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 B to DECLARATION OF MARC GUILFORD

DEPOSITION OF MARNIE NIEVES 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]

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

F.B.T. PRODUCTIONS, LLC; ) AND EM2M, LLC, ) ) PLAINTIFFS,) ) VS. ) ) AFTERMATH RECORDS DOING ) BUSINESS AS AFTERMATH ) ENTERTAINMENT; INTERSCOPE) RECORDS; UMG RECORDINGS, ) INC.; AND ARY, INC., ) ) DEFENDANTS.) _________________________)

CASE NO. CV 07-3314 PSG (MANX)

DEPOSITION OF MARNIE NIEVES, TAKEN ON BEHALF OF THE PLAINTIFFS, AT 10250 CONSTELLATION BOULEVARD, 19TH FLOOR, LOS ANGELES, CALIFORNIA, COMMENCING AT 10:04 A.M., THURSDAY, JUNE 5, 2008, BEFORE ALEX BAKER, CSR NUMBER 11897.

DEPOSITION OF MARNIE NIEVES 15
10:11:47 10:11:51 10:11:56 10:11:57 10:11:58 10:11:59 10:12:06 10:12:08 10:12:08 10:12:12 10:12:14 10:12:18 10:12:24 10:12:28 10:12:34 10:12:37 10:12:38 10:12:40 10:12:44 10:12:47 10:12:51 10:12:58 10:13:01 10:13:02

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

AND THE NUMBER OF SONGS THAT WOULD BE PAID ON WERE THE MOST -- THAT'S THE ISSUE THAT WOULD BE DISCUSSED BETWEEN US AND THE ARTIST'S ATTORNEY. Q. THIS TIME? A. Q. NO, SIR. OKAY. YOU STARTED AT MR. PATERNO'S FIRM ANYTHING ELSE THAT YOU CAN RECALL AT

IN 1997, YOU SAID? A. Q. A. Q. YES. OKAY. AND HOW LONG DID YOU WORK THERE?

UNTIL 1999. OKAY. AND WHAT DID YOU DO AT

MR. PATERNO'S FIRM BETWEEN 1997 AND 1999? A. MUCH THE SAME THING THAT I DID AT ZOO.

NEGOTIATE AND DRAFT ARTIST AGREEMENTS, BOTH ON BEHALF OF THE ARTIST AND ALSO ON BEHALF OF VARIOUS RECORD COMPANY CLIENTS. Q. OKAY. HOW MANY AGREEMENTS DID YOU DO

DURING THAT TIME PERIOD? A. Q. I DON'T RECALL SPECIFICALLY. OKAY. DO YOU RECALL THE 1998 AGREEMENT

BETWEEN F.B.T. PRODUCTIONS AND EMINEM, ON THE ONE HAND, AND AFTERMATH ENTERTAINMENT, ON THE OTHER HAND? A. Q. I DO. WHAT DO YOU REMEMBER ABOUT IT?
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF MARNIE NIEVES 16
10:13:04 10:13:06 10:13:07 10:13:09 10:13:13 10:13:14 10:13:17 10:13:19 10:13:22 10:13:27 10:13:29 10:13:31 10:13:34 10:13:42 10:13:43 10:13:44 10:13:44 10:13:45 10:13:59 10:14:01 10:14:04 10:14:04 10:14:05 10:14:05

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
BY MR. BUSCH: Q. AGREEMENT. A. BY MR. BUSCH: Q.

MR. POMERANTZ: CALLS FOR A NARRATIVE.

OBJECTION.

VAGUE.

OBJECTION TO THE FORM.

WHAT DO YOU SPECIFICALLY REMEMBER ABOUT

EITHER YOUR -- LET'S START WITH THIS. WHAT DO YOU REMEMBER ABOUT YOUR INVOLVEMENT WITH THAT AGREEMENT, FIRST OF ALL? I REMEMBER THAT WE -- I REMEMBER THE I REMEMBER US ENTERING INTO THE

AGREEMENT HAPPENING.

