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

Filing 94

REPLY to Response re 66 Renewed MOTION for Summary Judgment, 34 MOTION for Summary Judgment, 80 MOTION Exclude Late Produced Documents re 66 Renewed MOTION for Summary Judgment MOTION Exclude Late Produced Documents re 66 Renewed MOTION for Summary Judgment MOTION Exclude Late Produced Documents re 66 Renewed MOTION for Summary Judgment, 53 MOTION for Partial Summary Judgment iso Revised Motion for Summary Judgment filed by Aftermath Records, Apple Computer, Incorporated. (Attachments: # 1 Index of Exhibits TO DEFENDANTS AFTERMATH RECORDS AND APPLE INC.S REPLY BRIEF IN SUPPORT OF REVISED MOTION FOR SUMMARY JUDGMENT, # 2 Exhibit 22: Declaration of Melinda LeMoine In Support of Defendants Reply Brief In Support of Defendants Revised Motion for Summary Judgment, # 3 Exhibit 22-A: Excerpts of transcript pages from the depositions of Patrick Sullivan taken on September 18, 2008 and October 1, 2008, # 4 Exhibit 22-B: Excerpts of transcript pages from the deposition of Todd Douglas taken on May 6, 2008, # 5 Exhibit 22-C: Excerpts of transcript pages from the deposition of Cynthia Oliver taken on July 17, 2008, # 6 Exhibit 22-D: Excerpts of transcript pages from the deposition of Chad Gary taken on May 6, 2008, # 7 Exhibit 22-E: Excerpts of transcript pages from the deposition of Patricia Blair taken on May 29, 2008, # 8 Exhibit 22-F: Letter from Glenn Pomerantz to Richard Busch dated August 19, 2008, # 9 Exhibit 22-G: Ensign Publishing/Famous Music licenses (Filed Under Seal), # 10 Index of Exhibits 22-H: Summary Chart of Grants of Rights in Compositions (Docket No. 66-3, Revised to Include Ensign Publishing/Famous Music Licenses), # 11 Exhibit 22-I: Amendment to Production Agreement between F.B.T. Productions, LLC and Marshall Mathers p/k/a Eminem, dated February 22, 1999 (FBT-0042-46) (Filed Under Seal), # 12 Index of Exhibits 22-J: Summary Chart in Response to Sullivan Decl. Exhibit C-2 (Filed Under Seal), # 13 Exhibit 22-K: Summary Chart in Response to Sullivan Decl. Exhibit C-3 (Filed Under Seal), # 14 Exhibit 22-L: Excerpts of transcript pages from the deposition of Eddy Cue taken on June 20, 2008 (Filed Under Seal), # 15 Exhibit 22-M: Copyright Assignment and Co-Publishing Agreement with Ensign Music Corporation, dated February 4, 1999 (8M-00847-74) (Filed Under Seal), # 16 Exhibit 22-N: Letter from Kobalt Music Publishing to UMG Recordings, dated September 30, 2008 (AFT-0059179-83) (Filed Under Seal), # 17 Exhibit 22-O: Declaration of Richard Busch and accompanying Exhibit K filed in F.B.T. Productions, LLC and Em2M, LLC v. Aftermath Records et al., Case No. CV-07-03314 PSG (C.D. Cal.) on September 30, 2008 (Filed Under Seal), # 18 Exhibit 22-P: Copy of a check from Universal Music Group to Kobalt Music Publishing (AFT-0059125) (Filed Under Seal), # 19 Exhibit 22-Q: Music Resources, Inc. Administration Agreement dated October 17, 2007 (Filed Under Seal), # 20 Exhibit 23: Asset Marketing Systems, Inc. v. Gagnon, 2008 WL 4138181 (9th Cir. Sept. 9, 2008)) (Klaus, Kelly)

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

EXHIBIT 22-E Excerpts of transcript pages from the deposition of Patricia Blair taken on May 29, 2008

5005843.1

DEPOSITION OF PATRICIA BLAIR
Page 2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

EIGHT MILE STYLE, LLC, ET AL.,

) ) ) PLAINTIFFS, ) ) VS. ) CASE NO. 2:07-CV-13164 ) APPLE COMPUTER, INC., ) ) DEFENDANT. ) ______________________________)

DEPOSITION OF PATRICIA BLAIR, TAKEN ON BEHALF OF THE DEFENDANTS, AT 10250 CONSTELLATION BOULEVARD, 19TH FLOOR, 19TH FLOOR, CALIFORNIA, COMMENCING AT 11:50 A.M., THURSDAY, MAY 29, 2008, BEFORE ALEX BAKER, CSR NUMBER 11897.

