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. 22

EXHIBIT U

Dockets.Justia.com

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MATTHEW RITTER

August 10, 2006
Page 1

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

RALPH VARGAS and BLAND-RICKY ROBERTS,

Plaintiffs,
Civil Action

against PFIZER, INC., PUBLICIS, INC., FLUID MUSIC, EAST WEST COMMUNICATIONS, INC. and BRIAN TRANSEAU p/k/a " BT" ,

No.

04CV 9772 (JCF)

Defendants
-- - -- - - - - - - x

August 10, 2006

9:10a.

Videotaped Deposi tiori

of

MATTHEW RITTER, 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 LiveNote

Reporter and Notary Public within and for the
State of New York.

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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

MATTHEW RITTER Q. So you don't know whether it is possible to create the exact same sounds as on Bust Dat Groove, create those electronically? MR. CHIN: A. about it. Q. electronic music. Objection. I don't know enough about I actually know very little So, I don't know if there is When we were talking about the

technology that exists that could do that. ghost notes on the snare, you said you thought those were -- that was a rare sound because the snare wires were tuned exceedingly tightly; right? MR. CHIN: A. Objection. I believe that it is extremely

unusual for a snare drum to at one moment sound like a snare drum and without turning it on or off, which would be physically impossible in this case, to have it momentarily later sound like a tom-tom. Q. right? MR. CHIN: Objection. You're
[phone]

Okay.

But when you turn the

snare off, it does sounds like a tom-tom;

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Page
the same music history class, for
But my percussion like performance things

example.

yes, they were separate from the classical

department.

They were in the j az z

department.

Did you also study
the Hartt School?

like

classical percusslon instruments as well

Very little,
snare drum technique.

but I did study

Okay.
Classical snare drum.

As a professional drummer what
is it that you do?

Currently I am teaching lessons. As my full time job I teach

A.

somewhere between 25 and 35 private drum set am also just finishing up lessons per

week. I

production on an instructional drumming DVD

which will be internationally distributed by Hal Leonard, which is the world' s largest

muslc publishing company. I also occasionally when time
affords do some performance

jobs such' as
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playing for a theater production or doing a
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Page 100

Jazz glg.
How much do you charge for your
individual lessons?

$ 60 per lesson.
How long is a lesson?

One hour.
How often do you have what
call performance jobs?

you

These days very

rarely.

don t generally have the time to do anything
except working on my video and teaching

lessons. So
couple years.

maybe once every several months

that is the way it has been for the past
Before that there was a time

when I was performing as a drummer full time and living on the road with a traveling show

and so forth.

Were those traveling shows what is reflected on your resume like the Broadway
type shows?

Q.

A.

Yeah, exactly. I also want to

state just to make sure everything I say lS 100 percent accurate, you asked if I studied

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drum to create one note after the other very

fast. To almost create the illusion of a sustained sound. A multiple bounce stroke
taking one single stick and letting
ricochet against the drum head two or more times sometimes an untold number of times if

you get extra little buzzes and stuff in

there.

Q.

You were saYlng that is not a

snare roll but the multiple bounce stroke on

the snare; right?
Yes,

correct.
stroke

Does the multiple bounce
on Bust Dat Groove sound identical to

Aparthenonia?
Yes, it sounds

identical.

Does the hi- hat sound identical

on Bust Dat Groove and Aparthenonia?
Yes, it does.

Does the bass drum sound
identical on Bust Dat Groove and Aparthenonia?

Yes, it

does.

May I ask

question?
Sure.
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When you ask me if they sound
identical, you re talking about the sound of the instrument, because obviously as I said

the rhythmic elements have been juxtaposed. Right. When you say identical

Q.

you mean the sound of those elements?

. 10

Yes. Are identical; Yes.

right?
the

Other than the change
in sounds; right?

order of the elements there is no difference

Right.
Would a professional drummer
ever refer to a multiple bounce stroke like

the one found in Bust Dat Groove as a drum

roll?
I don t believe he

would.

No.

Is that because, like you
to play a roll you have to use both hands

said,

whereas the multiple bounce stroke on Bust Dat
Groove, it would be physically impossible to
play that with both hands? It is not only

that.

It is
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MATTHEW RITTER the record. A. Q. declaration. Exhibit 27. tracks. MR. CHIN: CD? MS. AHRENS: I have identify -- I will identify the tracks I am playing so it is clear for the record. MR. CHIN: A. Q. Q. speakers closer to me. Sure. (Track Playing.) Sorry, I'll start it again. MR. CHIN: MS. AHRENS: Q. Can this go up any? Yes. Hold on. Okay. Also you want to move the I'm objecting. Are you going to tell the witness what is on the The time is 12:51. So what am I listening to? We are going to play a track It has been marked Defendants' I want you to just listen to it

from what was Exhibit C1 to Mr. Rodriquez's

then I will ask you questions about the

(Track Playing.) I am going to start it over
[phone]

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MATTHEW RITTER since the two tracks went together. clear. So it is But the first track I am going to play A. A. Q. interrupted? A. Q. Sure. Play it one more time. Again I am playing track 2 from (Track Playing.) A. Q. Okay. Okay. Do you recognize the Objection. All right. (Track Playing.) That was pretty. It's always something. Do you

is track 2 from Defendants' Exhibit 27.

want me to play the track again so it is not

Defendants' Exhibit 27.

sound on that track? MR. CHIN: A. sound. Q. Is there anything particular MR. CHIN: Q. MR. CHIN: Objection. Objection. You can
[phone]

I recognize it as a hi-hat

about the hi-hat sound --- that you hear?