AND I REMEMBER PARTICIPATING IN THE CREATION

OF THE DOCUMENT. Q. OKAY. DO YOU REMEMBER ANY CONVERSATIONS

YOU HAD WITH F.B.T.'S REPRESENTATIVES OR EMINEM'S REPRESENTATIVES, IF ANY, AS PART OF THAT PROCESS? A. Q. CONVERSATIONS? A. Q. I DO NOT. WHAT, IN GENERAL, DO YOU REMEMBER ABOUT I RECALL TALKING TO THEM, YES. DO YOU RECALL THE SPECIFICS OF ANY SUCH

ANY SUCH CONVERSATIONS IF YOU DON'T REMEMBER THE SPECIFICS OF ANY SUCH CONVERSATIONS? MR. POMERANTZ: OBJECTION --

(SPEAKING SIMULTANEOUSLY.)

IF ANYTHING.
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF MARNIE NIEVES 17
10:14:07 10:14:08 10:14:09 10:14:10 10:14:12 10:14:15 10:14:19 10:14:21 10:14:22 10:14:31 10:14:34 10:14:39 10:14:43 10:14:50 10:14:52 10:14:56 10:14:59 10:15:00 10:15:05 10:15:11 10:15:15 10:15:15 10:15:16

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
/// BY MR. BUSCH: Q.

MR. POMERANTZ: MR. BUSCH: QUESTION A DIFFERENT WAY.

OBJECTION TO THE FORM.

WELL, LET ME ASK THE

DOES YOUR RECOLLECTION INVOLVE ANYTHING

OTHER THAN THE FACT THAT YOU HAD SOME CONVERSATIONS AND YOU TRANSMITTED DOCUMENTS BACK AND FORTH; DO YOU RECALL ANYTHING MORE THAN THAT AS FAR AS YOUR CONVERSATIONS? A. Q. NO. OKAY. ALL RIGHT. WHAT WAS THE -- WHAT

WAS YOUR ROLE IN THE PROCESS? A. PETER REPRESENTED AFTERMATH. AND AS ONE

OF THE ATTORNEYS THAT WORKED FOR PETER, I REMEMBER BEING INVOLVED IN DISCUSSIONS AND DRAFTING, BUT NOT SPECIFICALLY THE ISSUES. Q. OKAY. DISCUSSIONS IN -- JUST GENERALLY

HAVING DISCUSSIONS INTERNALLY WITH PETER? A. Q. YES. OKAY. WAS THERE ANY OTHER ASSOCIATE

BESIDES YOURSELF INVOLVED IN THE PROCESS OF THE DRAFTING OF THE AGREEMENT OR BEING ASSIGNED TO THAT CASE? (WHEREUPON, MARK A. LEVINSOHN ENTERED THE DEPOSITION PROCEEDINGS.) THE DEPONENT: AT PETER'S OFFICE?

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF MARNIE NIEVES 18
10:15:18 10:15:19 10:15:20 10:15:22 10:15:23 10:15:25 10:15:29 10:15:30 10:15:31 10:15:39 10:15:44 10:15:44 10:15:46 10:15:48 10:15:49 10:15:54 10:15:56 10:15:56 10:16:00 10:16:01 10:16:01 10:16:03 10:16:05 10:16:06

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

BY MR. BUSCH: Q. A. Q. A. AT PETER'S OFFICE. NOT THAT I RECALL. WHAT WAS PETER'S ROLE IN THE PROCESS? HE WAS THE ATTORNEY FOR THE CLIENT,

AFTERMATH ENTERTAINMENT. Q. SO HE REVIEWED, SUPERVISED, WAS INVOLVED

IN THE PROCESS AS WELL? A. Q. CORRECT. OKAY. ALL RIGHT. YOU WERE WITH

PETER PATERNO FROM '97 TO '99; IS THAT WHAT YOU SAID? A. Q. OFFICE IN 1999? A. I LEFT TO GO TAKE A RECORD COMPANY YES. AND WHY DID YOU LEAVE MR. PATERNO'S

BUSINESS AFFAIRS JOB AT M.C.A. RECORDS. Q. A. Q. WAS '99? A. Q. YES. AND HAVE YOU WORKED AT M.C.A. OR WHICH IS PART OF UNIVERSAL? CORRECT. OKAY. AND WHAT YEAR WAS THAT -- THAT

UNIVERSAL SINCE THAT TIME? A. Q. YES, I HAVE. ALL RIGHT. FROM 1999 ONWARD, JUST TELL
310.820.7733 FAX: [phone]

