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

Filing 139

MOTION in Limine No. 3 to Exclude Testimony of Defendants' Witnesses as to Their Undertanding of the Meaning of the 1998 and 2003 Recording Agreements by Eight Mile Style, LLC, Martin Affiliated, LLC. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - Declaration of Marc Guilford, # 3 Exhibit A - Paterno Depo Excerpts, # 4 Exhibit B - Nieves Depo Excerpts, # 5 Exhibit C - Hoffman Depo Excerpts, # 6 Exhibit D - Rogell Depo Excerpts) (Busch, Richard)

EXHIBIT A to DECLARATION OF MARC GUILFORD

DEPOSITION OF PETER PATERNO 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone] DEPOSITION OF PETER PATERNO, TAKEN ON BEHALF OF THE DEFENDANTS, AT 10250 CONSTELLATION BOULEVARD, 19TH FLOOR, CALIFORNIA, COMMENCING AT 2:15 P.M., WEDNESDAY, APRIL 30, 2008, BEFORE ALEJANDRIA BAKER, CSR NUMBER 11897. F.B.T. PRODUCTIONS, LLC; ) AND EM2M, LLC, ) ) PLAINTIFFS,) ) VS. ) CASE NO. CV 07-3314 PSG (MANX) ) AFTERMATH RECORDS DOING ) BUSINESS AS AFTERMATH ) ENTERTAINMENT; INTERSCOPE) RECORDS; UMG RECORDINGS, ) INC.; AND ARY, INC., ) ) DEFENDANTS.) _________________________) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

DEPOSITION OF PETER PATERNO 31
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BY MR. BUSCH: Q. ARY IS OWNED AND OPERATED SOLELY BY

DR. DRE; IS THAT RIGHT? A. Q. YES. OKAY. AND ITS PRINCIPAL PLACE OF

BUSINESS IS IN CALIFORNIA? A. Q. YES. AND DR. DRE LIVES IN CALIFORNIA AND RUNS

ARY EXCLUSIVELY FROM CALIFORNIA? A. Q. YES. IN CONNECTION WITH THE AGREEMENTS WITH

EMINEM AND F.B.T., THE FIRST ONE BEING IN 1998, WERE YOU INVOLVED IN NEGOTIATION OF THE DRAFTS OF THOSE AGREEMENTS? A. Q. AGREEMENT. A. Q. I DON'T REMEMBER. WHO WAS PART OF THE TEAM THAT NEGOTIATED OF THE DRAFTS? DRAFTS THAT ULTIMATELY BECAME THE FINAL

THOSE AGREEMENTS IN 1998? A. Q. I ALSO DON'T REMEMBER THAT EITHER. WHAT WOULD MAKE MOST SENSE TO YOU,

SITTING HERE TODAY, OTHER THAN YOURSELF? A. IT WOULD HAVE BEEN WHOEVER -- WE HAD WHO WAS EVER
FAX: [phone]

SORT OF A ROTATING SECOND CHAIR BACK THEN.
KELLI NORDEN AND ASSOCIATES 310.820.7733

DEPOSITION OF PETER PATERNO 32
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SITTING IN THE CHAIR AT THE TIME THAT AGREEMENT CAME IN TO THE OFFICE. Q. A. Q. BUT WOULD YOU HAVE BEEN THE LEAD GUY? YES. THINKING BACK TO THAT TIME, WHO WOULD BE

THE POSSIBLE SECOND CHAIRS? A. IT COULD HAVE BEEN GREG THOMPSON. IT

COULD HAVE BEEN MARNI NIEVES, IT COULD HAVE BEEN KIM DAVIS. IT'S MOSTLY MARNI. I THINK THAT WAS HER

PERIOD, BUT I CAN'T TELL YOU FOR SURE. Q. OKAY. AND ON THE INTERSCOPE SIDE OF THE

EQUATION, WERE THERE COMMUNICATIONS WITH INTERSCOPE ABOUT SUGGESTIONS MADE BY THE EMINEM TEAM CONCERNING THOSE AGREEMENTS? A. Q. I DON'T REMEMBER. IN THE USUAL COURSE OF NEGOTIATING THESE

AGREEMENTS, WOULD THERE BE CONVERSATIONS BETWEEN YOU AND THE INTERSCOPE PEOPLE ABOUT REQUESTS AND CHANGES OF LANGUAGE AND THINGS OF THAT NATURE? A. PROBABLY NOT SO MUCH IN THOSE DAYS. I

DON'T KNOW IF RAND WAS THERE OR NOT.

