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

Filing 134

RESPONSE to 128 MOTION for Order to Exclude Plaintiffs' Late-Disclosed Claim of Entitlement to Profits from Sales of iPods by Apple Inc. Under FRCP 37, Settled Copyright Law, and FRE 702 filed by Eight Mile Style, LLC, Martin Affiliated, LLC. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Declaration of Marc Guilford, # 3 Exhibit Exhibit A, # 4 Exhibit Exhibit B, # 5 Exhibit Exhibit C, # 6 Exhibit Exhibit D, # 7 Exhibit Exhibit E, # 8 Exhibit Exhibit F) (Busch, Richard)

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 Defendant. Howard Hertz, Esq. (P26653) Jay G. Yasso, Esq. (P45484) Hertz Schram PC 1760 S. Telegraph Rd., Suite 300 Bloomfield Hills, MI 48302 [phone] [e-mail] [e-mail] Attorneys for Plaintiffs Richard S. Busch (TN BPR#14594) King & Ballow 1100 Union Street Plaza 315 Union Street Nashville, TN 37201 [phone] [e-mail] Attorneys for Plaintiffs Case No. 2:07-cv-13164 Hon. Anna Diggs Taylor Magistrate Judge Donald A. Scheer

DECLARATION OF MARC R. GUILFORD IN OPPOSITION TO DEFENDANTS' MOTION TO EXCLUDE PLAINTIFFS' CLAIM OF ENTITLEMENT TO PROFITS FROM APPLE'S SALE OF IPODS I, Marc R. Guilford, having personal knowledge of the facts contained in this declaration, state as follows: 1. I am an attorney and associate in the law firm of King & Ballow, which represents

plaintiffs Eight Mile Style, LLC and Martin Affiliated, LLC ("Plaintiffs") in the above-entitled action. I am familiar with the files in this litigation. 2. While the complaint was filed in this case on July 30, 2007, discovery did not

begin until February 12, 2008.

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3.

Plaintiffs served document requests and interrogatories on both parties on or

about February 12, 2008, and Defendants responded on March 20, 2008. A true and correct copy of Apple's responses to Plaintiffs' First Set of Document Requests is attached hereto as Exhibit A. A true and correct copy of Aftermath's responses to Plaintiffs' First Set of Document Requests is attached hereto as Exhibit B. Exhibits A and B also accurately reproduce the text of the document requests directed at Defendants. 4. Document Requests 14 through 19 directed at Apple asked for various documents

related to Apple's profits from the infringing activity alleged in this case, and thus Plaintiffs' damages. Apple asserted various objections in response and indicated they would only produce the documents described in their answer to Document Request #4, showing the "number of permanent downloads" of the Eminem Compositions, and the amounts Apple paid to Universal Music Group as a result. 5. Apple produced the documents described above in paragraph 4, but did not

produce at that time any documents showing any costs Apple was claiming, or their total income from the infringement alleged. 6. Aftermath produced nothing, objected that damages discovery was premature.

See Exhibit B hereto, Response Numbers 14-19. 7. Defendants subsequently filed a motion to bifurcate and maintained their

objections, refusing to produce documents showing their profits and losses, which Plaintiffs required to calculate their damages. That motion was heard on December 4, 2008, along with several other pending motions. At that time, Defendants still had not produced the requested documents.

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8.

Defendants served interrogatories on Plaintiffs on or about February 20, 2008. A

true and correct copy of Plaintiff Eight Mile Style's responses to those interrogatories, served on Defendants on March 21, 2008, is attached hereto as Exhibit C. For ease of reference, a copy of the identical set of interrogatories served on Plaintiff Martin Affiliated is not attached. Interrogatory 4 asked Plaintiffs to identify the amount of damages suffered, including a detailed calculation. Plaintiffs objected that their damages were subject to expert opinion and reiterated the statement in their Initial Disclosures that they were entitled to Apple's profits attributable to the infringement at issue. 9. On February 26, 2009, I sent an email to counsel for Defendants in this case

notifying Defendants that they owed Plaintiffs responses to certain outstanding discovery relating to Plaintiffs' damages. A true and correct copy of that email is attached hereto as Exhibit D. I sent another email to Defendants on April 24, 2009, again advising Defendants that we expected responses to outstanding discovery regarding damages. A true and correct copy of that email is attached hereto as Exhibit E. 10. Aftermath produced 44 profit and loss statements and certain supporting

documentation in response to the outstanding discovery requests referred to in paragraph 9 above in early May 2009. Apple supplemented its written responses at that time but did not produce documents, stating it was still in the process of gathering responsive documents. 11. Apple finally produced documents on June 3, 2009, including the "profit and

loss" statements Plaintiffs needed to calculate Apple's profits and thus Plaintiffs' damages from Apple. Two days later, on June 5, 2009, Plaintiffs deposed Apple's 30(b)(6) witness on the documents Apple produced.

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12.

After Apple's production of documents related to Plaintiffs' damages, the parties

conferred and agreed that Plaintiffs' expert report on damages would be due July 3, 2009. 13. Plaintiffs' expert report was served on Defendants on July 3, 2009. That expert

report contained Plaintiffs' claim of entitlement to a share of Apple's profits from sales of iPods. 14. On July 27, 2009, Plaintiffs deposed Charles Ciongoli, the witness Aftermath

designated in response to Plaintiffs Rule 30(b)(6) deposition notice to testify concerning the financial documents Aftermath produced. 15. Pursuant to their prior agreement, Plaintiffs served on Defendants Mr. Cohen's

supplemental expert report on August 10, 2009, and Mr. Cohen was then deposed on August 12, 2009. 16. At his deposition, Mr. Cohen was questioned on the claim for iPod profits in his

July 3, 2009 report. By my estimation, over 30 pages of Mr. Cohen's 200-page deposition transcript concern Plaintiffs' claim to iPod profits. 17. On August 19, 2009, Defendants produced their "Expert Rebuttal Report," which

dealt solely with Plaintiffs' claim to a portion of Apple's iPod profits. 18. Attached hereto as Exhibit F are Plaintiffs' responses and objections to

Defendants' fourth set of Interrogatories. Interrogatory Number 31 again asked Plaintiffs to "identify and describe" their damages, despite Plaintiffs' expert report on damages not being due until a later date. Plaintiffs responded by referring Defendants to their response to Interrogatory 4 and Mr. Cohen's expert report.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 3rd day of September, 2009.

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/s/ Marc R. Guilford Marc R. Guilford

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CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing document was served via the Court's Electronic Filing System:
Counsel
Daniel D. Quick, Esq. Dickinson Wright PLLC 38525 Woodward Ave Suite 2000 Bloomfield Hills, MI 48304 (t): [phone] (e): [e-mail] Kelly M. Klaus, Esq. Munger, Tolles & Olson LLP 355 South Grand Ave Suite 3500 Los Angeles, CA 90071-1560 (t): [phone] (e): [e-mail]

On behalf of
Apple Computer, Inc. and Aftermath Records d/b/a Aftermath Entertainment

this 3rd day of September 2009. s/ Richard S. Busch

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