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

Filing 188

DECLARATION of Katherine B. Forrest in Opposition re: 168 MOTION to Strike Plaintiffs' Exhibits Filed as Part of Plaintiffs' Opposition to Defendants' MSJ and Defendants' Motion to Strike., 165 MOTION to Strike Plaintiffs' Exhibits Filed as Part of Plaintiffs' Opposition to Defendants' MSJ and Defendants' Motion to Strike.. Document filed by Capitol Records, Inc., Elektra Entertainment Group, Inc., Interscope Records, Laface Records LLC, Motown Record Company, L.P., Arista Records LLC, Priority Records LLC, Sony BMG Music Entertainment, UMG Recordings, Inc., Virgin Records America, Inc., Warner Bros. Records Inc., Atlantic Recording Corporation, BMG Music. (Attachments: # 1 Exhibit 492 to Forrest December 5, 2008 Declaration, # 2 Exhibit 493 to Forrest December 5, 2008 Declaration, # 3 Exhibit 494 to Forrest December 5, 2008 Declaration, # 4 Exhibit 495 to Forrest December 5, 2008 Declaration, # 5 Exhibit 496 to Forrest December 5, 2008 Declaration, # 6 Exhibit 497 to Forrest December 5, 2008 Declaration)(Forrest, Katherine)

Exhibit

492

UNITED SOUTHERN

STATES

DISTRICT
OF

COURT NEW YORK

DISTRICT

LLC; ATLANTIC CORPORATION; BMG MUSIC; CAPITOL RECORDS, INC.; ELEKTRA ENTERTAINMENT GROUP INC.; INTERSCOPE RECORDS RECORDS; LAFACE LLC; MOTOWN RECORD COMPANY, L.P.; PRIORITY RECORDS LLC; SONY BMG MUSIC UMG RECORDINGS, INC.; ENTERTAINMENT; VIRGIN RECORDS AMERICA, INC.; and
RECORDING WARNER BROS. RECORDS

ARISTA

RECORDS

INC.,

Plaintiffs/Counterclaim
V*

Defendants,
06 Civ, 05936

(GEL)

LIME

WiRE

GORTON;

and GREG

LLC; LIME GROUP LLC; MARK BILDSON,
Defendants/Counterclaim Plaintiffs.

PLAINTIFFS/COUNTERCLAIM
PURSUANT TO RULE

DEFENDANTS'

INITIAL RULES

DISCLOSURES

26(a)(1) OF THE
PROCEDURE

FEDERAL

QF,CIVIL

Pursuant Case

to Rule

26(a)(!) of the Federal
in this
ease

Rules

of Civil

Procedure

and the

Management

Plan

entered

on

October

11, 2006 (the "Case
submit the

Management

Plan"), Plaintiffs/Counterclaim
diselosures
Pursuant
to

Defendants

("Plaintiffs")

following initial

(the "Disclosures")
an

to

Defendants/Counterclaim
on

Plaintiffs October

("Defendants").
by Daniel
of

agreement

of the

parties (confirmed
Disclosures
are

13, 2006

Murphy
do not

and

Joseph Cohen), these
identification
As

limited

to identification

people,

and

include

of documents. has not

discovery

yet commenced

and this information

action

is at

an

early stage,
to

the Disclosures

are

preliminary

and based

solely

on

reasonably available

Plaintiffs
Disclosures.

as

of the date

hereof'.

Plaintiffs

reserve

the

right

to amend

and

supplement

the

Plaintiffs

make

the Disclosures work

subject to, and without

waiver

of any

attorney-client
other

privilege, attorney
or

product protection,
Plaintiffs of
reserve

common-interest

privilege
as

or

applicable privilege
on

doctxine.

the

right

to

object,
to

appropriate,

any

basis, including the bases
individuals. It is

privilege
some

and

relevance,
listed

testimony by
herein is may
not

any of the disclosed in fact possess of information
A.

possible that
or

individuals

discoverable

information,

may

only have information

that

duplicative

possessed by others.
name

The

likely support

to

and, if known, the address and telephone number of each individual have discoverable information that the disclosing party may use to its claims or defenses, unless solely for impeachment, identifying the
of the information.
on

subiects

Based

Plaintiffs'

investigation
to have

thus

far, Plaintiffs
information

believe that

that the

following individuals
to

are

likely

discoverable

Plaintiffs

may

use

support

their

claims 1.

and defenses: The

following

persons

are

representatives

of the Plaintiffs & Moore LLP:

and may

only be contacted

through Plaintiffs'

counsel, Cravath, Swaine

Thomas (a) Carpenter, Director, Data Services, MediaSentry Services, Saf·Net, Inc., 480 Headquarters Plaza, Morristown, NJ 07960. Mr. Carpenter's knowledge is of the infringements that have occurred and that are occurring on Defendants' system/network.

