Arista Records LLC et al v. Lime Wire LLC et al

Filing 169

MEMORANDUM OF LAW in Support re: 168 MOTION to Strike Plaintiffs' Exhibits Filed as Part of Plaintiffs' Opposition to Defendants' MSJ and Defendants' Motion to Strike.. Document filed by M.J.G. Lime Wire Family Limited Partnership, Lime Wire LLC, Lime Group LLC, Mark Gorton. (Baker, Charles)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ARISTA RECORDS LLC; ATLANTIC RECORDING CORPORATION; BMG MUSIC; CAPITOL RECORDS, INC.; ELEKTRA ENTERTAINMENT GROUP INC.; INTERSCOPE RECORDS; LAFACE RECORDS LLC; MOTOWN RECORD COMPANY, L.P.; PRIORITY RECORDS LLC; SONY BMG MUSIC ENTERTAINMENT; UMG RECORDINGS, INC.; VIRGIN RECORDS AMERICA, INC.; and WARNER BROS. RECORDS INC., Plaintiffs/Counterclaim Defendants, v. LIME GROUP LLC; LIME WIRE LLC; MARK GORTON; GREG BILDSON, and M.J.G. LIME WIRE FAMILY LIMITED PARTNERSHIP Defendants.

ECF CASE 06 CV. 5936 (GEL)

DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' OBJECTIONS TO PLAINTIFFS' EXHIBITS FILED AS PART OF PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANTS' MOTION TO STRIKE Of counsel: Lauren E. Handler SDNY (LEH 6908) PORZIO, BROMBERG & NEWMAN, P.C. 100 Southgate Parkway P.O. Box 1997 Morristown, NJ 07962-1997 [phone] (Facsimile) [phone] (Telephone) [e-mail] Charles S. Baker (CB1365) Joseph D. Cohen (JC3017) Susan K. Hellinger (SH8148) PORTER & HEDGES, LLP 1000 Main Street, 36th Floor Houston, Texas 77002-6336 [phone] (Telephone) [phone] (Facsimile) [e-mail] [e-mail] [e-mail]

COME NOW, Defendants Lime Group LLC, Lime Wire LLC, Mark Gorton, and M.J.G. Lime Wire Family Limited Partnership (collectively, "Defendants") and file this Memorandum of Law in Support of Defendants' Objections to Plaintiffs' Exhibits Filed as Part of Plaintiffs' Opposition to Defendants' Motions for Summary Judgment and Defendants' Motion to Strike, and respectfully show the Court as follows: I. DEFENDANTS' OBJECTIONS TO PLAINTIFFS' EXHIBITS Plaintiffs' Response relies upon numerous inadmissible exhibits. However, the Court may consider only admissible evidence. Riisna v. Am. Broad. Cos., 219 F. Supp. 2d 568, 571 (S.D.N.Y. 2002). Therefore, Defendants file these objections to Plaintiffs' exhibits and move to strike them from the summary judgment record.1 The admissibility of these exhibits is properly before the Court at this stage of the proceedings. "The principles governing admissibility of evidence apply equally on a motion for summary judgment as in trial." Bazak Int'l Corp. v. Tarrant Apparel Group, 378 F. Supp. 2d 377, 391 (S.D.N.Y. 2005). Defendants object to Plaintiffs' exhibits as follows: Exhibit No. 327 329 330 331 Exhibit Description Webpage: Abacast>>Hybrid P2P Technology Download.com webpage Gnutelliums.com webpage Plan for LimeWire / Napster Conversion Objection Authenticity2, Hearsay3 Authenticity, Hearsay Authenticity, Hearsay Inadmissible settlement offer, Fed. R. Evid. 408.4 See Settlement

This Motion is being filed in addition to other motions filed by Defendants addressing their objections to Plaintiffs' summary judgment evidence. 2 See Section IV.A infra for the argument and authority on authenticity objections. 3 See Section IV.B infra for the argument and authority on hearsay objections. 4 Defendants incorporate their previously-filed Memorandum of Law in Support of Defendants' Settlement Related and Pre-August 2003 Objections to Plaintiffs' Exhibits to Their Motion for Partial Summary Judgment and Defendants' Motion to Strike Plaintiffs' Exhibits ("Settlement Related and Pre-August 2003 Objections"), which
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Exhibit No. Process 332 333 334 335 336 337 338 339

Exhibit Description

Objection Related and Pre-August 2003 Objections" Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Hearsay Authenticity, Hearsay

