Capitol Records, LLC v. Redigi Inc.

Filing 169

MEMORANDUM OF LAW Regarding the Application of Res Judicata, Collateral Estoppel, and Law of the Case. Document filed by John Ossenmacher, Larry Rudolph. (Attachments: # 1 Affidavit Declaration of James J. Pizzirusso, # 2 Exhibit 1-5, # 3 Exhibit 6-10, # 4 Exhibit 11-15, # 5 Certificate of Service)(Giddings, Nathaniel)

Exhibit 11

(Page Intentionally Left Blank)

Exhibit 12

Exhibit 13

202.540.7200 ph
202.540.7201 fax
1700 K Street, NW
Suite 650
Washington, DC 20006

James J. Pizzirusso
[e-mail]

November 6, 2013
VIA E-MAIL ([e-mail])
Honorable Richard J. Sullivan, U.S.D.J.
United States District Court
Southern District of New York
40 Foley Square
New York, New York 10007
RE:

Capitol Records, LLC v. ReDigi Inc., No. 12-cv-00095 (RJS)

Dear Judge Sullivan,
We represent Defendants John Ossenmacher and Larry Rudolph a/k/a Lawrence Rogel
(“Individual Defendants”) in the above-captioned matter. We write pursuant to Rule 1.D of Your
Honor’s Individual Practices to request an extension in the discovery schedule in the event that
Your Honor denies the Individual Defendants’ pending motion to dismiss. Individual Defendants
have made no previous formal requests for an extension of the discovery schedule and Defendant
ReDigi Inc (“ReDigi”) consents to the requested extension.
Capitol consents to a limited extension for the sole purpose of allowing Individual
Defendants to take a 30(b)(6) deposition of Capitol on December 6, 2013, and to complete two
other depositions the Individual Defendants have noticed (RIAA and Chris Horton) on mutually
convenient dates prior to December 6, without prejudice to its assertion that the outstanding
document requests and interrogatories served by the Individual Defendants are untimely. Capitol
also consents to adjourning the deadline for pre-summary judgment motion letters until after the
completion of all discovery by December 6, 2013. Capitol otherwise opposes the requested
extension on the grounds that the discovery sought is excessive, untimely and directed to
defenses that are substantively baseless and have already been adjudicated or waived. Capitol
plans to submit a separate response elaborating as to these issues.
Discovery is currently scheduled to be completed by November 8, 2013, pre-summary
judgment motion letters are due November 12, 2013, and a post-discovery conference is
scheduled for November 22, 2013 at 2:30 pm. Second Amended Joint Case Management Plan
and Scheduling Order, ECF No. 129 (filed Sept. 25, 2013). The Individual Defendants were only
added to this action on August 30, 2013. By the time the Motion to Dismiss briefing was
complete, they had only 31 days (18 of which were week days) to plan, serve, and complete all
of their discovery; thus, an extension of the discovery schedule is warranted.

Honorable Richard J. Sullivan, U.S.D.J.
November 6, 2013
Page 2
Specifically, Individual Defendants’ propose the following schedule:
-

Discovery Deadline: January 16, 2013 (45 week days, excluding federal
holidays, from November 8, 2013).

-

Pre-Summary Judgment Motion Letters: January 29, 2013

-

Post Discovery Conference: February 7, 2013

Because the requested extension will affect the already scheduled dates, a proposed
revised scheduling order reflecting the above is enclosed.
Individual Defendants are submitting this letter at this point in time so that their request
to extend discovery is made prior to the currently scheduled close of discovery. Should the Court
grant their pending Motion to Dismiss with prejudice, however, the discovery extension
requested in this letter will be moot.
Discovery Received by Individual Defendants
Individual Defendants did not receive Capitol’s prior document production until October
24, 2013 (just 15 days before the presently scheduled close of discovery). Consequently,
Individual Defendants’ counsel has not yet had a sufficient opportunity to fully review Capital’s
documents and the extensive record in this case.
Discovery Outstanding to Individual Defendants
Individual Defendants served twenty-two interrogatories and twenty additional requests
for production to Capital. Capital objected that these requests were untimely and burdensome,
and the Court has not yet ruled on the parties’ discovery dispute. See October 25, 2013 Joint
Letter to Hon. Richard J. Sullivan. Should the Court order Capitol to comply with these
discovery requests, Capitol’s production will undoubtedly extend beyond the current discovery
deadline. In addition, Individual Defendants will need to review Capital’s responses and this may
lead to further discovery requests or disputes before this Court.
In addition to the written discovery, Individual Defendants have served a 30(b)(6)
deposition notice on Capitol, deposition notices on two current employees of Capitol, a subpoena
and deposition notice on a former Capitol employee, and a subpoena for testimony and
production of documents on the Recording Industry Association of America (“RIAA”). Despite
their best efforts to schedule all of these depositions prior to the present close of discovery,
Individual Defendants and Capitol have only been able to agree on a date and location for the
30(b)(6) deposition (currently scheduled for December 6, 2013). Individual Defendants have
agreed to hold the other depositions requests until the Court rules on the pending document
discovery dispute and the 30(b)(6) deposition takes place. RIAA has indicated that it is going to
assert privilege over many (if not all) of the subpoenaed documents, and Individual Defendants

