Skidmore v. Led Zeppelin - Def Opp to extension of time for summary judgment.pdf

8/19/2019 Skidmore v. Led Zeppelin - Def Opp to extension of time for summary judgment.pdf

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Peter J. Anderson, Esq., Cal. Bar No. 88891E-Mail: [email protected] OFFICES OF PETER J. ANDERSONA Professional Corporation100 Wilshire Boulevard, Suite 2010Santa Monica, CA 90401

Tel: (310) 260-6030Fax: (310) 260-6040Attorneys for DefendantsJAMES PATRICK PAGE, ROBERT ANTHONYPLANT, JOHN PAUL JONES, WARNER/CHAPPELLMUSIC, INC., SUPER HYPE PUBLISHING, INC.,ATLANTIC RECORDING CORP., RHINOENTERTAINMENT COMPANY and WARNERMUSIC GROUP CORP.

Helene Freeman, Esq., admitted pro hac viceE-Mail: [email protected] NIZER LLP666 Fifth Avenue

New York, NY 10103-0084Tel: (212) 977-9700Fax: (212) 262-5152Attorneys for DefendantsJAMES PATRICK PAGE, ROBERT ANTHONYPLANT and JOHN PAUL JONES

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Case No. 2:15-cv-03462 RGK AGRx)

DEFENDANTS’ OPPOSITION TOPLAINTIFF’S EX PARTEAPPLICATION TO EXTEND TIMETO RESPOND TO MOTION FORSUMMARY JUDGMENT

MICHAEL SKIDMORE, etc.,

Plaintiff,

vs.

LED ZEPPELIN, et al.,

Defendants.

))))))))))

)

Case 2:15-cv-03462-RGK-AGR Document 113 Filed 03/03/16 Page 1 of 28 Page ID #:2210


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TABLE OF CONTENTS

MEMORANDUM OF POINTS AND AUTHORITIES .............................................. 1

1. INTRODUCTION ..............................................................................................1

2. PLAINTIFF’S APPLICATION SHOULD BE DENIED .................................. 3

(a)

At the LR 7-3 Pre-Filing Conference, Plaintiff Agreed to the

February 25, 2016 Filing and March 28, 2016 Hearing Dates – and

the Resulting Opposition Deadlines – and Used those Dates for His

Own Motion .............................................................................................3

(b)

Since August 2015, Plaintiff Has Known the Time that He WouldHave to File a Response to Defendants’ Motion, and Plaintiff

Delayed Until He Could Not Seek Relief by Noticed Motion ................4

(c) Plaintiff Fails to Address the Consequences to the Court’s

Scheduled Dates if His Application Were Granted ................................. 5

(d)

Implicitly Acknowledging that His Application Would Interfere

with the Court’s Scheduled Dates, Plaintiff Relies on FRCP 16(b),But He Cannot Show the Required Diligence and Good Cause .............. 6

(1) Plaintiff Has Not Been Diligent: He Failed to Promptly Seek

the Relief He Now Requests and Failed to Promptly Pursue

Discovery and the Allegedly Deficient Discovery Responses ......6

(2)

Plaintiff’s Claim that Defendants Failed to Provide Discovery ....7

i.

The Discovery Plaintiff Refers to Is Irrelevant to the

Motion for Summary Judgment ........................................... 7

ii.

Plaintiff’s Accusations Are False ........................................ 8

(3)

Plaintiff’s Conclusory Reference to a “Plethora of Witnesses

and Experts” Does Not Establish Good Cause ............................ 10



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(4) Defendants Would Be Substantiality Prejudiced by

Plaintiff’s Request .......................................................................10

3.

CONCLUSION ................................................................................................ 11



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TABLE OF AUTHORITIES

Cases

In re Intermagnetics America, 101 B.R. 191 (C.D. Cal. 1989) ....................................5

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992) ............ 6, 7, 10

Mission Power Eng’g v. Continental Casualty, 883 F. Supp. 488

(C.D. Cal. 1995) ......................................................................................................... 5

Ojo v. Farmers Group, Inc., 565 F.3d 1175 (9th Cir. 2009) ....................................... 3

Rules

Federal Rule of Civil Procedure 16 ..................................................................... 5, 6, 7

Federal Rule of Civil Procedure 26 ................................................................... 4, 6, 14

Local Rule 6-1 ..........................................................................................................3, 4

Local Rule 7-3 ..........................................................................................................1, 3

Local Rule 16-2 ............................................................................................................ 5



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MEMORANDUM OF POINTS AND AUTHORITIES

1. INTRODUCTION

Plaintiff’s ex parte application is remarkable for what it omits and what i

misstates.

