

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

Martin

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
Martin
incorporates

NO.7
its

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the

extent

it

calls

for

information

protected

by the

attorney-client

privilege

and work

product

doctrine

Martin

further

objects

to

this

Request

as

vague ambiguous

overly

broad

and

unduly

burdensome

Martin

objects

to

the

language

contrary

to

as

vague

and ambiguous

and

that

it

would

involve

analysis

by

counsel

which

is

protected

by

the

work

product

doctrine

Martin

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

Martin

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
by You

Martin

have

never

authorized

Universal

to

license

the

works

to

Apple

as

alleged

in

Paragraph

12

of Your Complaint

ANSWER TO REQUEST
Martin incorporates

NO.8
its

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the

extent

it

calls

for

information

protected

by the

attorney-client

privilege

and work

product

doctrine

Martin

further

objects

to

this

Request

as

vague

ambiguous

overly

broad

and

unduly

burdensome

Martin

objects

to

the language

contrary

to

as

vague

and ambiguous

and

that

it

would

involve

analysis

by

counsel

which

is

protected

by

the

work

product

doctrine

Martin

further

objects

to

this

Request

to

the

extent

the

information

requested

is

within

the

possession

custody

or

control

of Defendants

Martin

further

objects

to

the

extent

the

request

seeks

expert

testimony

or opinion

Subject

to

and without

waiver

of the foregoing

General

and Specific Objections

Martin

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

agreements

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
No

Request

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

representatives

regarding

this

lawsuit

or the

lawsuit

captioned

KB
No

Productions

LLC

et

all

Aftermath

Records

db/a

Aftermath Entertainment

et

at

Case

CV-07-03314

C.D Cal

or any of the matters

alleged

in

either

action

ANSWER TO REQUEST
Martin
incorporates

NO 12
its

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the

extent

it

calls

for

information

protected

by the

attorney-client

privilege

and work

product

doctrine

Martin

further

objects

to

this

Request

as

vague

ambiguous

overly

broad

unduly

burdensome

and

not

reasonably

calculated

to

lead

to

the

discovery

of

admissible

evidence

Martin

further

objects

to

this

Request

to

the extent

the information

requested

is

within

the

possession

custody

or control

of Defendants

Martin

further

objects

to

the

extent

that

such

documents

are

not relevant

to

the claims

in

the

above-captioned

matter

Martin

further

objects

to

this

Interrogatory

to

the extent

it

seeks

discovery

in

separate action

entitled

Productions

LLC

et

at

Aftermath Records

cUb/a

Aftermath

Entertainment

et

al

Case

No

CV-07-033l4

C.D Cal
scheduling

to

which

Martin

is

not

party

and which

such

discovery

is

subject

to

separate

order inapplicable

to

this action

Martin

further

objects

to

the extent

the

request

seeks

expert

testimony

or

opinion

Subject

to

and without

waiver

of the foregoing

General

and Specific

Objections

Martin

will

produce

relevant

non-privileged

documents

responsive

to

this

request

to

the

extent

they

have not been already

produced

REQUEST

NO 13
that

All documents

constitute

refer

to

or relate

to

communications

You have had

with

any Person regarding

Eminem

ANSWER TO REQUEST
Martin
incorporates

NO 13
its

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the

extent

it

calls

for

information

protected

by the

attorney-client

privilege

and work

product

doctrine

Martin

further

objects

to

this

Request

as

vague

ambiguous

overly

broad

I0

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

or

regarding

Eminem

Martin

further

objects

to

this

Request

to

the extent

the

information

requested

is

within

the possession

custody

or control

of Defendants

Martin

further

objects

to

the extent

the

request

seeks

expert

testimony

or opinion

Subject

to

and

without

waiver

of the

foregoing

General

and Specific

Objections

Martin

will

produce relevant

non-privileged

documents

responsive

to

this

request

to

the

extent

they

have

not already

been produced

REQUEST

NO

14

All documents

that

constitute

refer

to

or relate

to

communications

You have had

with

Eminem

or any of

Eminems

representatives

ANSWER TO REQUEST
See Response
to

NO

14
13

Request

REQUEST

NO

15
the March

All documents

that

discuss

refer

to

or relate

to

1998 Agreement including

without

limitation

Paragraph

thereof

ANSWER TO REQUEST
Martin incorporates

NO 15
its

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the extent

it

calls

for

information

protected

by the

attorney-client

privilege

and work

product

doctrine

Martin

further

objects

to

this

Request

as

vague

ambiguous

overly

broad

unduly

burdensome

and

not

reasonably

calculated

to

lead

to

the

discovery

of

admissible

evidence

Martin

further

objects

to

this

Request

to

the extent

the information

requested

is

within

the possession

custody

or control

of Defendants

Martin

further

objects

to

the

extent

the request

11

seeks

expert

testimony

or opinion

Subject

to

and without

waiver

of the foregoing

General

and Specific

Objections

Martin

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 Response
to

NO

16
15

Request

REQUEST
All

NO 17
documents
that

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
t5

Request

REQUEST

NO 18
sufficient to identifSi
all

All documents

Persons

that

have an ownership

interest

in

each

of

the

works

for

which

You

seek

damages

through

Your Complaint

ANSWER TO REQUEST
Martin incoxporates

NO
its

18
above

General

Objections

Subject

to

and without

waiver

of the foregoing

General

Objections

Martin

responds

that

relevant

information

that

may be
of the

within

the

scope

of

this

Request

may

be determined

by

Defendants

examination

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

Martin

and therefore Martin

refers

Defendants

to

same

Further

see

Schedule

Plaintiffs

Compositions

attached

to

Martins

Interrogatory

Responses

Notwithstanding

the

foregoing

Martin

will

produce

relevant

non-privileged

documents

responsive

to

this request

to

the extent

they have

not already

been produced

REQUEST

NO 19
sufficient to

All documents

identif

any predecessors

successors

parents

subsidiaries

divisions

affiliates

or other

entities

within

the operation

or

control

of

Plaintiff

ANSWER TO REQUEST
Martin incorporates

NO
its

19

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the extent

it

calls

for

information

protected

by the

attorney-client

privilege and work

product

doctrine

Martin

ifirther

objects

to

this

Request

as

vague
the

ambiguous

overly

broad

unduly

burdensome

and

not

reasonably

calculated

to

lead

to

discovery

of

admissible

evidence

Martin

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
Martin
incorporates

NO 20
its

General

Objections

above

Martin

specifically

objects

to

this

Request

to

the

extent

it

calls

for

information

protected

by the

attorney-client

privilege

and work

product

doctrine

Martin

ftirther

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

Martin

will

produce relevant and discoverable

documents

at the

appropriate

time

DATED

March 21 2008

Respectfully

submitted

KING

BALLOW

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
Hertz

Schram

PC

1760

Telegraph Hills

Rd
MI

Suite

300

Bloomfield

48302

248

335-5000

[e-mail]
Attorneys
for Plaintiffs

14

CERTIFICATE

OF SERVICE
foregoing

The
postage

undersigned

hereby

certifies to the

that

the

document

was

served

via

U.S

Mail

pre-paid

and via e-mail

following

Counsel

On behalf
Esq

of

Daniel

Quick Wright

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 Ave
Suite 3500

Los Angeles

CA

90071-1560

213

683-9238

kelly.klausmto.com

this

2Vt day of March

2008

15