(b)

The issues

regarding
involved

and/or, if necessary, following individuals relating to the ownership of rights in and to
and the
manner

others,
the sound
are

may

testify recordings

in this action

in wlfieh

sound

recordings

created

distributed, and otherwise (i)

exploited:
&

Scott Bauman, Senior Director, Litigation Counsel, Business Legal Affairs Worldwide, UMG Recordings, Inc., 2220 Colorado Avenue, Santa Monica, CA 90404;

(ii)

Alasdair Music

North
NY

McMullan, Senior Vice President, Legal Affairs, EMI America, 150 Fifth Avenue, 11 th Floor, New
100I 1;

York,

(iii)

Silda

Warner

and Senior Litigation Counsel, Palerm, Vice President Music Group, 75 Rockefeller Plaza, New York, NY 10019; and

(iv)

Jennifer 10022.

Pariser, Vice President, Litigation, Sony Music
Inc., 550 Madison Avenue,
New York NY

Entertainment

(e)

regarding
relating
with
to

issues

and, if necessary, following individuals others, may testify of sound recordings, issues relating to on-line distribution file filtering, file blocking, file identification, digital fights
or

The

management
Defendants

mieropayment teehnologies, issues relating and/or issues relating to harm to Plaintiffs:
Victoria

to

communications

(i)

Bassetti, Senior Vice President, Government Relations, EMI Music North America, 150 Fifth Avenue, Floor, New York, NY 10011;
Jennifer Music
NY

1 lta

(ii)

Cavanaugh, Vice President, New Technology,
Entertainment

Sony
York

Inc., 550 Madison

Avenue,

New

i 0022;

(iii)
0v)

Elizabeth

Cohen, former
Senior Entertainment

employee,
Vice

EMI

Group;

Mark
York

Eisenberg,
NY

Sony Music (v)

President, New Technology, Inc., 550 Madison Avenue, New

10022;

Salar Farzad, former Senior Vice President, Finance & Planning, EMI Music North America, c/o MTV Network Incorporated, 1515 Broadway, New York, NY 10036; Paul Gerber, Manager, Content Protection, EMI Music North th America, 150 Fifth Avenue, 11 Floor, New York, NY 10011;

(vi) (vii)

Robyn Glaser, former Vice President, Business & Legal Affairs, EMI Recorded Music, 1731 Beacon Street, Apt 1406, Brookline MA 02445;
Zach Universal

(viii)

Horowitz, President and Chief Operating Officer, Music Group, 2220 Colorado Avenue, Santa CA 90404; Monica,

(ix)

Christopher Horton, Vice President, Advanced Technology, Universal Music Group, 2220 Colorado eLabs, Universal Avenue, Santa Moniea, CA 90404; Larry Kenswil, President, Universal

(x)

Group,

2220

Colorado

Avenue,

Santa

Music eLabs, Universal CA 90404; Monica,

(xi)

Gerrit
EMI New

Meier, Vice President, Digital Business
Music North

Development,
th

America,

125 West

55th

Street, 4

Floor,

York, NY 10019;

(xii) (xiii) (xiv)

Tucker

MeCrady, Licensing Specialist,

Warner

Music

Group,
150

75 Rockefeller

Plaza, New York, NY 10019;
ll

Ralph Munsen,
Fifth

Avenue,

Director, Technology Evaluation, EMM, th Floor, New York, NY 10011;

Michael

Vice President, Ostroft, General Counsel, Executive & Legal Affairs Worldwide, Universal Music Group, 2220 Colorado Avenue, Santa Monica, CA 90404; Business Ken

(xv)

President, Strategy & Business th Development, EMI Group, 150 Fifth Avenue, 11 Floor, New York, NY 10011; Peters, Vice President, Senior Counsel, Head Legal Affairs, Warner Music Group, 75 Rockefeller New York, NY 10019;
David Business Elliott of