Plaintiff omits that in the parties’ February 18, 2016 Local Rule 7-3 pre-filing

conference, plaintiff’s counsel agreed to defendants’ filing their summary judgmen

motion on February 25, 2016 for hearing on March 28, 2016 – thereby establishing

March 7, 2016 as the deadline for plaintiff’s response – and plaintiff used those

same dates for his own motion for leave to amend his complaint. See, below at 3-4.

Plaintiff also omits that he is now asking for relief that the Court declined to provide when it issued its August 17, 2015 Scheduling Order (Doc. 78). Not only i

plaintiff requesting anew relief previously denied, but he has known since Augus

2015 that defendants intended to move for summary judgment on February 25, 2016

and that his response would be due March 7, 2016. He cannot delay until there i

insufficient time to seek relief by noticed motion and then seek it by ex parte

application. See, below at 4-5.

Plaintiff also omits the consequences to the Court’s scheduled dates, and the

resulting prejudice, if the application were to be granted. The Court set a tigh

schedule and enlarging the briefing time would mean, for example, moving the

hearing on defendants’ motion so that it would be in the midst of the many deadline

that precede the April 25, 2016 Pretrial Conference and May 10, 2016 Trial. That

in turn, would mean that the parties would be unlikely to have the Court’s ruling

before expending substantial effort and expense in trial preparation that will be

rendered moot if the motion is granted. See, below at 5-6. In addition to tha

substantial prejudice, defendants and their counsel have made commitments and

incurred expenses in reliance on the scheduled dates. See, below at 10-11.

And, ultimately, plaintiff’s application is based on a red herring contrived

from demonstrably untrue statements.



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The red herring is that allegedly-late discovery responses from defendants are

relevant to defendants’ pending motion for summary judgment. Actually

defendants’ motion is based on documents and information either from plaintiff and

his witnesses or that plaintiff should have had before filing this case. Thus

defendants’ motion raises that the musical composition Taurus is either a work fo

hire (and plaintiff’s claims barred on that ground) or was assigned to Hollenbeck

Music (and his claims barred by laches) or was waived or abandoned by plaintiff’s

predecessors, and in any event that plaintiff’s musicologist failed to opine as to the

only relevant work, namely the registered 1967 Taurus transcription that plaintif

also never produced. Defendants SJ Memo. (Doc. 97-1). Discovery fromdefendants is irrelevant to all of that. Instead, plaintiff’s ownership of the allegedly

infringed copyright and the Taurus transcription in which that copyright was

registered, are all matters within plaintiff’s province and, indeed – since he bears the

burden of proof on his claims – matters for which he was required by Federal Rule

of Civil Procedure 11 to have evidence in hand before filing suit. See, below at 7-8.

As to plaintiff’s demonstrably untrue statements, they include, for example

that defendants produced no documents in discovery in November 2015 (they

produced over 600 pages of documents including 80 audio recordings), that the

additional documents and supplemental interrogatory responses they provided once

the Protective Order was entered bear on the pending motion (they relate to

revenues, expenses and profits, which are irrelevant to the pending motion) and that

plaintiff received only seven days to respond to the motion (not only was the motion

discussed in depth on February 18, 2016, but it was filed on February 25, 2016, with

plaintiff’s response due eleven days later, on March 7, 2016, pursuant to the agreed

March 28, 2016 hearing date). See, below at 8-10.

Plaintiff, by omission and material misstatements, paints a false picture

Defendants’ motion is straightforward, clear and based on matters that plaintiff – if

he had a claim – would have established before he even filed this case. Under the



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agreed filing and hearing dates he received more time than provided by the Loca

Rules to submit his response, and giving him even more time is not justified and

would conflict with the Court’s scheduled dates and prejudice defendants

Defendants respectfully submit that plaintiff fails to carry his burden and his

application should be denied.1

2.

