Martinez v. McGraw et al.

Filing 389

MEMORANDUM AND ORDER: For the reasons expressed herein, pltf's 258 motion to compel responses to second set of interrogatories to defts McGraw, Reid and Wiseman is GRANTED in parte and DENIED in part. Signed by Magistrate Judge John S. Bryant on 1/30/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(rd)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES MARTINEZ,
Plaintiff,
v.
SAMUEL TIMOTHY McGRAW, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

NO. 3:08-0738
Judge Campbell/Bryant
Jury Demand

MEMORANDUM AND ORDER
Plaintiff has filed his motion to compel responses to
plaintiff’s second set of interrogatories to defendants McGraw,
Reid and Wiseman (Docket Entry No. 258). By this motion, plaintiff
seeks to compel responses to two interrogatories addressed to
defendant McGraw and one interrogatory each addressed to defendants
Reid and Wiseman (Docket Entry No. 258-1 at 2).

Defendants have

filed a response in opposition (Docket Entry No. 275).
For the reasons stated below, plaintiff’s motion is
GRANTED in part and DENIED in part.
Analysis
Rule 26(b)(1) of the Federal Rules of Civil Procedure
provides in pertinent part that, as a general rule, parties may
obtain

discovery

regarding

any

nonprivileged

relevant to any party’s claim or defense.

matter

that

is

The rule further

provides that relevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.

Interrogatory No. 1 to McGraw.

Interrogatory No. 1 of

plaintiff’s second set of interrogatories to defendant McGraw reads
as follows: “Please identify each and every concert performance of
the song Everywhere you performed from January 1, 1997 to the
present.”

Defendant McGraw has objected to this interrogatory as

overly broad since it “encompasses the past 15 years of Tim
McGraw’s vast career and to comply with the request would be an
undue burden and expense on McGraw.

McGraw has performed hundreds

of concerts in the past 15 years and at many of these concerts, the
song Everywhere was performed.”

(Docket Entry No. 258-9 at 1-2).

Plaintiff argues that the information sought by this
interrogatory is relevant for the calculation of damages upon a
determination

that

the

Martinez’s prior work.

song

Everywhere

infringed

plaintiff

Specifically, plaintiff argues that ticket

sales are a portion of the gross revenue received by McGraw for the
song Everywhere. In support of this proposition plaintiff cites the
decision of Cream Records, Inc. v. Jos. Schlitz Brewing Co., 754
F.2d 826 (9th Cir. 1985).

The undersigned has reviewed the Cream

Records case and has found it to be inapposite, since it deals with
a song used in a beer advertisement but has nothing to do with
ticket sales for public performances.
In response, defendants argue that revenue from concerts
in the form of ticket sales is not relevant because concert goers
who purchase tickets have no advance knowledge of the songs that
2

McGraw may perform at a given concert.

In addition, defendants

insist that seeking this information from January 1, 1997, to the
present is excessive because the three-year statute of limitations
limits plaintiff’s claims to those occurring after March 8,2004.
The undersigned observes that neither party has cited any
controlling law governing damages based upon public performances of
a work in a similar case.

In the absence of such legal authority,

and without expressing any opinion whether public performances of
an

allegedly

infringing

work

may

be

considered

for

damages

purposes, the undersigned finds that the information sought may be
relevant or may be reasonably calculated to lead to the discovery
of admissible evidence.

Accordingly, the undersigned ORDERS that

defendant McGraw shall produce a listing by date and location of
each concert at which he performed the song Everywhere from January
1, 1997, until the present.
Interrogatory No. 2 to McGraw and No. 1 to Reid and
Wiseman.

Interrogatory No. 2 in the second set of interrogatories

to defendant McGraw states as follows: “Please identify which
church you attend in Tennessee.”

Interrogatories No. 1 to both

defendant Reid and defendant Wiseman are identical. All defendants
have objected to these interrogatories on the grounds that the
information sought is not relevant nor likely to lead to the
discovery of admissible evidence, and is designed to harass the
defendants.

3

In his supporting memorandum, plaintiff, without further
explanation, states merely that where these defendants attend
services “is important as proof of access.”

Plaintiff fails to

suggest any way that the churches that these three defendants
attend could have any bearing on access.

Moreover, all three

interrogatories are stated in the present tense, clearly suggesting
that plaintiff wants to know where these defendants attend church
at

the

present

time.

Since

the

allegedly

infringing

song

Everywhere was recorded by defendant McGraw in 1997, and allegedly
written by defendants Reid and Wiseman before that, the undersigned
Magistrate Judge is baffled how information about where these three
defendants attend church now could possibly have anything to do
with access or any other issue in this case.

For this reason, the

undersigned Magistrate Judge finds that plaintiff’s motion to
compel further response to Interrogatory No. 2 to McGraw and
Interrogatory No. 1 to both Reid and Wiseman must be DENIED.
To the extent that this order requires a further response
from defendant McGraw, such response shall be served on or before
February 22, 2013.
It is so ORDERED.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

4