Webpage: Project Gutenberg Homepage Webpage: Apple.com>>iLife>>iMovie Article: Digital Alexandria Article: Newsmaker: fighting to protect copyright `orphans' Article: Internet Archive stores 40 billion web pages Linspire Press Release>>Microsoft and Lindows Settle Trademark Case Cates Declaration electronic backup: The Adventures of Huckleberry Finn, etc. University of Virginia Library>>Collections>>Access and Conditions Webpages from www.gutenberg.org Webpages, including: Gary Overacre>>Portfolio String Cheese Incident's "Magic Carpet Ride" (electronic backup to Cates Declaration showing song properties and length) Webpage: Archive.org>> Tea Leaf Green's "Gasaholic" and "Garden III" Webpage: Archive.org>> Webpage: NIN Ghosts IV Webpages, including: Archive.org>> Webpages, including: Skype>>Download Webpages, including: Grid Networks>>Download and Install

340 341 342

Authenticity, Hearsay Authenticity, Hearsay Hearsay

343 344 345 346 347 348 349

Authenticity, Hearsay Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay

outlines the basis for not admitting a variety of exhibits based on Fed. R. Evid. 408. Those objections are incorporated herein for all purposes.
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Exhibit No. 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370

Exhibit Description GridCasting in Windows XP Webpage: Joost>>Knowledge Base Webpage: Joost>>Welcome to Joost Beta Article: Will Pando Solve Your Digital Media Problems (Like It Solved Mine)? Webpages, including: Pando Homepage Webpage: DCIA Newsletter (December 6, 2004) Webpages regarding: Lake Trout Webpage: TV.com>>Starting Over>>Show Summary Webpage: Jungroup Homepage Webpage: Sananda Maitreya>>Music Store Webpage: Sananda Maitreye>>Press Releases Webpage: Raketu>>Description Article: CNR.com Beta Goes Live ­ The Easy Way To Get Linux Software Webpage: Winzip.com>>Download Webpages, including: Download.com>>Open Office Webpages, including: America's Army Homepage Webpages, including: Berklee Shares Homepage Webpage: Outraged Moderates>>About Us

Objection

Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay

Webpage: Outraged Authenticity, Hearsay Moderates>>Government Document Library Webpage: Outraged Moderates>>How to Use P2P Networks Webpage: Nine Inch Nails ­ The Slip Webpage: Creative Commons International>>United States Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay

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Exhibit No. 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 391

Exhibit Description Webpages, including: Nine Inch Nails Homepage Webpage: Widespread Panic>>Q&A Webpages, including: Nugs.net>>FAQ>>General Questions Webpage: Vida Blue>>Multimedia Webpage: Nugs.net>>Download Webpage: Jamendo>>Music>>Albums>>Listen Webpages regarding: Tryad Webpages, including: Converse>>Terms and Conditions Webpage: Marquis Music>>Alfie Zappacosta

Objection Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay

Webpage: Epitonic>>The American Analog Authenticity, Hearsay Set Webpage: Music.download.com>>Appleseed Cast Webpages regarding: Down and Out in the Magic Kingdom Webpages regarding: "I Have a Dream" speech Webpages regarding: The Declaration of Independence Webpages regarding: The Constitution of the United States Cates Declaration electronic backup: Hamlet and Macbeth Webpages regarding: The complete works of William Shakespeare E-mail from A. Kumar to K. Catillaz and email from K. Catillaz to K. Catillaz Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Authenticity, Hearsay Hearsay Authenticity, Hearsay Inadmissible settlement offer, Fed. R. Evid. 408. see Settlement Related and Pre-August 2003 Objections Pre-August 2003 document

428
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Lime Wire LLC Draft Offering

4

Exhibit No.

