Fairey et al v. The Associated Press

Filing 50

DECLARATION of Dale M. Cendali in Opposition re: 46 MOTION to Substitute Attorney. Old Attorney: The Center for Internet and Society at Stanford Law School and Durie Tangri LLP, New Attorney: Jones Day, William W. Fisher III, and John Palfrey.. Document filed by The Associated Press. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Cendali, Dale)

Fairey et al v. The Associated Press

Doc. 50

Dale M. Cendali Claudia Ray Brendan T. Kehoe KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, New York 10022 Tel: [phone] Fax: [phone] Attorneys for Defendant, Counterclaim Plaintiff, and Cross Claim Plaintiff/Defendant THE ASSOCIATED PRESS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SHEPARD FAIREY and OBEY GIANT ART, INC., Plaintiffs, v. THE ASSOCIATED PRESS, Defendant and Counterclaim Plaintiff, v. SHEPARD FAIREY, OBEY GIANT ART, INC., OBEY GIANT LLC, and STUDIO NUMBER ONE, INC., Counterclaim Defendants, And MANNIE GARCIA, Defendant, Counterclaim Plaintiff and Cross Claim Plaintiff/Defendant, v. DECLARATION OF DALE M. CENDALI IN SUPPORT OF THE AP'S OPPOSITION TO THE MOTION FOR SUBSTITUTION OF COUNSEL Case No.: 09 CIV 01123 (AKH)

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SHEPARD FAIREY AND OBEY GIANT ART, INC., Counterclaim Defendants, And THE ASSOCIATED PRESS, Cross Claim Plaintiff/Defendant.

I, DALE M. CENDALI, hereby declare as follows: 1. I am a partner in the firm of Kirkland & Ellis LLP, counsel to The Associated

Press ("The AP") in this action. I submit this declaration in support of The AP's Opposition to the Motion for Substitution of Counsel filed by Shepard Fairey, Obey Giant Art, Inc., Obey Giant LLC, and Studio Number One, Inc. (together, "Fairey"). I make this declaration based upon my knowledge of matters in this action and to place before the Court the following documents. 2. Before this case was filed, an issue arose as to what image Fairey appropriated to

make the graphic posters of Barack Obama at issue in this lawsuit (the "Obama Posters"). 3. By February 9, 2009, when Fairey filed this action, numerous third parties had

concluded that Fairey used a tightly-cropped photograph of Barack Obama looking presidential in front of the red, white, and blue American flag (the "Obama Photo"), to make Fairey's red, white, and blue Obama Posters. 4. Though Fairey's complaint attached an article picturing the Obama Photo as the

source of the Obama Posters, the complaint stated that Fairey used a different AP photograph, 2

which depicted George Clooney sitting next to Barack Obama from the same press event, to make the works. 5. Months of intense discovery ensued in which The AP pressed for documents

about the source photo that Fairey had used. In addition, The AP has taken four depositions on these topics, including Amanda Fairey, Olivia Perches, Glen E. Friedman, and Sean Bonner, all of whom were identified in Fairey's Initial Disclosures as individuals with knowledge about the "creation of the Obama Works." 6. The AP repeatedly requested that Fairey be more transparent about its

preservation, collection, search, and production of documents. In response, Fairey's counsel stated in broad generalizations that Fairey had searched for and produced all documents concerning the creation of the Obama Posters. 7. While exchanging drafts of a joint letter to the Court on these and other discovery

issues, The AP repeatedly identified metadata, including specific file names, to Fairey concerning documents that had not been produced but that The AP believed existed, which related to the creation of the Obama Posters. The AP sent Fairey an e-mail on October 1st identifying the specific file paths for these documents on Fairey's computers and asked Fairey's counsel whether those file paths had yet been searched. 8. The AP's October 1st e-mail led to Fairey's counsel's claimed discovery on

October 2nd that Fairey had fabricated evidence and destroyed or attempted to destroy highlyrelevant documents in an effort to cover up the true identity of the source image, which Fairey's counsel admitted in its October 9th letter to The AP and Mannie Garcia ("Garcia"). Attached hereto as Exhibit A is a true and correct copy of Anthony Falzone's and Joseph Gratz's letter to

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Dale Cendali, George Carpinello, and Bradford Kile on October 9, 2009, regarding "Fairey, et al. v. The Associated Press, Case No.: 09-cv-1123 (AKH)." 9. Fairey's October 9th letter stated that opposing counsel "may have questions

about the issues raised in this letter," and offered to discuss how "Plaintiffs might be able to address them in a way that minimizes expense and delay." Fairey's counsel, however, has not done so, refusing to answer such basic questions as: a) When did Fairey fabricate and destroy documents?; b) Where and on whose computers were the documents found?; c) What documents have been destroyed or are not recoverable (e.g., Fairey has still not produced a copy of the Obama Photo that he downloaded from the Internet)?; and d) Why did Fairey's counsel fail to find the documents earlier given their repeated representations that they had searched for and produced all documents related to the creation of the Obama Posters. 10. Fairey's counsel has declined to participate in day-to-day discovery since October

9th, refusing to: a) produce documents that Fairey had promised The AP months ago and in response to The AP's most recent document requests, b) go forward with scheduled depositions, including that of Mannie Garcia's, or c) schedule Shepard Fairey's deposition, though it was originally scheduled for September 29th and 30th and discovery has now closed. 11. To that end, The AP and Garcia received an e-mail from Anthony Falzone of the

Stanford Fair Use Project on October 15th informing the parties that Durie Tangri LLP and the Stanford Fair Use Project intended to seek the Court's permission to withdraw from the case as soon as practicable. Mr. Falzone stated in his e-mail that "[w]e also expect new counsel will require a significant extension of the discovery cutoff to get up to speed and it will be infeasible to conduct any depositions in the next several weeks." The e-mail also stated, "As for providing more information about the search for responsive documents, this is an issue on which new

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counsel will need to be consulted and involved. In addition, Joe Gratz is out of the country and on vacation until Sunday. Given his role in the discovery process, we wouldn't be in a position to provide any information until next week at the earliest, even assuming new counsel is in place by then." Attached hereto as Exhibit B is a true and correct copy of Anthony Falzone's e-mail to Dale Cendali on October 15, 2009, with the Subject "Fairey v. AP - amended pleadings and discovery scheduling." 12. Most recently, Fairey's counsel provided the other parties on October 28, 2009

with a letter that for the first time generally discussed Fairey's search for documents and the spoliation issues, but designated the letter as privileged under the Protective Order entered in this case, Rule 408, and the attorney-client privilege. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 9th day of November 2009 at New York, New York.

s/ Dale M. Cendali Dale M. Cendali

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