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF PATRICIA BLAIR
Page 6
11:50:36 11:50:36 11:50:36 11:50:36 11:50:36 11:50:36 11:50:36 11:50:36 11:50:36 11:50:36 11:50:36 11:50:36 11:50:36 11:50:36 11:50:47 11:50:48 11:50:51 11:50:54 11:50:58 11:51:03 11:51:05 11:51:06 11:51:12 11:51:16 11:51:19 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

PATRICIA BLAIR, CALLED AS A DEPONENT AND SWORN IN BY THE DEPOSITION OFFICER, WAS EXAMINED AND TESTIFIED AS FOLLOWS:

DEPOSITION OFFICER: RIGHT HAND.

PLEASE RAISE YOUR

DO YOU AFFIRM, UNDER PENALTY OF PERJURY, THAT THE TESTIMONY YOU ARE ABOUT TO GIVE IN THE FOLLOWING DEPOSITION PROCEEDING SHALL BE THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH? THE DEPONENT: YES, I DO. THANK YOU.

DEPOSITION OFFICER:

MR. BUSCH:

MR. POMERANTZ, BEFORE WE

BEGIN THE DEPOSITION, YOU AND I HAVE AGREED TO DISCUSS A FEW OPEN ITEMS ON THE RECORD SO THAT WE DON'T HAVE TO EXCHANGE CORRESPONDENCE FOLLOWING THE DEPOSITION TODAY OR THIS WEEK. SO IF YOU WANT TO GO AHEAD AND RAISE

WHATEVER ISSUES, AND WE CAN TALK ABOUT THOSE. MR. POMERANTZ: SURE. OKAY. THE

PARTIES HAVE AGREED THAT NEITHER SIDE WILL CALL ANY OF THE REPRESENTATIVES OF EMINEM IN THE EIGHT MILE MATTER AS TRIAL WITNESSES AND, THEREFORE, WILL NOT TAKE THEIR DEPOSITIONS. BY REPRESENTATIVES, I'M INCLUDING

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF PATRICIA BLAIR
Page 7
11:51:23 11:51:27 11:51:31 11:51:32 11:51:36 11:51:39 11:51:41 11:51:42 11:51:45 11:51:50 11:51:55 11:51:55 11:51:57 11:52:01 11:52:05 11:52:06 11:52:09 11:52:11 11:52:17 11:52:19 11:52:23 11:52:27 11:52:31 11:52:34 11:52:37 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

MR. ROSENBERG, MR. STIFFELMAN, MR. SEDLMAYR AND MR. MATHERS HIMSELF. MR. BUSCH: AND JUST SO THAT WE'RE

CLEAR, MR. LEVINSOHN MIGHT BE UNDERSTOOD IN SOME WAY TO BE A REPRESENTATIVE, SO I DID WANT TO CLARIFY THAT WE ARE PLANNING TO CALL MR. LEVINSOHN. MR. POMERANTZ: AND WITH RESPECT TO

MR. LEVINSOHN, WE HAVE AGREED THAT WE CAN TAKE HIS DEPOSITION AT ANY -- AT A MUTUALLY AGREEABLE DATE PRIOR TO JULY 1, NOTWITHSTANDING THE JUNE 2 DISCOVERY CUTOFF DATE. MR. BUSCH: I'M GOING ON A VACATION

JUNE 28TH, SO THAT IS CORRECT, EXCEPT ON JUNE 28TH OR 29TH AND 30TH, WE WON'T BE DOING DEPOSITIONS. MR. POMERANTZ: FINE. FINE. THEN THOSE

AREN'T MUTUALLY ACCEPTABLE DATES. AS TO ANY OTHER DEPOSITIONS THAT WILL TAKE PLACE AFTER JUNE 2, BUT PRIOR TO JUNE 28, THE PARTIES, I THINK, HAVE AGREED THAT THE FOLLOWING DEPOSITIONS CAN BE TAKEN DURING THAT PERIOD OF TIME IF EITHER SIDE WANTS THEM. ONE WOULD BE MR. OSTROFF

(PHONETIC), WHO WE JUST DISCLOSED TO YOU AS BEING ANOTHER WITNESS THAT WE RESERVE THE RIGHT TO CALL AT TRIAL IN THE EIGHT MILE CASE. ANOTHER WOULD BE MS. NIEVES, IF WE --