PLAINTIFF’S APPLICATION SHOULD BE DENIED

(a)

At the LR 7-3 Pre-Filing Conference, Plaintiff Agreed to the

February 25, 2016 Filing and March 28, 2016 Hearing Dates – and

the Resulting Opposition Deadlines – and Used those Dates for His

Own Motion

As shown below, plaintiff has known since August 2015 that under this

Court’s Scheduling Order and Local Rules defendants would be filing their motion

for summary judgment on February 25, 2016 and that his response would be due on

March 7, 2016. Moreover, he fails to disclose that in the Local Rule 7-3 pre-filing

conference he agreed to the filing and hearing dates that trigger the March 7, 2016

deadline.

In the parties’ February 18, 2016 pre-filing conference, plaintiff’s and

defendants’ counsel discussed their respective motions and when they would be filed

and heard. Defendants’ counsel advised that they intended to file on February 25

2016 for hearing on March 28, 2016, and plaintiff’s counsel not only agreed to those

dates, but advised that he would use them for plaintiff’s motion to amend his

complaint to add additional defendants. This agreement – which makes the parties

respective opposition papers due March 7, 2016 (LR 6-1) – is proven both by the

attached Declarations and by the fact that plaintiff also filed his motion on February

25, 2016 for hearing on March 28, 2016. Pltf’s Motion (Doc. 98); Anderson Decl. a

13, ¶ 4; Freeman Decl. at 1, ¶ 3.

1 Plaintiff cannot try to do by reply what he failed to do in his application. Ojo v

Farmers Group, Inc., 565 F.3d 1175, 1185, n. 13 (9th Cir. 2009).



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Plaintiff agreed to the filing and hearing date, which automatically set the

March 7, 2016 response deadline, and should be required to live up to his agreement

(b) Since August 2015, Plaintiff Has Known the Time that He Would

Have to File a Response to Defendants’ Motion, and Plaintiff

Delayed Until He Could Not Seek Relief by Noticed Motion

Plaintiff also omits from his application that this is not the first time in this

case that the issue of extra time to respond to dispositive motions was before the

Court.

In their August 10, 2015 Joint Rule 26(f) Report, the parties proposed a

briefing schedule for dispositive motions, enlarging the time provided by Local Rule6-1, and to accommodate that modification the parties proposed additional time

between the dispositive motion cut-off and the pretrial conference and trial. Join

Rule 26(f) Report (Doc. 75) at 5-6. The Court, however, declined to adopt tha

proposal, setting a February 25, 2016 deadline to file dispositive motions and

leaving the parties’ briefing per the Local Rule, with the Pretrial Conference less

than 30 days after the dispositive motion hearing date. August 17, 2015 Scheduling

Order (Doc. 78). As a result, plaintiff has known since August 2015 that defendant

would be filing their motion for summary judgment on February 25, 2016 and he

would have until March 7, 2016 to file his reply.2

Yet plaintiff did nothing for six months and delayed until after defendants

filed their motion, before asking the Court to alter the briefing schedule flowing

from its August 2015 Scheduling Order. Knowing that defendants’ motion wa

coming, plaintiff could and should have filed a noticed motion, rather than wait unti

2 Plaintiff accuses defendants of gamesmanship in filing on Thursday, February

25, 2016. Not only is that the scheduled date, it is the date that plaintiff’s counse

agreed to in the February 18, 2016 pre-filing conference, just eight days after the

close of fact discovery. Also, if defendants had filed on the preceding Monday for a

hearing 28 days hence, plaintiff’s response would have been due in seven days rathe

than the eleven days he received by defendants filing on February 25, 2016.



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there is insufficient time to do so. “Ex parte applications are not intended to save the

day for parties who have failed to” act diligently. Mission Power Eng’g v

Continental Casualty, 883 F. Supp. 488, 493 (C.D. Cal. 1995), quoting In re

Intermagnetics America, 101 B.R. 191, 193 (C.D. Cal. 1989).

For six months, plaintiff has known the briefing schedule he faced, he did

nothing about it and he cannot seek by ex parte application relief that he could and

should have sought by noticed motion. For that additional reason, his application i

properly denied.

