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

Filing 111

REPLY to Response re 108 Amended MOTION to Strike 79 Statement, 74 Response to Motion,,,,,,,,,,,,,Amended MOTION to Strike 79 Statement, 74 Response to Motion,,,,,,,,,,,,,Amended MOTION to Strike 79 Statement, 74 Response to Motion,,,,,,,,,,,,,Amended MOTION to Strike 79 Statement, 74 Response to Motion,,,,,,,,,,,,,Amended MOTION to Strike 79 Statement, 74 Response to Motion,,,,,,,,,,,,, filed by Aftermath Records, Apple Computer, Incorporated. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 3: Declaration of Melinda E. LeMoine, # 3 Exhibit 3-A: Declaration of Patrick Sullivan in Opposition to Motion for Summary Judgment of Defendants Apple Computer, Inc. and Aftermath Records d/b/a Aftermath Entertainment dated August 28, 2008 (Filed Under Seal), # 4 Exhibit 3-B: Expert Report by Patrick F. Sullivan, M.A. dated August 12, 2008 (Filed Under Seal), # 5 Exhibit 3-C: Email from Howard Hertz to Daniel Quick, Kelly Klaus, Melinda LeMoine, Richard Busch, Marc Guilford, et. al., dated July 18, 2008, # 6 Exhibit 3-D: Email from Marc Guilford to Patrick Sullivan, cc to Richard Busch, dated August 12, 2008 (Filed Under Seal), # 7 Exhibit 3-E: Email from Patrick Sullivan to Marc Guilford, cc to Richard Busch, Mark Levinsohn and Ramona DeSalvo, dated August 12, 2008 (Filed Under Seal), # 8 Exhibit 3-F: Letter from Kelly Klaus to Richard Busch and Howard Hertz dated April 4, 2008, # 9 Exhibit 3-G: Email from Richard Busch to Kelly Klaus dated April 18, 2008, # 10 Exhibit 3-H: Letter from Richard Busch to Kelly Klaus dated April 21, 2008, # 11 Exhibit 3-I: Letter from Kelly Klaus to Richard Busch dated October 2, 2008, # 12 Exhibit 3-J: Letter from Kelly Klaus to Richard Busch dated October 23, 2008) (Lemoine, Melinda)

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

EXHIBIT 3 Declaration of Melinda E. LeMoine

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UNITED STATES DISTRICT COURT IN THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION EIGHT MILE STYLE, LLC and MARTIN AFFILIATED, LLC, Plaintiffs vs. APPLE COMPUTER, INC. and AFTERMATH RECORDS d/b/a AFTERMATH ENTERTAINMENT, Defendants. __________________________________/ DECLARATION OF MELINDA E. LEMOINE IN SUPPORT OF DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE Daniel D. Quick Dickinson Wright PLLC 38525 Woodward Avenue Suite 2000 Bloomfield Hills, MI 48304 [phone] [e-mail] P48109 Melinda E. LeMoine Munger, Tolles & Olson LLP 355 South Grand Avenue Suite 3500 Los Angeles, CA 90071-1560 [phone] [e-mail] Attorneys for Defendants Case No. 2:07-CV-13164 Honorable Anna Diggs Taylor Magistrate Judge Donald A. Scheer

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DECLARATION OF MELINDA LEMOINE I, Melinda LeMoine, declare as follows: 1. I am an attorney with the law firm of Munger, Tolles & Olson LLP, which

represents Defendants Apple Inc. and Aftermath Records d/b/a Aftermath Entertainment in this matter. I am familiar with the documents and the court filings in this litigation. Except as otherwise indicated, I have personal knowledge of the facts set forth herein. If called as a witness in this action, I could and would testify competently to the contents of this declaration. 2. Attached as Exhibit A is a true and correct copy of the Declaration of Patrick

Sullivan, which is dated August 28, 2008. This Declaration was filed with Plaintiffs' Opposition to Defendants' Revised Motion for Summary Judgment at C.R. 74-58. 3. Attached as Exhibit B is a true and correct copy of the Expert Report by Patrick

Sullivan dated August 12, 2008, which was submitted as an exhibit to the Declaration of Patrick Sullivan and filed with Plaintiffs' Opposition to Defendants' Revised Motion for Summary Judgment at C.R. 74-59. 4. Attached as Exhibit C is a true and correct copy of an email exchange dated July

18, 2008 between Howard Hertz, counsel for Plaintiffs, and Daniel Quick, counsel for Defendants, in which Mr. Hertz reports that he has sought additional pages from the Court's clerk for Plaintiffs' Opposition and was told that each side would have 28 pages total. 5. Attached as Exhibit D is a true and correct copy of an email from Marc Guilford

to Patrick Sullivan dated August 12, 2008 and time-stamped 4:03 P.M, attaching "some of the third-party recording agreements" that are the subject of the attorney-drafted declaration and exhibits attached to Plaintiffs' Opposition to the Revised Motion. 6. Attached as Exhibit E is a true and correct copy of an email from Patrick Sullivan

dated August 12, 2008 and time-stamped 5:11 P.M, attaching his "Expert Report."

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7.

Defendants served two sets of formal discovery requests in this case. Defendants'

First Set of Interrogatories and Requests for Production were served on February 20, 2008. Defendants' Second Set of Interrogatories and Requests for Production were served on May 1, 2008. These sets of discovery requests asked for ownership information and information related to other music publishers or administrators with any role in the licensing of the compositions at issue. 8. Defendants sent a letter requesting to meet and confer on Defendants' First Set of

Requests for Production and Interrogatories on April 4, 2008. A true and correct copy of that letter is attached as Exhibit F. That letter specifically demands ownership information in its discussion of RFP Nos. 13, 14 and 18 and in the discussion of Interrogatory No. 2. Further, the letter states that Defendants have requested in Nos. 6, 7-10 all documents that relate to any of Plaintiffs allegations--favorable or unfavorable. 9. Attached as Exhibit G and Exhibit H are true and correct copies of responses to

Mr. Klaus's letter of April 4 sent by Plaintiffs' counsel Richard Busch. Exhibit G is a true and correct copy of an email sent from Mr. Busch on April 18, in which he agrees to provide ownership information for the compositions at issue in this case. Exhibit H is a true and correct copy of a letter sent by Mr. Busch on April 21, in which he again confirms that he will provide ownership information for the compositions at issue in this case. 10. Attached as Exhibit I and J are true and correct copies of correspondence sent

from Mr. Klaus to Mr. Busch on October 2, 2008 and October 23, 2008, respectively. These letters address Plaintiffs' failure to produce the promised ownership information until well after the close of discovery, and seek additional discovery relating to late-disclosed entities with interests in the compositions. Plaintiffs responded in part to Exhibit I by providing an excerpt of a heavily redacted agreement. Plaintiffs have never responded to Exhibit J.

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I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge. Executed this 6th day of November, 2008 at Los Angeles, California. /s Melinda E. LeMoine Melinda LeMoine

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