Virgin Records America, Inc v. Thomas

Filing 89

DECLARATION of Timothy M. Reynolds in Opposition to 81 MOTION in Limine to Preclude the Admission of Plaintiffs' Trial Exhibit 4 filed by Sony BMG Music Entertainment, Arista Records LLC, Interscope Records, Warner Bros Records Inc, UMG Recordings, Inc, Virgin Records America, Inc, Capitol Records, Inc. (Coates, Laura) Modified link and text on 9/26/2007 (akl).

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Virgin Records America, Inc v. Thomas Doc. 89 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA DULUTH DIVISION VIRGIN RECORDS AMERICA, INC., a California corporation; CAPITOL RECORDS, INC., a Delaware corporation; SONY BMG MUSIC ENTERTAINMENT, a Delaware general partnership; ARISTA RECORDS LLC, a Delaware limited liability company; INTERSCOPE RECORDS, a California general partnership; WARNER BROS. RECORDS INC., a Delaware corporation; and UMG RECORDINGS, INC., a Delaware corporation, Plaintiffs, vs. Jammie Thomas, Defendant. I, Timothy M. Reynolds, declare: 1. I am a partner with the law firm of Holme Roberts & Owen LLP, counsel to Case No.: 06cv1497-MJD/RLE DECLARATION OF TIMOTHY M. REYNOLDS IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION IN LIMINE TO PRECLUDE THE ADMISSION OF PLAINTIFFS' TRIAL EXHIBIT 4 Plaintiffs in this matter and national counsel to the plaintiff record companies in lawsuits similar to this one. I make the statements in this declaration based upon my personal knowledge, and I am competent to testify regarding any matters set forth herein. 2. Plaintiffs produced their Rule 26(a)(1) disclosures to Defendant on May 30, 2006 and specifically disclosed the "[c]ertificate of copyright registration for each sound recording at issue." (See Exhibit A hereto.) In her responses to Plaintiffs' First Request for Production of Documents, served on September 18, 2006, Defendant admitted that she has "no evidence to #1278945 v1 Dockets.Justia.com dispute" that Plaintiffs own or control the copyrights to the sound recordings listed on Exhibit A to the Complaint. (See Resp. to Req. for Admiss. No. 14, Exhibit B hereto.) 3. Plaintiffs produced copies of the certificates of registration for the sound recordings on Exhibit A on December 28, 2006. On February 12, 2007, responding to Defendant's written discovery, Plaintiffs advised Defendant that they were also pursuing claims on the sound recordings listed on Schedule 1 and produced to Defendant the certificates of registration for the Schedule 1 sound recordings. (See Resp. to Interrog. Nos. 5-8, Exhibit C hereto.) Nowhere in Defendant's written discovery did Defendant "specifically" or generally ask for any chain of titled documents. Nor, as I recall, did Defendant raise any objection to Plaintiffs' discovery responses or request further documents or information from Plaintiffs. 4. Plaintiffs took Defendant's deposition on May 1, 2007, more than three months after they had produced all of the certificates of registration to Defendant. During Defendant's deposition, with her counsel present, Defendant was shown a copy of her Response to Plaintiffs' Request for Admission No. 14. Defendant then reconfirmed that she has no evidence to dispute Plaintiffs' ownership or control of the exclusive rights in the Exhibit A recordings and also testified that she has "no evidence to dispute" Plaintiffs' ownership or control of the exclusive rights in the Schedule 1 sound recordings. (See Thomas Dep. at 215:11 to 216:22, Exhibit D hereto.) Neither Defendant nor her counsel raised any concern whatsoever regarding the documents that Plaintiffs had produced evidencing their ownership of the copyrights at issue. 5. Based in part on Defendant's admissions that she had no evidence to dispute the issue of ownership, and in an effort to streamline the issues for trial, I contacted Defendant's counsel by telephone and suggested that, in lieu of unnecessary motions practice on the issue, the parties stipulate to the issue of ownership. During that conversation, counsel for Defendant 2 #1278945 v1 asked whether Plaintiffs had produced documents establishing ownership. I reminded Defendant's counsel that Plaintiffs had produced the certificates of registration long ago and that Plaintiffs' representatives would testify to ownership, but stated that the parties should not waste their or the Court's time regarding a matter that Defendant had repeatedly conceded she had no evidence to dispute. 6. Plaintiffs then sent Defendant a draft stipulation, and Defendant's counsel responded with an email stating: I spoke to my client and sent her the draft stipulation. Her response is that we can so stipulate provided we have your written assurances that plaintiffs will not bring any summary judgment motions in this case. (See Email dated August 9, 2007, Exhibit E hereto.) After Plaintiffs provided Defendant with assurance that they would not seek summary judgment, Defendant's counsel authorized me in a telephone conversation to attach his e-signature to the stipulation. At this point, I believed Defendant had stipulated and that the matter had been concluded. Defendant's contention that her stipulation to ownership was "contingent" on documents showing a "need to stipulate" is not accurate. Defendant's stipulation was contingent on nothing but Plaintiffs' agreement not to file a motion for summary judgment. 7. On August 21, 2007, however, Defendant's counsel advised me that Defendant had changed her mind and would not agree to the stipulation. Defendant subsequently advised Plaintiffs that she intended to challenge ownership because 14 of the 27 certificates that Plaintiffs had produced to Defendant some seven months earlier showed initial registrants that appeared different from Plaintiffs. Plaintiffs moved to enforce the stipulation regarding ownership that Plaintiffs' believed had been reached, but Magistrate Judge Erickson denied Plaintiffs' motion. Immediately thereafter, now confronted for the first time with having to face Defendant's challenge to Plaintiffs evidence of ownership, Plaintiffs produced chain of title documents 3 #1278945 v1 establishing the link between Plaintiffs and the initial registrants with respect to the 14 certificates at issue. 8. At no time prior to filing her motion in limine did Defendant ever suggest to Plaintiffs that the production of these documents was untimely, that Defendant was harmed in any way, or that Defendant would seek to bar Plaintiffs from using these documents at trial. Although the parties conducted two telephonic conferences to discuss objections to trial exhibits, Defendant never argued against admission of these documents under either Rule 26 or Rule 37. Her only objections to these documents were under F.R.E. 401, 403, 602, and 901. I declare under penalty of perjury and the laws of the United States of America that the foregoing is true and correct. Dated this 26th day of September 2007. /s/ Timothy M. Reynolds Timothy M. Reynolds 4 #1278945 v1

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