Emi Document Requests Of Mp3tunes

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK __________________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) MP3TUNES, LLC, ) ) Defendant. ) __________________________________________) CAPITOL RECORDS, LLC; CAROLINE RECORDS, INC.; EMI CHRISTIAN MUSIC GROUP INC.; PRIORITY RECORDS LLC; VIRGIN RECORDS AMERICA, INC.; BEECHWOOD MUSIC CORP.; COLGEMS-EMI MUSIC INC.; EMI APRIL MUSIC INC.; EMI BLACKWOOD MUSIC; EMI FULL KEEL MUSIC; EMI GOLDEN TORCH MUSIC CORP.; EMI LONGITUDE MUSIC; EMI VIRGIN MUSIC, INC.; EMI VIRGIN SONGS, INC.,

No. 07 Civ. 9931 (WHP)

EMI’S DOCUMENT REQUESTS

Pursuant to Federal Rule of Civil Procedure 34, Plaintiffs (collectively “EMI”) serve these Requests for Production of Documents on Defendant MP3tunes, LLC, responses to be fully made within thirty (30) days of service or upon a date set by the Court. Pursuant to Federal Rule of Civil Procedure 26(e), these Requests are continuing in nature and may require supplementation. DEFINITIONS AND INSTRUCTIONS 1.

“MP3tunes” refers to MP3tunes, LLC, as well as any of MP3tunes, LLC’s

corporate affiliates, predecessors, predecessors of corporate affiliates, officers, directors, employees, agents, representatives, servants, counsel, employees, consultants, and persons authorized to act, acting, or purporting to act on its behalf. 2.

“You” and “your” refer to MP3tunes as defined above.

3.

The term “MP3tunes.com” means the website accessible at www.mp3tunes.com,

including all content, databases, and software that comprise the site and backend operations, and support, enable, and provide its full range of features and functions, including to users and administrators, and all server hardware on which said content, databases, and software reside. 4.

The term “Sideload.com” means the website accessible at www.sideload.com,

including all content, databases, and software that comprise the site and backend operations, and support, enable, and provide its full range of features and functions, including to users and administrators, and all server hardware on which said content, databases, and software reside. 5.

The term “MP3tunes websites” means MP3tunes.com and Sideload.com.

6.

The term “MP3tunes software” means the software made available on

MP3tunes.com or Sideload.com, including all versions of LockerSync and all components of the Oboe Software Suite. 7.

The term “MP3tunes services” includes MP3tunes.com, Sideload.com, the

MP3tunes websites, MP3tunes software, as well as any other services provided to users by MP3tunes. 8.

The term “Ownership Entities” includes Michael Robertson, the Burcham

Community Property Trust, Emily Richards, the SKL Trust, David Buzby, the MP3tunes, LLC Employee ESOP Plan, the Robertson Descendants Irrevocable Trust, Douglas Reese, and Linspire, Inc. 9.

“EMI” includes EMI Group, PLC; EMI Group North America, Inc.; EMI Group

North America Holdings Inc.; EMI Music North America, LLC; EMI Music North America; EMI Entertainment World, Inc.; Capitol Records, LLC; Caroline Records, Inc.; EMI Christian Music Group Inc.; Priority Records LLC; Virgin Records America, Inc.; Beechwood Music Corp.; Colgems-EMI Music Inc.; EMI April Music Inc.; EMI Blackwood Music; EMI Full Keel Music; EMI Golden Torch Music Corp.; EMI Longitude Music; EMI Virgin Music, Inc.; EMI Virgin Songs, Inc.; and any entity whose ultimate parent is EMI Group Limited. 10.

The present tense shall be construed to include the past tense and the past tense

shall be construed to include the present tense as required by the context to elicit all information discoverable within the broadest scope of these document requests. 11.

The term “concerning” means relating to, referring to, describing, evidencing or

constituting.

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12.

The terms “all” and “each” shall be construed as all and each.

13.

The connectives “and” and “or” shall be construed either disjunctively or

conjunctively as necessary to bring within the scope of the discovery request all responses that might otherwise be construed to be outside of its scope. 14.

The use of the singular form of any word includes the plural and vice versa.

15.

“Communication(s)” means the transmittal of information by any means and

includes communication of any kind, whether written, oral, electronic or other. 16.