Exhibit Description Memorandum (April 2001)

Objection therefore irrelevant; see, Settlement Related and Pre-August 2003 Objections Pre-August 2003 document therefore irrelevant; see, Settlement Related and Pre-August 2003 Objections Pre-August 2003 document therefore irrelevant; see, Settlement Related and Pre-August 2003 Objections Pre-August 2003 document therefore irrelevant; see, Settlement Related and Pre-August 2003 Objections Pre-August 2003 document therefore irrelevant; see, Settlement Related and Pre-August 2003 Objections Pre-August 2003 document therefore irrelevant; see, Settlement Related and Pre-August 2003 Objections Pre-August 2003 document therefore irrelevant; see, Settlement Related and Pre-August 2003 Objections Pre-August 2003 document therefore irrelevant; see, Settlement Related and Pre-August 2003 Objections Pre-August 2003 document therefore irrelevant; see, Settlement Related and Pre-August 2003 Objections Pre-August 2003 document therefore irrelevant; see, Settlement Related and Pre-August 2003 Objections

429

E-mail from J.K. Barret to [e-mail] attaching employee spreadsheet Lime Wire Offering Memorandum Draft Cover Letter to Potential Investors

431

441

E-mail from M. Gorton to Peer

442

E-mail from M. Gorton to J.K. Barret

443

E-mail from P. Toland to M. Gorton

444

E-mail from P. Toland to M. Gorton

448

E-mail from M. Gorton to G. Bildson

453

Letters from M. Gorton to S. Thadani, A. Arago, G. Bildson, C. Rohrs and A. Fisk

456

Lime Group Performance Appraisal of S. Cho by M. Gorton and G. Bildson

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Exhibit No. 458

Exhibit Description E-mail from M. Gorton to N. Lovejoy with attached document (LimeWire: Working with the Record Industry E-mail from M. Gorton to L. Tunberg

Objection Inadmissible settlement offer, Fed. R. Evid. 408; see, Settlement Related and Pre-August 2003 Objections Privileged. Under the terms of the Stipulation and Protective Order dated March 8, 2007 in this case, Defendants have requested that this document be returned on grounds of privilege and removed from the record. Discussions of inadmissible settlement offer, Fed. R. Evid. 408; see Settlement Related and PreAugust 2003 Objections

459

460

E-mail from M. Gorton to K. Catillaz

II.

DEFENDANTS' OBJECTIONS TO PROFESSOR ELLIS HOROWITZ'S TESTIMONY Defendants object to the proffered deposition testimony of Prof. Ellis Horowitz for the

reasons outlined in Defendants' Memorandum of Law in Support of Defendants' Motion to Exclude Plaintiffs' Proffered Expert Summary Judgment Evidence From the Depositions and Reports of Ellis Horowitz Ph.D. and Richard P. Waterman Ph.D. which is incorporated herein by reference. III. ARGUMENT & AUTHORITY A. Rule 901: Authentication

Federal Rule of Evidence 901 requires authentication or identification as a condition precedent to admissibility. FED. R. EVID. 901. Rule 901(a) further requires Plaintiffs to submit sufficient evidence to support a finding that the documents on which they rely are what Plaintiffs claim that they are. United States. v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir. 1991). Plaintiffs attempt to authenticate their summary judgment evidence via the Declaration of Katherine B.
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Forrest, an attorney for the law firm representing Plaintiffs. However, this is insufficient to authenticate the documents to which Defendants object on the basis of authenticity. Furthermore, it is questionable whether Ms. Forrest has personal knowledge sufficient to authenticate these documents. Specifically, for Exhibits 327, 329­30, 332­337, 339­341, 343, 345­85, and 387, Ms. Forrest declares that these exhibits, which are printouts of web sites, were printed "at [her] direction and under [her] supervision" on specific dates. See Declaration of Katherine B. Forrest, attached to Plaintiffs' Opposition to Defendants' Motion for Summary Judgment. These printouts are not properly authenticated. See Novak v. Tucow, Inc., No. 06CV-1909 (JFB), 2007 WL 922306, at * 5 (E.D.N.Y. 2007) ("While plaintiff's declaration purports to cure his inability to authenticate the documents printed from the internet, he in fact lacks the personal knowledge required to set forth with any certainty that the documents obtained via third-party websites are, in fact, what he proclaims them to be. . . . [plaintiff] proffers neither testimony nor sworn statements attesting to the authenticity of the contested web page exhibits by any employee of the companies hosting the sites from which plaintiff printed the pages, such exhibits cannot be authenticated as required under the Rules of Evidence."). B. Rules 801-803: Hearsay

Hearsay is not admissible pursuant to Federal Rule of Evidence 802. FED. R. EVID. 802. However, numerous of Plaintiffs' exhibits contain hearsay, out-of-court statements offered to prove the truth of the matter asserted. FED. R. EVID. 801. Specifically, Exhibits 327, 329­30, 332­337, 339­341, 343, 345­85, and 387 are screen shots of various webpages, which this Court classifies as hearsay. See FTC v. Medical Billers Network, Inc., 543 F. Supp. 2d 283, 303 (S.D.N.Y. 2008) (Holwell, J.) (holding that a printout of a website was inadmissible hearsay). Even though Exhibits 338, 342, 344, and 386 are printouts from files referenced in the Cates