Honorable Richard J. Sullivan, U.S.D.J.
November 6, 2013
Page 3
will likely seek court intervention prior to taking that deposition. Consequently, that deposition
will also have to extend beyond the current discovery deadline.
Individual Defendants’ Purpose for Requesting the Above Discovery
Despite still not knowing the full contours of the claims being asserted against them
given the unsettled state of the pleadings, Individual Defendants believe they have defenses that
are unique to whatever defenses Defendant ReDigi may have. In addition, as set forth in the
October 25 letter, Individual Defendants believe they are not foreclosed from litigating defenses
previously raised by ReDigi. Further, Individual Defendants are contemplating potential
counterclaims. Individual Defendants’ discovery has been carefully tailored at developing these
defenses and potential counterclaims, and as demonstrated above, Individual Defendants have
been diligent in seeking discovery on these topics despite the exceedingly tight discovery
schedule.
Legal Standard for Extending Discovery
Federal Rule of Civil Procedure 16(b)(4) provides that “[a] schedule may be modified
only for good cause and with the judge's consent.” In general, courts consider the following
factors: “(1) whether trial is imminent, (2) whether the request is opposed, (3) whether the nonmoving party would be prejudiced, (4) whether the moving party was diligent in obtaining
discovery within the guidelines established by the court, (5) the foreseeability of the need for
additional discovery in light of the time allowed for discovery by the district court, and (6) the
likelihood that the discovery will lead to relevant evidence.” Id. (citing cases); see also Bernstein
v. Bernstein, No. CV 91-0785, 1993 WL 466402, at *1 (E.D.N.Y. Aug. 13, 1993)).
Of these factors, courts generally consider whether the moving party had an adequate
opportunity for discovery and whether the moving party pursued discovery in a diligent manner
to be the most important. See Bakalar v. Vavra, 851 F. Supp. 2d 489, 493 (S.D.N.Y. 2011)
(citing Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d 506 (2d Cir. 1989)) (“A
significant consideration is whether there has already been adequate opportunity for discovery.”);
Corkrey v. Internal Rev. Serv., 192 F.R.D. 66, 67 (N.D.N.Y. 2000) (stating that good cause can
be established where the moving party demonstrates “that the deadlines cannot reasonably be
met despite the diligence of the party needing the extension.”).
Although the court may consider whether amending the scheduling order will prejudice
the non-moving party, the moving party’s diligence is the primary consideration. See Wolk v.
Kodak Imaging Network, Inc., 840 F. Supp. 2d 724, 736 (S.D.N.Y. 2012). Thus, the 1983
Advisory Committee noted that “the court may modify the schedule on a showing of good cause
if it cannot reasonably be met despite the diligence of the party seeking the extension.” Fed. R.
Civ. P. 16, advisory committee note of 1983; see also Parker v. Columbia Pictures Indus., 204

Honorable Richard J. Sullivan, U.S.D.J.
November 6, 2013
Page 4
F.3d 326, 340 (2d Cir. 2000) (joining other circuits in holding that “good cause” depends on the
diligence of the moving party).
Courts have readily found good cause to exist where, as here, a new party is added late in
the litigation. See generally Paragon Office Servs., LLC v. Aetna Inc., 3:11-CV-1898-L, 2013
WL 1842273 (N.D. Tex. May 2, 2013) (“A request to add new parties virtually always requires
additional discovery to be taken, which necessarily prolongs the resolution of the case.”); see
also, e.g., Vegas Diamond Properties, LLC v. La Jolla Bank, FSB, 10CV1205-WQH-BGS, 2011
WL 2633590, at *3 (S.D. Cal. July 5, 2011); Sigros v. Walt Disney World Co., 190 F. Supp. 2d
165, 169 (D. Mass. 2002).
As stated, Individual Defendants were added to this case with little time to conduct
discovery into their defenses and potential counterclaims. In addition, Individual Defendants’
proffered their discovery requests just days after they completed the briefing on their motion to
dismiss. Further, Individual Defendants did not receive Capitol’s prior production in this matter
until after they had already served their discovery requests. Quite simply, Individual Defendants
have not had an opportunity to fully conduct necessary discovery, but have, nonetheless, acted as
diligently as they could have in the narrow discovery window that has been afforded to them.
In addition, the requested extension will not prejudice Capitol, and to the extent it does,
the prejudice to the Individual Defendants in denying an extension far outweighs whatever
prejudice Capitol may face. Capitol made the decision to add the Individual Defendants to this
action at this very late stage in the litigation for the singular reason that ReDigi is allegedly
unable to satisfy a judgment against it. Consequently, Capitol cannot now credibly argue that it
would be prejudiced by these new defendants’ need to obtain discovery as to their potential
defenses and counterclaims. Indeed, without such discovery, Individual Defendants’ are
concerned about their ability to adequately defend themselves.
Therefore, a limited extension of the discovery schedule under Rule 16(b) is warranted.

Sincerely,
__________________________
James J. Pizzirusso

CC:

Gary Adelman, Esq.
Richard S. Mandel, Esq.

COWAN
LIEBOWITZ
LATMAN (

Cowan, Liebowitz & Latman, P.C.
1133 A venue of the Americas
New York, NY 10036
{212) 790-9200 Tel
[phone] Fax
www.cll.com
Richard S. Mandel
[phone]
[e-mail]

November 6, 2013

By E-mail ([e-mail])
Hon. Richard J. Sullivan, U.S.D.J.
40 Foley Square
New York, NY 10007
Re:

Capitol Records, LLC v. ReDigi Inc., 12 cv. 0095 (RJS)

