Martinez v. McGraw et al.

Filing 391

MEMORANDUM AND ORDER: For the reasons stated below, the undersigned GRANTS Plaintiffs motion to compel subject to the limitations stated in this order. Signed by Magistrate Judge John S. Bryant on 2/1/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

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

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

MEMORANDUM AND ORDER
Plaintiff Martinez has filed his third motion to compel
responses from Defendants (Docket Entry No. 284).

By this motion,

Plaintiff seeks an order compelling Defendants to serve additional
responses to Plaintiff’s written discovery seeking the amounts
received by Defendants as gross revenue from the song “Everywhere”
and the album entitled “Everywhere”

(Docket Entry No. 284-1 @ 2).

Defendants have filed a response in opposition (Docket Entry No.
303).
For the reasons stated below, the undersigned GRANTS
Plaintiff’s motion to compel subject to the limitations stated in
this order.
ANALYSIS
Rule 26(b)(1) of the Federal Rules of Civil Procedure
provide

that

parties

may

obtain

discovery

regarding

any

nonprivileged matter that is relevant to any party’s claim or
defense, and that relevant information need not be admissible at

the trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence.
By this motion, Plaintiff seeks an order compelling
Defendants to provide the amounts of gross revenues they have
received

from

“Everywhere.”

the

song

“Everywhere”

and

the

album

entitled

Plaintiff in this action alleges that the song

“Everywhere” was wrongfully copied from his copyrighted prior work.
In response, Defendants make several arguments.

First,

Defendants assert that Plaintiff’s motion to compel is untimely
since fact discovery closed on July 2, 2012, and Plaintiff did not
file his motion to compel until July 16, 2012.
argue

that

Plaintiff

has

failed

to

comply

Second, Defendants
with

Local

Rule

37.01(b)(2)(d), which requires that a motion to compel include the
response and grounds assigned or any objection.

Third, Defendants

claim that they have already produced to Plaintiff documents
showing the revenue for the song “Everywhere,” and that Plaintiff’s
current

request

is

duplicative

and

unreasonably

cumulative.

Finally, Defendants argue that additional information sought by
Plaintiff would not change the outcome of this case, citing Audi AG
v. D’Amato, 469 F.3d 534, 542 (6th Cir. 2006).
Title 17, § 504(b), of the United States Code provides
the measure of actual damages and profits that may be recovered by
a copyright owner who proves that another has infringed his
copyright.

This statute provides that the copyright owner is

entitled to recover the actual damages suffered by him as a result
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of the infringement, “and any profits of the infringer that are
attributable to the infringement and are not taken into account in
computing the actual damages.”

The statute further provides that

the copyright owner is required to present proof only of the
infringer’s gross revenue, and the infringer thereafter is required
to prove his expenses and elements of profit attributable to
factors other than the copyrighted work.
From the foregoing statute, the undersigned finds that
evidence of gross revenues received by Defendants attributable to
the song “Everywhere” is relevant to the issue of recoverable
damages in this case.
previously

provided

the

To the extent that Defendants have not
amounts

of

gross

revenues

they

have

received attributable to the song “Everywhere,” the undersigned
finds that such information should be produced.
The relevance of gross proceeds received by Defendants
for the album “Everywhere” is somewhat less, because the album
included not only the song “Everywhere” but also a number of other
songs for which Plaintiff admittedly has no claim.

Accordingly,

the undersigned finds that, if Defendants have not already done so,
Defendants shall produce to Plaintiff the amounts of their gross
revenues attributable to the inclusion of the song “Everywhere” on
the album of the same name if there is a generally accepted method
of allocating revenues from an album among the various songs that
are included on that album.

If there is no generally accepted

method of making such an allocation, Defendants shall disclose to
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Plaintiff their gross revenues from the album “Everywhere” as a
whole, subject to their offering proof at trial that such revenues
are attributable to songs other than the allegedly infringing work.
To the extent that this order requires Defendants to make
supplemental responses to their prior discovery, such responses
shall be served by February 25, 2013.
It is so ORDERED.

s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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