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF MARNIE NIEVES 19
10:16:12 10:16:15 10:16:18 10:16:22 10:16:24 10:16:27 10:16:32 10:16:35 10:16:40 10:16:44 10:16:48 10:16:53 10:16:55 10:16:58 10:17:01 10:17:05 10:17:10 10:17:12 10:17:19 10:17:25 10:17:28 10:17:30 10:17:38 10:17:41

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

ME WHAT YOUR DUTIES AND RESPONSIBILITIES AT M.C.A. OR UNIVERSAL HAVE BEEN, OR IF THEY'RE DIFFERENT OVER TIME, TELL ME THE DIFFERENT POSITIONS YOU'VE HELD OR DIFFERENT DUTIES AND RESPONSIBILITIES AND THE YEAR THAT ANY OF THESE RESPONSIBILITIES CHANGED. A. I STARTED AT M.C.A. IN 1999 AS AN MY DUTIES WERE

ATTORNEY IN BUSINESS AND LEGAL AFFAIRS. SIMILAR:

NEGOTIATING AND DRAFTING AGREEMENTS,

NEGOTIATING CONTRACTS WITH ATTORNEYS THAT REPRESENTED THE ARTIST, TALKING TO MANAGERS. AND THEN M.C.A. WAS MERGED INTO ANOTHER DIVISION OF UNIVERSAL, INTERSCOPE GEFFEN A&M. MOVED INTO THAT BUSINESS, IN THE LEGAL AFFAIRS DEPARTMENT. I BELIEVE THAT WAS 2002. BUT MY I WAS

RESPONSIBILITIES STAYED THE SAME, ALTHOUGH THEY'VE INCREASED. VENTURES. I'M RESPONSIBLE FOR MORE ARTISTS, MORE I DO MORE COMPLICATED DEALS. BUT GENERALLY

THE RESPONSIBILITIES ARE THE SAME. Q. OKAY. SINCE YOUR INVOLVEMENT WITH THE

ORIGINAL F.B.T.-EMINEM-AFTERMATH AGREEMENT IN 1998, HAVE YOU HAD ANY INVOLVEMENT WHATSOEVER WITH ANY SUBSEQUENT AGREEMENTS BETWEEN THOSE PARTIES? A. Q. NO, SIR. SO IS YOUR TOTAL INVOLVEMENT WITH -- YOU

UNDERSTAND THAT -- YOU UNDERSTAND THERE'S A LAWSUIT THAT
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

DEPOSITION OF MARNIE NIEVES 40
10:41:25 10:41:35 10:41:38 10:41:43 10:41:44 10:41:46 10:41:48 10:41:51 10:41:53 10:41:54 10:42:00 10:42:03 10:42:07 10:42:11 10:42:14 10:42:17 10:42:20 10:42:25 10:42:25 10:42:27 10:42:29 10:42:32 10:42:36 10:42:43

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
DEAL.

A. Q.

I DON'T KNOW. OKAY. WAS THERE A REPOSITORY OF FORMS WAS

SEPARATE AND APART FROM WHAT WAS ON THE COMPUTER?

THERE ANY HARD COPIES KEPT OF DIFFERENT FORMS THAT HAD BEEN USED IN THE PAST? A. Q. I'M SURE IN THE FILE ROOM. OKAY. WERE YOU GIVEN ANY DIRECTION BY

MR. PATERNO ABOUT WHICH FORM TO USE TO BEGIN DRAFTING THE F.B.T.-AFTERMATH AGREEMENT? A. Q. NOT THAT I CAN RECALL. OKAY. TELL ME HOW, AS YOU REMEMBER

IT -- AND IF YOU -- I KNOW THIS IS TEN YEARS AGO NOW, AND YOU'VE HAD A LOT OF ASSIGNMENTS SINCE THEN, BUT TELL ME AS BEST AS YOU CAN RECALL HOW YOU WERE -- AS OPPOSED TO ANOTHER ASSOCIATE ASSIGNED TO THIS CASE, WHAT MR. PATERNO FIRST SAID TO YOU, THOSE TYPES OF THINGS. A. I DID ALL THE AFTERMATH WORK FOR PETER, SO THAT'S HOW I ENDED UP WITH THIS

WITH HIS DIRECTION.

Q.

OKAY.

