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

Filing 541

DECLARATION of Kelly M. Klaus in Support. Document filed by Arista Music, fka BMG Music, Arista Records LLC, Atlantic Recording Corporation, Capitol Records, LLC, fka Capitol Records, Inc., Elektra Entertainment Group Inc., Interscope Records, Laface Records LLC, Motown Record Company, L.P., Priority Records LLC, Sony Music Entertainment, fka Sony BMG Music Entertainment, UMG Recordings, Inc., Virgin Records America, Inc., Warner Bros. Records Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Klaus, Kelly)

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

Doc. 541 Att. 1

EXHIBIT 1

Dockets.Justia.com

12-7-07 Court Transcript.txt 1 1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 18 18 19 19 20 20 21 22 23 24 25 7C7ARIC Conference UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x ARISTA RECORDS, et al., Plaintiffs, v. LIME WIRE LLC, et al., Defendants. ------------------------------x New York, N.Y. December 7, 2007 5:00 p.m. Before: HON. GERARD E. LYNCH, District Judge APPEARANCES CRAVATH, SWAINE & MOORE Attorneys for Plaintiffs BY: KATHERINE B. FORREST TEENA-ANN V. SANKOORIKAL JOANNE M. GENTILE PORTER & HEDGES Attorneys for Defendants BY: CHARLES S. BAKER JOSEPH D. COHEN 06 CV 5936 (GEL)

2 7C7ARIC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Conference (In open court) THE DEPUTY CLERK: Arista Records v. LimeWire LLC. MS. FORREST: Katherine Forrest with Cravath, Swaine & Moore for plaintiffs. MS. SANKOORIKAL: Teena-Ann Sankoorikal from Cravath for plaintiffs. MS. GENTILE: Joanne Gentile for plaintiffs. MR. BAKER: Your Honor, Charles Baker on behalf of the defendants. THE COURT: Good afternoon, Mr. Baker. MR. COHEN: Joe Cohen from Porter & Hedges in Houston, also for the defendants. THE COURT: Mr. Cohen, good afternoon. It probably wasn't the wisest thing to schedule this so late in the day Page 1

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12-7-07 Court Transcript.txt and terms of service, the plaintiffs say they have provided the relevant custodians and supplied the relevant search terms. I am satisfied with that, except the custodian list does not, as far as I can see, include anybody from RIAA. And that seems to me to be an organization that in principle could have very significant information to impart. And it seems to me someone should identify some possible custodian who is the right person whose files should be searched on that issue. Last, on the defendants' list, there is a question relating to the plaintiffs' restriction of answers in interrogatories to the current employees who have the most knowledge. I'm satisfied with the most knowledge part. I think it would be burdensome and would yield little benefit to expand the category to anybody who has any knowledge or something like that, or try to figure out who out of all these employees may have been involved in something relevant. But, I do think that given that the allegations in this copyright misuse claim go back as far as 2000, the 10 7C7ARIC Conference plaintiffs should also identify the most relevant former employees who might be served with interrogatories for third-party discovery, and that restricting the answers to interrogatories to current employees is not likely adequate. All right. Now turning to the plaintiffs' laundry list. The request for protective order I think is denied, except to the extent that I have made these various rulings and that seems to deal with the problem and be the way of dealing with these issues. The plaintiffs move to compel production of documents from David Ruth and Amy Gordon who are close relatives, indeed nuclear family members, of Mr. Mark Gordon, who is the CEO of LimeWire. The fact that they're family members doesn't seem to me to make them different from shareholders to the extent of the likelihood of producing any -- of having any relevant information. And the fact that they're family members tends to increase the risk that serving them with discovery documents is just harassment, so that will be denied. Next there is a question of bifurcation. I think I've essentially dealt with that by separating out the test case copyrights. I think that's a more sensible way to do it than simply bifurcating damages issues, or at least maybe that means I am bifurcating at least damages issues to the extent they go to how many copyrights or something like that. But I'm not -- I think I'd rather not phrase it as no 11 7C7ARIC Conference discovery with respect to damages issues. Because that's the kind of order that tends to produce more trouble than it's worth, as the parties then fight over whether a given demand is or isn't in which half of the bifurcation. I think I've made clear the way to proceed here with respect to what I think is the principal issue or problem, which is the disclosure of copyright ownership issues, is just to proceed with a small subset of those in the first instance. Finally, I think it's finally, the plaintiff seeks some additional deadlines and the defendants seek various extensions. Now, some of this has been mooted or changed or affected just by the process of events. I'm sorry that it took so long to deal with the motion, but that's life in the big city. There are a lot of other motions on the list. This was Page 5

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12-7-07 Court Transcript.txt a somewhat demanding one, it resulted in a lengthy opinion, it took me a while to get to it. But having taken that time, the plaintiffs' proposed discovery deadline is now past. And it seems to me that based on all of the things that I've covered today from the parties' joint request, it is just not realistic to think that this work is not going to get done -- I'm sorry -- is going to get done in a very short period of time, particularly with the holidays intervening. It does seem to me, on the other hand, appropriate to require that document discovery be substantially complete by 12 7C7ARIC Conference January 31; that fact depositions be done in February and March and be completed by March 31; that expert reports be provided by I guess basically the same time, the end of March; rebuttal reports by the end of April; expert depositions then to be conducted in May and be finished by May 31. And I think that's enough deadlines to keep everybody occupied, and we can think about summary judgment motions at a conference to be held after that process is done. It seems to me, though, it would be productive to schedule a conference for the very beginning of April. Just to find out, get some progress report on the completion of fact discovery, and see whether progress is sufficiently being made and give the parties a deadline that is a real hearing in court deadline to concentrate the mind on what needs to be done in the interim. So that is what I thought after reading the joint letter. Is there anything really huge that I've missed, any major topic heading that I haven't addressed that the parties need guidance on? Or anything that you think from the point of view of your client I've gotten grotesquely wrong in these rulings? And basically, you've each got about one, and if it's not terribly wrong, if you can't persuade me on one, then your second best is not going to be heard. Do you have one or are people content to live with this for now? 13 7C7ARIC Conference MS. FORREST: Your Honor, I just have a couple of very brief points. One is on a couple of the rulings that your Honor has stated today, they do rely upon the copyright misuse affirmative defense still being in the case. If we could, your Honor, let me just ask if LimeWire could define for us what the parameters of that copyright misuse defense are, because we have seen it both in its letter briefs and in its filings before the Court in various places change. It's gone from both being overlapping with the antitrust case, to now in the most recent November 16 letter brief, having some bearing on ownership issues. Your Honor, I would also suggest that if copyright misuse is only in the case or was only in the case for antitrust, if the counterclaims are truly gone, your Honor, then I would ask how is it that that discovery is still relevant here. If the rulings, your Honor, relating to misuse are for some other purpose, we'd like to have the parameters of that spelled out. That relates to the couple of the rulings, the label level searching, the actual investments, the prices in terms of service. Page 6

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