Dear Judge Sullivan:
We represent plaintiff Capitol Records, LLC ("Capitol") and write in response to the
November 6, 2013 request for an extension ofthe discovery schedule submitted by individual
defendants John Ossenmacher and Larry Rudolph ("IDs"). Capitol does not oppose a limited
extension until December 6, 2013 to permit IDs to conduct certain depositions that cannot
practicably be scheduled before the current deadline. Capitol also agrees to adjourn its
submission of a pre-motion summary judgment letter until after those depositions are concluded.
However, Capitol does object to IDs' belated demand to open a new extended discovery period
so that they can search pointlessly for evidence to support imagined defenses that have either
already been adjudicated or were waived, and are in any case not even colorable. IDs, the
founders, majority owners, and operators of corporate defendant ReDigi Inc. ("ReDigi"),
continue to pursue the fiction that they are somehow strangers to this dispute, with no prior
access to or understanding of the ample evidentiary record in this case.
As a preliminary matter, IDs' description of events allegedly necessitating an extension is
critically incomplete and inaccurate. When Capitol first proposed adding IDs to the complaint,
ReDigi's attorney, Mr. Adelman, then speaking on their behalf, candidly admitted that no further
discovery would be required on the issue of their individual liability. See Transcript of 8/9/13
Conf., Docket No. 116, at 4. That position was hardly surprising, as ReDigi had already been
adjudged to infringe Capitol's copyrights, and the sole remaining issue necessary to establish the
IDs' joint and several liability with ReDigi for such infringements was that the IDs participated
in, exercised control over or benefitted from such infringement. See,~. Sygma Photo News,
Inc. v. High Society Magazine, 778 F.2d 89, 92 (2d Cir. 1985); Arista Records LLC v. Lime
Group LLC, 784 F. Supp. 2d 398, 437 (S.D.N.Y. 2011); Arista Records LLC v. Usenet.com,
Inc., 633 F. Supp. 2d 124, 158-59 (S.D.N.Y. 2009). Significantly, facts concerning that issue are
within the exclusive control ofiDs and require no further discovery.
Nevertheless, after representing on September 16, 2013 that the IDs might seek "limited
discovery," new counsel for the IDs served a barrage of belated discovery aimed at defenses that

29503/003/1437773.2

Cowan, Liebowitz & Latman, P.C.
Hon. Richard J. Sullivan, U.S.D.J.
November 6, 2013
Page 2
are no longer available and are in any event legally unsupportable. The IDs began on October 9,
2013 by serving the document requests and interrogatories that are already the subject of an
October 25, 2013 joint letter to the Court. Since serving those requests, the IDs have served six
deposition notices between October 22, 2013 and October 29, 2013 purporting to schedule these
depositions to occur simultaneously in various locations on November 6, 7 or 8. The notices
were plainly served with no realistic expectation that the depositions could all occur before the
November 8, 2013 cutoff, and from the outset of discussions, counsel for the IDs has made clear
that its preference is to postpone the depositions to later dates outside the current cutoff.
Capitol is prepared to accommodate the IDs within reason, and has agreed to produce a
30(b)(6) witness in New York, subject to its stated objections, on December 6, 2013. Capitol
also does not object to the scheduling of a deposition ofthe RIAA (whom the undersigned does
not represent) on a mutually convenient date before December 6, 2013. Capitol has also offered
to produce Chris Horton, an employee of Universal Music (which is now under the same
ownership as Capitol), as it may seek to call him as a witness at trial. The IDs have not
determined whether they wish to pursue such a deposition at this time, and wish to await the
completion of the 30(b)(6) deposition before deciding. However, any further depositions beyond
those identified above are clearly excessive and unnecessary in view of the present posture of
the case, and there is no reason to extend the discovery period beyond December 6.
While IDs justify their delay by claiming they did not receive Capitol ' s prior document
production until October 24, 2013 , they ignore that ReDigi ' s counsel requested on September 9,
2013 that new counsel for the IDs be added to the protective order so new counsel could obtain
access from ReDigi' s counsel to certain confidential materials, including those provided by
Capitol in discovery. Capitol complied with that request the same day, and an amended order
was promptly filed with the Court. It is simply inexplicable why counsel for IDs would not
thereafter have immediately obtained from ReDigi, the company that Mr. Ossenmacher runs as
CEO, a full copy of the prior document production made by Capitol. Indeed, until counsel for
the IDs requested such documents from us in late October, we assumed such materials had been
provided by ReDigi a month earlier. We promptly provided a disk containing the production.
More to the point, there is no need for broad discovery aimed at potential defenses and
subject matters that are simply no longer available or at issue in this case. Based on both their
written discovery requests and the numerous 30(b)(6) topics they list, IDs apparently intend to
pursue defenses and issues the Court has already adjudicated, such as what aspects of ReDigi ' s
software infringe or whether they are entitled to a fair use defense. Because they are in privity
with Redigi, IDs are barred by collateral estoppel and the law of the case doctrine from
relitigating such issues the Court has already resolved. See, ~. In re: Teltronics Servs., Inc.,
762 F.2d 185, 190-91 (2d Cir. 1985); Kreager v. Gen. Elec. Co., 497 F.2d 468,472 (2d Cir.
1974); Moran v. City ofNew Rochelle, 346 F. Supp. 2d 507, 515 (S.D.N.Y. 2004). Indeed, even
if such defenses were still technically available, there is no plausible basis for the contention that
the IDs have a "unique" or separate fair use defense or means of excusing ReDigi ' s
infringement. All they can adjudicate is whether they participated in conduct already determined
to be infringing, an issue to which none of their discovery seems directed.

