Defendant's Brief Re Discovery Plan
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Case 1:03-cv-11661-NG
Document 731
Filed 01/15/2009
Page 1 of 5
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS __________________________________________ ) CAPITOL RECORDS, INC. et al., ) ) Civ. Act. No. 03-cv-11661-NG Plaintiffs, ) (LEAD DOCKET NUMBER) ) v. ) ) NOOR ALAUJAN, ) ) Defendant. ) ___________________________________________) __________________________________________ ) SONY BMG MUSIC ENTERTAINMENT, et al. ) ) Civ. Act. No. 07-cv-11446-NG Plaintiffs, ) (ORIGINAL DOCKET NUMBER) ) v. ) ) JOEL TENENBAUM ) ) Defendant. ) ___________________________________________) DEFENDANT’S RESPONSE TO PLAINTIFFS’ RESPONSE TO DEFENDANT’S DISCOVERY PLAN
On November 18, 2008, the Court ordered Defendant to confer with Plaintiffs and submit a discovery plan. Defendant made a good faith effort to confer with Plaintiffs to identify areas of agreement and disagreement. (Ex. A.) Defendant requested Plaintiffs’ consent to record the conference in order to record the discussion. Plaintiffs refused to allow an audio recording of the conference and accordingly the parties did not verbally confer on the substance of Defendant’s discovery plan. Defendant further attempted to confer with Plaintiffs via email. (Ex. A, at 6.)
Case 1:03-cv-11661-NG
Document 731
Filed 01/15/2009
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Plaintiffs did not respond. In an attempt to assist the Court in identifying areas of agreement between the parties, Defendant submits this response. Defendant regrets that Plaintiffs find his plan “woefully inadequate.” (Doc. No. 707, at 2.) This is particularly surprising in view of the apparent substantial agreement between the parties. I.
Defendant’s responses to Plaintiffs’ Objections Plaintiffs objections (Doc. No. 707) are largely objections in form rather than substance. a.
Plaintiffs purport to object to “limiting the scheduling of depositions to February
2009” and assert that remaining depositions should be scheduled at convenient times prior to a discovery cut-off date set by the Court. Defendant has no intention of conducting discovery after an as yet undetermined Court ordered deadline. Instead, Defendant was proposing that the end of February (i.e., February 28) would be an appropriate tentative deadline for completion of depositions. b.
Plaintiffs object to “any effort by Defendant to re-depose any witnesses who have
already been deposed.”
Defendant has not yet deposed any opposing witness and does not
understand the purpose of this objection. c.
Plaintiff again objects to discovery beyond an as yet undetermined Court ordered
deadline. As stated above, Defendant has no intention of violating any Court determined deadline for conducting discovery. Information gleaned from these depositions may suggest additional appropriate discovery requests. d.
Defendant is confused by Plaintiffs’ objection that insists on a hard — and quite
immediate — December 15 deadline for expert reports. There is no reason why Defendant should be forced to submit expert reports when the parties are unsure of the issues to be tried in this case.
Case 1:03-cv-11661-NG
Document 731
Filed 01/15/2009
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Any decision regarding deadlines for expert reports should be stayed until the January 22, 2009 omnibus hearing. In any event, with the trial date postponed until March 30, 2009, there is no need for Defendant to be preoccupied with preparing expert reports when his central focus is on his counterclaim, his constitutional arguments, and his motion for joinder of RIAA, each of which requires considerable work with limited resources in preparation for the omnibus hearing. II.
Discovery that can proceed immediately in advance of the January 22, 2009 hearing Plaintiffs did not object to Defendants’ proposal to depose Matthew Oppenheim before
January 22, 2009. Accordingly, Defendant intends to arrange a mutually convenient time, provide notice, and conduct the deposition in due course.
CONCLUSION The Court should allow discovery to proceed in accordance with Defendant’s discovery plan, with such further changes as the Court deems appropriate.
Dated: December 4, 2008 Leave to file granted: January 15, 2009 Respectfully submitted, /s/ Charles R. Nesson______________ Charles R. Nesson 1575 Massachusetts Avenue Cambridge, MA 02138 E-mail: [email protected] Telephone: (617) 495-4609 ATTORNEY FOR DEFENDANT
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CERTIFICATE OF SERVICE I, Charles Nesson, hereby certify that on January 15, 2009, a true copy of the above document will be served, via first class mail and e-mail, on counsel for Plaintiffs at the addresses below. /s/ Charles R. Nesson______________ Charles R. Nesson 1575 Massachusetts Avenue Cambridge, MA 02138 E-mail: [email protected] Telephone: (617) 495-4609 ATTORNEY FOR DEFENDANT Claire E. Newton Robinson & Cole LLP One Boston Place Suite 2500 Boston, MA 02108 617-557-5900 Fax: 617-557-5999 Email: [email protected] Eve G. Burton Holme Roberts & Owen LLP Suite 4100 1700 Lincoln Street Denver, CO 80203-4541 303-866-0551 Email: [email protected] John R. Bauer Robinson & Cole LLP One Boston Place, 25th Floor Boston, MA 02108 617-557-5900 Fax: 617-557-5999 Email: [email protected] Laurie Rust Holme Roberts & Owen LLP
Case 1:03-cv-11661-NG
Suite 4100 1700 Lincoln Street Denver, CO 80203-4541 Nancy M. Cremins Robinson & Cole LLP One Boston Place Boston, MA 02108-4404 617-557-5971 Fax: 617-557-5999 Email: [email protected] Timothy M. Reynolds Holme Roberts & Owen LLP 1801 13th Street Suite 300 Boulder, CO 80302 393-861-7000 Email: [email protected]
Document 731
Filed 01/15/2009
Page 5 of 5
Document 731
Filed 01/15/2009
Page 1 of 5
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS __________________________________________ ) CAPITOL RECORDS, INC. et al., ) ) Civ. Act. No. 03-cv-11661-NG Plaintiffs, ) (LEAD DOCKET NUMBER) ) v. ) ) NOOR ALAUJAN, ) ) Defendant. ) ___________________________________________) __________________________________________ ) SONY BMG MUSIC ENTERTAINMENT, et al. ) ) Civ. Act. No. 07-cv-11446-NG Plaintiffs, ) (ORIGINAL DOCKET NUMBER) ) v. ) ) JOEL TENENBAUM ) ) Defendant. ) ___________________________________________) DEFENDANT’S RESPONSE TO PLAINTIFFS’ RESPONSE TO DEFENDANT’S DISCOVERY PLAN
On November 18, 2008, the Court ordered Defendant to confer with Plaintiffs and submit a discovery plan. Defendant made a good faith effort to confer with Plaintiffs to identify areas of agreement and disagreement. (Ex. A.) Defendant requested Plaintiffs’ consent to record the conference in order to record the discussion. Plaintiffs refused to allow an audio recording of the conference and accordingly the parties did not verbally confer on the substance of Defendant’s discovery plan. Defendant further attempted to confer with Plaintiffs via email. (Ex. A, at 6.)
