Vargas et al v. Pfizer Inc. et al

Filing 87

DECLARATION of Christopher Keegan in Support re: 85 SECOND MOTION for Summary Judgment.. Document filed by Brian Transeau. (Attachments: # 1 Exhibit Ex B# 2 Exhibit Ex C# 3 Exhibit Ex D# 4 Exhibit Ex E# 5 Exhibit Ex F# 6 Exhibit Ex G# 7 Exhibit Ex H# 8 Exhibit Ex I# 9 Exhibit Ex J part 1# 10 Exhibit Ex J part 2# 11 Exhibit Ex K# 12 Exhibit Ex L# 13 Exhibit Ex M# 14 Exhibit Ex N part 1# 15 Exhibit Ex N part 2# 16 Exhibit Ex O# 17 Exhibit Ex P# 18 Exhibit Ex Q# 19 Exhibit Ex R# 20 Exhibit Ex S# 21 Exhibit Ex T# 22 Exhibit Ex U# 23 Exhibit Ex V)(Ahrens, Julie)

Vargas et al v. Pfizer Inc. et al

Doc. 87 Att. 1

EXHIBIT B

Dockets.Justia.com

--------- --- ---------------- --- ------....-.""........." - . - - - -- - - -- - --- - - -- -- --- ---- - - --

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

RALPH VARGAS and BLAND-RICKY ROBERTS,

Plaintiffs,
Civil Action

No.

againstPFIZER, INC., PUBLICIS, INC.

04CV 9772 (JCF)

FLUID MUSIC, EAST WEST

COMMUNICATIONS, INC. and
BRIAN TRANSEAU p/k/a " BT"

Defendants
July 31, 2006

CERTI FI ED

9: 35 a.
Videotaped Deposition

COpy

RALPH VARGAS, taken by Defendants, pursuant to
Notice, at the offices of

Kirkland & Ellis,

153 East 53rd Street, New

York, New York, '

before TAMMEY M. PASTOR, a Registered
Professional Reporter ,

Certified Li veNote

Reporter and Notary Public within and for the
State of

New York.

575 Market St

tel [phone]
tel [phone] fax [phone]