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MATTHEW RITTER answer. A. sounds. Yes, there are two alternating The So we One sounds like the shaft of a drum

stick played on the edge of the hi-hat. other one sounds like the tip of the drum stick played on the top of the hi-hat.

have a slightly broader sloshier sound first followed by a tighter tick sound, both of them we together we end up with tick-tock, tick-tock thing between the two sounds. Q. And you hear, is it you hear MR. CHIN: testimony. A. Q. answer. A. both hi-hat. I hear two different sounds They are One sounds like a hi-hat played that are alternating back and forth. Objection, misstates Seem to be two different sounds? You can answer. I hear two sounds.

alternating back and forth. Are the two sounds different? MR. CHIN: Objection. You can

with the shaft of a stick on the edge of the high hat and one sounds like a hi-hat played
[phone]

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MATTHEW RITTER on the top of with a tip of a stick. Q. Exhibit 27. MR. CHIN: Exhibit 27? MS. AHRENS: Mr. Rodriquez' declaration. A. Q. sounds were? MR. CHIN: A. Q. A. Sure. Objection. May I hear it one more time? Sorry. (Track Playing.) It sounds like a bass drum That the same sound played with simultaneously with a slightly opened hi-hat. combination is happening twice, but in one version it is the open hi-hat sound is a little more pronounced. So it is, again, alternating back and forth between slightly
[phone]

Okay.

Now I am going to play

for you what is track 3 on Defendants' What is Defendants' Defendants'

Exhibit 27 again is Exhibit C1 to Okay. (Track Playing.) Can you tell me what those

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MATTHEW RITTER different sounds, both of which are base drum with hi-hat, slightly opened. Q. different? MR. CHIN: A. Yes. Objection. One of the, one of them So, again, they are Okay. So are the sound

the open hi-hat sound is a little more pronounced than other. tick-tock. Q. Now, I am going to play track 4 from Defendants' Exhibit 27 which again is Exhibit C1 to the Rodriquez declaration. MR. CHIN: the CD in front of me. track is being played. (Track Playing.) MS. AHRENS: MR. CHIN: MS. AHRENS: track. MR. CHIN: I am not in front
[phone]

going back and forth in a sort of tick-tock

I would like it And I don't know what

also to be known on the record I don't have

I am going to Okay. I did present the

start the track again so we keep it separate.

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MATTHEW RITTER of the laptop, so I don't know which one is being played. MS. AHRENS: I am testifying -- I am stating on the record the tracks that I am playing are what I am stating. MR. CHIN: MS. AHRENS: what I am saying I'm playing. MR. CHIN: front of the laptop. the CD. MS. AHRENS: MR. CHIN: declaration? MS. AHRENS: declaration. MR. CHIN: don't have it with me. read as we go along. MS. AHRENS: Exhibit 22. MR. CHIN: Thanks.
[phone]

Okay. And I am not

tricking anyone or playing a track other than I am just not in I did show you Do you have the Yes, I have the Can I get a copy? I Can I get it so I can It is Defendants'

That is all I'm saying.

You watched me put it into my laptop.

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MATTHEW RITTER Q. I am going to start again track This is the 4 to Defendants' Exhibit 27. you ready, Mr. Ritter? A. A. please? Q. Q. sounds are? MR. CHIN: answer. A. me. Q. A. Q. A. Objection. A. To me it sounds like the same
[phone]

Exhibit C1 to the Rodriquez declaration. Are Yes. (Track Playing.) Can I hear it one more time, Sure. (Track Playing.). Can you tell me what those Objection. You can

That sounds like a bass drum to Sorry, I didn't hear? Sounds like a bass drum sound. Are the sound -- is the base To me it sounds like -MR. CHIN: Hold on.

drum sounds on that track different?

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MATTHEW RITTER bass drum. There is a phenomenon which honestly I don't remember the name of right now, but when people hear the same sound played in a series their mind looks for a way to organize it so they automatically start to hear it in groups of twos usually, sometimes threes. So when I first heard this bass drum track I start initially heard a tick-tock kind of back forth, back forth as if it were two slightly different sounds. At this point I remembered this phenomenon I am telling you about and tried to start to clear my mind after each bass drum hit and it started to sound to me like the exact same sounds repeated over and over. Q. A. Q. A. Q. Do you need to hear it again? No. Now I am going to play track 1 Okay. This is the Rodriquez (Track Playing.)
[phone]

on Defendants' Exhibit 27.

declaration Exhibit C1.

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with Rogers snares?
m not.
Were

they ever like

common

snare drum?
I don

know how common they

were.

The most common drums have always been

just Singerland, Lund, Pearl, recently Yamaha.