IT BECAME MORE --

MORE OF THAT AS RAND -- WHEN RAND CAME IN AND TOOK OVER BUSINESS AFFAIRS. I'M PRETTY SURE ON THIS AGREEMENT. BECAUSE IT WAS DONE SO QUICKLY, WE KIND OF JUST RAN WITH
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

DEPOSITION OF PETER PATERNO 72
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MOVE TO STRIKE THAT. BY MR. BUSCH: Q. OKAY. DO YOU HAVE A VIEW AS TO THE

MERITS OF THAT PARTICULAR CASE? A. MY VIEW IS THAT THE CONTROLLED

COMPOSITION CLAUSE DOES COVER THE DOWNLOADS. Q. YOU'RE SAYING THAT THE CONTROLLED --

YOU'RE SAYING THE LANGUAGE IN THE CONTROLLED COMPOSITION CLAUSE IS A SELF-EFFECTUATING LICENSE? A. I'M NOT SAYING THAT. I'M SAYING THAT --

THAT -- THAT IT COVERS A DOWNLOAD. Q. THAT'S NOT MY QUESTION. MY QUESTION IS: IS THE CONTROLLED

COMPOSITION CLAUSE IN THE 1998 OR 2003 AFTERMATH AGREEMENTS, ARE THEY -- DO THEY CONTAIN SELF-EFFECTUATING CONTROLLED COMPOSITION CLAUSES? MR. POMERANTZ: OBJECTION. VAGUE AND

AMBIGUOUS AS TO WHAT YOU MEAN BY "SELF-EFFECTUATING." THE DEPONENT: TOO. WHAT -YEAH, I'M KIND OF THERE,

BY MR. BUSCH: Q. BY ITS TERMS, IS THE LICENSE

SELF-EFFECTUATING BY VIRTUE OF THE LANGUAGE IN THE AGREEMENTS THEMSELVES, OR ARE SEPARATE LICENSES SUPPOSED TO BE NEGOTIATED AND EXECUTED?
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

DEPOSITION OF PETER PATERNO 73
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/// BY MR. BUSCH: Q. THAT? A. LICENSE. Q. BY MR. BUSCH: Q. A.

MR. POMERANTZ:

OBJECTION --

(SPEAKING SIMULTANEOUSLY.)

GO AHEAD. I DON'T THINK YOU NEED THE SEPARATE

OKAY.

AND WHAT IS YOUR BASIS OF SAYING

OH, I'M JUST SAYING IN GENERAL.

I DON'T

HAVE THE CONTRACT IN FRONT OF ME. IT TO ME, I'LL SEE WHAT IT SAYS. Q. OKAY.

IF YOU WANT TO SHOW

SO THAT'S BASED ON YOUR

RECOLLECTION OF THE LANGUAGE IN THE AGREEMENT? A. IT'S BASED ON GENERALLY HOW AGREEMENTS AND I DON'T --

IN THE MUSIC INDUSTRY WORK. Q.

BUT DON'T THE LANGUAGE OF THE

AGREEMENT -- I'M SORRY. MR. POMERANTZ: THE DEPONENT: YOU INTERRUPTED HIM. NO, NO, NO. THAT'S FINE.

BUT DON'T THE LANGUAGE OF THOSE ISN'T LANGUAGE IMPORTANT? OBJECTION TO THE --

AGREEMENTS CONTROL?

MR. POMERANTZ: WELL, IT'S COMPOUND NOW.

IT'S ALSO VAGUE.

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF PETER PATERNO 82
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YOU CONSULTED ABOUT ANY AFFIRMATIVE DEFENSES OR ANY OF THE SPECIFIC ANSWERS TO THE COMPLAINT? A. Q. NO. OKAY. MR. BUSCH: '98, AGREEMENT. OKAY. HERE'S THE MARCH 9,

EXHIBIT NUMBER 6? DEPOSITION OFFICER: FIVE.