www. merrillcorp. com

~~~~~l~!'

11th Floor

San Francisco, CA 94105

", ""A' """""T

'-',..A. .".......,.."...A"UV

....... A' """'UI"coC

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

There is some -- can I answer?
MR. CHIN:

Yes.

Sure.

I think there were some other

additional sounds for sound

effects.

So Mr. Chin is objecting,

sometimes for legal reasons or when he thinks
the record isn t clear , something like
But you can answer.

that.
Just

If he ever wants you not

to answer he will definitely tell
so you know.

you.

Okay.
It is something we do as part
of the process.

You said additional sound
effects; is that right?

Yes.
What do you mean by sound

effects?
Most of the times it is

tones.

Where do the tones come from?

The engineer.
Who was the engineer on Funky

Drummer I and I
Carlos Bess.

LegaLink

Merri11 Communications Company

[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

about why did you decide to make Funky Drummer
Volume I in the first place?

Well , the idea was conceived

about ' 93.

At the time I noticed a lot of

producers were sampling drum sounds from
various records and I thought it would be a

great idea to go in and do a sample album with
just drum beats done live with no instrumentation in the way where they can just
feel free to take what they wanted , you know

from the record.
So producers could use your
album to sample drum beats?

Uh-huh.
And it would be easier to
sample drum beats off your album because there
are no other instruments in the way?
Right. Exactly.

Yes.

So would you call this a sample

album?
MR. CHIN:

Obj ection.

It was a specialty record.

What does that mean?
It didn t fall under the same

112

LegaLink , A Merrill Communications Company

[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

To your knowledge they worked
it out before any legal action?

Yes.
How about with Sprite

commercial?
Same thing.

After you had the DAT tape for

Funky Drummer Volume II, what did you do next
wi th that tape?

I handed it over to Rick

Roberts.
And what happened next as far

as the -He was in control of that.

The

record label owned

it.

When you say he owned it, what
do you mean?

It belongs to the record
because it was put out on JBR

label

Records.

So what happened next to
actually distribute the Funky Drummer Volume

II?
Well , II was manufactured
somewhere in Brooklyn.

I forget the name of

202
LegaLink
Merril1 Communications Company
[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS
the manufacturing house. to these records stores.

We took it ourselves

The one shops, the

mom and pop

stores.
When you say it was

manufactured in Brooklyn , what do you mean?

They pressed the record

and,

you know , put jackets on it and put the labels

on it.
When you say press the
does that mean on to vinyl?

record,

Yes.

You know , they

manufactured the record , yeah.

Was Funky Drummer II
distributed On any other media than vinyl?

No.

The format was always

vinyl.
How about Funky Drummer I?

Both.

Always vinyl.

Only distributed on vinyl.

They were never distributed on CDs?

We talked about doing that but

never did

it.
Cassette tapes?

No.

203
LegaLink, A Merri11 Communications Company
[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

So, how many copies of Funky
Drummer II were pressed?

As far as I can remember , 1 500

of II.

But then you d have to ask Rick.

took care of all of that

stuff.

How many were pressed of Funky
Drummer Volume I?

We had an initial pressing of

500.

We sold out on that and got another I think that was

500 pressed up.

it.

You

have to ask Rick on that one , too.
what I remember.

But that'

All I' m
recollection.
Yeah.

asking you is your best

Yeah.

When you were just

talking,

about Funky Drummer Volume I in that last

answer?
The one that got pressed up
twice, yeah.

II only got 1 500 , Volume

II.
So there was never a second
pressing of Volume II?
MR. CHIN:

Obj ection.

It is

204
LegaLink , A Merri11 Communications Company
[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS important that he don t guess.
him to guess.
I don t want

I want him to give his best

estimate to his personal

knowledge.

If he is

guessing, I don t want him to
MR. OLSON:

guess.

All we re asking

for is best estimates.
this case are people

Since all we have in

I s estimates, I am

entitled to them.
MR. CHIN:

Absolutely.

You

entitled to his best estimates.
is different than best estimates.

But guessing
I think we

can agree on that.
MR. OLSON:

All I am asking

for is best estimates.
MR. CHIN:

Okay.

Mr. Vargas, with regard to

Funky Drummer Volume II, was it pressed more
than once, to your knowledge?

, I remember 15.

Rick could

have pressed more, that is why I said he would

have the answers to that, more accurate
answers than I would.

That was in his

department.
I understand that.

All I am

205
LegaLink , A Merrill Communications Company
[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

asking about is your knowledge?
500 of II.

So to your knowledge -- strike

that.
As far as you know there wasn