29503/003/1437773.2

Cowan, Liebowitz & Latman, P.C.
Hon. Richard J. Sullivan, U.S.D.J.
November 6, 2013
Page 3
Likewise, IDs are precluded from litigating various other substantive defenses which
ReDigi either abandoned at the summary judgment stage (such as the essential step doctrine and
DMCA immunity, see Summary Judgment Order, Docket No. 109, at 4-5 n.4) or could have
asserted but chose to omit, such as unclean hands, estoppel, laches and the like. Again, because
the IDs are in privity with ReDigi, they are barred under principles of res judicata from now
asserting such defenses. See,~' Marine Midland Bank v. Slyman, 995 F.2d 362,365-66 (2d
Cir. 1993) (principals of corporation barred by res judicata from asserting affirmative defenses
that could have been raised by corporation in prior action since principals in privity with
corporation) (applying Ohio law).
In any event, there is no possible basis for any such defenses even if the IDs were
permitted to assert them at this point. The IDs cannot possibly establish the prejudicial delay or
reliance elements needed to support defenses such as estoppel and laches, where Capitol sued
ReDigi during the service's beta testing period, fewer than three months after ReDigi's October
2011 launch, and ReDigi had previously been put on notice of the record companies' objections
via a November 2011 demand letter from the RIAA. This period oftime is too brief to support a
laches defense. Additionally, IDs had no possible basis to believe that Capitol considered their
conduct permissible in the face of Capitol's objections and lawsuit, and they clearly proceeded at
their own risk in moving forward. See,~' National Football League v. Coors Brewing Co.,
1999 U.S. App. LEXIS 32547, at *5 (2d Cir. Dec. 15, 1999) (no prejudicial reliance to support
laches where defendant actually foresaw that NFL would aggressively defend its mark as it had
in past); Lottie Joplin Thomas Trust v. Crown Publishers, Inc., 456 F. Supp. 531, 535 (S.D.N.Y.
1977) (no estoppel where plaintiff promptly asserted rights, eliminating any claim of reliance),
affd, 592 F.2d 651 (2d Cir. 1978).
Similarly, IDs' attempt to construct an unclean hands defense based on Capitol's
supposed unfair practices toward its recording artists generally, is without any legal basis,
because such alleged conduct is extraneous to and bears no relation to the subject matter of this
suit. See,~' Bentley v. Tibbals, 223 F. 247,252 (2d Cir. 1915); Price v. Fox Entm't Group,
Inc., 2007 WL 241387 (S.D.N.Y. Jan. 26, 2007); Coleman v. ESPN, Inc., 764 F. Supp. 290, 296
(S.D.N.Y. 199 1); Wojnarowicz v. American Family Ass'n, 745 F. Supp. 130, 146 n.12
(S.D.N.Y. 1990). Likewise, IDs' attempt to concoct a counterclaim based on "violations of
federal and state antitrust laws for conspiring with other record labels to corner the digital
download market" (see October 25, 2013 joint letter) flies in the face of this Court's holding that
Capitol has properly enforced its copyrights in accordance with the law. In short, IDs should not
be permitted to extend the discovery period for the purpose of a fishing expedition into facts
unrelated to the remaining issues to be adjudicated in this case.

cc:

James Pizzirusso, Esq. (via email)
Gary Adelman, Esq. (via email)

29503/003/1437773 .2

(Page Intentionally Left Blank)

202.540.7200 ph
202.540.7201 fax
1700 K Street, NW
Suite 650
Washington, DC 20006

James J. Pizzirusso
[e-mail]

November 7, 2013
VIA E-MAIL ([e-mail])
Honorable Richard J. Sullivan, U.S.D.J.
United States District Court
Southern District of New York
40 Foley Square
New York, New York 10007
RE:

Capitol Records, LLC v. ReDigi Inc., No. 12-cv-00095 (RJS)

Dear Judge Sullivan,
We represent Defendants John Ossenmacher and Larry Rudolph a/k/a Lawrence Rogel
(“Individual Defendants”) in the above-captioned matter and write in response to Plaintiff
Capitol Records, LLC’s (“Capitol”) November 6, 2013 letter responding to our letter of the same
date requesting an extension in the discovery schedule (the “Response Letter”). The Response
Letter was improper under Your Honor’s Individual Practices, and therefore, should be stricken.
Unfortunately, Capitol’s letter appears to be nothing more than a thinly veiled attempt to subvert
the Court’s practices and put arguments made in the October 25, 2013 joint discovery letter
impermissibly before the Court a second time without a response from the Individual
Defendants. See Rule 1.G.
Individual Defendants’ request for an extension in the discovery letter was written
pursuant to Rule 1.D of Your Honor’s Individual Practices, which provides the procedure for
requesting extensions of time and provides that the request must state “whether the adversary
consents, and, if not, the reasons given by the adversary for refusing to consent.” This Rule, by
its clear language, does not provide for a separate response letter such as Capital submitted.
Individual Defendants’ November 6 letter sought an extension under this Rule and properly
included Capitol’s position (which Capitol wrote). Therefore, Capital’s Response Letter detailing
new arguments relevant to another discovery dispute was inappropriate and should be stricken. 1
1

In comparison, Rule 1.G of Your Honor’s Individual Practices provides that discovery
disputes should be described “in a single letter, jointly composed, not to exceed five pages.
Separate and successive letters will be returned, unread.” (emphasis in original). Rule 1.G does
not apply here, as a request for an extension in discovery is not a discovery dispute. Nonetheless,
even if Rule 1.G did apply, the Response Letter is inappropriate inasmuch as the Individual
Defendants’ November 6 letter provided Capitol’s position, and the Response Letter is a
“successive letter[]” that should be “returned, unread.”

Honorable Richard J. Sullivan, U.S.D.J.
November 7, 2013
Page 2

Individual Defendants are not going to respond to the substantive arguments made in
Capital’s Response Letter unless the Court would like them to do so. Nevertheless, Individual
Defendants feel it is necessary to correct one of the many inaccuracies in this letter. Namely, it is
simply untrue that Mr. Adelman represented the Individual Defendants at the August 9, 2013
hearing. Moreover, the Individual Defendants were not parties to the case at that point in time.
Your Honor asked Mr. Adelman a question, and not having the benefit of seeing Capitol’s
Amended Complaint, Mr. Adelman answered as candidly as possible. Capitol’s attempt to
impute Mr. Adelman’s statement on the Individual Defendants now is highly prejudicial to the
Individual Defendants’ ability to defend themselves in this action and warrants correction.
Therefore, Individual Defendants respectfully request that Your Honor strike the
Response Letter or allow Individual Defendants an opportunity to more fully respond to the legal
arguments asserted therein.
Sincerely,
__________________________
James J. Pizzirusso

CC:

Gary Adelman, Esq.
Richard S. Mandel, Esq.