“Documents” includes every writing, recording, or record in any form, whether

handwritten, printed, typed, taped, or in any other graphic, digital, magnetic, optical, or mechanical form, however produced, reproduced, or recorded, and should be construed to be synonymous in meaning and scope to the usage of this term in Federal Rule of Civil Procedure 34(a). The term includes, without limitation, all memoranda, reports, data, correspondence, blog postings, phone messages, diaries, logs, notes, bills, invoices, checks, receipts, and e-mail messages, including those within the personal or private possession, custody, or control of MP3tunes, including any officer, director, employee, agent, or individual, as specified in the definition of “MP3tunes” above. The term also includes, without limitation, any data compilations from which information can be obtained, and if necessary, translated into usable form through the use of any machine, device, or equipment, whether or not sent, received, or otherwise transmitted. The term also includes, with limitation, every draft of a document, and any copy that is not identical in each and every respect to the original or another copy. 17.

“Server logs” means logs, log files, log reports, or other similar documents that in

any matter collect, compile, or analyze data (including usage data) relating to functions or services performed by any software program that provides network-based services. 18.

“User Files” means files that users seek to have stored using MP3tunes’ services.

19.

The term “including” shall be construed to mean “including without limitation.”

20.

To the extent that any of these requests require you to reveal the identities of

users, user street addresses (except for city and state information), user e-mail addresses, or user credit card information, please replace that user information with an identifier that, while insufficient to identify the actual identity of the user, is consistently applied and is sufficient to identify other instances of that user’s information in other documents produced in response to this request.

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21.

With respect to Request No. 9, based on Defendant’s previous representations

concerning the volume of digital music files stored using MP3tunes’ services, Plaintiffs are prepared to work with Defendant to arrange for copying of all, or an appropriate sample of, the responsive information, or to arrange for an appropriate physical inspection. 22.

To the extent documents are maintained in electronic formats, this request calls

for production in electronic format. Documents maintained in electronic formats should be produced in their native formats as they currently exist on your storage media and devices. 23.

Source code should be produced in electronic format, in regular tool readable

format and include all ancillary files – such as project files, makefiles, header files, and thirdparty library code (whether in source or compiled form) – necessary to build working versions of the full applications. 24.

If any of the documents requested herein has been lost or destroyed: (a) provide a

written statement, in lieu of each such lost or destroyed document, that describes in detail the nature of the document and its contents, identifies the author and recipient(s) of the document, specifies the date on which the document was prepared or transmitted or both, and if possible specifies the date on which the document was lost or destroyed, the reasons for loss or destruction, and the individuals with knowledge of such loss or destruction; and (b) provide any documents existing at the time of such loss or destruction setting forth or reflecting any policy or procedure then in effect for destruction or retention of documents. 25.

Documents sought in this request include documents currently or previously

within the knowledge, possession, or control of MP3tunes, as well as those documents which come into the possession of MP3tunes subsequent to service hereof. Each of the following document requests is continuing in nature and EMI hereby requests that if you obtain or create any additional responsive documents at any later date, you promptly so inform EMI and produce those documents. 26.

If any document is not produced on the basis of a claim of privilege or for any

other reason, identify the document with particularity, including without limitation the author(s), any recipient(s), any other individual or entity to whom the document has been shown or transmitted, any other individual or entity with whom the document has been discussed, the number of pages, attachments, and appendices, the date of the document, a description of the subject matter sufficient to form the basis of a claimed privilege and to uniquely identify the

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document, and a short statement of the nature of the claimed privilege or reason for withholding production. For each individual or entity identified in conjunction with a claim of privilege, provide information relating to the relationship between MP3tunes and the individual and entity. 27.

If a document is in the possession of a person or entity other than one over whom

you have no control, (a) set forth whether and when the document was in your possession or otherwise how you became aware of the document; (b) set forth the reason(s) why the document is no longer in your possession; and (c) identify the individual or entity which is presently in possession of the document. 28.

You are required to provide separate responses to all of the following document

requests. 29.

When any request calls for the production of any portion of any document, the

entire document containing any such portion must be produced. 30.

Unless otherwise specified, this document request seeks documents prepared,

generated, duplicated, communicated, distributed or transmitted on or after January 1, 2005. REQUESTS FOR PRODUCTION OF DOCUMENTS 1.