Parks, Senior

Vice

(xvi)

Digital Plaza,
and

(xvii)

Ring, Senior Vice President Development, Universal
Avenue,

of Business

Affairs

Group, 2220 Colorado (xviii) (xix) (xx)
John 43:0 Park

Music eLabs, Universal Santa Monica, CA 90404;

Vice President, EMI Rose, former Executive Avenue, New York, NY 10022;

Group PLC,
Drive,

Los

Jay Samit, fbrmer employee, EMI Group, 6080 Center Angeles CA 90045;
Chief

Howard

Singer, Vice President, Strategic Technology, and Technology Officer, Warner Music Group, 75 Rockefeller Plaza, New York, NY 10019; and George White, Senior
Vice Music

(xxi)

Development,
New

Warner

President, Strategy & Product Plaza, Group, 75 Rockefeller
and other harm
to their

York, NY 10019. intellectual

2.

Third-party artists, artist representatives,
who may have

property rights
interests.

owners

knowledge concerning

respective

3. Defendants and

The

following

catrrent

and former

executives

and

employees of

third-parties,

may have

knowledge regarding Defendants'
and

design,
of the

promotion, distribution, support, marketing, maintenance system/network
and related services known
as

financing

software,

LimeWire, of the infringements that have

4

occurred financial

and that and other

are

occurring
from

on

Defendants'

system/network,

and of Defendants'

benefits

infi'ingement:
Lime Wire LLC

(a) Aubrey Arago, former telephone number unknown;

employee, address

and

Zlatin Balevsky, employee, Lime Wire LLC, 377 Broadway, (b) Floor, New York, NY 10013, 212-219-6000; Jennifer-Kate (c) Barret, former Lime Wire LLC and/or employee, address and telephone number unknown; Lime

1 lth

Group

LLC

(d) Floor,
New

Zenzele

York,

NY

Bell, employee, Lime Wire LLC, 377 Broadway, 11 th 10013,212-219-6000;
Lime Wire LLC

Felix Berger, former (e) number telephone unknown;

employee, address

and

(f) Floor,
New

Sam

York,

NY

Berlin, employee, Lime Wire LLC, 377 Broadway, 10013, 212-219-6000;

1 lth

(g) Greg Bildson, Chief Operating Officer and Chief Technology Officer, Lime Wire LLC, 377 Broadway, 1 lth Floor, New York, NY 10013, 212219-6000; (h)
Associates

Stephanie Blank,

current

or

former

employee, Adam-Friedman
NY

LLC, 11 East 44th Street, 5th Floor, New York

10017; 212-981-

2529; (i) Anthony Carlucci, former number telephone unknown; (j) Floor, New
Katie Lime Wire LLC

employee, address

and

Catillaz, employee, Lime York, NY 10013, 212-219-6000;
Lime

Wire

LLC, 377 Broadway,

l lth

Sherwood (k) Chen, former telephone number unknown,; Steven Cho, former (1) telephone number unknown; Lime

Wire

LLC

employee, address

and

Wire

LLC

employee, address

and

(m)

Susheel

Daswani,

former

Lime

Wire

LLC

employee, address

and

telephone
(n) Broadway,

number
Evin
l lth

unknown; [last
name

unknown], employee,
York, NY

Lime

Wire

LLC, 377

Floor,

New

10013, 212-219-6000;

(o)
and

Hatem number Kevin

El-Wardany, former Lime Group
unknown;

LLC

employee, address

telephone
(p)

Floor,

New

York,

NY

Faaborg, employee, Lime Wire LLC, 377 Broadway, 1 lth 10013, 212-219-6000; Fischler, employee, Lime Wire LLC, 377 Broadway,
10013, 212-219-6000; Fisk, former
Lime Wire LLC
1 lth

(q)
Floor, New (r)

Andrew

York, NY
Adam number

employee, address

and

telephone

unknown;
Lime Wire LLC

(s) Meghan Fonnel, former number unknown; telephone (t)
CA

employee, address

and

Amy Gorton, employee,

Tower

PR, 2608

Beach

Avenue,

Venice,

90291;

Mark Gorton, Chief Executive (u) Officer, Lime Wire Broadway, 1 lth Floor, New York, NY 10013, 212-219-6000;