(c) Plaintiff Fails to Address the Consequences to the Court’s

Scheduled Dates if His Application Were Granted

Plaintiff fails to even mention the consequences to this Court’s scheduled

dates if his application were granted – which is especially surprising since that was

the reason defendants provided for declining plaintiff’s March 1, 2016 request tha

they stipulate to modify the briefing schedule. Anderson Decl. at 13, ¶ 3.

Plaintiff’s proposed order (Doc. 110-1) only mentions extending the March 7

2016 deadline for plaintiff to file his response. But, extending that deadline would

also necessarily mean (1) moving the March 14, 2016 deadline for defendants to file

their reply and (2) moving the March 28, 2016 hearing date into April 2016.

However, the Court’s scheduled dates include the April 25, 2016 Pretria

Conference and May 10, 2016 Trial, and those dates trigger deadlines to conduct the

Local Rule 16-2 meeting of counsel and the deadlines to file, for example, motion

in limine, proposed jury instructions and memoranda of contentions of fact and law

Those efforts, which will involve substantial time and expense, will be rendered

moot if defendants’ motion is granted. But if the hearing is moved to accommodate

plaintiff’ request, the hearing will be in the midst of those deadlines.

In addition, the settlement conference before Magistrate Judge Rosenberg is

set for March 23, 2016 (Doc. 94), and that date was specifically chosen because –

///



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under the currently scheduled dates – it is after the close of all briefing of

defendants’ motion for summary judgment and before the March 28, 2016 hearing.

It is an understatement that there are multiple, fixed and important deadlines

that would be directly impacted if the Court were to grant plaintiff’s request. That i

another reason plaintiff’s application should be denied.

(d)

Implicitly Acknowledging that His Application Would Interfere

with the Court’s Scheduled Dates, Plaintiff Relies on FRCP 16(b),

But He Cannot Show the Required Diligence and Good Cause

Implicitly recognizing his request’s direct consequences to the Court’s

Scheduling Order and the deadlines resulting from it, plaintiff cites Federal Rule oCivil Procedure 16(b) as the governing standard. Application (Doc. 110) at 3:5-10

citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)

And, plaintiff cannot meet that standard.

(1)

Plaintiff Has Not Been Diligent: He Failed to Promptly Seek

the Relief He Now Requests and Failed to Promptly Pursue

Discovery and the Allegedly Deficient Discovery Responses

Plaintiff does not claim some unforeseen event recently occurred and

interferes with his ability to respond to defendants’ motion. Instead, he asserts –

without any proof – that he has been diligent, and then argues defendants failed to

respond to discovery.

But, plaintiff has known since August 2015 that under this Court’s Scheduling

Order and Local Rules defendants would be filing their motion for summary

judgment on February 25, 2016 and that his response would be due on March 7

2016. Yet, plaintiff did not act. Quite the contrary, at the February 18, 2016 pre

filing conference he agreed to the filing and hearing dates.

Plaintiff’s claimed diligence in discovery also is belied by the facts. The

Federal Rule of Civil Procedure 26(d)(1) hold on discovery was lifted when the

parties held their Rule 26(f) meeting of counsel on August 10, 2015, yet plaintif



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delayed until October 13, 2015 before serving his first discovery requests. Anderson

Decl. at 14, ¶ 5. And, while there is no truth to plaintiff’s accusations as to

defendants’ compliance with discovery (see, below 8-10), even his misstatements

show a lack of diligence. Thus, he claims defendants produced no documents in

November 2015 (Application at 1:17-20) – which is not true – but then diligence

required that he file a motion to compel and, of course, he did not. Similarly, he

claims defendants provided inadequate interrogatory responses in November 2015

(Application at 1:25-26) – which also is not true – but then he should have filed a

motion to compel, and, again, he did not. Instead, and to this day, he has no

identified any deficiencies in those responses. “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the

party seeking [relief] . . . . If that party was not diligent, the inquiry should end.”

Johnson, 975 F.2d at 609. Plaintiff, knowing the motion and briefing schedule he

faced, failed to proceed diligently and, accordingly, his application should be denied

(2) Plaintiff’s Claim that Defendants Failed to Provide Discovery

i. The Discovery Plaintiff Refers to Is Irrelevant to the

Motion for Summary Judgment

Plaintiff accuses defendants of not complying with discovery, but he never

specifically explains how that discovery is relevant to his response to defendants

motion for summary judgment. The reason is simple: the discovery is irrelevant to

defendants’ motion.