Gretsch has

always been revered in certain circles and was less common, Rogers, I know is also less common, but I don t know to what

extent.
We can move back to where we

were before you were instructed not to answer. I believe we had played, I will just find what

we were working with. We were looking at or listening to Defendants ' Exhibit 30 which
the Funky Drummer Volume II album.
Can I have the speakers as

close to me as

possible.
(Discussion off the record)

from Funky Drummer Volume

Q. Sure. II. I'

We played track number
ll play that

again.

Sorry, it is not working.

The volume is not even
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I am going to start it over

for

you.

(Track Playing.
In asking of any of these

questions, if you want to hear the track

agaln

or any part of it agaln please feel

free.

Sure.
I will play it as many times
you want.

What sounds do you hear on that

recording?
May I hear it one more

time.

Sure.

(Track Playing.
I hear bass drum, snare drum
and hi-hat.
A";'
c#r~~'/

You said bass drum, snare drum
and hi-hat?

Yes.
Those are the -- I am going to play you the second track- on Defendants
Exhibi t 2, we are going to go track by

track.

I want you to tell me, just
listen to the drummer , tell me if you think

that the drummer on the second track is a
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different drummer than the drummer on the
first track?

MR. CHIN:
can answer.

Obj ection.

But you

going to say right away

since this

not

drummer that

familiar

with, unless he is playing the exact same
thing, I probably will have no way to know.

Q.

You testified and you stated in

your declaration that each time a drummer

makes a recording that drummer leaves a
fingerprint; right?

Yes.

That' s right.

And that you can tell based
listening whether the same drummer is playing?

A.

Playing the same

thing.

other words, if you are about to play me

something now that

lS a different rhythm, I

haven t heard what this drummer s fingerprint sounds like playing this - second rhythm. So I
have nothing to compare it to from the first

rhythm.
On the other hand, if we took

rhythm number 1 you just played to me and had
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two other drummers play that same

rhythm, the

way they space the various elements of that
rhythm I would in all likelihood be able to

tell which drummer played which or whether

was the same person doing the same

Q.

thing.

On Bust Dat Groove part of what

would be the fingerprint of that recording

would be the ghost

notes; right?

Yes, that' s part of it.
Part of it was the multiple
bounce stroke; right?

A.

Right. Which is also a ghost

note because it is played extremely

Q. Let' s
Okay.

softly.

go through and identify

the instruments on, we will do track number
Just identify the instruments

on each track.
(Track Playing.
That is track number
are the instruments?

What
I am

Can I hear it

agaln.

getting some static through the speaker, I am

not sure if it is snare rattle or the speaker
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or what.

(Track Playing.
That sounds also like bass

drum, snare drum and hi -

Q.

ha t

to me.

If there is anything about

sorry, if you can tell me and you can tell

that any of the tracks has a different drummer
than another , go ahead and let me know.

you can I t, fair enough. MR. CHIN:

Obj ection.

Is it

possible to read back what his answer was
before that just so can write it down In my

notes.
(The preceding answer was

read.
MR. CHIN:
My question is
that what you guys are golng to do?

go --

are going I am going to go through each track and
instruments and ask make the

MS. AHRENS: We

play it and identify the

him if he can

identify. I will

question more specific to Mr. Vargas.
I am going to play track number
1 again.

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).

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Q.
drums or not?

(Track Playing.
On track number 1 can you tell

me whether that is Ralph Vargas playing the

MR. CHIN:
I have no

Obj ection.

Ralph play

a rhythm like

that. So I don

idea.

I never heard

know if I am hearing Ralph play it now.

Q.

You have heard, of course Ralph

play other drum tracks that you know are Ralph

playing?
MR. CHIN: Obj ection.
I have heard Ralph play one

other drum track as well as, as I mentioned to

you on my second meeting wi th him he played a
snippet of himself in a wedding band or

something like that in his

car.

I don

really remember what it sounded

like.

Okay.

And on track number

did you hear any ghost notes?

agaln. That

A.

Before I answer may

I hear it

is really the thing I would

probably want to wear headphones and listen

very carefully more than I am able to do with
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these speakers.
Okay.
Let me play it for you

again?
Since this is a sworn

testimony.

I will try and see if I hear

any.

(Track Playing.
Can I hear it once more,

please.
Sure.

(Track Playing.
I am not able to hear any on

this but I have no way of knowing if there

really is any because I would want to listen

more closely wi th

headphones.

When you made your original

transcription of Bust Dat Groove, you were listening to that on your DiscMan; right?

Right.
You heard ghost notes on

that;

right?
I did, yeah.

They are

defini tely more pronounced on that recording

than on this one if there are
there might not be any on this

any. I think
one.
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That copy of Bust Dat Groove on

your Di s cMan, that was a copy tha t

was, you

said was a poor quali ty
machine.

copy?

It would only play on that

So, I mean it was not burned

proper ly or

something.
Okay.

Because it didn

t play

on most machines.

I am golng to do -- on

track number 1 we still just have bass drum,

snare drum and hi - ha Yes.
I am golng to play -- and on

track number 1 you said you can
it is Mr. Vargas or not?

I t say

whether

MR. CHIN:

Obj ection.

I don t know if it

Mr. Vargas or not.
You don
t know.

