Marvel Worldwide, Inc. et al v. Kirby et al

Filing 113

DECLARATION of Jodi A. Kleinick in Support re: 111 MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF, JJJ, LLL) and 102 (Ex. Y),]. MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF, JJJ, LLL) and 102 (Ex. Y),].. Document filed by MVL Rights, LLC, Marvel Characters, Inc., Marvel Entertainment, Inc., Marvel Worldwide, Inc., The Walt Disney Company. (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)(Kleinick, Jodi)

Marvel Worldwide, Inc. et al v. Kirby et al

Doc. 113 Att. 2

EXHIBIT 2

Dockets.Justia.com

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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MARVEL WORLDWIDE, INC., MARVEL CHARACTERS, INC. and MVL RIGHTS, LLC, Plaintiffs, -againstLISA R. KIRBY, BARBARA J. KIRBY, NEAL L. KIRBY and SUSAN N_ KIRBY, Defendants. JO-cv-J41 (CM) PLAINTIFFS' DOCUMENT REQUEST TO DEFENDANT BARBARA J. KIRBY

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PLEASE TAKE NOTICE that pursuant Rule 34 of the Federal Rules of Civil Procedure plaintiffs Marvel Worldwide, Inc., Marvel Characters, Inc. and MVL Rights, LLC request that defendant Barbara J. Kirby produce the documents designated below for inspection and copying on or before April 12, 2010 at 10:00 a.m_ at the offices of Paul, Hastings, Janofsky & Walker LLP, 75 East 55th Street, New York, New York 10022. DEFINITIONS AND INSTRUCTIONS A. The definitions and rules of construction set forth in Local Civil

Rules 26.3{c) and (d) of the United States District Court for the Southern District of New York are incorporated by reference into this request. B. "Kirby" means Jack Kirby and includes where applicable his

agents or representatives.

LEGAL_US.E

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87192168.1

C.

"Defendant" means any of Lisa R. Kirby, Barbara J. Kirby, Neal L.

Kirby or Susan N. Kirby and includes where applicable his or her agents or representatives. D. representatives. E. "Marvel" means plaintiffs, the Marvel Predecessors and includes "Lee" means Stan Lee and includes where applicable his agents or

where applicable their officers, directors, employees, agents, partners, subsidiaries, members and affiliates. F. "Marvel Predecessors" means any of the following: Amazing

Detective Cases Corp., Americas Magman Sales Corp., Animated Timely Features, Inc., Animirth Comics, Inc., Atlas Magazines, Inc., Atlas News Co., Inc., Bard Publishing Co., Bilbara Publishing Co., Inc., Brief Digest Corp., Britan Publishing Corp., Broadcast Features Publications, Inc., Canam Publishers Sales Corp., Chipden Publishing Corp., Christiana Publishing Corp., Classic Detective Stories, Inc., Classic Syndicate, Inc., Comedy Publications, Inc., Comic Combine Corp., Commonwealth Publishing Corp., Complete Photo Story Corp., Cornell Publishing Corp., Crime Bureau Stores, Inc., Crime Files, Inc., Current Detective Stories, Inc., Daring Comics Inc., Emgee Publications, Inc., Empire State Consolidated Adv. Corp., Euclid Publishing Co., Inc., Eye Publishing Corp., Fantasy Comics, Inc., Feature Story Corp., Foto Parade, Inc., Gem Publications, Inc., Hercules Publishing Co., H-K Publications, Inc., International Magazine Sales, Interstate Publishing Co., Jaygee Publications, Inc., Jeangood Publishing Corp., Jest Publishing Co., Inc., Leading Comic Corp., Leading Magazine Corp., Lion Books, Inc,

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Magazine Management Co., Inc., Magman Export Corp., Male Publishing Corp., Manvis Publications, Inc., Margood Publishing Corp., Marjean Magazine Corp., Marjean TV Enterprises, Marvel Comics Group, Marvel Comics, Inc., Medalion Publishing Corp., Miss America Publishing Corp., Mohawk Publishing Corp., Mutual Magazine Corp., Newsstand Publication's, Inc., Non Pareil Publishing Corp., Official Magazine Corp., Olympia Publications, Inc., Olympus Publishing Corp., Postal Publications, Inc., Prime Publications, Inc., Red Circle Magazines, Inc., Revere Publishing Corp., Select Publications Inc., Snap Publishing Co., Inc., Sphere Publications, Inc., Sports Action, Inc., Stag Publishing Corp., Timely Comics, Inc., Timely Publications, Tip Top Publications, Inc., 20th Century Comic Magazine Corp., 20th Century Comics Corp., Uriiversal Crime Stories, Inc., U.S.A. Comic Magazine Corp., Transcontinental Publishing Corp., Vista Publications, Inc., Walden Publishing Co., Inc., Warwick Publications, Inc., Western Fiction Pub. Co. Inc., Young Allies, Inc., Zenith Books, Inc., Zenith Publishing Corp. and Zest Publishing Co., Inc., Martin Goodman, Jean Goodman, Perfect Film & and Chemical Corporation, Cadence Industries Corporation and Marvel Entertainment Group, Inc. G. "Termination Notices" means the forty-five termination notices