Exhibit 14

(Page Intentionally Left Blank)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

CAPITOL RECORDS, LLC,

12-CV-00095 (RJS)

Plaintiff,
v.
REDIGI INC., JOHN OSSENMACHER, and
LARRY RUDOLPH a/k/a LAWRENCE S.
ROGEL,
Defendants.

NOTICE OF DEPOSITION PURSUANT TO FED. R. CIV. P. 30(b)(6)
TO:

ALL PARTIES AND THEIR COUNSEL OF RECORD
PLEASE TAKE NOTICE that, pursuant to Federal Rule of Civil Procedure 30(a) and

30(b)(6), Defendants John Ossenmacher and Larry Rudolph a/k/a Lawrence S. Rogel
(“Individual Defendants”) will take the following deposition(s) at the date, time and place
indicated below before a notary public or some other person authorized by law to administer
oaths. You are invited to attend and cross-examine. The examination will continue from day to
day until completed.
DEPONENT

Capitol Records,
LLC

DATE AND TIME

November 8, 2013
9:00 am

LOCATION

Cowan, Liebowitz & Latman, PC
1133 Avenue of the Americas
New York, NY 10036

In accordance with Rule 30(b)(6), the deponent is advised of its duty to designate one or
more of its officers, directors, or other persons to testify on its behalf with respect to the matters

known or reasonably available to the deponent and referred to in the annexed Exhibit A. The
Individual Defendants request that Capitol Records LLC provide written notice at least five (5)
business days before the deposition of the name(s) and employment position(s) of the
individual(s) designated to testify on Capitol Records, LLC’s behalf.

DATED: October 25, 2013

HAUSFELD LLP
Seth R. Gassman________________
Seth R. Gassman
HAUSFELD LLP
1700 K Street, N.W., Suite 650
Washington, D.C. 20006

CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing was served this 22nd day of
October, 2013 upon the following via email and Federal Express:
Richard Stephen Mandel
Cowan, Liebowitz & Latman, P.C.
1133 Avenue of the America's
New York, NY 10036
[phone]
Email: [e-mail]

Attorney of Record for Plaintiff, Capitol
Records, LLC

Jonathan Zachary King
Cowan, Liebowitz & Latman, P.C.
1133 Avenue of the America's
New York, NY 10036
[phone]
Email: [e-mail]

Attorney of Record for Plaintiff, Capitol
Records, LLC

Gary Philip Adelman
Davis Shapiro Lewit & Hayes LLP
414 West 14th Street, 5th Floor
New York, NY 10014
[phone]
Email: [e-mail]

Attorney of Record for Defendant, ReDigi
Inc.

Sarah Michal Matz
Davis Shapiro & Lewit LLP
414 West 14th Street, 5th Floor
New York, NY 10014
(212)-230-5500
Email: [e-mail]

Attorney of Record for Defendant, ReDigi
Inc.

DATED: October 25, 2013
Seth R. Gassman________________
Seth R. Gassman
HAUSFELD LLP
1700 K Street, N.W., Suite 650
Washington, D.C. 20006

EXHIBIT A
Definitions
1.

“DOCUMENT[S]” has the same full meaning as construed by Federal Rule of

Civil Procedure 34 and includes without limitation the original (or identical duplicate when the
original is not available) and all non-identical copies (whether non-identical because of notes
made on copies or attached comments, annotations, marks, transmission notation, or highlighting
of any kind) and drafts of all writing, whether handwritten, typed, printed or otherwise produced,
and includes, without limitation, letters, correspondence, memoranda, legal pleadings, notes,
reports, agreements, calendars, diaries, travel or expense records, summaries, records, messages
or logs of telephone calls, conversations or interviews, telegrams, mailgrams, facsimile
transmissions (including cover sheets and confirmations), electronically stored information (see
definition number two below), minutes or records of meeting, compilations, notebooks,
laboratory notebooks, work papers, books, pamphlets, brochures, circulars, manuals,
instructions, sales, advertising or promotional literature or materials, ledgers, graphs, charts, blue
prints, drawings, sketches, photographs, film and sound reproductions, tape recordings, or any
other tangible materials on which there is any recording or writing of any sort. The term also
includes the file, folder tabs, and/or containers and labels appended to, or associated with, any
physical storage device associated with each original and/or copy of all DOCUMENTS
requested herein.
2.

“YOU,” “YOUR” means Plaintiff CAPITOL RECORDS, LLC, its parent

corporations, subsidiaries and affiliates, including but not limited to Universal Music Group
Recordings, Inc. and Capitol Music Group, and each of their employees, agents, representatives,
attorneys or any person acting or purported to act on behalf of the responding Defendant.
3.

INDIVIDUAL DEFENDANTS means Defendants John Ossenmacher and Larry

Rudolph a/k/a Lawrence S. Rogel.
4.

COMMUNICATIONS means any disclosure, transfer, or exchange of

information or opinion, however made, including but not limited to through email, letter, instant
messaging and text messaging. COMMUNICATIONS shall include DOCUMENTS and ESI.
5.

REDIGI means the online marketplace for pre-owned digital music that is a

Defendant in this matter and its employees, officers, and directors other than the INDIVIDUAL
DEFENDANTS.
6.

SOFTWARE ARCHITECTURE means the structure or structures of a computer

system that comprise software components, the externally visible properties of those
components, and the relationships between them.
7.

DIGITAL CONTENT PROVIDERS means any entity, other than REDIGI, that

sells or distributes to end-users digital versions, whether in whole or in part, of music recordings
that end-users download or stream over the Internet to or on their computers or other electronic
devices (e.g., cell phones).
8.