I am going to

play track number 2 from Defendants

Exhibit 30.
(Track Playing.
What instruments do you hear on
track number 2?

Bass drum,

snare, hi- hat and a
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ghost note on the

snare.

Is the ghost notes an

instrument?
5'

No.
So three instruments you hear
are a bas s, a snare drum and a hi
- ha t

right?

Yes.
But you did hear a ghost note

too?
I did.

Can you say whether the drummer

track track

different than the drummer on

MR. CHIN:
I have no

Obj ection.

idea.
Obj ection.

Can you tell if the drummer
track number 2 is Mr. Vargas?

MR. CHIN:
I have no

idea.

Did you hear on track number
any multiple bounce strokes?

No, I did

not.

I heard one

isola ted ghost stroke.
Okay.
I will play track number
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3 from Defendants ' Exhibit number 30.

(Track Playing.
MR. CHIN: Let her ask the

questions.

Q.

Can you identify what
Bas s drum, snare drum and

instruments are played on track number

hi- hat.
Do you have an opinion as to

whether the bass

drum, snare drum and hi - hat

are the same bass drum, snare drum and hi- hat
that were played on track 2?

MR. CHIN: Obj ection.
I don t know. I will have to

hear, you know, again it is like the drummer I

fingerprint thing,

I would want to hear the

same drum set playing the same rhythm because, you know, how loud the person is playing the
snare changes the tambour of the instrument

and so forth.
I would want to hear the same

rhythm played twice on two different drum

sets

or the same to determine if it was the same

drum set.

How you strike a drum, you know,
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significantly can change the sound of the drum. I do hear some ghost notes, by the way.

Q.

Okay. Forgive me if I asked you

this about track 3, can you say whether track
3 is different, a different drummer than the
drummer on the previous track? MR. CHIN: Obj ection.
I don

t know who is playing the

drums.

Q. Okay.
I don

Even though you don

know who is playing the drums can you determine whether it is a different drummer
than the prevlous track? MR. CHIN:

I t know

Obj ection.
if it is the same
t whether

or different drummer.
Can you -- so you can

it is Mr. Vargas or not; right? MR. CHIN: Obj ection.

A.

I cannot tell who is the

drummer.
You said you heard ghost
is that right?

notes;

Yes, I

did.
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How many

ghost notes? agaln. hear Can agaln sure. can play (Track Playing.
I hear at least three

already.

Did you hear any multiple

bounce strokes?
No.
I just want to ask when you

made your transcription of Funky Drummer?

Yes.
You also made a

trariscription
some of the

of Aparthenonia, you made

those,

original versions of those transcriptions you made from listening to the tracks on a
DiscMan; right?

A.

This is true.

For both songs; right?
Yes.
Wha t kind of headphones were

you listening to when you used your DiscMan? They are called Studio Kans,
they are professional recording studio

headphones.
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Sorry, what was the name of the

headphones again?

Q.
you heard on track number 3

Studio Kans K-A-N-S.
Is there any other kind of

manufacturer name or anything?

No. The ghost notes that you said
That is the one we just heard?

Yes.
Yup.
Are those Mr. Vargas ' ghost

notes?
MR. CHIN:
I don

Obj ection.

t know whose ghost notes

they are. I will say they do sound like tom
hi ts

to me. It sounds

to me like it is either

Mr. Vargas or it is somebody playing on a drum
that was tuned by Mr. Vargas and trying to
imitate Mr. Vargas ' ghost notes technique.

Q.

Why would you say it would be

like it sounds like a drum tuned by
Mr. Vargas?

Because, agaln, it
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exceedingly rare for one drum to suddenly

sound like a different drum just because it

being played at a very soft volume. I mean the sound of the drum can change a little, but to have it suddenly sound like a tom-tom, a moment ago it sounded like a snare is very

unusual. I hear
record.
Groove.

that same phenomenon on

this

So, I heard that on Bust Dat

I know that Ralph at least on that

song chose to choke the snares on his drum. hear that same phenomenon here.

QExhibit . Defendants I

I will play track number 4 from

30.

(Track Playing.
Okay.
What instruments do you hear on
track number

Bass drum,
cymbal.

snare drum . and

Is it a ride cymbal?

The person is using it like a ride cymbal which means they are playing
constant rhythm on

it.

It is very hard to
[phone]
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2006
Page 250

tell what kind of cymbal it
is being used as a ride

is. But, yes,
So some

cymbal.

cymbal.
Q.

Do the instruments you hear on

track number 4 in your opinion, are they the
same instruments that you heard played on

track number 3 -- do the instruments you hear
on track number 4 are they the same
instruments you heard played on track number

MR. CHIN:
I don I

Obj ection.

t know.

Can you say whether the drummer is different on track number 4 than on the

prevlous track?
MR. CHIN: Obj ection.
I don t know, but I will say

that if asked to speculate I would assume
that, it may be

t may be the same drummer

because I hear a ghost note immediately
following a loud snare

accent. Which

is

ve heard on, you know, I also heard on previous tracks we play here.

something I'

Okay.

On the previous tracks
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2006
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we played here, track number 3 you said had at
least three ghost notes were those similar
ghost notes followed by a loud snare?

Can I hear number 3 again?

