Capitol Records, LLC v. Redigi Inc.

Filing 116

TRANSCRIPT of Proceedings re: CONFERENCE held on 8/9/2013 before Judge Richard J. Sullivan. Court Reporter/Transcriber: Patricia Nilsen, [phone]. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/23/2013. Redacted Transcript Deadline set for 10/3/2013. Release of Transcript Restriction set for 12/5/2013.(Rodriguez, Somari)

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D89ECAPC
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CAPITOL RECORDS, LLC,

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Plaintiff,

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v.
REDIGI INC.,

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12 CV 95(RJS)

Defendant.
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August 9, 2013

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10:11 a.m.

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Before:
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HON. RICHARD J. SULLIVAN,
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District Judge
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APPEARANCES
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COWAN LIEBOWITZ & LATMAN
Attorneys for Plaintiff
BY: RICHARD MANDEL
JONATHAN KING
DAVIS SHAPIRO & LEWIT LLP
Attorneys for Defendant
BY: GARY ADELMAN
SARAH MATZ

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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(In robing room)

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(Case called)

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THE COURT:

All right.

We're here in connection with

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the plaintiff's contemplated -- well, I guess their

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contemplated motion to amend.

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of you on this.

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So I've gotten letters from both

And there's a couple of issues.

In terms of amending out certain claims, I assume you
don't care?

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MR. ADELMAN:

Nope.

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THE COURT:

So that's fine.

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In terms of the additional song titles, I think we

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certainly contemplated that.

And I think, you know, certainly

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with respect to reproduction, that that's -- I mean, that's

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what the whole opinion I wrote was about.

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all turns on distribution, which is what was allowed for the

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focus of your letter.

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MR. ADELMAN:

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THE COURT:

So I don't think it

Correct.

I just want to be clear.

You're talking

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about adding song titles of recordings that were reproduced

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into the cloud and then offered for sale?

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MR. MANDEL:

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THE COURT:

Correct.
Not merely ones that may have been

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reproduced by a Redigi customer who wanted to just use it for

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storage?

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MR. MANDEL:

Correct.

Every one of the recordings was

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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offered for sale, according to defendant.
THE COURT:

So I think that's fair game here.

If it

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was the other, I think there's a fair use.

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fair use defense.

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will be if we just store it, I don't think that -- reproduction

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is probably not appropriate in this case.

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just said, then I think then I'm inclined to allow it.

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that is fair game, in light of my opinion.

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There would be a

I don't have a rule on that, but I think it

But for what you
I think

And then the last bit is with respect to amending to

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name two new defendants, individual defendants.

And so let's

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think about this.

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individuals in some cases explicitly.

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reason to believe that these guys could be added, and there

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could be liability against them.

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to be additional facts developed, though.

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to add them is not going to require any additional discovery,

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then I think I probably will allow it.

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require additional discovery, then I'm not so sure.

I do think that my opinion referenced these

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MR. MANDEL:

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THE COURT:

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MR. MANDEL:

So I think that there's

I don't know if there needs
I mean, if amending

But if it's going to

We don't -You don't think it will?
We don't think so.

We think that the

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evidence we've gotten from the depositions as to their

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participation, some of which is even referenced in your Honor's

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summary judgment opinion, is sufficient to establish

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individual.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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THE COURT:

Yes, no question about that.

Do you think

it's going to need more discovery?

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MR. ADELMAN:

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THE COURT:

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appreciate your candor, then.

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it.

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second summary judgment motion with respect to the individuals,

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right?

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No, I do not.

Okay.

Well, that's -- I mean, I
Then I think I am going to allow

This will, of course, lead to, I'm assuming, an inevitable

MR. MANDEL:

We could talk about that.

I mean, I

guess that entitles him to sort of where we'd go from here.
THE COURT:

Where are we going from here?

Let's put

on our practical shoes.

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MR. MANDEL:

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THE COURT:

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MR. MANDEL:

You know, we'd like to get to trial.
Trial on damages?
On damages.