Defendants’ motion for summary judgment is based on defects in plaintiff’s

claimed ability to sue for infringement of the copyright in the Taurus musica

composition and relies largely on plaintiff’s own documents and the testimony of hi

own witnesses; plaintiff’s failure to produce the 1967 Taurus transcription protected

by the copyright he sues upon; plaintiff’s failure to disclose any expert opining as to

any claimed similarities between Stairway to Heaven and the 1967 transcription

which is the only copyrighted work on which this case could be predicated; and



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statements that plaintiff’s predecessor, Randy Wolfe, made in 1991 and which were

included in a publicly-available album released that year. See, Defendants’ SJ

Memo.

Plaintiff complains that defendants produced 40,000 pages of documents on

December 29, 2015, once the Stipulated Protective Order was entered on December

28, 2015. But, that production consisted of documents such as contracts and royalty

statements relating to defendants’ respective revenues, expenses and profits, none o

which is relevant to plaintiff’s claimed ability to sue for infringement of the

copyright in the Taurus musical composition. Anderson Decl. at 14-15, ¶ 8. No

only did defendants produce the documents within a day of the entry of theProtective Order, but the production has nothing to do with the pending motion fo

summary judgment.

Plaintiff also complains that in January 2016 defendants provided

supplemental interrogatory responses. But, those supplemental responses merely

provided the confidential financial information that was not included in the initia

responses because the Protective Order was not yet in place. Anderson Decl. at 14

15, ¶ 9. Plaintiff filed three of the Supplemental Interrogatory Responses under sea

(Doc. 103; Exhibits 3, 4 & 5) and the Court can see for itself that the information is

limited to revenues.

Defendants’ supposed failure to respond to discovery has nothing to do with

defendants’ summary judgment motion or plaintiff’s response to it.

ii. Plaintiff’s Accusations Are False

And, plaintiff’s accusations of discovery misuse are demonstrably false.

Plaintiff represents to the Court that after plaintiff served his discovery

requests in October 2015, defendants failed to produce any documents unti

December 2015 and after entry of the Protective Order. Application at 1:18-20. In

truth, defendants timely produced in November 2015 non-confidential documents

///



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consisting of over 600 pages of documents and audio recordings. Anderson Decl. a

14, ¶ 6, & Exh. 1.

Plaintiff represents to the Court that defendants’ November 2015 interrogatory

responses were not “meaningful” and defendants did not provide meaningfu

responses until January 2016. However, defendants’ initial interrogatory response

were full and complete and omitted only confidential financial information, which

was provided by supplemental responses once the Protective Order was in place

Plaintiff never raised any deficiency in defendants’ interrogatory responses and, in

his application, does not identify any deficiency. Anderson Decl. at 14, ¶¶ 6-7

Plaintiff filed one of the initial Interrogatory Responses under seal (Doc. 103Exhibit 2) and the Court can see for itself that substantive responses were provided

except as to confidential financial information, which was provided by a

supplemental response (Doc. 103; Exhibit 3) once the Protective Order was in place.

Plaintiff represents to the Court that “when it was determined that many

crucial documents had not been produced, Defendants have continued to produce

documents right up until the last two weeks.” Application at 1:21-24. That is also

untrue: the documents recently provided were simply a late production by a

subpoenaed non-party. Anderson Decl. at 15, ¶ 11.

Plaintiff represents to the Court that “Defendants did not produce any exper

reports, . . .” and that, as a result, “when [defendants’] motion was filed [on February

25, 2016], Plaintiff did not have the benefit of seeing any expert report from the

Defendants.” Application at 2:14-18. That is also untrue: defendants timely

provided initial expert disclosures on February 10, 2016. Anderson Decl. at 15, ¶

10, & Exh. 2.

Plaintiff represents to the Court that defendants delayed until February 25

2016 to file their motion for summary judgment and that plaintiff “has been afforded

a mere seven (7) days to respond” to defendants’ motion. Application at 2:24-25

But – as plaintiff’s counsel agreed in the pre-filing conference – defendants filed on



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Thursday, February 25, 2016, for hearing on March 28, 2016, giving plaintiff eleven

days to file his response.

