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

Filing 547

DECLARATION of Susan Traub Boyd in Support re: 533 MOTION in Limine to Preclude Specified Categories of Evidence and Argument.. Document filed by Arista Music, fka BMG Music, Arista Records LLC, Atlantic Recording Corporation, 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, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18)(Boyd, Susan)

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

Doc. 547 Att. 2

EXHIBIT 2

Dockets.Justia.com

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 07T9ARIH UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x ARISTA RECORDS LLC, ET AL., Plaintiffs, v. LIMEWIRE LLC, ET AL.,, Defendants. ------------------------------x New York, N.Y. July 29, 2010 9:36 a.m. Before: HON. KIMBA M. WOOD District Judge APPEARANCES MUNGER, TOLLES & OLSON, LLP Attorneys for Plaintiffs BY: GLENN POMERANTZ KELLY KLAUS JENNIFER PARISER JONATHAN BLAVIN WILSON, SONSINI, GOODRICH & ROSATI Attorneys for Defendants BY: MICHAEL SOMMER JESSICA MARGOLIS 06 CV 5936 (KMW)

SOUTHERN DISTRICT REPORTERS, P.C. [phone]

2 07T9ARIH 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 (In open court; case called) MR. POMERANTZ: Good morning, your Honor. Glenn Pomerantz on behalf of the plaintiffs. With me is my colleagues, Kelly Klaus, Jennifer Pariser, and Jonathan Blavin. Also at the end of the table is Phil Nickels, and he'll be helping with the technology. MR. SOMMER: Good morning. Michael Sommer, my colleague Jessica Margolis, and sitting is Mark Gorton, who will be the witness today. THE COURT: Good morning. All right. We're prepared at this point, I think, to proceed without the need for preliminaries. We have the motion to freeze defendants' assets as my first item; secondly, the matters raised in letter briefing of July 2 and July 9; and the timeline for the rest of the litigation. Do counsel wish to add anything to that preliminary agenda now? MR. POMERANTZ: No, your Honor. That covers everything that we were hoping to cover today. MR. SOMMER: We have nothing to add, your Honor. I didn't know we were going to be addressing the letters, but we'll do so. I just thought we were here for the asset hearing and to address the issues raised in our call of yesterday about the other matter. SOUTHERN DISTRICT REPORTERS, P.C. [phone]

3 07T9ARIH 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 But we'll certainly go as far today as we can within the time limitations that I have. THE COURT: What time do you need to end? MR. SOMMER: I really need to walk out of the building at 3:00 today. But I'm hopeful that that would allow everything to get done. THE COURT: I am too. I don't need oral argument on the letter briefing matters. I have a draft opinion. I thought I would give it to you, hear your reactions to it. So, I think that will make your dealing with it easier and faster. MR. SOMMER: Sounds like that, Judge. THE COURT: Okay. All right. Then let's proceed with anything plaintiff wishes to present in the way of testimony. MR. POMERANTZ: Your Honor, we would like to call Mr. Gorton as a witness in this proceeding. THE COURT: Please watch any wires as you come forward. Come to the stand, and remain standing, raise your right hand. MARK GORTON, called as a witness by the Plaintiff, having been duly sworn, testified as follows: THE COURT: You may proceed. SOUTHERN DISTRICT REPORTERS, P.C. [phone]

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4 07T9ARIH DIRECT EXAMINATION BY MR. POMERANTZ: Q. Mr. Gorton, could you raise the microphone up a little bit so I can hear you. Thank you. A. Is that better? THE COURT: It works best, for some reason, if it's underneath you by about eight inches. THE WITNESS: Is this good. How's that? THE COURT: Maybe it's not on. All right. THE WITNESS: We'll a-- I can probably do the plugging in, I'm guessing. How's that? MR. POMERANTZ: Got you. Perfect. Your Honor, I have a couple of binders that I'd like to bring to the witness and for your Honor to assist in the examination. THE COURT: That's fine. And you have a copy for your adversary? MR. POMERANTZ: I do. May I approach? THE COURT: Counsel may approach at any time and adversary counsel also may approach at the same time. MR. POMERANTZ: Your Honor, I have a copy for your Honor and one for a clerk if you would like. SOUTHERN DISTRICT REPORTERS, P.C. [phone]

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5 Gorton - direct THE COURT: That's good. Thank you. MR. POMERANTZ: Again, may I approach? THE COURT: Yes. Certainly. Q. Mr. Gorton, there are two binders. One is a smaller binder of exhibits we may refer to during the course of today's examination. And the thicker one is your deposition transcripts. I'm not sure we'll have need to go to those, but I wanted to have them there in the event that any of my questions requires to look at deposition testimony. Okay? A. Yes. Q. Now, you understand, Mr. Gorton that the record companies are here seeking to freeze your assets. Do you understand that? A. Yes. Q. And you understand that we're also seeking to freeze the assets of LimeWire? A. Yes. Q. And the assets of LimeGroup? A. Yes. Q. And we're seeking to freeze those assets so that they're available to satisfy the damages that will be awarded as part of a final judgment in this matter. You understand that? SOUTHERN DISTRICT REPORTERS, P.C. [phone] 07T9ARIH

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45 07T9ARIH Gorton - direct A. I see the next line, yes. Q. And some articles about the Grokster case, correct? A. Yes. Q. So you were very closely following what happened in Grokster, correct? A. Again, I was, you know, "very closely" is perhaps -- I mean but I -- you can see I was aware of what's going on. Q. And then sometime maybe a few months before the Grokster decision was issued by the Supreme Court, you were interviewed by the New York Times, correct? A. Maybe. Q. That's tab 14 is the article. Fair to say that you were interviewed by the New York Times for an article that appeared March 28, 2005? A. I see that. Q. And does that comport with your recollection? A. I mean I'm not sure I actually have a recollection about this. Q. And the article discusses your views about the Grokster case. Do you see that? A. Well, sort of. Okay. I mean I see what -Q. At the bottom of the third paragraph, the author of this article states, "But Mr. Gorton said that if those rulings were overturned, it could make LimeWire vulnerable." SOUTHERN DISTRICT REPORTERS, P.C. [phone]

46 07T9ARIH 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 Gorton - direct Do you see that?