DIGITAL EXPLOITATION means the process by which DIGITAL CONTENT

PROVIDERS sell or distribute digital versions, whether whole or in part, of music recordings to
end-users.
9.

RECORDING ARTISTS means any individual or performing group that recorded

master recordings for YOU.
10.

PRODUCERS means any individual or performing group that produced master

recordings for YOU.
11.

COMPENSATION means remuneration, whether in money or in kind.

12.

RECORD LABEL means any brand and/or trademark associated with the

marketing of music recordings or music videos other than CAPITOL RECORDS, LLC and
including but not limited to Warner Music Group, EMI, Sony, BMG, Universal Music Group,
and Polygram.
13.

ALLEGEDLY COPYRIGHTED SONGS means the 512 songs listed in Exhibit A

to YOUR Amended Complaint in this litigation.
14.

PRE-1972 SONGS means the 55 songs listed in Exhibit B to YOUR Amended

Complaint in this litigation.
15.

PRESS means any news dissemination service and their agents and employees,

including but not limited to established news services (i.e., CNN, Fox, MSNBC), websites, RSS
feeds, podcasts and blogs.
16.

“PERSON” and “PERSONS” shall include both the singular and plural, and shall

mean and refer to any natural human being, firm, proprietorship, partnership, corporation, joint
venture, shareholder, investors, members, limited liability company, limited liability partnership,
general partnership, limited partnership, trust, loan – out company, government agent or
government body, association, employers, employees, agents, partners, officers, directors,
representatives, affiliates and all other forms of organization or entity or other group or
combination of the foregoing acting as one.
17.

POLICIES means any official standard(s), procedure(s), or protocol(s), whether

written or not.
18.

“Including” is used to illustrate a Request for particular types of DOCUMENTS

requested, and shall not be construed as limiting the Request in any way. “Or” should be
construed to require the broadest possible response, and should be read as “and/or.”
Matters for Examination
Witness(es) with knowledge of the following matters between January 2010 and present,
unless a time period is specified otherwise:
A.

Your Relationship with ReDigi and the Individual Defendants
1.

YOUR COMMUNICATIONS that refer, relate to, or involve REDIGI and/or the

INDIVIDUAL DEFENDANTS.
2.

The identify of each of YOUR current or former employees who had any

interaction with REDIGI and/or the INDIVIDUAL DEFENDANTS and the nature of those
COMMUNICATIONS, and any actions YOU took as a result of those interactions.
3.

Your analyses on the impact REDIGI could have on the amount of money YOU

or other RECORD LABELS could make.
4.

Your plans or intentions to develop SOFTWARE ARCHITECTURE for reselling

of songs originally purchased from DIGITAL CONTENT PROVIDERS.
B.

Your Alleged Copyrights
5.

YOUR basis for believing that you own the copyrights for each ALLEGEDLY

COPYRIGHTED SONG.
6.

YOUR basis for believing that the copyright to each PRE-1972 SONG has not

reverted to the RECORDING ARTIST or PRODUCER.
7.

The contractual language in each RECORDING ARTIST or PRODUCER

contract covering each ALLEGEDLY COPYRIGHTED SONG and PRE-1972 song that
provides YOU with an interest in the copyright to each of these songs.
C.

The Alleged Infringement
8.

For each ALLEGEDLY COPYRIGHTED SONG and each PRE-1972 SONG, the

date, time, and location of each act that you allege results in the INDIVIDUAL DEFENDANTS’
liability in this action, along with an explanation for why and how each act infringed on each
ALLEGEDLY COPYRIGHTED SONG and each PRE-1972 SONG.
9.

The characteristics or attributes of REDIGI’s SOFTWARE ARCHITECTURE

and the INDIVIDUAL DEFENDANTS’ role in developing each of those characteristics or
attributes that YOU believe gives rise to the INDIVIDUAL DEFENDANTS’ liability.

10.

YOUR past copyright infringement actions, other than the present action, that

YOU have brought based on the ALLEGEDLY COPYRIGHTED SONGS and PRE-1972
SONGS, including whether YOU were successful and the amount of COMPENSATION that
you were able to obtain as a result of each action.
11.

The amount of actual harm YOU allegedly suffered as a result of the

INDIVIDUAL DEFENDANTS’ alleged infringement.
12.

YOUR assertion that REDIGI is not sufficiently capitalized to pay a monetary

judgment against it in this action.
13.

The amount of net revenue that YOU believe REDIGI makes off of each resale of

a music recording, along with the total amount of net revenue YOU believe that REDIGI has
made from the resale of the ALLEGEDLY COPYRIGHTED SONGS and PRE-1972 SONGS.
14.

The amount of COMPENSATION that YOU believe the INDIVIDUAL

DEFENDANTS have made off of each resale of a music recording, along with the total amount
of COMPENSATION YOU believe that the INDIVIDUAL DEFENDANTS have made from the
resale of the ALLEGEDLY COPYRIGHTED SONGS and PRE-1972 SONGS.
D.

Your Digital Exploitation Policies
15.

YOUR POLICIES regarding the use of the PRE-1972 SONGS or the

ALLEGEDLY COPYRIGHTED SONGS for DIGITAL EXPLOITATION.
16.

YOUR POLICIES regarding the payment of royalties to RECORDING ARTISTS

and PRODUCERS for the exploitation of the PRE-1972 SONGS or the ALLEGEDLY
COPYRIGHTED SONGS.

17.

YOUR contracts or agreements between YOU and any third party that refer or

relate to the DIGITAL EXPLOITATION of the PRE-1972 SONGS or the ALLEGEDLY
COPYRIGHTED SONGS.
18.

The language in YOUR contracts with DIGITAL CONTENT PROVIDERS that

YOU believe prohibits the re-sale of the ALLEGEDLY COPYRIGHTED SONGS and the PRE1972 SONGS.
E.