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Declaration, Plaintiffs offer them to prove the truth of the matter asserted, which makes them hearsay. FED. R. EVID. 801. Furthermore, Plaintiffs have not set forth the foundation to meet any of the hearsay exceptions contained in Rule 803. FED. R. EVID. 803. By way of example, Rule 803(6) provides an exception for business records. However, to meet the business records exception, Plaintiffs must provide testimony from the custodian of records or another qualified witness demonstrating that the documents were "kept in the course of a regularly conducted business activity and also that it was the regular practice of that business activity to make the [record]." Parker v. Reda, 327 F.3d 211, 214-15 (2d Cir. 2003). Plaintiffs have failed to set forth a foundation for the business record exception, or any other exception provided in Rule 803. Therefore, the

documents to which Defendants object on the basis of hearsay should be excluded. Defendants anticipate that Plaintiffs will attempt to argue that some of the statements to which Defendants object on hearsay grounds are admissions by a party-opponent. Rule

801(d)(2)(D) provides that "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" is not hearsay. FED. R. EVID. 801(d)(2)(D). "In order to introduce evidence of an out-of-court statement as nonhearsay under Rule 801(d)(2)(D), a party must lay a sufficient foundation by establishing `(1) the existence of the agency relationship, (2) that the statement was made during the course of the relationship, and (3) that it relates to a matter within the scope of the agency.'" Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 129 (2d Cir. 2005) (citing Pappas v. Middle Earth Condo. Ass'n, 963 F.2d 534, 537 (2d Cir. 1992)). Plaintiffs have not established that the documents to which Defendants object herein are nonhearsay. excluded. See id. Therefore, they should be

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C.

Expert Reports

Expert reports that are neither sworn nor verified are not competent summary judgment evidence. Winstead v. Ga. Gulf Corp., 77 Fed. App'x 267, 271 (5th Cir. 2003); see also Major v. Astrazeneca, Inc., Nos. 5:01-CV-618 (Lead) (FJS/GJD), 5:01-CV-1736 (Member) (FJS/GJD), 2006 WL 2640622, at *6 (N.D.N.Y. 2006) (stating that the report was not proper summary judgment evidence because it was not notarized or dated). The expert reports attached to the deposition of Ellis Horowitz, Ph.D. are neither sworn nor verified and are not admissible summary judgment evidence. V. CONCLUSION Plaintiffs' Motion for Partial Summary Judgment relies upon exhibits that are not relevant, have not been properly authenticated, and contain hearsay. The Exhibits and the testimony objected to within this Memorandum of Law are inadmissible and must be excluded. Defendants request that the Court sustain Defendants' objections and grant this Motion to Strike.

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Dated: November 7, 2008. Respectfully Submitted, Of counsel: Lauren E. Handler SDNY (LEH 6908) PORZIO, BROMBERG & NEWMAN, P.C. 100 Southgate Parkway P.O. Box 1997 Morristown, NJ 07962-1997 [phone] (Facsimile) [phone] (Telephone) [e-mail] ____/s/__________________ Charles S. Baker (CB1365) Joseph D. Cohen (JC3017) Susan K. Hellinger (SH8148) PORTER & HEDGES, LLP 1000 Main Street, 36th Floor Houston, Texas 77002-6336 [phone] (Telephone) [phone] (Facsimile) [e-mail] [e-mail] [e-mail] Attorneys for Defendants

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CERTIFICATE OF SERVICE This is to certify that the foregoing pleading was filed by means of the Court's ECF system on the 7th day of November, 2008. Accordingly, it is assumed that all counsel of record received notice of this filing from the ECF system. Lead counsel, listed below, will also receive a courtesy copy via email. Katherine B. Forrest Teena-Ann V. Sankoorikal Cravath, Swaine & Moore, LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7475 [phone] [phone] (fax) Steven A. Hirsch Keker & Van Nest, LLP 710 Sansome St., San Francisco, California 9411 (415) 391- 5400 [phone] (fax) ____________/s/________________ Charles S. Baker Karyn A. Temple Recording Industry Association of America 1025 F Street, NW, 10th Floor Washington, DC 20004 [phone] [phone] (fax)

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