So, I mean, we'd be prepared

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to try the issue of their individual liability without doing a

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separate summary judgment motion because, I mean, I think

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legally, in terms of the infringement being established, I

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don't think there's going to be any question under the opinion.

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So the only issue is going to be --

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THE COURT:

You'd be moving basically for a directed

verdict after you closed.
MR. MANDEL:

I think the only defense that could

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potentially be available is that somehow they don't have enough

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personal involvement to be individually liable.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

And, frankly,

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I mean, I think we probably are entitled to summary judgment on

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that, but, you know, to move things along, we could try that I

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think, you know, at the same time.

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THE COURT:

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MR. MANDEL:

Is there a dispute on the damages?
I think there's a dispute as to the

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amount, because we're seeking statutory damages and, you know,

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so I guess --

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THE COURT:

Well, you're seeking statutory damages,

and so that is just a number of song titles and the number of
infringing acts, I guess, right?
MR. MANDEL:

Right.

There's the issue of how many,

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you know, works are involved, and then there's the range of

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damages that it's in the Court's discretion to award.

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One of the things I think we've been thinking about --

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and, you know, we're reading in Professor Nimmer's treatise

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that for statutory damages, sometimes these things can be done

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on affidavits, and it doesn't require as much of a full-blown

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procedure.

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paper trial to set the damages is appropriate, because,

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frankly, I don't think the facts are much in dispute.

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we've got --

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I mean, we'd be open to talking about whether a

THE COURT:

That's what it seems to me.

I think

I mean, you'd

want to appeal this thing, obviously.
MR. ADELMAN:

Correct.

However, just to address that

one thing, our clients definitely want to have their say in
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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court as to damages.

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saying.

It's not as cut and dry as Mr. Mandel is

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THE COURT:

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MR. ADELMAN:

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I'm not assuming it's cut and dry, but --

the --

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THE COURT:

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MR. ADELMAN:

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There are definitely factors involved in

Bench trial or jury trial?
I would have to discuss that with my

client, but I think they wanted a jury trial.
MR. MANDEL:

But I'll --

I mean, well, it is a bench trial as to

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Redigi, because there's never been a jury demand.

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to the individual defendants who were just coming in, I suppose

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they would have a right to a jury trial, you know.

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know how that would complicate things.

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THE COURT:

That's interesting.

I guess as

So I don't

That might actually

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factor into whether you want to -- since he just indicated he

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thinks probably a jury trial.

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MR. ADELMAN:

I mean, I've never actually had that

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conversation with the clients because, obviously, we just got

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the amended complaint.

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that they were concerned about at the time.

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THE COURT:

It wasn't one of the top level things

I mean, look, I think it's just worth

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thinking about.

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trial, but it's a trial really about damages, unless you amend

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and decide to forego summary judgment.

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I think, you know, it would be an interesting

MR. MANDEL:

I mean, I guess if they're going to seek

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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a jury trial on the individuals, we probably would want to move

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for summary judgment on the individual liability.

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assuming the whole thing was going to be a bench trial because

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Redigi hadn't sought a jury trial and --

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THE COURT:

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MR. ADELMAN:

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THE COURT:

So that might be worth chatting about.
Yes.

I think that's a good idea.

Obviously it's your client's call, but I

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think that's worth thinking about.

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then to amend.

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I was

So I am going to allow you

I don't think there's any reason not to.

MR. MANDEL:

Is the procedure then should we file -- I

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think we have to make a couple of corrections to the recording

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list, so can we just do that and then file an amended

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complaint.

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THE COURT:

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When do you want to do it by?

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MR. MANDEL:

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MR. KING:

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The only caveat I make is that you had some

further information for me about --

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We can probably do it by the end of next

week.

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Let's set a date by which you can do that.

MR. ADELMAN:

Why don't you give us a little more

time.
MR. KING:

It was logistically a nightmare, weaving

through which tracks had been uploaded.