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF PATRICIA BLAIR
Page 8
11:52:43 11:52:45 11:52:47 11:52:56 11:53:00 11:53:03 11:53:06 11:53:11 11:53:15 11:53:19 11:53:23 11:53:25 11:53:27 11:53:29 11:53:33 11:53:37 11:53:39 11:53:41 11:53:42 11:53:45 11:53:48 11:53:52 11:53:56 11:53:58 11:54:00 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

UNLESS WE TELL YOU THAT WE ARE NOT RESERVING THE RIGHT TO CALL HER, YOU CAN TAKE HER DEPOSITION DURING THAT PERIOD. ANOTHER WOULD BE -- WE HAVE TWO 30(B)(6)

NOTICES OUT -- YOU HAVE TWO 30(B)(6) NOTICES OUT IN THE EIGHT MILE CASE. WE'RE GOING TO BE OBJECTING TO THOSE. THE PARTIES WILL THEN MEET AND CONFER. AND IF WE EITHER AGREE TO A DEPOSITION OR THE COURT ORDERS US TO PUT A WITNESS UP FOR A DEPOSITION, THOSE DEPOSITIONS CAN TAKE PLACE AFTER JUNE 2 AND BEFORE JUNE 28, UNLESS THE COURT OTHERWISE PUSHES THEM BACK FURTHER. BUT WE AGREE ON THAT. MR. BUSCH: AND EDDIE CUE. WITH MR. CUE, YOU HAVE

MR. POMERANTZ: REQUESTED HIS DEPOSITION.

WE MAY OBJECT TO THAT

DEPOSITION, BUT WE WON'T OBJECT TO IT AS BEING UNTIMELY. MR. BUSCH: DEPOSITIONS. MR. POMERANTZ: DEPOSITIONS. OR IN EXCESS OF TEN WE'LL MEET OR IN EXCESS OF TEN

WE RESERVE OTHER OBJECTIONS.

AND CONFER ON THAT.

BUT, AGAIN, TO THE EXTENT THAT

DEPOSITION HAS TO GO FORWARD, IT WOULD GO FORWARD -- IT CAN GO FORWARD AFTER THE JUNE 2 DISCOVERY CUTOFF DATE, BUT PRIOR TO JUNE 28TH. MR. BUSCH: ACTUALLY, NO. WITH THAT ONE

I'VE TOLD YOU THAT WE NEED MR. CUE -- JUST SO THE RECORD

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF PATRICIA BLAIR
Page 9
11:54:03 11:54:06 11:54:09 11:54:13 11:54:17 11:54:19 11:54:21 11:54:25 11:54:29 11:54:33 11:54:35 11:54:38 11:54:40 11:54:41 11:54:44 11:54:47 11:54:50 11:54:53 11:55:01 11:55:03 11:55:07 11:55:09 11:55:13 11:55:15 11:55:17 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

IS CLEAR, WE HAVE NOT TAKEN ANY DEPOSITIONS OF APPLE AT ALL IN THIS CASE. AND WE HAVE ACTUALLY NOT RECEIVED ANY SO WE NEED BOTH DOCUMENTS

DOCUMENTS FROM APPLE EITHER.

AND DEPOSITION TESTIMONY IN ORDER TO RESPOND TO YOUR MOTION FOR SUMMARY JUDGMENT. OUR RESPONSE IS DUE JUNE 17TH. SO WITH

RESPECT TO APPLE, THE 30(B)(6) FOR APPLE, AS WELL AS FOR EDDIE CUE, WE HAVE AGREED, I THOUGHT, THAT YOU WOULD MAKE THEM AVAILABLE IN SUFFICIENT TIME BEFORE JUNE 17TH FOR US TO BE ABLE TO TAKE THAT TESTIMONY, GET THE TRANSCRIPT AND WORK IT INTO OUR SUMMARY JUDGMENT RESPONSE, WHICH IS WHAT YOU SAID ON THE PHONE YESTERDAY. MR. POMERANTZ: NO. WELL, THEN -- YOU

KNOW, I THINK YOU MISUNDERSTOOD ME. I HAVEN'T YET AGREED ON MR. CUE OR ON A 30(B)(6). I'VE AGREED TO DISCUSS THOSE WITH YOU. BUT

WHAT I -- WHAT I SAID WAS THAT TO THE EXTENT THOSE DEPOSITIONS DO TAKE PLACE, WE WILL NOT OBJECT ON THE GROUNDS THAT THEY HAPPENED AFTER JUNE 2ND. AND TO THE

EXTENT YOU NEED THEM FOR THE SUMMARY JUDGMENT OPPOSITION, WE WILL -- IF THOSE DEPOSITIONS HAVE TO GO FORWARD, WE WILL ENDEAVOR TO GET THEM DONE SUFFICIENTLY IN ADVANCE OF YOUR OPPOSITION DATE SO THAT YOU CAN USE THEM IN YOUR OPPOSITION. MR. BUSCH: OKAY. FINE. FAIR ENOUGH.