It is difficult to find a factual assertion in plaintiff’s application that is true

Instead, plaintiff relies on misstatements to obscure that plaintiff failed to ac

diligently and has no grounds for his request, which will only interfere with the

Court’s scheduled dates and prejudice defendants.

(3)

Plaintiff’s Conclusory Reference to a “Plethora of Witnesses

and Experts” Does Not Establish Good Cause

Apparently as an afterthought, plaintiff adds in passing that “[t]here are a

plethora of witnesses and expert witnesses located all over the country in this case, . . .” Application at 2:27-28. That bare assertion cannot be credited nor does i

make any sense given the narrow and targeted grounds of defendants’ motion. Fo

example, no number of witnesses or experts is going to change the fact that the

Taurus musical composition is a work for hire; that Randy Wolfe consented to the

alleged use; that plaintiff’s claim as beneficial owner of the copyright is barred by

laches; that plaintiff failed to produce the 1967 Taurus transcription that constitute

the sole copyrighted work upon which his infringement claim could be predicated

and that he failed to disclose any expert as to the 1967 Taurus transcription’

supposed similarities with Stairway to Heaven. Each of these straightforward

grounds is, alone, confirmation that plaintiff’s claims lack merit, and the threat to

submit declarations from an unidentified “plethora” of witnesses changes nothing.

(4) Defendants Would Be Substantiality Prejudiced by Plaintiff’s

Request

Prejudice to the opposing party is not required where, as here, the moving

party has not been diligent. Johnson, 975 F.2d at 609. But, defendants and thei

counsel would be substantially prejudiced if plaintiff’s application were granted.

As discussed above, granting plaintiff’s application would also mean moving

defendants’ deadline to file their reply and moving the hearing date, interfering with



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the Court’s scheduled dates and deprive defendants of a ruling before the partie

incur substantial effort and expense in pretrial procedures. In addition, defendant

and their counsel have acted in reliance on the currently-scheduled dates. Fo

example, defendants’ representatives have already purchased tickets to attend the

March 23, 2016 settlement conference with Magistrate Judge Rosenberg. The

individual defendants’ New York counsel has already purchased tickets to be presen

at that settlement conference and the March 28, 2016 hearing on defendants’ motion

In addition, the individual defendants arranged to be available for the May 10, 2016

trial, if one is had, and cannot appear in the subsequent months. Freeman Decl. a

17, ¶¶ 4-5. Also, defendants’ local counsel has depositions in another casescheduled for the week after defendants’ reply is currently due, and moving the reply

date would result in defendants’ counsel being unable to both attend those

depositions and prepare defendants’ reply. Anderson Decl. at 16, ¶ 13.

Plaintiff’s request to modify the scheduled dates would also prejudice

defendants, which is yet another reason his application should be denied.

3. CONCLUSION

Plaintiff has known since August 2015 that he stood to have only seven days

to file his response to defendants’ motion for summary judgment. As it turns out

that time was increased to eleven days when – as plaintiff’s counsel agreed in the

pre-filing conference – defendants filed their motion on Thursday, February 25

2016 with a March 28, 2016 hearing date. Yet, plaintiff belatedly seeks by ex parte

application a briefing schedule that he could and should have sought by noticed

motion. Further, plaintiff fails to even mention, let alone address, that the extension

he seeks would interfere with the Court’s scheduled dates. And, he relies on false

statements of fact as a smokescreen to cover not only his lack of diligence, but a

fatal flaw in his application: defendants’ motion is based on documents and

information either from plaintiff and his witnesses or that plaintiff should have had

before filing this case.



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Defendants respectfully submit that plaintiff’s application should be denied.

Dated: March 3, 2016 /s/ Peter J. Anderson

Peter J. Anderson, Esq.LAW OFFICES OF PETER J. ANDERSONA Professional Corporation

Attorney for DefendantsJAMES PATRICK PAGE, ROBERT

ANTHONY PLANT, JOHN PAUL JONES,WARNER/CHAPPELL MUSIC, INC.,SUPER HYPE PUBLISHING, INC.,

ATLANTIC RECORDING CORP., RHINOENTERTAINMENT COMPANY and

WARNER MUSIC GROUP INC.