Sure. (Track Playing.
Yes.
Yes.
This is a drummer

that likes to play a soft ghost note

immediately after a loud snare, which is not

very common. So it is may well be the same
drummer but the rhythm sounds different.

So I

don t know if it is the same

Q.

person.

Did you hear any other --

sorry, how many ghost notes did you hear on
that track?

Track 4;
Yes.

right?

Can I hear it agaln, please.
21

A.

(Track Playing.
I only can clearly make out one

there is a lot of white noise because of

the

cymbal. I can make out one immediately
following a loud snare

hit.
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Can you tell if track number
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is Mr. Vargas playing the drums?

MR. CHIN: Obj ection.
I don t know if it

Mr. Vargas.

Did you hear on that track any
multiple bounce strokes?

No, I did
Do you believe

not.
e have a

palr of headphones, would you prefer to listen

to the tracks through the headphones, would
that help?

A. It might help. Q. Okay. I
don I t

I can try

that.

know if this

golng to cut out the sound for all of
There lS a loud

us. buzzing.

MR. CHIN:
THE WITNESS:

There is now?

Yes, there is.
Does anybody know
It might help if

MR. CHIN:
how to get rid of that?

VI DEOGRAPHER:

you

take right out the headphones.
That

the
golng

computer instead

to cover up any

nuance I am trying

find.
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Page 253

MS. AHRENS:

Can we go off the

record.
VI DEOGRAPHER:

Going off the

record the time is 4: 03.

(Recess taken.
VI DEOGRAPHER:

We are back on

the record.

The time

is

4: 04

Mr. Ritter, we are going to

play track number 5 through the headphones
that we have given
5 on Defendants

I Exhibit 30.

you. This

is track number

(Track Playing.
m sorry, I have to go back to speakers, it sounds like it is underwater,
maybe it varies from track to
I would prefer the

track.

I think

speakers.

Do you want to hear it agaln
through the speakers?

Yes.
abou t

Just the speakers.
s okay.

Sorry

tha t .

That'

Here is track

number 5

through the speakers, we might have

to turn it

up.

(Track Playing.
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It is so crackly.

I hear the crackling
a vinyl.

as well.

To me it sounds like a needle on a record, on
Does that sound --

That sounds like that might be

correct.

Yes.
Can you identify what

instruments are played on track number

A. Yes.

May I hear it one more

time.
Sure. (Track Playing.
Can I hear it once more,

please.
Uh- huh.

(Track Playing.
There is bass

drum, snare drum,

hi- hat.

Q.

Do you have an oplnlon whether

those three instruments are the same as on the

previous track?
No, I don t have an
don I t know.

oplnlon.

Is the cymbal that we heard
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track 5 different than the cymbal we heard on

track
MR. CHIN: Obj ection.
Is track 4 the one that I said

they are playing it like a ride cymbal?

Yes.
me.

We can hear track

This sounds like a hi- hat to

The other one sounded like a cymbal being

used as a ride

as a ride symbol?

Q. A.

cymbal.
Could a hi- hat cymbal be used

It is possible if it were

opened all of the way so the two cymbals

didn I t

hi t

Q.

each other.
I can play track

4 agaln. But
like

I wanted to ask whether you thought on track

number 4

the cymbal that was being played

a ride was a hi- hat symbol being played like a

ride?
I am golng

cymbals of every shape and

size. Usually a
another.
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0058b63b-3833-416a- 861 e-5c6e63aa5456

here are ride

hi-hat refers to two cymbals placed together

so that they now bump up against one

So I have no idea what kind of cymbal the
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August 10,
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2006
Page 256

person is playing on, but it wasn t two cymbals closed together.

Q. Okay. Fair enough.
No, I don
t know.

Can you

say on track number 5 whether the drummer
different than the previous track?

number 5

Q. Okay.

Can you tell if track

is being played by Mr. Vargas?

MR. CHIN: Obj ection.
I have no

idea.

Did you hear any ghost notes on

track number
I don t know.

Can I hear it

agaln.
Sure.

(Track Playing.
It does sounds like there is

one ghost notes. instrument it I S on.
It may not.

m not clear what

It may be on the

snare.

It sounds very tom- like to me
not sure.

agaln.

I"

This recording is
When you say you"

muddier than the others I heard.

Q. Okay.

sure what instrument it is played on
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re not

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2006
Page 257

possible the ghost note is being played on the

hi-hat?
MR. CHIN:
I don

it is being played

Q.

I t believe it on the hi- hat.

Obj ection.
is possible

Is it possible the ghost note

lS being played on the bass drum?

some instrument with a hand not the

A. Q. Okay.

MR. CHIN: Obj ection.
I believe it is being played on

foot.

So the three instruments
r

we hear there, what you hear there is the bass

drum, the snare and hi - ha t;

A. Yes.

igh t ?

Except like I said there

is one ghost note that again sounds distinctly

tom- like.
Tha t ghos t note, it could be a

tom?

MR. CHIN: Obj ection.
I don

t know. It could be or

it could be the same phenomenon I heard in
other tracks today which is a snare sounding

like a tom.