(WHEREUPON, PLAINTIFFS' EXHIBIT NUMBER 5 WAS MARKED FOR IDENTIFICATION BY THE DEPOSITION OFFICER AND IS BOUND UNDER SEPARATE COVER.) BY MR. BUSCH: Q. 5. A. Q. WILL I IDENTIFY IT? IS THAT, IN FACT, THE FINAL MARCH 9, WOULD YOU PLEASE IDENTIFY EXHIBIT NUMBER

'98, AGREEMENT BETWEEN AFTERMATH ENTERTAINMENT AND F.B.T. PRODUCTIONS? A. YEAH. I GUESS. I MEAN, THERE'S NO

HEADING OR ANYTHING. Q. A. Q. AGREEMENT? IN GENERAL.
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

DO YOU SEE THAT IT'S SIGNED? YES, I SEE IT'S SIGNED. OKAY. WHAT IS THE NATURE OF THIS JUST

WHAT WERE THE PARTIES ENTERING INTO?

DEPOSITION OF PETER PATERNO 83
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NIEVES. Q. A. Q. AGREEMENT. BY MR. BUSCH: Q.

MR. POMERANTZ: THE DEPONENT:

OBJECTION.

VAGUE.

IT'S A RECORDING

OKAY.

IN IT, F.B.T. AGREED TO FURNISH

TO AFTERMATH THE EXCLUSIVE RECORDING SERVICES OF EMINEM; IS THAT RIGHT? A. Q. THAT'S WHAT IT SAYS, YES. OKAY. AND YOU REPRESENTED AFTERMATH IN

THE NEGOTIATION AND PREPARATION OF THIS DOCUMENT? A. IN THE NEGOTIATION. I DON'T THINK I HAD

MUCH TO DO WITH THE PREPARATION. Q. A. Q. YOUR DIRECTION? A. YES. IT WOULD BE -- LET'S CALL IT MARNI WHAT DO YOU MEAN BY THAT? I DON'T THINK I WROTE THIS. WHO WROTE IT? DID SOMEONE WRITE IT AT

THE SECOND CHAIR? YES. BUT YOU, AS THE FIRST CHAIR, AS THE HEAD

OF THE TEAM, YOU WOULD HAVE REVIEWED IT TO MAKE SURE THAT IT WAS CONSISTENT WITH WHAT YOU UNDERSTOOD THE DEAL TO BE; RIGHT? A. I MIGHT HAVE.
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF PETER PATERNO 112
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A. BY MR. BUSCH: Q.

MR. POMERANTZ:

IF THERE'S PARTICULAR

LANGUAGE YOU WANT TO FOCUS HIM ON, IT'S PROBABLY A LITTLE MORE EFFICIENT FOR YOU TO JUST FOCUS HIM ON -(SPEAKING SIMULTANEOUSLY.) THE DEPONENT: DIFFERENCES BETWEEN THEM. THERE -- THERE ARE MINOR

YOU THINK THERE ARE ONLY MINOR

DIFFERENCES BETWEEN THEM? A. Q. YEAH. OKAY. DO YOU SEE THAT IN THE F.B.T.

AGREEMENT, IT SAYS: "ALL CONTROLLED LICENSE COMPOSITIONS WILL BE LICENSED TO AFTERMATH AND ITS DISTRIBUTORS/LICENSEES." WHEREAS, IN THE AGREEMENT THAT WE JUST WENT OVER, IT SAYS, "ARE HEREBY LICENSED." IT DOESN'T SAY "ARE HEREBY." IT SAYS,

"YOU HEREBY," BUT THAT'S OKAY. Q. A. Q. A. Q. YES. OKAY. IS THAT A DIFFERENCE TO YOU? NOT REALLY. IT'S NOT?
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF PETER PATERNO 113
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A. Q.

NO. IT'S -- DO YOU KNOW WHY THERE'S A

DIFFERENCE IN THE LANGUAGE? A. PROBABLY BECAUSE WHOEVER DRAFTED IT

PULLED ONE FORM THAT HAD THIS LANGUAGE AND THEY PULLED THE OTHER ONE THAT HAD THE OTHER LANGUAGE. BELIEVE ME, THERE WAS NO INTENT TO HAVE THEM HAVE A DIFFERENT EFFECT. Q. A. Q. WELL, WAS THERE ANY DISCUSSION ABOUT IT? I HAVE NO IDEA. I DOUBT IT.