a second pressing of Funky Drummer Volume II?

Yeah, as far as I can remember,

yes.
You said after it was pressed

you took it to mom and pop record

stores;

right?
Yes.

You said "

" who is we?

Rick Roberts, Bland-Ricky

Roberts.
And you?
And me, yes.
Anyone else?
No.
Other than distributing to mom
and pop record stores , was Funky Drummer

Volume II distributed in any other way?
Rick took it to different

distribution houses around the

city.
206

LegaLink , A Merrill Communications Company

[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

Do you remember any of those

distribution houses?

Only a few.
more that he took care
his area.

There was a lot

of.

That all falls in

Can you give me the names of
any you remember?

There was a record store called

Rock ' N Soul, Downstairs Records, Downtown

Records.

There was another record store, then

the rest was distribution houses he

had, that
Exhibit 8

he went to.
(Defendants '
for identification , Distribution Lists Funky

Drummer I and II, production numbers 000017.
I am handing you what has been

marked as Defendants '

Exhibit

It bears

Plaintiffs '

Bates production number of 17.

Could you read the title of the
document at the top? Distribution Lists Funky

Drummer I and

II.
Have you seen this document

before?
207
LegaLink
Merri11 Communications Company
[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

Yes.
Did you help prepare this

document?
Somewhat, yeah.
Where did the information for
this document come from?

Ini tially

Rick had most of this

information.
Where did he have the

information?
I guess he has the records or
he did a lot of this himself.
I happened to

be with him a few times, that' s why I know of
some of the places.

When you say he did a lot of this, do you mean compiling this document
Exhibi t 8
, no.

-- or do you mean distribution?

Distribution.
Plaintiffs recently produced

this document with the column on the right which has a little bit of contact information

for some of the entities on the

left.

Are you

208
LegaLink , A Merri11 Communications Company
[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

aware of that, that this was recently

produced?
Yes.
Did you help come up with the

contact information in the column on the

right?
Yes.
Where did you get that
information from?

Some of them I went there

personally.

So I had access and knew about

the addresses.

Which Ones?

Downstairs Records, Eight Ball

Records, Rock and Soul.
How about Downtown Records?
Downtown Records, too , they are

gone , they used to be on the 25th.
How about Vinyl Mania?

Vinyl Mania, they are still
there, yes.

Do you know what Tiger

Distribution is?
No.
That was all under Rick'

209
LegaLink
Merri1l Communications Company
[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

handling.
Had you ever heard of them?

No.

Then there is a lot of

them there I never heard of that Rick took

care of.
Had you ever heard of Indi

Distribution?
Yes, Indi
What

heard of, yes.

Indi Distribution?
know much

don
remember hearing

about

it,

but

that

lot.

Do you know the extent of their
distribution network?

No.
MR. CHIN

Objection.

I don t know too much about

that ,

Rick does.

How about City Hall , have you

heard of that? It is the third from the
City Hall , no.

top.

So once the records had been

taken to record stores and were being
distributed, I want to talk about what

happened next.
210
LegaLink
Merri11 Communications Company
[phone]

~~' ;-.

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

What was the system to divide

up proceeds from sales of Funky Drummer Volume

II?
A lot of that stuff was on
consignment to the

stores.

As they sold them

we would come every week or every two

weeks.

Do you remember the price the Volume II sold in the stores?

I think it was like $8 or

something.
Do you remember the deal , the

consignment deal you had with the record

stores?
No.
handled that.

Rick would know that.

~1i
What is your best estimate of

how much of each sale you got when they were
on consignment?
MR. CHIN:
Obj ection.

I don t remember.

Would it have been more than
$1 ?

MR. CHIN:

Obj ection.

Yes , but the exact price, I

211
LegaLink , A Merrill Communications Company
[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

get it back

then.
MR. CHIN:

What we will do, we

can , as we always do , they can come and
inspect it at our offices, listen to it if you
like; right?
MR. OLSON:

All right. Let me

just get clear on the record the
MR. CHIN:

facts.

I just want to put

on the record you do have the CD of it with
nothing but Bust Dat Groove on it?
MR. OLSON:

We have a CD of

Bust Dat Groove but not the other

tracks,

right.
MR. CHIN:

Right. None of the

other tracks which are not a part of the

litigation ,

right.

Mr. Vargas , I want to get it

clear, how many copies of Funky Drummer Volume
II do you have?

My own personal
Just one copy?

copy.

One copy.

. Do you know where any other
copies are?

214
LegaLink , A Merri1l Communications Company
[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS
They don t exist anymore.

They

are out of print.
How many copies of the masters
do you have?

I have the two master reels of

Volume

and II,

the two inch

tapes.

What about the DAT tapes,
you know

where they are?

Rick has those.
Do you have any knowledge about

how many of

the, well -- strike that.
To the best of your knowledge

how many copies of Funky Drummer Volume

were sold?
MR. CHIN:
Obj ection.

You can

answer if you

can.
I would think all of them.

didn

t have any returns out of the initial

pressing that we done on

II.

If they had been, if there had

been any returns, would they come to you or to
Mr. Roberts?

Mr. Robert s .
So it is possible there were

215
LegaLink , A Merrill Communications Company
[phone]

RALPH VARGAS

July 31 , 2006

RALPH VARGAS

When you made profits from
playing with Total Remix , d~d you record that
income on your income taxes?
MR. CHIN:

Objection,

relevance.
Yes , I have a separate tax
10 number.

Do you have an accountant who
helps you with your taxes?
MR. CHIN:
Obj ection,

relevance?
I don t have a separate.

Just

a regular, you know , tax people.

Who did your

taxes, say in

1996?
MR. CHIN:
Obj ection,

relevance?
H&R.

H&R Block?

Yes.
Did you tell H&R Block that you

had proceeds from sales of Funky Drummer
Volume II that you needed to account for?

No.

228
LegaLink , A Merrill Communications Company
(BOO) 869-9132

350

CERTI
STATE OF NEW YORK

CATE
: SS.

COUNTY OF NEW YORK
I, TAMMEY M. PASTOR, a Registered
Professional Reporter. Certified LiveNote

Reporter and Notary Public within and for the
State ot

New York , do hereby certify:
That RALPH VARGAS, the witness whose

deposi tion is hereinbefore set forth, was duly

sworn by me and that such deposition is a true

record of the testimony gi yen

by the witness.

I further certify that I am not

related to any of the parties to this action

by blood or marriage, and that I am in no way
interested in the outcome of this

matter.

IN WITNESS WHEREOF, I have
1.9
hereunto set my hand t~i9

day of
2006.

:h1
TJ\MMEY M. PASTOR,

RPR, cUt

------- -- - - ------- -- - --- - ---------------- - - - --- --- --- -- - - -- --- - --

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

RALPH VARGAS and BLAND-RICKY ROBERTS,

Plaintiffs,
Civil Action

againstPFI ZER, INC - , PUBLICIS, INC., FLUID MUSIC, EAST WEST COMMUNICATIONS, INC. and BRIAN TRANSEAU p/k/a " BT"

No.
04CV CJ772

(JCF)

Defendants
August 10, 2006

CERTIFiED COpy

5: 10 p.
Continued Videotaped Deposition of

RALPH VARGAS, taken by Defendants, pursuant to

Notice, at the offices of Kirkland &

Ellis,

153 East 53rd Street, New York, New York,

before TAMMEY M. PASTOR, a Registered

Professional Reporter, Certified Li veNote
Reporter and Notary Public within and for the
State of New York.

355
575 Market St
11th ROOT

tel [phone]

www. merrilicorp. com

tel [phone]
fax [phone]

A MERRILL COMPANY

San Francisco, Cft. 94105

GLOBAL COURT REPORTING . LEGAL VIDEOGRAPHY . TRIAL SERVICES

RALPH VARGAS

August 10,
RALPH VARGAS

2006

master.

Listen to the question.

Okay.
Can you sample the song without

having the physical record itself?
If someone else sampled it?

No.

No.

My question is

this,

you know how to sample?

Yes, you need the record, you

need the physical record to

sample, yes.

Why do you need the phys ical
record to sample?

Unless it is out there in some
other form you actually need the record to

sample it.
Have you ever accidently
sampled a record before?
I don t quite understand that

question.
When you sampled a record did
you do it intentionally?
I have done it intentionally,

yes.
Have you ever accidently

sampled something before?
416
LegaLink, A Merrill Communications Company
[phone]

RALPH VARGAS

August 10 , 2006

RALPH VARGAS

No.
Have you ever heard of anybody
accidently sampling something before?

Never heard of that
Ri tter '

before-

Have you read Mr. Matthew

s report?
Yes.
Have you

seen his report?
the

Yes.
you know what
conclusions of his report

are?

Yes.
What did he conclude in his

report?
MR. OLSON:

Obj ection.

It was the same.
What was the same?
MR. OLSON:

Obj ection.

The whole composition was the
same.

What compositions?

You got to

be clear here.
Bust Oat Groove was
BT' s verSlon.
417
LegaLink, A Merrill Communications Company
(800) 869- 9132

the. same as

-".

~q~
August 10,
2006
: ss.

RALPH VARGAS

STATE OF NEW YORK

COUNTY OF NEW YORK
I, TAMMEY M. PASTOR, a Registered

Professional Reporter, Certified LiveNote

Reporter and Notary Public wi thin

and for the

State of New York, do hereby certify:
That RALPH VARGAS, the witness

whose deposition is hereinbefore set

forth,
the

was duly sworn by me and that such deposition

is a true record of the testimony given by
wi tness.

I further certify that I am not

related to any of the parties to this action

by blood or marriage, and that I am in no way
interested in the outcome of this matter.

IN WITNESS WHEREOF, I have
hereunto set my hand this ~"th

day of

P\ '-'\ '() cIJ.

, 2006.

. MH ~MLegaLink, A Merrill Communications Company

PASTq~.

RPR
432

[phone]