The reason I am not

assure

this case lS because the hit I heard is not
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immediately following a snare drum, which

means that a drummer may have time to move hands to another drum all

his

Q. Defendants

together.

I will play track number 6 on

' number

30.

(Track Playing.
Can I hear it again, please.

Sure.

(Track Playing.
MR. CHIN: What is that, lS
that part of the record?
THE WITNESS:
I don

t know

what that

is.
(Track Playing.
Okay.
On track number 6 what

instruments do you hear?

Bass drum,
drum.

hi- hat and snare

you have oplnion whether those are the same bass drum, snare and hi- hat the previous track? know. Can you say whether the drumme
don

r

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2006
Page 259

on track 5 is different than the prevlous

sorry, whether the drummer on track 6 is
different than on the previous track? MR. CHIN: Obj ection.

Q.
track number

I can t say.

I don t know.

Can you tell if it

Mr. Vargas playing track number MR. CHIN: Obj ection.
I don t know.

Did you hear any ghost notes in

bounce strokes in track But I will say the
quali ty,

A. Q. A. No.

I did not hear

any.

Did you hear any multiple

as you guys are probably hearing is degenerating as we go track by

already

track. There is a lot of static coming through this. I don t know if it is the machine or recording. I. am being asked to
identify notes that are extremely difficult to

hear even if the drum was in the room with

us.

But that having been

said, I
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will say no, I don t hear any ghost notes on
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that.

Q.

You are saying those drums and

those sounds are extremely difficult to hear
even in a room wi th a live drummer, but you

formed your opinion listening to a recording
on a DiscMan; is that right?

MR. CHIN: Obj ection.

That'

s correct because on

that

particular recording certain of the
prominent enough for me to hear
I heard today.

elements,
as

including most of the ghost notes were

them. Just

has been the case wi th a couple of

the tracks

Q. Okay. Defendants
hi-hat.

Track number 7 from

' Exhibi t 30.

(Track Playing.
On track number 7 can you me what instruments are

tell

played?
snare drum and

Bass drum,

Do you have an opinion as to

whether those are the same
were on the previous track?

instruments that

MR. CHIN:

Obj ection.
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A.

I don t know if they are the

ame instruments. I do know that the sound is
very unusual on this

track.

s ounds

extremely boomy and muddy, I don t know if

that is the way it was recorded or something

enhanced digitally, but in either case I don know if it is the same drums used on the

prevlous track.
Can you say whether the drummer lS different than the drummer for the previous

Q.

track?
MR. CHIN:
Obj ection.
I don t know.

Can you tell if it
Mr. Vargas playing the drums on track

number
MR. CHIN:
Obj ection.
I don t know.

Did you hear any ghost notes on

track
No.
I did not.

Did you hear any multiple

bounce strokes on track number

No.
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Q.

I am going to play track number

8 from Defendants

' Exhibit

30.

(Track Playing.
Can you tell me what

instruments are on track

Bass drum,

snare drum and

hi- hat.

Q.

Do you have an opinion as to

whether these drums are the same as the previous, the drums used in any of the

prevlous tracks?
MR. CHIN:
Obj ection.
I don t know.

But again this

sound on this is very -- sounds very strange
to me, like something that may have been

al tered electronically somehow. When
whole rest of the

the

snares hit it seems to echo for almost the

measure.

So ei ther it is in

an echo chamber or there has been a certain

kind of reverb put on or - the

mic is positions

In a way to get very unusual recorded

sounds.

Would added effects make it

more difficult to identify whether it is the
same drummer playing?

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Page 263

A.
Q.
remember where

I don t know.

Possibly. I

mean the more a recording is tampered with
any way the more it becomes obscure of what
was there originally.

On track number
I was

I can

did you hear any ghost

notes?
May I hear it one more

time.

Sure. (Track Playing.
I don t believe there are any

ghost notes on that

Q.

recording.

Did you hear any multiple

bounce strokes on track

Q.
added mixed?

No, I did

not.

Do you know if any effects were

used in the studio when Funky Drummer Volume
II was being recorded?
I don t know.

you know

any
when

effects
was

were

Funky Drummer

being

have idea. Track number from Defendants
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Exhibi t

number 30.

Q.
Q.

(Track Playing.
Do you know what instruments

are on track number

Bass drum, snare drum,
and human voices.

hi-hat

Can you say whether

the

instruments you hear on track number 9 are the
same as the instruments played on track

number
MR. CHIN:
Obj ection.

Q.

I don t know.

Can you say whether the drummer

on track 9 is different than the previous, the
drummer on the previous track?

MR. CHIN:

Obj ection.

I don t know.

Can you tell if track
being played by Mr. Vargas?

9 is

MR. CHIN:. Obj ection.
I cannot tell.

Did you hear any ghost notes on

track number
I did not hear any, but I don
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Page 265

know if there are any because there were

children laughing and there is a lot of static
comlng from the machine.

Even if they were

there, I don t trust that I would be able to

hear them with that kind of

bounce stroke on track number
I did not hear any but again

Q. A.

recording.

Did you hear any multiple

the nuances were pretty obscured as I was
listening to that because of the children

VOlces and stuff they had put
from Defendants

Q. ' Exhibit 30.
What instruments

in.