dated September 16, 2009 addressed to Marvel and others which purport to terminate the grant by Kirby of copyright interests in certain Marvel characters and stories first published between 1958 and 1963.

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H.

"Works" means any Marvel comic book, character, story,

illustration or other narrative or graphic work which is or is intended to be the subject of any of the Termination Notices. I. All documents are to be produced in their entirety, without

abbreviation or expurgation, including both front and back thereof, and all attachments or other matters affixed thereto. J. If a document called for by this request has been destroyed, lost,

discarded or otherwise disposed of, any such document is to be identified as completely as possible, including, without limitation, the following information: author(s), recipient(s); sender(s); subject matter(s); date prepared or received; date of disposal; manner of disposal; reason for disposal; person(s) authorizing the disposal; persons having knowledge of the disposal; and person disposing of the document. DOCUMENTS TO BE PRODUCED 1. Works. 2. Kirby to the Works. 3. All communications concerning any of the Works including, All documents concerning the contributions of persons other than All documents concerning Kirby's contributions to any of the

without limitation, communications to or from (a) Kirby, (b) any Defendant, (c) Marvel, (d) Lee or (e) any other person. 4. All documents concerning synopses, plots or scripts prepared by

Lee or others relating to any of the Works .

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5.

All documents concerning compensation received by or due 10

Kirby in respect of any of the Works including, wilhoullimitation, copies of checks, pay stubs, bank records, vouchers, ·tax returns or accounting records. 6. All documents concerning Kirby's business relationship with

Marvel including, without limitation, federal or state tax returns, IRS 1099 or W-2 forms, attachments and schedules, statements of benefits, employment agreements, term sheets or correspondence. 7. All documents concerning the grant, transfer or assignment by

Kirby of any interest in any of the Works. 8. All documents concerning the grant, transfer or assignment by any

Defendant of any interest in any of the Works including, without limitation, any contingent interest arising as a result of the effectiveness of any of the Termination Notices. 9. All documents concerning any negotiations, discussions,

deliberations or communications concerning the grant, transfer or assignment by any Defendant of any interest in any of the Works, including, without limitation, any contingent interest arising as a result of the effectiveness of any of the Termination Notices, whether or not such grant, transfer or assignment was consummated. 10. All documents concerning Kirby's concepts, art work, drawings,

sketches, illustrations, narratives or written dialogue incorporated into any of the Works.

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II.

All documents concerning the terms upon which Kirby performed

creative services for persons other than Marvel including, without limitation, any agreements, offers or terms sheets. 12. All documents concerning the terms upon which Kirby (or any

joint venture to which Kirby was a party, or enterprise in which Kirby owned an equity interest) engaged persons to perform creative services including, without limitation, any agreements, offers or term sheets.
13.

All documents evidencing an ownership interest of Kirby in any of

the Works. 14. All statements (published or unpublished) by Kirby concerning (a)

the Works or (b) the contributions to the Works by Kirby or others. Dated: New York, New York March 10, 2010 PAUL, HASTINGS, JANOFSKY & WALKER LLP

WElL, GOTSHAL & MANGES LLP

V'James W. Quinn R. Bruce Rich Randi W. Singer 767 Fifth Avenue New York, NY 10153 [phone]

By~;I~ (jj)

David Fleischer Jodi A. Kleinick 75 East 55th Street New York, NY 10022 [phone]

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Attorneysfor Plaintiffs

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TO: TOBEROFF & ASSOCIATES, P.C. Attorneys for Defendants 2049 Century Park East, Suite 2720 Los Angeles, CA 90067 Attention: Marc Toberoff, Esq.

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CERTIFICATE OF SERVICE
I hereby certify that on March 10, 2010, I caused a true and correct copy of the foregoing Plaintiffs' Document Request to Defendant Barbara J. Kirby to be served by first class U.S. mail on the following counsel of record:

Marc Toberoff, Esq. TOBEROFF & ASSOCIATES, P.C. 2049 Century Park East, Suite 2720 Los Angeles, CA 90067 Attorneys for Defendants

Rosetta Kromer