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF PATRICIA BLAIR
Page 10
11:55:18 11:55:21 11:55:24 11:55:26 11:55:27 11:55:32 11:55:35 11:55:38 11:55:39 11:55:42 11:55:46 11:55:48 11:55:49 11:55:52 11:55:57 11:55:58 11:56:00 11:56:02 11:56:06 11:56:11 11:56:15 11:56:17 11:56:20 11:56:22 11:56:26 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

BUT WE NEED TO EITHER AGREE TO EDDIE CUE AND THE 30(B)(6) THIS WEEK, MEANING TODAY OR TOMORROW, OR WE HAVE TO GET THIS BEFORE THE COURT IMMEDIATELY. MR. POMERANTZ: FINE. MR. BUSCH: THAT WE HAVE DISCUSSED. WE ARE GOING TO ALSO DISCUSS, AFTER THE DEPOSITION, OUR MOTION TO COMPEL DOCUMENTS FROM APPLE. AND THE -- SEE IF WE CAN REACH AGREEMENT ON WHAT CATEGORIES YOU WILL PRODUCE. MR. POMERANTZ: THAT'S RIGHT. AND I I THINK THAT IS EVERYTHING THAT'S FINE. THAT'S

GUESS WE HAVE AGREED THAT BUT FOR WHAT WE JUST SAID, THERE WILL NOT BE ANY ADDITIONAL DEPOSITIONS TAKEN IN THE EIGHT MILE CASE. MR. BUSCH: NO, THERE IS ONE MORE THING.

THE OTHER THING IS THAT YOU HAVE ASKED US TO CONFIRM THAT CERTAIN EMPLOYEES OF JOEL MARTIN WOULD NOT BE WITNESSES IN THIS CASE, AND PUNCH ANDREWS, WE HAD -- WE'VE TOLD YOU ABOUT PUNCH ANDREWS BEFORE. BUT AS FAR AS JOEL'S WITNESSES ARE CONCERNED -- JOEL'S EMPLOYEES ARE CONCERNED, YOU ASKED US TO CONFIRM THAT THEY WOULD NOT BE WITNESSES IN THIS CASE. AND OUR RESPONSE TO YOU WAS THAT WE WOULD MAKE

THAT DECISION AFTER WE HEARD WHAT MS. BLAIR HAS TO SAY.

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF PATRICIA BLAIR
Page 11
11:56:30 11:56:30 11:56:33 11:56:35 11:56:38 11:56:39 11:56:42 11:56:43 11:56:44 11:56:46 11:56:49 11:56:53 11:56:55 11:56:57 11:57:00 11:57:03 11:57:05 11:57:09 11:57:13 11:57:16 11:57:20 11:57:23 11:57:26 11:57:27 11:57:27 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

MR. POMERANTZ: GLAD YOU REMINDED ME OF THAT.

AND SO -- YEAH.

I'M

WHAT WE HAVE AGREED TO IS THAT YOU WILL NOT CALL HOWARD HERTZ AS A TRIAL WITNESS IN THE EIGHT MILE CASE AND, THEREFORE, WE WILL NOT TAKE HIS DEPOSITION; CORRECT? MR. BUSCH: I BELIEVE THAT IS CORRECT. AND THEN WITH RESPECT TO

MR. POMERANTZ:

THE TWO EMPLOYEES OF MR. MARTIN THAT WE REFERRED TO, WHICH I FORGET THEIR LAST NAMES, BUT THEIR FIRST NAMES ARE MELISSA AND SARAH, YOU WILL LET US KNOW IMMEDIATELY FOLLOWING THIS DEPOSITION WHETHER YOU'RE RESERVING YOUR RIGHT TO CALL THEM AS TRIAL WITNESSES IN THE EIGHT MILE CASE. AND IF YOU ARE, YOU WILL MAKE THEM AVAILABLE FOR

DEPOSITION SOMETIME BETWEEN NOW AND JUNE 28. MR. BUSCH: CORRECT. AND I THINK NOW, WITH

MR. POMERANTZ:

THOSE CLARIFICATIONS, WE'VE AGREED THAT THERE WON'T BE ANY OTHER DEPOSITIONS -- OH, ONE OTHER EXCEPTION, YOUR PUNCH ANDREWS -- WE WILL -- IF WE WANT TO TAKE HIS DEPOSITION BETWEEN NOW AND JUNE 28TH, YOU WILL WORK WITH US TO TRY TO GET HIS DEPOSITION TAKEN DURING THAT PERIOD. MR. BUSCH: YES.