WHO WERE THE OTHER ASSOCIATES

THAT WERE THERE AT THE TIME YOU WERE AT PATERNO'S OFFICE -- MR. PATERNO'S OFFICE? A. THERE WERE A FEW: LESLIE FRANK,

TRACY LOOMIS, LISA SOCRANSKY.

I CAN'T REALLY REMEMBER

THE REST OF WHO WAS THERE BECAUSE PEOPLE CAME AND WENT
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

DEPOSITION OF MARNIE NIEVES 44
10:59:57 10:59:58 10:59:59 11:00:02 11:00:04 11:00:07 11:00:14 11:00:16 11:00:17 11:00:18 11:00:28 11:00:29 11:00:31 11:00:33 11:00:36 11:00:40 11:00:42 11:00:46 11:00:48 11:00:49 11:00:52 11:00:57 11:00:58 11:00:59

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

SAID YOU DID NOT. IS THAT FAIR TO SAY? A. Q. YES. OKAY. AND BASED UPON YOUR TESTIMONY

EARLIER IN THIS DEPOSITION, I TAKE IT THAT YOU NEVER HAD -- THAT YOU CAN RECALL, AS YOU SIT HERE TODAY, ANY CONVERSATIONS WITH ANYONE REPRESENTING F.B.T. OR EMINEM IN CONNECTION WITH THE CONTROLLED COMPOSITION CLAUSE; IS THAT CORRECT? A. Q. THAT'S CORRECT. OKAY. SO YOU NEVER EXPLAINED TO THEM

WHAT IT MEANT, WHETHER ANY SPECIFIC SEPARATE LICENSE WOULD HAVE TO BE OBTAINED, WHETHER IT APPLIED TO ALL FORMS OF EXPLOITATION, INCLUDING DIGITAL DOWNLOADS, YOU NEVER HAD ANY OF THOSE CONVERSATIONS WITH ANYONE ON THE SIDE OF F.B.T. AND EMINEM; IS THAT CORRECT? A. I DON'T RECALL DISCUSSING THE CONTROLLED

COMPOSITION PROVISION SPECIFICALLY WITH THEM AT ALL. Q. AGREEMENT. WAS THERE PRESSURE INTERNALLY WITHIN AFTERMATH AND WITH MR. PATERNO TO GET THIS AGREEMENT DONE QUICKLY? A. Q. I REMEMBER THAT, YES. AND WHAT DO YOU REMEMBER ABOUT THAT?
310.820.7733 FAX: [phone]

OKAY.

NOW, LET'S TALK ABOUT THIS

KELLI NORDEN AND ASSOCIATES

DEPOSITION OF MARNIE NIEVES 109
12:28:34 12:28:36 12:28:40 12:28:42 12:28:43 12:28:45 12:28:46 12:29:14 12:29:16 12:29:18 12:29:25 12:29:28 12:29:29 12:29:32 12:29:34 12:29:36 12:29:37 12:29:39 12:29:41 12:29:42 12:29:43 12:29:50 12:29:54 12:29:58

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

COMMENTS. Q. TOO BROAD." DO YOU KNOW -- DO YOU RECALL ANY CONVERSATIONS ABOUT THAT? A. I DON'T RECALL ANY SPECIFIC I SEE A PHRASE ON THE LEFT, "DELETE.

CONVERSATIONS ABOUT IT. Q. PARAGRAPH, FIVE. YOU RECOGNIZE THAT THERE IS -- THAT -WOULD YOU AGREE THAT "IS HEREBY" IS DIFFERENT, IN EFFECT, THAN "WILL BE LICENSED"? MR. POMERANTZ: FOUNDATION. OBJECTION. LACK OF OKAY. LET'S LOOK AT THE FINAL

INCOMPLETE HYPOTHETICAL.

ALSO TO THE

EXTENT IT CALLS FOR A LEGAL CONCLUSION. YOU CAN ANSWER IF YOU UNDERSTAND. THE DEPONENT: IN A CONTROLLED

COMPOSITION PROVISION, I'VE SEEN BOTH PHRASES USED, AND THE OPERATION IS THE SAME. BY MR. BUSCH: Q. A. ACCORDING TO THE RECORD COMPANIES? ACCORDING TO THE RECORD COMPANY AND ALSO

IN MY NEGOTIATION OF THESE PROVISIONS WITH ATTORNEYS THAT REPRESENT ARTISTS, THAT IS THE COMMON UNDERSTANDING.
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

DEPOSITION OF MARNIE NIEVES 110
12:30:02 12:30:06 12:30:09 12:30:13 12:30:17 12:30:22 12:30:27 12:30:32 12:30:34 12:30:36 12:30:38 12:30:45 12:30:47 12:30:50 12:30:53 12:30:56 12:30:59 12:31:00 12:31:05 12:31:06 12:31:06 12:31:07 12:31:11 12:31:13

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
THAT?