I will play track number 10

(Track Playing.
o you want

to hear track 10 again?

Sure.

(Track Playing.
Okay.
What instruments do you hear on

track number 10?

Bass drum,
drum and a person humming.

hi-hat, rim click

which means hitting on the rim of the snare

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MATTHEW RITTER
Is a rim click, would you consider that an instrument?

A.

When we notate it we usually

put it as a separate
own symbol for a

thing. It has got its rim. I think that is the

most specific way to say

it. Snare rlm.
track? Obj ection.

Is a rim click different
than

orget it. Scratch that.
Can you say whether the

instruments that are used on track number
are the same as on the previous

MR. CHIN:

Q.
preVlQUS track?

I don t know.

Can you say whether the drummer

on track number 10 is different than the

MR. CHIN:

Obj ection.

I don t know.

Can you tell if it
Mr. Vargas playing the drums on track number

10?

MR. CHIN:

Obj ection.

I don t know.

Did you hear any ghost notes on
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track number 10?
Yes, there are some ghost notes

on the rim that are bordering on not ghost

notes because sometimes the volume on them
creeps up a little

bit.

Yes, there are some

ghost notes on the rim of the drum.
Did you hear any multiple

bounce stroke on track 10?

Q.
track rl"umber
please.

No, I did

not.
30.

I am going to play track number

11 from Defendants

' Exhibit

(Track Playing.
What instruments do you hear on
II?

Let me hear it once more,

Sure.

(Track Playing.
Okay.
What instruments do you hear on

track number

II?
I hear bass drum, hi-hat, snare

drum and some other kind of sound that is like
a high pitched metallic sound, maybe somebody
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Page 268

hi tting on the side of a cymbal stand or
something and putting that in there or a drum

that is made of metal and is tuned slightly
incorrectly so that there is some overtones

comlng from the metal of the drum.
Could it be anything else?

Sure. It could be anything.
It is an unusual sound

effect.

I don t know

where it originated

of a high pi tched

from. But it has got sort metallic sound. Almost like
hits.
the

taking a hammer and hitting it on a window

frame or something. It is played in unison
wi th the snare drum

Q.

Right. Can you say whether

instruments you could identify on track number
11, whether those are the same instruments
that were played on the previous track?

A. Q.

MR. CHIN: Obj ection.
cr5

No, I ban t say.

Can you tell if whether the

drummer is different on track number 11 than
on the previous track?

MR. CHIN:

Obj ection.

I can t tell.
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Page 269

Can you tell if track number
is Mr. Vargas?

MR. CHIN:

Obj ection.

I don t know.

Did you hear any ghost notes on

track II?
I did not hear

any.

Did you hear any multiple

bounce stroke on track

II?

No.
I will play track number 12.

instruments played on track 12?

please.

Q. A. Q.

(Track Playing.
Can you identify the

May I hear it once more,

Sure. (Track Playing.
Okay.
Can you identify the

instruments on track 127

Bass , drum, snare drum and

hi-hat.
Do you haven oplnlon
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whether those are the same bass

drum, snare

drum and hi-hat that were on the previous

track?
MR. CHIN:
Obj ection.

Q.

I don

Can you say whether the drummer
drummer?

on track number 12 is the same or different

than the previous track' s
MR. CHIN:

Obj ection.

I don t know.

Can you tell if track number
is played by Mr. Vargas?

MR. CHIN:
No.

Obj ection.

Did you hear any ghost notes on

track 12?
Yes.
And did you hear multiple
bounce strokes on track 12?

May I hear it once more,

please.
Sure.

(Track Playing.
Once more.
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Q.
12?

(Track Playing.
What instruments -- sorry, did

you hear any multiple bounce stroke on track
I heard

one, yes.
need to switch the
Going off the
This is the end of

I will play track number
from Defendants ' number 30 -- actually we can

go off the

record. We

tape.
VI DEOGRAPHER:

record.

The time is

4:26.

tape number

(Recess taken.
VI DEOGRAPHER:

Back on the
This is beginning

record.

The time is 4: 30.

of tape number
Mr. Ritter, you said you wanted
to finish your answer about the multiple

bounce stroke?
Right. I would like to hear
once more.

Talking about track number 12.

(Track Playing.
m not able to say whether
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that mul tiple bounce stroke was executed with

one or two

hands.

Whereas on Bust Dat Groove

it was definitely executed with one
also sounds like the hi- hat may stop

hand.

This one to me sounds a more aggressive and it

momentarily there, in which case it
possible the drummer took both sticks and did
sort of a simultaneous two handed multiple

bounce stroke.
So if it was two hands it

wouldn t be, you wouldn t perform one multiple
bounce stroke with two hands?

You might take both sticks and
kind of go " zzzzzz " yeah.

Q.

I want to go into track number

13 of Defendants ' Exhibi t 30.

(Track Playing.
On track 13 what instruments do

we hear?

Bass drum,

snare drum and

hi- hat.
Can you tell if that
Mr. Vargas playing track number 13?

MR. CHIN:

Obj ection.
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Page 273

ahead.
I don t know.

Do you hear ghost notes on

track 13?

Q.

No, I don t hear

any.

Do you hear multiple bounce

strok on track 13?