Your Payment of Royalties
19.

Your failure to pay appropriate royalties to RECORDING ARTISTS or

PRODUCERS for the DIGITAL EXPLOITATION of the PRE-1972 SONGS or the
ALLEGEDLY COPYRIGHTED SONGS.
20.

The identity of each RECORDING ARTIST or PRODUCER that has contested

the amount of royalties that have been paid to them for the DIGITAL EXPLOITATION of the
ALLEGEDLY COPYRIGHTED SONGS and PRE-1972 SONGS, whether through an AUDIT
or not, along with the result of that contest.
F.

General Topics
21.

YOUR DOCUMENT preservation policies.

22.

All contracts or agreements that YOU contend prohibit or limit YOU from

producing DOCUMENTS requested by the INDIVIDUAL DEFENDANTS in this aboveentitled litigation.

(Page Intentionally Left Blank)

(Page Intentionally Left Blank)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

CAPITOL RECORDS, LLC,

12-CV-00095 (RJS)

Plaintiff,
v.
REDIGI INC., JOHN OSSENMACHER, and
LARRY RUDOLPH a/k/a LAWRENCE S.
ROGEL,
Defendants.

NOTICE OF DEPOSITION OF CHRISTOPHER HORTON
TO:

ALL PARTIES AND THEIR COUNSEL OF RECORD
PLEASE TAKE NOTICE that, pursuant to Federal Rule of Civil Procedure 30,

Defendants John Ossenmacher and Larry Rudolph (“Individual Defendants”), by their attorneys,
will take the deposition of Christopher Horton upon oral examination at 9:00 a.m. on November
7, 2013, at Davis Shapiro & Lewit LLP, 414 West 14th Street: 5th Floor, New York, New York
10014.
The deposition will continue from day to day until completed. The deposition will be
taken before a certified shorthand reporter authorized by law to administer oaths and will be
recorded stenographically.

DATED: October 25, 2013

HAUSFELD LLP
/s/ Seth R. Gassman________________
Seth R. Gassman
HAUSFELD LLP
1700 K Street, N.W., Suite 650
Washington, D.C. 20006

CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing was served this 25th day of
October, 2013 upon the following via email:
Richard Stephen Mandel
Cowan, Liebowitz & Latman, P.C.
1133 Avenue of the America's
New York, NY 10036
[phone]
Email: [e-mail]

Attorney of Record for Plaintiff, Capitol
Records, LLC

Jonathan Zachary King
Cowan, Liebowitz & Latman, P.C.
1133 Avenue of the America's
New York, NY 10036
[phone]
Email: [e-mail]

Attorney of Record for Plaintiff, Capitol
Records, LLC

Gary Philip Adelman
Davis Shapiro Lewit & Hayes LLP
414 West 14th Street, 5th Floor
New York, NY 10014
[phone]
Email: [e-mail]

Attorney of Record for Defendant, ReDigi
Inc.

Sarah Michal Matz
Davis Shapiro & Lewit LLP
414 West 14th Street, 5th Floor
New York, NY 10014
(212)-230-5500
Email: [e-mail]

Attorney of Record for Defendant, ReDigi
Inc.

DATED: October 25, 2013
/s/ Seth R. Gassman________________
Seth R. Gassman
HAUSFELD LLP
1700 K Street, N.W., Suite 650
Washington, D.C. 20006

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

CAPITOL RECORDS, LLC,

12-CV-00095 (RJS)

Plaintiff,
v.
REDIGI INC., JOHN OSSENMACHER, and
LARRY RUDOLPH a/k/a LAWRENCE S.
ROGEL,
Defendants.

NOTICE OF DEPOSITION OF PAT SHAH
TO:

ALL PARTIES AND THEIR COUNSEL OF RECORD
PLEASE TAKE NOTICE that, pursuant to Federal Rule of Civil Procedure 30,

Defendants John Ossenmacher and Larry Rudolph (“Individual Defendants”), by their attorneys,
will take the deposition of Pat Shah upon oral examination at 9:00 a.m. on November 7, 2013, at
Davis Shapiro & Lewit LLP, 414 West 14th Street: 5th Floor, New York, New York 10014.
The deposition will continue from day to day until completed. The deposition will be
taken before a certified shorthand reporter authorized by law to administer oaths and will be
recorded stenographically.

DATED: October 25, 2013

HAUSFELD LLP
/s/ Seth R. Gassman________________
Seth R. Gassman
HAUSFELD LLP
1700 K Street, N.W., Suite 650
Washington, D.C. 20006

CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing was served this 25th day of
October, 2013 upon the following via email:
Richard Stephen Mandel
Cowan, Liebowitz & Latman, P.C.
1133 Avenue of the America's
New York, NY 10036
[phone]
Email: [e-mail]

Attorney of Record for Plaintiff, Capitol
Records, LLC

Jonathan Zachary King
Cowan, Liebowitz & Latman, P.C.
1133 Avenue of the America's
New York, NY 10036
[phone]
Email: [e-mail]

Attorney of Record for Plaintiff, Capitol
Records, LLC

Gary Philip Adelman
Davis Shapiro Lewit & Hayes LLP
414 West 14th Street, 5th Floor
New York, NY 10014
[phone]
Email: [e-mail]

Attorney of Record for Defendant, ReDigi
Inc.

Sarah Michal Matz
Davis Shapiro & Lewit LLP
414 West 14th Street, 5th Floor
New York, NY 10014
(212)-230-5500
Email: [e-mail]

Attorney of Record for Defendant, ReDigi
Inc.