/s/ Helene M. FreemanHelene M. Freeman, Esq.PHILLIPS NIZER LLPAttorney for Defendants

JAMES PATRICK PAGE,ROBERT ANTHONY PLANT and

JOHN PAUL JONES

Attestation Regarding Signatures

The undersigned attests that all signatories listed, and on whose behalf this

filing is submitted, concur in this filing’s content and have authorized its filing.

Dated: March 3, 2016 /s/ Peter J. AndersonPeter J. Anderson, Es .



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DECLARATION OF PETER J. ANDERSON

I, Peter J. Anderson, declare and state:

1. I am an attorney admitted to practice before this Court and all Courts of

the State of California. I have personal knowledge of the following facts and could

competently testify to these facts if called upon to do so.

2.

I represent defendants Warner/Chappell Music, Inc., Syperhype

Publishing, Inc., Atlantic Recording Corp., Rhino Entertainment Company, Jame

Patrick Page, Robert Plant and John Paul Jones in this action. This Declaration i

submitted in support of their opposition to the ex parte Application of plaintif

Michael Skidmore for an Order extending the time for him to file his response presently due March 7, 2016, to defendants’ February 25, 2016 motion for summary

judgment or partial summary judgment.

3.

In my March 1, 2016 e-mail to plaintiff’s counsel, Glen Kulik, Esq.

responding to his request that the parties agree to a briefing schedule giving plaintif

more time to file his reply, I stated “[w]e can’t agree to that, including because i

would interfere with the scheduled dates.” Although I raised the point, plaintiff’

application does not address that his request would interfere with the scheduled

dates.

4. Fact discovery closed on February 10, 2016. On February 18, 2016

plaintiff’s other counsel, Francis Malofiy, Esq., and Helene Freeman, Esq., and

conducted our pre-filing conference with respect to defendants’ motion for summary

judgment or partial summary judgment and plaintiff’s motion for leave to amend his

complaint to add additional defendants. I told Mr. Malofiy that we would be filing

defendants’ motion on February 25, 2016 for hearing on March 28, 2016. Mr

Malofiy said that the hearing date worked for him and he would file plaintiff’s

motion for leave to amend for hearing on the same day, March 28, 2016. At no

point did Mr. Malofiy suggest that plaintiff would need any additional time to file

his response, which under the Local Rules is due March 7, 2016, providing plaintif



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eleven days to respond.

5. The Federal Rule of Civil Procedure 26(f) conference of counsel wa

held on August 10, 2015, and, as a result, the Rule 26(d)(1) hold on discovery was

lifted that same day. On behalf of defendants, I caused to be served written

discovery directed to plaintiff on August 14, 2015. Plaintiff’s counsel, however, did

not serve any discovery until October 13, 2015, when they served interrogatories and

requests for production.

6. On November 23, 2015, defendants timely responded to plaintiff’s

October 13, 2015 discovery. Those responses were substantive and omitted only

confidential financial information and documents because plaintiff, althoughagreeing that a stipulated protective order is appropriate, never prepared one. On

November 23, 2015 and with defendants’ responses, I produced documents and 80

audio recordings, bearing control numbers from 1 through 603. Attached to thi

Declaration as Exhibit 1 is a true and correct copy of my November 23, 2015 lette

to plaintiff’s counsel and a photocopy of the CD that accompanied that letter

Although in his application plaintiff states that defendants’ November 2015

interrogatory responses were not “meaningful,” plaintiff’s counsel has never raised

any deficiency in defendants’ interrogatory responses and, in his application, doe

not identify any deficiency.

7.

Because plaintiff’s counsel had not prepared a Stipulated Protective

Order, I prepared one and sent it to plaintiff’s counsel on December 3, 2015

However, they did not approve it until several weeks later, and it was then submitted

to the Court and filed on December 28, 2015. The very next day I sent plaintiff’

counsel a hard drive with some 40,000 pages of confidential contracts and financia

information.

8.

In his application, plaintiff complains that the approximately 40,000

pages were not produced until December 29, 2015. Plaintiff omits his own delay in

connection with the Protective Order and omits that the documents produced on



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December 29, 2015 do not relate to the grounds of defendants’ motion for summary

judgment. While defendants’ motion is directed to defects in plaintiff’s claims, the

documents produced December 29, 2015 relate to defendants’ respective revenues

expenses and profits, which become relevant only if summary judgment is not

granted.