LLC, 377

(v)
Associates

Jennifer LLC,
11 East

Halpem, current or former employee, Adam-Friedman 44th Street, 5th Floor, New York NY 10017; 212-981-

2529;
Adam Harris, former Lime Wire LLC employee, address (w) telephone number unknown; and

(x) Benjamin Hunter, former telephone-number unknown;

.Lime Radio

employee,

address

and

(y)
telephone

Avi

number

Jutagir, former unknown;

Lime

Wire

LLC

employee, address

and

Kirk Kahn, employee, Lime Wire LLC, 377 Broadway· (z) New York, NY 10013, 212-219-6000; Tarun Kapoor, former (aa) 877-472-6432; Mark Lime Wire LLC

1 lth

Floor,

employee, address

unknown,

(bb)
Floor, New

York, NY

Kornfilt, employee, Lime Wire LLC, 377 Broadway, 10013, 212-219-6000;
Lime Wire LLC

1 lth

Matt Kotzen, former (ce) number unknown; telephone

employee,

address

and

and

(dd) telephone

Elizabeth number

Lee, former employee, Tower unknown;
6

Research

Capital, address

(ee)

Angel Leon, former
unknown;

Lime

Wire

LLC

employee,

address

and

telephone number

Lisa Louttit, former (f0 number unknown; telephone

Lime

Group LLC employee, address

and

(gg)

Nathan

Lovejoy, employee,

Lime

Wire

LLC, 377 Broadway, 1 lth

Floor, New York, NY

10013, 212-219-6000;
Lime Wire LLC

Karl Magdsick, former (hh) telephone number unknown;

employee, address

and

(ii)
unknown;

John

Marshall, GnucDNA, address

and

telephone

number

Jordan (jj) [last name unknown], employee, Lime Wire LLC, 377 Broadway, 1 lth Floor, New York, NY 10013, 212-219-6000;

(kk) Yusuke Naito, telephone number unknown;
and

former

Lime

Wire

LLC

employee, address

and

Christine (11) Nicponski, former number telephone unknown; Lime

Lime

Wire

LLC

employee, address

(man) Dave Nicponski, former unknown, 917-696-3081;

Wire

LLC

employee,

address

New

Tim Olsen, employee, Lime Wire LLC, 377 Broadway, 1 lth Floor, (nn) York, NY 10013, 212-219-6000; Lime

Michael (oo) Richter, former number unknown; telephone

Group LLC employee, address

and

(pp) Christopher Rohrs, former telephone number unknown;
Jason Schmidt, former (qq) telephone number unknown; Lime

Lime

Wire

LLC

employee,

address

and

Wire

LLC

employee, address

and

(rr) Anurag Singla, former number unknown; telephone (ss)
Shad

Lime

Wire

LLC

employee, address

and

telephone

number

Solomon, former unknown;

Lime

Radio

employee, address

and

Robert (tt) Soule, former Lime Wire LLC employee, Place, #4B, Brooklyn, NY 11201, 718-797-1126;

44

Columbia

(uu) Floor,
New

Rachel

York,

NY

Sterne, employee, Lime Wire LLC, 377 Broadway, 10013, 212-219-6000;
former Lime Wire LLC

1 lth

Sumeet Thadani, (vv) telephone number unknown;

employee, address

and

(ww)

David

Yeu, employee, Lime

Wire

LLC, 377 Broadway,

1 lth

Floor,

New

York, NY

10013, 212-219-6000; and
as

other current and former employees of Defendants, as well (xx) whose identities in discovery or otherwise. third-parties, may be revealed
4.

Expert witnesses,
Rules of Civil

who

will be identified

pursuant

to the

schedule

established

by the Federal
5. Other
to

Procedure who

and the Case

Management Plan.
information

individuals their with and

are

likely

to have

discoverable

that

Plaintiffs

may

use

support

claims, include

the

following:
inducements
as

(a)
of

individuals

knowledge of Defendants'
and

of
or

infringements through marketing
advertising, download (b)
individuals such
as

advertising,
sites

such and

operators

employees
of

product review

services;

with

infringements,
parties
that

operators

awareness knowledge of Defendants' or employees of other infringing

services

and

provided

software with

and services

to

Defendants;
between

(c)
Defendants and

individuals

knowledge of communications representatives of fights-holders;
with

(d) identification,

individuals

knowledge of file filtering, file blocking, file
or

digital rights management
individuals of with

micropayment technologies;