Q.

THEY'VE TOLD YOU THAT?

WHO'S TOLD YOU

A.

NOT SPECIFICALLY THAT SOMEBODY TOLD ME

THAT, BUT MORE THAT IN THE PROCESS OF NEGOTIATING THE AGREEMENTS WITH THE ATTORNEY REPRESENTATIVES, IT HAS BEEN -- IT HAS BEEN CLEAR THAT THAT IS OUR MUTUAL UNDERSTANDING OF WHAT THE OPERATION OF THOSE WORDS MEAN. Q. TELL ME HOW IT WAS CLEAR IF -- LET'S

FOCUS ON DIGITAL DOWNLOADS AS OPPOSED TO PHYSICAL PRODUCT RIGHT NOW FOR A SECOND. DO YOU KNOW WHETHER -- IN CONNECTION WITH DIGITAL DOWNLOADS, DO YOU KNOW WHETHER THE LANGUAGE -- I'M SORRY. DO YOU KNOW WHETHER ANY ARTIST, EVEN IF THEY HAD A CONTROLLED COMPOSITION CLAUSE, HAS OBJECTED TO THE EXPLOITATION OF THE COMPOSITIONS FOR DIGITAL DOWNLOAD? MR. POMERANTZ: INCOMPLETE HYPOTHETICAL. OBJECT TO THE FORM. BY MR. BUSCH: Q. SEPARATE AND APART FROM EIGHT MILE OBJECTION. IT'S AN I ALSO

IT LACKS FOUNDATION.

STYLE, DO YOU KNOW WHETHER THERE HAVE BEEN OCCASIONS WHERE, EVEN IF COVERED BY A CONTROLLED COMPOSITION CLAUSE, WHETHER A PUBLISHER HAS SAID, "YOU NEED TO SIGN
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

DEPOSITION OF MARNIE NIEVES 111
12:31:21 12:31:24 12:31:32 12:31:32 12:31:32 12:31:33 12:31:36 12:31:38 12:31:40 12:31:44 12:31:48 12:31:49 12:31:54 12:31:54 12:31:56 12:31:57 12:31:58 12:32:03 12:32:07 12:32:10 12:32:11 12:32:12 12:32:16 12:32:20

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

A SEPARATE LICENSE WITH ME FOR DIGITAL DOWNLOAD THE CONTROL COMPOSITION CLAUSE DOESN'T COVER"? MR. POMERANTZ: THE DEPONENT: BY MR. BUSCH: Q. OKAY. WOULD YOU AGREE THAT AS OBJECTION TO THE FORM. I DON'T KNOW.

CONTEMPLATED HERE, PARAGRAPH 6, THAT THIS CONTEMPLATED THE EXPLOITATION FOR PHYSICAL PRODUCT? MR. POMERANTZ: IT CALLS FOR A LEGAL CONCLUSION. HYPOTHETICAL. THE DEPONENT: I BELIEVE THE PROVISION OBJECTION TO THE EXTENT ALSO INCOMPLETE

APPLIES TO THE DISTRIBUTION OF RECORDS. BY MR. BUSCH: Q. REMEMBER YOU SAID BEFORE THAT -- IN THE

LICENSE PROVISION -A. Q. UH-HUH. -- IN THE LICENSE PROVISION, EVEN THOUGH

IT SAYS, "ALL OTHER USES," YOUR VIEW IS THAT IT'S FOR COMPILATIONS AND SYNC LICENSES? THAT EARLIER? A. Q. YES, I DO. OKAY. HERE, WOULD YOU AGREE THAT IN DO YOU RECALL SAYING

1998, AT LEAST, THERE WAS NO SUCH THING AS PERMANENT DOWNLOAD?
KELLI NORDEN AND ASSOCIATES 310.820.7733 FAX: [phone]

DEPOSITION OF MARNIE NIEVES 117 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)