9.

In his application, plaintiff also complains that in January 2016

defendants provided supplemental interrogatory responses. However, those

supplemental responses provided the confidential financial information that was no

included in the initial responses because the Protective Order was not yet in place.

note that three of those Supplemental Interrogatory Responses were filed under sea by plaintiff (Doc. 103) and the Court can see that the information is limited to

revenues. Also, plaintiff’s counsel has never suggested that defendants

interrogatory responses were deficient.

10.

Plaintiff advises the Court that “Defendants did not produce any exper

reports, . . .” and that, as a result, “when [defendants’] motion was filed [on February

25, 2016], Plaintiff did not have the benefit of seeing any expert report from the

Defendants.” Application at 2:14-18; Kulik Decl. at 2:11-14. That also is not true

Defendants timely provided initial expert disclosures on February 10, 2016, and

attached to this Declaration as Exhibit 2 is a copy of my February 10, 2016 letter to

plaintiff’s counsel and the first page and proof of service of defendants’ initial exper

disclosures. I also note that a copy of Dr. Ferrara’s Report is attached as Exhibit 1 to

his Declaration filed February 25, 2016 in support of defendants’ motion.

11.

In his application, plaintiff states that “when it was determined tha

many crucial documents had not been produced, Defendants have continued to

produce documents right up until the last two weeks.” Application at 1:21-24. Thi

statement includes no specifics and I assume that plaintiff refers to the fact that when

I received additional documents from a third party to whom I had directed a

///



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subpoena, I immediately – literally within minutes – forwarded them to plaintiff’s

counsel.

12. Plaintiff asserts that his “principal attorney” is Mr. Malofiy, “who is

part of a two-attorney law firm . . . .” Mr. Kulik, however, has been actively

involved in this case and, for example, took the last two depositions before the

discovery cut-off. Based on his firm’s website, Mr. Kulik is a principal of an

eleven-attorney firm. See, http://www.kgslaw.com/attorneys.

13. In reliance on the scheduled dates and Mr. Malofiy’s failure to object or

raise any issue with defendants filing their motion on February 25, 2016 for hearing

on March 28, 2016, I blocked out the week of March 7, 2016 to work on defendantsreply papers for filing March 14, 2016. If plaintiff’s application were to be granted

that would cause a substantial problem for me because two depositions in another

action are set for the week of March 14, 2016 and I would be unable to both attend

or take those depositions and also prepare defendants’ reply papers that same week.

I declare under penalty of perjury that the foregoing is true and correct

Executed on January 28, 2016 in Los Angeles County, California.

/s/ Peter J. AndersonPETER J. ANDERSON



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DECLARATION OF HELENE FREEMAN

I, Helene Freeman, declare and state:

1. I am an attorney admitted to practice before all Courts of the State of

New York and admitted pro hac vice to appear in this action. I have persona

knowledge of the following facts and could competently testify to these facts i

called upon to do so.

2.

I represent defendants James Patrick Page, Robert Plant and John Pau

Jones in this action. This Declaration is submitted in support of their opposition to

the ex parte Application of plaintiff Michael Skidmore for an Order amended this

Court’s Scheduling Order.3. I participated in the February 18, 2016 pre-filing conference call with

plaintiff’s counsel, Francis Malofiy, Esq., and Peter J. Anderson, Esq., and confirm

the statements contained in Mr. Anderson’s Declaration, above.

4.

Moving the scheduled dates would cause substantial problems for my

clients, their other representatives and me.

5. I and other of defendants’ representatives have already purchased

tickets to attend the March 23, 2016 settlement conference with Magistrate Judge

Rosenberg and, in my case, to also attend the March 28, 2016 hearing on

defendants’ motion. The tickets I purchased are non-refundable. Also, if the

settlement conference remains as set and the hearing moved, I would have to trave

across country a second time. In addition, the individual defendants arranged to be

available for the May 10, 2016 trial and moving the trial would be a substantia

hardship for them and others.

I declare under penalty of perjury that the foregoing is true and correc

Executed on March 3, 2016 in New York, New York.

/s/ Helene FreemanHELENE FREEMAN



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Documents

Skidmore v. Led Zeppelin - Def Opp to extension of time for summary judgment.pdf