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THE COURT:

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MR. KING:

How much time?
If we get that list, what do you need, two

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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weeks?
MR. ADELMAN:

In all candor, so my client is actively

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seeking an answer to some of the questions that the plaintiff

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has asked.

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them to give him another week.

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after that.

And he actually e-mailed me last night and asked

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MR. MANDEL:

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THE COURT:

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this, then:

So I think that maybe a week

Could we maybe say the end of August?
End of August is fine.

Why don't we do

You're going to file your amended complaint by the

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end of August.

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which you folks send me a joint letter telling me how you want

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to proceed on jury versus bench, whether there's going to be

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motions for summary judgment.

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think, right?

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And then can I give you a date in September by

Those are really the issues I

Anything else?

MR. MANDEL:

I guess the only other issue would be if

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there is some openness to doing a sort of paper trial instead

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of a full-blown --

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THE COURT:

A bench trial would be -- I think my rules

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for a bench trial are generally more of a paper trial, where I

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don't do directs.

The directs would be on the affidavits.

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MR. MANDEL:

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THE COURT:

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Okay.
Stipulate to all the exhibits you want,

and so that would be much faster.

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MR. MANDEL:

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THE COURT:

And then there's just cross-examination.
Cross-examination for -- if you want it.

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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You don't have to do it.
What I generally require is identifying your witnesses

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that you intend to rely on.

Put in your cases in chief.

And

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then the other side looks at that list and says, okay, I'm

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going to want to cross him, him and him.

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case that, you know, there might be 12 witnesses that I'm going

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to hear from on affidavits, but only three crosses, because

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most of the declarations are not really contested.

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would be more efficient.

And often it is the

Not as fun, frankly.

So that

Juries are fun,

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but more work for me, because I have to write.

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at this stage it probably makes more sense that you're seeking

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statutory damages.

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In any event, your call.

But, you know,

Just let me know, then.

If

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I then ask you to get back to me by September 15th, two weeks

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after the complaint --

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THE LAW CLERK:

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THE COURT:

That's a Sunday.

16th.

It's great that she's got amazing

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knowledge of the calendar.

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MR. KING:

And that's for --

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THE COURT:

Christmas, 2016?

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THE LAW CLERK:

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MR. KING:

Friday.

So you want us to propose a procedure for

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how we take care of all this?

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THE COURT:

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Just tell me how you want to do it.

think it will make it easier at that stage.

I

Depending on what

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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you tell me, then I'll issue an order that sets a schedule.

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Tell me how long you think the trial will be, and that will

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turn on what kind of a trial.

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dates, though I'll tell you, I have a very jam-packed fall.

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I'd love to get this done before the end of the year.

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hunch is that some of the trials that I've got scheduled will

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go away, but at least for now everybody is insisting that

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they're going.

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and there.

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And you might want to propose

And my

So I only have probably a few open days here

So let me know what dates you would propose.

I'll see

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how that jives with my schedule, then I'll issue an order

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setting a date and setting dates for submissions.

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MR. MANDEL:

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THE COURT:

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That sounds good.
So the 16th for that letter, and

August 31st.

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THE LAW CLERK:

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THE COURT:

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So August 30th, then you'll file the complaint.

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So

right.

Saturday.

It's a Saturday.

She's like Rain Man.
All

So that sounds like a plan.

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Anything else we should talk about today?

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MR. MANDEL:

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THE COURT:

I don't think so.
No?

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to see you.

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it.

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intriguing set of issues.

All right.

Great.

I did certainly enjoy this case.

Well, it is good
I have enjoyed

The lawyering has been very good, and it's certainly an

SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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Good to see you.

Enjoy the rest of the summer.

Let

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me thank the court reporter, as always.

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copy of the transcript, you can take that up with her now.

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guess we have a little bit of time.

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If anybody needs a

(Adjourned)

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SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

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