(e)
maintenance

knowledge of Defendants' design and that contributed code to LimeWire; LimeWire, including parties
with

(f)
operators

individuals of so-called

knowledge knowledge

of persons

using LimeWire, including

"bootstrap servers";
with of Defendants'
as

(g)

individuals consideration

revenues,

profits

or

other

from

infringement, such

Defendants'

income, banks,
pay

accountants,

auditors, credit

card

companies

and operators

of credit-card

services; and (11)
respect to Defendants' ofMusicNet, pressplay, iMesh
with

knowledge

and

counterclaims, individuals MagnetMix.

with

B°

A copy

of, or a descriotion by category and location of, all documents, data and tangible things that are in the compilations, electronically stored information of the party and that the disclosing custody or control p0ssessjon, 0arty may u.se to Support its claims or defenses, unless solely for impeachment.
The

parties have agreed that docmnents
under Rule 34 in accordance with

will be

produced pursuant
set

to the

document

requests
Plan.

the schedule

forth

in the Case

Management
C° A

computation of any category of damages claimed by the for inspection and copying as under Rule making available other evidentiary material, not privileged or protected from such computation is based, including materials bearing on suffered. injuries
The

disclosing par-ty,
34 the documents
or

disclosure,
the nature

on

which
of

and extent

parties have agreed that documents
under Rule 34 in accordance in the with

will be

produced pursuant
set

to the

document

requests

the schedule seek

forth

in the Case

Management Plan.
tbllows:

As disclosed

Complaint, Plaintiffs

dmrmges computed

as

(i) damages pursuant
respect
that other
was

as

to Counts

I-III

of the

Complaint, for maximum

statutory

to 17 U,S,C.

§504(c), specifically, $150,000 per work with recording owned by Plaintiffs
and every

to each

and every

timely registered sound
and

willfully infringed

$30,000 per work with respect by Plaintiffs
that

to each

timely registered sound

recording owned

was

infringed,

if

any;

(ii)
statutory

as

to

Counts

I-III

of the

Complaint,
to final

as

an

alternative

to

damages

at Plaintiffs'

election
to the

prior

judgment, for
to be

an

accounting

of Defendants' Defendants

profits attributable
pursuant
to

infringement

provided by
of such

17 U.S.C.

§ 504(b), and for payment
from

profits and

Plaintiffs'

actual

damages suffered

infringement;

9

(iii) damages, calculated disgorgernent
established law;
at

as

to Counts

IV and V of the
to

Complaint,
or

for

compensatory

by analogy

statutory

damages
amount

otherwise, and/or
may be found
or

and

punitive damages in such

as

trial, arising from Defendants'

willful

and wanton

violations

of state

(iv) (v)
reasonable The

for prejudgment
for Plaintiffs'

and

post-judgment
and disbursements

interest; and
in this

costs

action, including

attorneys'
of

fees.
must

computation

categories (4) and (5)
of

necessarily await

an

accounting

at the

end

of this

litigation. Computation
in which
case

damages may be the subject of expert analysis and
will make disclosure of information relevant
to

testimony,

Plaintiffs

damages through the procedure for expert disclosures, reports and discovery provided in
Federal
D.

Rule of Civil
For

Procedure

26(a)(2).
as
on

which
or

inspection and copying carrying any person
a

under
an

Rule

34

any

insurance
may
or

agreement
be liable
to to

under

insurance

business

satisfy part
or

all of

judgment

which

reimburse The document

for payments

in the action may be entered made to satisfy the judgment. that documents with will be

indemnify

parties have agreed

produced pursuant
set

to the

requests
Plan.

under Rule 34 in accordance

the schedule

forth

in the Case

Management

10

October

24, 2006 CRAVATH,
SWA1NE & MOORE LLP

by

1·,..,,
Katherine A Member

r·,.
B. Forrest

·
(KF-1979)

of the Firm

Worldwide
825

Plaza

Eighth Avenue New York, NY 10019-7475 [phone] (fax) [phone]

Attorneys for Plaintiffs/Counterclaim Defendants
Of Counsel: Kenneth 1330 L. Doroshow

(KD-8374)
Association NW 20015 of America

Recording Industry
Connecticut

Avenue,
DC

Washington, (202)

[phone]
775-7253

(fax)

11