DATED: October 25, 2013
/s/ Seth R. Gassman________________
Seth R. Gassman
HAUSFELD LLP
1700 K Street, N.W., Suite 650
Washington, D.C. 20006

(Page Intentionally Left Blank)

(Page Intentionally Left Blank)

Exhibit 15

From:
To:
Cc:
Subject:
Date:
Attachments:

Mandel, Richard
Nathaniel C. Giddings; James J. Pizzirusso
King, Jonathan; Gary Adelman ([e-mail]); "Sarah Matz"
FW: Discovery Disputes
Wednesday, October 15, 2014 7:49:08 PM
10152014194118.pdf
10152014192729.pdf

Further to our email exchange below, attached please find copies of Capitol’s
responses to the individual defendants’ first set of document requests and interrogatories. We
will proceed to prepare a draft joint letter for your review that attempts to outline the
discovery issues that remain in dispute following our exchange. If you have additional issues
based on our responses, we can discuss and include in the letter to the extent we are unable
to resolve any such disputes that may exist.
Richard S. Mandel, Esq.
Cowan, Liebowitz & Latman, P.C.
1133 Avenue of the Americas
New York, New York 10036-6799
t: [phone] | f: [phone]
www.cll.com | [e-mail] | My Profile

From: Mandel, Richard
Sent: Friday, October 10, 2014 3:56 PM
To: 'Nathaniel Giddings'; James Pizzirusso
Cc: 'Sarah Matz'; [e-mail]; King, Jonathan
Subject: RE: Discovery Disputes

Thank you for your email. We are ok with points 1 and 2.
With respect to the interrogatories, our client will agree also to answer (subject to objections)
interrogatories 11, 13, 18 and 20.
With respect to document requests, we are agreeable to producing documents (subject to our
objections) to your revised request 2, but believe that all documents responsive to this request
as reasonably construed have already been produced. Similarly, with respect to request no. 6,
we believe the documents regarding digital exploitation that have already been produced in
the litigation are sufficient and that no further production is required. We continue to object
to the other requests which you are reiterating.
At this point, as discussed with James, we think what makes the most sense is for us to
provide you with our responses next week based on the foregoing exchange, and then present
any narrowed set of disputed issues that remain to Judge Sullivan in our October 22 letter.
Richard S. Mandel, Esq.
Cowan, Liebowitz & Latman, P.C.
1133 Avenue of the Americas
New York, New York 10036-6799

t: [phone] | f: [phone]
www.cll.com | [e-mail] | My Profile

From: Nathaniel Giddings [mailto:[e-mail]]
Sent: Friday, October 10, 2014 12:45 PM
To: Mandel, Richard; James Pizzirusso
Cc: 'Sarah Matz'; [e-mail]; King, Jonathan
Subject: RE: Discovery Disputes

Richard,
Individual Defendants are generally okay with your discovery proposal, with the following exceptions
and caveats:
1. Our agreement to withdraw certain discovery requests is without prejudice to our right to
seek additional discovery in this matter.
2. Our agreement to withdraw certain discovery requests is without prejudice to our position
that res judicata, collateral estoppel, law of the case, or any other doctrine Capitol believes
limits the scope of our discovery rights do not apply in this case.
3. RFPD #2: We would agree to narrow this to request to “All COMMUNICATIONS that refer or
relate to REDIGI’s exploitation of the ALLEGEDLY COPYRIGHTED SONGS or PRE-1972-SONGS
between YOU and . . . .” Will do not agree to withdraw it entirely.
4. RFPD #6: We do not agree to withdraw this request.
5. RFPD #10: We do not agree to withdraw this request.
6. RFPD ## 16-18: We do not agree to withdraw these requests.
7. ROG #4: We do not agree to withdraw this request.
8. ROG #11: We do not agree to withdraw this request.
9. ROG #13: We do not agree to withdraw this request.
10. ROG ## 18-20: We do not agree to withdraw these requests.
11. We do not agree to withdraw any of our deposition notices and reserve our right to seek
additional depositions of current and former Capitol and Capitol-affiliate employees as well
as third parties.

We remain open to discussing our discovery requests with Capitol in good faith. Please let me know
if you would like to set up a call sometime next week to further discuss.
Regards,
Nathaniel

Nathaniel Giddings, Associate
[e-mail]

1700 K Street, NW, Suite 650, Washington, DC 20006
202.540.7200 main / 202.540.7201 fax / www.hausfeldllp.com
This electronic mail transmission from Hausfeld LLP may contain confidential or privileged information.
If you believe you have received this message in error, please notify the sender by reply transmission and delete the message without copying or
disclosing it.

From: Mandel, Richard [mailto:[e-mail]]
Sent: Friday, October 03, 2014 3:05 PM
To: James Pizzirusso; Nathaniel Giddings
Cc: 'Sarah Matz'; Gary Adelman ([e-mail]); King, Jonathan
Subject: Discovery Disputes

Further to our previous conversations regarding the various discovery items remaining
in dispute, Capitol is prepared to agree to respond to interrogatories 1-3, 5-10, 12, and 14-17
(subject to objections) in exchange for your agreement to withdraw interrogatory nos. 4, 11,
13, and 18-22.
With respect to document requests, Capitol is willing to agree to respond to requests
1, 3-5, 9 and 19 (subject to objections) in exchange for your agreement to withdraw requests
2, 6-8, 10-18 and 20.
We are willing to produce a 30(b)(6) witness on behalf of Capitol (subject to our
objections) as well as Chris Horton, and will not object to the requested deposition of the
RIAA, but request that you agree not to proceed with depositions of Pat Shah, Colin
Finkelstein or Ronn Were.
Let us know your thoughts on this as soon as possible, and if you think a further
discussion would be useful about these issues, let us know and we can set something up for
next week. Thanks.
Richard S. Mandel, Esq.
Cowan, Liebowitz & Latman, P.C.
1133 Avenue of the Americas
New York, New York 10036-6799

t: [phone] | f: [phone]
www.cll.com | [e-mail] | My Profile

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