A. Yes. Q. And then there was a quote. Quote, "If the Supreme Court says it is illegal to produce the software, LimeWire, the company, will cease to exist." Do you see that? A. Yes. Q. That is something you said, isn't it? A. I see the quote, yes. Q. And you have no reason to think that's not what you said, correct? A. It's quite possible I said that. Q. And, in fact, you had received, by this point in time, a lot of legal advice about copyright infringement liability and how Grokster and the Grokster decision may affect LimeWire, correct? MR. SOMMER: Objection. THE COURT: I'll permit it. THE WITNESS: I don't think I received very much legal advice. Q. Let me see if I can refresh your memory on that one too. Turn to tab 14 -- no, I'm sorry. Thirteen. In your binder. Mr. Gorton, your lawyers had provided a privilege log in this case a while ago and what I have done here is I've SOUTHERN DISTRICT REPORTERS, P.C. [phone]

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47 07T9ARIH Gorton - direct taken entries from that privilege log, organized them chronologically, to the extent that those entries relate to advice relating to copyright infringement or Grokster. Do you see that? A. Yes. Q. And you have no reason to believe that any of the entries on this log are incorrect, do you? MR. SOMMER: Your Honor, this one I'm going to object to. I mean we've never seen this before. We've had no opportunity to -THE COURT: This is a log produced, I take it, by your predecessor counsel? MR. SOMMER: That's not what I'm complaining about. I assume -- I know there was a log, and I'm assuming this is a faithful culling of certain entries from the log. But I've never seen this before. The witness has never seen this before. And I think it's unfair to ask him whether it's accurate whether neither he nor his counsel have reviewed this document. THE COURT: Is it correct, Mr. Gorton, that you've never reviewed this document? THE WITNESS: I've never seen this before. THE COURT: All right. You should go ahead. MR. POMERANTZ: Did you -- I should not question him about the document itself? SOUTHERN DISTRICT REPORTERS, P.C. [phone]

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48 Gorton - direct THE COURT: Well, you can ask him if he recalls whether a discussion took place on the topic, on those dates. MR. POMERANTZ: Thank you, your Honor. Q. Mr. Gorton, one of the names on this document is a gentleman by the name of Fred von Lohmann. Do you know a Fred von Lohmann? A. Yes. Q. Has he provided you with advice relating to copyright issues? A. He's a lawyer who works for the Electronic Freedom Foundation. I mean has he provided me advice on copyright issues? I'm not sure if that's a -- if there's a technical -what, you know, when you talk to a lawyer, is it always advice or something? But he's a lawyer who I spoke to and this is one of his areas of expertise. Q. And he's also the lawyer who provided you advice on document destruction practices, correct? MR. SOMMER: Objection. THE COURT: Sustained. You can ask it in a nonleading, nonprejudicial way. Q. Sure. Mr. Von Lohmann provided you with other advice relevant to LimeWire, correct? THE COURT: Did he provide you with any advice SOUTHERN DISTRICT REPORTERS, P.C. [phone] 07T9ARIH

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49 07T9ARIH Gorton - direct relevant to LimeWire? THE WITNESS: I mean some advice but -- well I mean -all right. Q. That's fine. There are other lawyers listed on this page, Joshua Wattles, Greg Bylinsky. They are both lawyers, correct? A. Yes. Q. And they both provided you with advice on copyright infringement issues surrounding LimeWire, correct? A. I mean Greg Bylinsky is a lawyer who also ran Lime Capital Management and did stock picking. I'm not so sure how much -- and I'm also not sure -am I supposed to discuss or not discuss what lawyers did or didn't say to me? THE COURT: You should not discuss the content of what you said to them to get legal advice and what they said to you. You're being asked a much more general question, whether you received advice on a topic, not what the advice was. THE WITNESS: I don't have a recollection of receiving advice on copyright infringement from Greg Bylinsky. Q. Now, you do recall -- let me ask you different. I'm going to go back to Mr. Von Lohmann for a second. Did he provide you with advice specifically related to Grokster? SOUTHERN DISTRICT REPORTERS, P.C. [phone]

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50 07T9ARIH Gorton - direct A. I really don't recall. Q. Well, look at this second page of this schedule that I showed you and the third to last entry which shows it's from Mr. Von Lohmann and it says, "e-mail discussing Grokster ruling back in August of 2004." Do you see that? A. Yes. Q. Does that refresh your recollection that you got advice from Mr. Von Lohmann specifically related to Grokster? A. If you look at the log, it says to Fred von Lohmann, from Fred von Lohmann. So I'm not really sure this was to me. I mean this might have just been a commentary of his or something. Q. Go back to the first page and you'll see the fourth entry down, fifth entries down are from Mr. Von Lohmann, both of which you're copied on, one of which says "e-mail discussing Grokster briefs." Any recollection of that communication with Mr. Von Lohmann? A. Again, I don't have any recollection of that. Q. Now, this -- you recall that the Supreme Court issued its ruling in Grokster on June 27, 2005? Correct? A. Yes. Q. And you were immediately aware of that ruling, correct? A. Certainly relatively quickly. SOUTHERN DISTRICT REPORTERS, P.C. [phone]