Case 1:03-cv-11661-NG
Document 731
Filed 01/15/2009
Page 2 of 5
Plaintiffs did not respond. In an attempt to assist the Court in identifying areas of agreement between the parties, Defendant submits this response. Defendant regrets that Plaintiffs find his plan “woefully inadequate.” (Doc. No. 707, at 2.) This is particularly surprising in view of the apparent substantial agreement between the parties. I.
Defendant’s responses to Plaintiffs’ Objections Plaintiffs objections (Doc. No. 707) are largely objections in form rather than substance. a.
Plaintiffs purport to object to “limiting the scheduling of depositions to February
2009” and assert that remaining depositions should be scheduled at convenient times prior to a discovery cut-off date set by the Court. Defendant has no intention of conducting discovery after an as yet undetermined Court ordered deadline. Instead, Defendant was proposing that the end of February (i.e., February 28) would be an appropriate tentative deadline for completion of depositions. b.
Plaintiffs object to “any effort by Defendant to re-depose any witnesses who have
already been deposed.”
Defendant has not yet deposed any opposing witness and does not
understand the purpose of this objection. c.
Plaintiff again objects to discovery beyond an as yet undetermined Court ordered
deadline. As stated above, Defendant has no intention of violating any Court determined deadline for conducting discovery. Information gleaned from these depositions may suggest additional appropriate discovery requests. d.
Defendant is confused by Plaintiffs’ objection that insists on a hard — and quite
immediate — December 15 deadline for expert reports. There is no reason why Defendant should be forced to submit expert reports when the parties are unsure of the issues to be tried in this case.
Case 1:03-cv-11661-NG
Document 731
Filed 01/15/2009
Page 3 of 5
Any decision regarding deadlines for expert reports should be stayed until the January 22, 2009 omnibus hearing. In any event, with the trial date postponed until March 30, 2009, there is no need for Defendant to be preoccupied with preparing expert reports when his central focus is on his counterclaim, his constitutional arguments, and his motion for joinder of RIAA, each of which requires considerable work with limited resources in preparation for the omnibus hearing. II.
Discovery that can proceed immediately in advance of the January 22, 2009 hearing Plaintiffs did not object to Defendants’ proposal to depose Matthew Oppenheim before
January 22, 2009. Accordingly, Defendant intends to arrange a mutually convenient time, provide notice, and conduct the deposition in due course.
CONCLUSION The Court should allow discovery to proceed in accordance with Defendant’s discovery plan, with such further changes as the Court deems appropriate.
Dated: December 4, 2008 Leave to file granted: January 15, 2009 Respectfully submitted, /s/ Charles R. Nesson______________ Charles R. Nesson 1575 Massachusetts Avenue Cambridge, MA 02138 E-mail: [email protected] Telephone: (617) 495-4609 ATTORNEY FOR DEFENDANT
Case 1:03-cv-11661-NG
Document 731
Filed 01/15/2009
Page 4 of 5
CERTIFICATE OF SERVICE I, Charles Nesson, hereby certify that on January 15, 2009, a true copy of the above document will be served, via first class mail and e-mail, on counsel for Plaintiffs at the addresses below. /s/ Charles R. Nesson______________ Charles R. Nesson 1575 Massachusetts Avenue Cambridge, MA 02138 E-mail: [email protected] Telephone: (617) 495-4609 ATTORNEY FOR DEFENDANT Claire E. Newton Robinson & Cole LLP One Boston Place Suite 2500 Boston, MA 02108 617-557-5900 Fax: 617-557-5999 Email: [email protected] Eve G. Burton Holme Roberts & Owen LLP Suite 4100 1700 Lincoln Street Denver, CO 80203-4541 303-866-0551 Email: [email protected] John R. Bauer Robinson & Cole LLP One Boston Place, 25th Floor Boston, MA 02108 617-557-5900 Fax: 617-557-5999 Email: [email protected] Laurie Rust Holme Roberts & Owen LLP
Case 1:03-cv-11661-NG
Suite 4100 1700 Lincoln Street Denver, CO 80203-4541 Nancy M. Cremins Robinson & Cole LLP One Boston Place Boston, MA 02108-4404 617-557-5971 Fax: 617-557-5999 Email: [email protected] Timothy M. Reynolds Holme Roberts & Owen LLP 1801 13th Street Suite 300 Boulder, CO 80302 393-861-7000 Email: [email protected]
Document 731
Filed 01/15/2009
Page 5 of 5
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