No. We will play track 14.

(Track Playing.
I will start it

over.
30.

Tha t is

track 14

of Defendants

' Exhibit

A.
Finally.

(Track Playing.
Okay, all

right. I know that.
Ride.

That must be Bust Dat Groove with

Yes, that is Mr. Ralph Vargas

playing Bust Dat Groove on his drum set with a
ride cymbal added

it.

Q.

in.

Wha t

about, let'

s go through

What instruments

do. you hear on track 14? Bass drum, snare drum, ride

cymbal. Let me listen again and see if he pulled the hi-hat out or if the hi-hat is
still in

there, too.
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(Track Playing.
And hi-hat.

So bass drum, snare drum,

hi- hat

and ride cymbal?

Yes.
That one you can say for
that is a ride symbol?

sure

Again, what one person calls a ride cymbal someone else will call a crash

A.

cymbal. A cymbal is a

cymbal. A ride cymbal
size

you play constantly, we call

ride. If you are

playing a ride symbol, I don t know what or shape or model it is.
tell that is

On this track you said you can

Mr. Vargas; right? Yes. Exactly.
Why is that?

Because again Slnce I am

hearing the

same, you know,

I am hearing
I am

Ralph' s drumming wi thin the same rhythm
already accustomed to listening to him
immediately recognized his
the bass drum.

nuance, it

is the

same sounds on the snare, the same sounds on
The exact same multiple bounce
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stroke that sounds like a roll on a tom.
sounds like tom, you know.

Are you saYlng that

is the

are saying that the exact same mul tiple bounce stroke; correct? believe is, yes, believe
you
it is actually the same recording with maybe

Ralph himself puts a cymbal in

there,

something.
Okay.
Going on to track number

15.

(Track Playing.
Can I hear the previous one

once agaln.

Sure thing.

We were playing

track 15,

you want to hear track 14 again?

Yes.

I want to hear With Ride

and Withbut Ride back to

back.

(Track Playing.
Okay.
Then track 15?

Yes.

(Track Playing.
Okay.
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What instruments were played on

track 15?
Bass drum, snare drum and

hi- hat.
Do you recognlze track 15?

Yes, that is Bust Dat Groove by
Ra I

Vargas.
And we will go on to track

number 16.

(Track Playing.
Okay.
What instruments do you hear

there?
Bass drum,
snare drum and

hi- hat.
Is that, can you tell if that

Mr. Vargas

playing the drums
MR.

CHIN:

track Obj ection.

16?

know. don you have any oplnlon

whether that

Mr. Vargas? MR. CHIN: Obj ection. know. don know. don Did you hear any ghost notes
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MATTHEW RITTER

track number 16?
I didn t hear any on that

one.

Did you hear any multiple

bounce stroke on track 16?

No.

Last one,
go.

track

17.

Here we

(Track Playing.
Can I hear it once more,

please.
Sure.

(Track Playing.
Okay.
Wha t instruments do you hear

there?

Bass drum,

snare drum and some

other sound that is a little foreign to me,

maybe it is a second snare drum or some other

It sounds like it has been put in there somehow.
kind of

high pitched sound.

Can you tell if that drum track

on number 1 7 is played by Mr. Vargas?

MR. CHIN: Obj ection.
I don t know.
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playing on one of those particular tracks, do
you recall that?

Did
No.

ask tha t? That Ms. Ahrens

as

ked you.

Yes.

recall

tha t.

What would you need
order to ascertain whether or not somebody

other than Ralph Vargas was playing on one

of

the tracks on Funky Drummer Volume

A.

II?

Again, I would need to hear

that other person playing the drum composition

in question, figure out what they sound like

playing that
lS on the

rhythm.

Then compare it to what
know

record.
Would it also help you to
Obj ection,
if I were

who that other person was?
MS. AHRENS:

leading.
It would

help, yes,

familiar with that drummer.

Some drumme r s ,

like I said earlier today are very famous and
over time I become familiar with their

idiosyncracies, I can usually recogni4e them.
What experience do you have

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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

MATTHEW RITTER with obtaining licenses for music? A. Q. sampling? A. Q. that. Do you recall reviewing Mr. Ricigliano's declaration? A. Q. declaration? A. leading. Q. Could you give me some of the things that you strongly disagreed with Mr. Ricigliano in terms of his conclusion in his declaration in this case? MS. AHRENS: leading. Mischaracterizes. A. Yes. First of all I was Objection, Yes, I disagree. MS. AHRENS: Objection, Yes, I do. Is it fair to say you disagree Zero. In Mr. Ricigliano -- strike Zero. What experience do you have in

with his conclusions in that, in his

immediately struck by the fact that
[phone]

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TIFIC

STATE OF NEW YORK
:s

s.

COUNTY OF NEW YORK

M. PASTOR, a Registered Professional Reporter, Certified Li veNote Reporter and Notary Public wi thin and for the
I, TAMMEY

State of New York, do hereby

certify:

That MATTHEW RITTER the witness

whose deposition is hereinbefore

set forth, was duly sworn by me and that such deposi tion
is a true record of the testimony given by the

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 day of
, 2006.

TAMMEY M. PASTOR, RPR, CLR
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