AND THERE'S ONE OTHER -- ONE OTHER

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF PATRICIA BLAIR
Page 12
11:57:27 11:57:30 11:57:33 11:57:35 11:57:37 11:57:38 11:57:43 11:57:45 11:57:49 11:57:52 11:57:54 11:57:55 11:57:56 11:57:59 11:58:01 11:58:01 11:58:01 11:58:04 11:58:07 11:58:09 11:58:12 11:58:14 11:58:17 11:58:21 11:58:23 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

THING.

YOUR PROCESS SERVER KEEPS HARASSING I'VE TOLD YOU THAT WE WOULD ACCEPT

MR. LEVINSOHN.

SERVICES AND MAKE HIM AVAILABLE, SO PLEASE TELL THEM TO STOP TRYING TO SERVE HIM. MR. POMERANTZ: I WILL DO SO.

AND THERE WAS A GENTLEMAN ON YOUR -THAT YOU HAD IDENTIFIED IN RESPONSE TO AN INTERROGATORY RESPONSE WHO IS A COLLEAGUE OF MR. LEVINSOHN'S, IN MR. LEVINSOHN'S OFFICE. SKENA (PHONETIC). MR. BUSCH: SOMETHING LIKE THAT. YOU HAVE AGREED THAT YOU I BELIEVE HIS LAST NAME IS

MR. POMERANTZ:

WILL NOT CALL HIM AS A WITNESS AT TRIAL OF THE EIGHT MILE CASE AND, THEREFORE, WE WILL NOT TAKE HIS DEPOSITION. MR. BUSCH: SOME RESERVATION THERE. ONE THING THAT I WANT TO --

I ACTUALLY DON'T KNOW OFF THE

TOP OF MY HEAD WHY HE WAS IDENTIFIED AND WHAT MARK HAD IN MIND IN IDENTIFYING HIM. I THINK THAT'S RIGHT. BUT EITHER DURING

A BREAK OR AFTER THIS DEPOSITION TODAY, I WILL CALL MARK, FIND OUT WHY HE WAS IDENTIFIED AND SEE IF THAT IS, IN FACT, THE CASE. IF FOR SOME REASON MARK THINKS IT IS

IMPORTANT TO HAVE HIM TESTIFY, THEN WE'LL MAKE HIM AVAILABLE AT THE SAME TIME YOU DEPOSE MARK.

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]

DEPOSITION OF PATRICIA BLAIR
Page 13
11:58:26 11:58:27 11:58:29 11:58:31 11:58:35 11:58:37 11:58:37 11:58:37 11:58:37 11:58:37 11:58:38 11:58:39 11:58:41 11:58:43 11:58:44 11:58:45 11:58:48 11:58:50 11:58:51 11:58:52 11:58:54 11:58:55 11:58:56 11:58:57 11:58:59 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

MR. POMERANTZ: ALL RIGHT. EVERYTHING.

THAT'S FINE.

I THINK THAT COVERS

WE CAN GET ON WITH THE DEPOSITION. MR. BUSCH: ALL RIGHT. YES. OKAY.

DID YOU SWEAR THE WITNESS IN? DEPOSITION OFFICER: MR. BUSCH: OKAY. I ALREADY DID.

EXAMINATION BY MR. BUSCH: Q. MS. BLAIR, WOULD YOU PLEASE STATE YOUR

NAME FOR THE RECORD. A. Q. A. CAN I SAY ONE THING BEFOREHAND? YES. I HAVE A HEARING PROBLEM, SO THERE MAY I JUST

BE TIMES WHEN I DON'T HEAR SOMETHING CLEARLY. WANTED TO SAY THAT FOR THE RECORD. Q. A. Q. THAT'S FINE. I MAY ASK YOU TO REPEAT OR --

THOSE ARE SOME INSTRUCTIONS THAT I'M

GOING TO GIVE YOU -A. Q. OH, OKAY. AND THAT WILL BE FINE. THE VIDEOGRAPHER: MA'AM. YOUR MICROPHONE,

KELLI NORDEN AND ASSOCIATES

310.820.7733

FAX: [phone]