DO YOU KNOW WHY -- YOU DON'T -- SO YOU

DON'T KNOW WHY ONE PARAGRAPH READS ONE WAY AND ANOTHER PARAGRAPH DRAFTED BY YOUR OFFICE -- WELL, YOU HAVE NO EXPLANATION OTHER THAN SOMEONE MAY HAVE PULLED A DIFFERENT FORM -A. Q. IT'S CLEARLY A DIFFERENT FORM. -- WHY THE F.B.T. AGREEMENT ON MARCH 9,

'98, HAS LANGUAGE THAT TALKS ABOUT "WILL LICENSE TO AFTERMATH," AS OPPOSED TO THE JUNE '98 AGREEMENT WITH SOME THIRD PARTY THAT SAYS, "YOU HEREBY LICENSE TO US"? YOUR ONLY EXPLANATION IS A DIFFERENT FORM WAS PULLED? A. YEAH. THERE WAS -- REMEMBER, THE F.B.T.

AGREEMENT WAS DONE IN A SHORT PERIOD OF TIME, UNDER A LOT OF, YOU KNOW, GET IT DONE. IF -KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

SO, I MEAN -- AGAIN,

DEPOSITION OF PETER PATERNO 114
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WORK. TESTIMONY.

Q. A. Q.

WHOSE FAULT IS THAT? IT'S NOT FAULT. WHAT'S THE FAULT?

I GUESS MY POINT IS IS THAT IF LANGUAGE

WAS NOT DONE IN A WAY THAT EFFECTUATED WHAT YOUR SIDE MAY HAVE WANTED OUT OF THE AGREEMENT, WHOSE FAULT IS THAT? MR. POMERANTZ: OBJECTION. ASSUMES

FACTS NOT IN EVIDENCE AND TOTALLY CONTRARY TO HIS

THE DEPONENT:

YEAH.

I THINK THEY BOTH

BY MR. BUSCH: Q. THEY BOTH WORK, BUT THEY WORK IN

DIFFERENT WAYS, DON'T THEY? MR. POMERANTZ: HIS TESTIMONY. THE DEPONENT: BY MR. BUSCH: Q. WOULDN'T IT BE FAIR TO SAY, WHERE IT NO. OBJECTION. MISSTATES

SAYS, WHERE -- LET'S JUST FOCUS ON PARAGRAPH NUMBER 6 OF EXHIBIT NUMBER 5, WHERE THE LANGUAGE SAYS: "ALL CONTROLLED COMPOSITIONS WILL BE LICENSED TO AFTERMATH AND ITS DISTRIBUTORS/LICENSEES." LET'S FOCUS ON THE "ALL CONTROLLED
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

DEPOSITION OF PETER PATERNO 115
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COMPOSITIONS WILL BE LICENSED." DOES THAT LANGUAGE SUGGEST TO YOU THAT THERE NEEDS TO BE A LICENSE NEGOTIATED BETWEEN THE PARTIES FOR THE COMPOSITIONS TO BE LICENSED? MR. POMERANTZ: ANSWERED. THE DEPONENT: BY MR. BUSCH: Q. DOES IT SUGGEST TO YOU THAT THERE WILL NO. OBJECTION. ASKED AND

BE A SEPARATE LICENSE EXECUTED BETWEEN THE PARTIES? MR. POMERANTZ: ANSWERED. THE DEPONENT: BY MR. BUSCH: Q. A. NOT AT ALL? NO. BECAUSE I'VE WORKED IN THIS NO. OBJECTION. ASKED AND

BUSINESS FOR 30 YEARS, AND THAT'S NOT WHAT ANYBODY THINKS THAT SAYS. Q. AND WOULD YOU AGREE THAT WHERE IT SAYS,

IN PARAGRAPH 10, "YOU HEREBY LICENSE TO US," THAT THAT IS CLEAR -- I'M SORRY, EXHIBIT -- WE'RE TALKING ABOUT NOW THE JUNE 12TH AGREEMENT BETWEEN AFTERMATH AND SOME OTHER THIRD PARTY. WHERE PARAGRAPH 10 SAYS, "YOU HEREBY LICENSE TO US," THAT THAT'S CLEARLY A MECHANICAL LICENSE
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

DEPOSITION OF PETER PATERNO 262 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

STATE OF CALIFORNIA COUNTY OF LOS ANGELES

) ) )

SS.

DEPONENT'S DECLARATION

I CERTIFY UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT.

EXECUTED AT ___________________ ON _______________.

____________________________ (SIGNATURE OF DEPONENT)