Provide all Documents concerning any arrangements, relationships, contracts or

agreements between MP3tunes and (i) Internet service providers or entities providing any online, Internet, or web-related services; (ii) advertising placement companies or companies that otherwise arrange or facilitate advertising on or for MP3tunes; (iii) business or technical consultants; (iv) and any companies that assist in the marketing, promotion, or branding of MP3tunes, including public relations or marketing companies. Include all communications, agreements, and draft agreements with any such individuals or entities. 2.

Provide all Documents concerning any agreements or communications with any

person or entity with whom you have had any agreement to share revenue, strategic partnership agreement, joint venture, or any other arrangement related to MP3tunes, by which you expect to or may receive revenues, or through which expenses or development efforts are or may be shared, including but not limited to Nokia, Logitech, Reciba, Chumby, NOXON, Tivo, and Ripshark, including all Documents concerning any financial arrangements between you and such persons or entities. 3.

Provide all Documents concerning your communications or agreements with any

banks, venture capitalists, investors, or persons or entities providing any capital, funds or

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financing, related to MP3tunes, whether or not you actually obtained any such capital, funds, or financing. 4.

Provide all Documents related to MP3tunes’ management structures, including

but not limited to organizational charts, job descriptions, and job announcements. 5.

Provide all Documents concerning MP3tunes’ document management policies

and practices, including but not limited to any document retention or destruction policies or litigation holds. 6.

Provide all versions of all software (in all available forms, including source code,

object code, executable code, server-side scripts, and web page code) for MP3tunes.com, Sideload.com, their backend operations, MP3tunes software, and the storage of user files by MP3tunes, including but not limited to software kept in escrow by counsel under court order, software maintained or used by MP3tunes since any escrowed version was provided to counsel, as well as any historical versions of any such software, and complete copies of any source code repository. 7.

Provide copies of the portions of the MP3tunes software (in all available forms,

including source code, object code, executable code, server-side scripts, and web page code) sufficient to understand how the MP3tunes websites treats files uploaded to the MP3tunes websites that are MD5 hash duplicates of files already stored on the MP3tunes websites, including historical versions of any such software. 8.

Provide all Documents and databases that identify the files that have been made

available, searched for, sideloaded, streamed, stored, or downloaded using MP3tunes.com or Sideload.com, including but not limited to Documents and database records that, consistent with Instruction No. 20, identify the users who have made available, searched for, sideloaded, streamed, stored or downloaded such files. 9.

Provide, consistent with Instruction No. 21, all copies of each digital music file,

and any metadata associated with such files, stored using MP3tunes’ services. 10.

Provide all Documents concerning database schema and the design of any

database, including but not limited to Documents sufficient to identify any table headers, fields, and relationships between or among different databases (e.g. if a MySQL database is used, provide the results of a “mysqldump” command with arguments necessary to provide the database schema).

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11.

Provide, consistent with Instruction No. 20, the contents of the database table(s)

that contain User names and information, as well as the listing of the contents of each User’s online locker (e.g. if a MySQL table is used and the table name is “users” then provide the results of the command “select * from users” with the arguments required to provide the contents of that table). 12.

Provide all Documents that depict the network arrangement of, list, or describe

the servers, storage, and any other devices that function as part of MP3tunes’ services, including but not limited to network schematics, diagrams, and documents that identify internal and external IP addresses and DNS names of such devices. 13.

Provide digital copies of each file stored using MP3tunes’ services that

corresponds to a sound recording identified on Exhibits A-C of Plaintiffs’ Complaint. 14.

Provide all Documents concerning the functionality, development, and operation

of MP3tunes’ storage of User Files; sideload feature; and streaming, play, download, and lockersync features. 15.

Provide all communications from or to Michael Robertson, Emily Richards, Mark

Wooten, or Doug Reese concerning the functionality, structure, operations, or source code of MP3tunes. 16.

Provide all Documents concerning the content on the MP3tunes.com and

Sideload.com websites and the web pages comprising those websites, including but not limited to all historical versions of such content. 17.

Provide all Documents concerning MP3tunes’ ability, capacity, and methods for

storing User Files, including but not limited to information relating to the number, type, and capacity of servers used for such purpose; receipts, purchase orders, or maintenance records relating to such servers or storage capacity; and analyses or communications regarding MP3tunes storage needs. 18.

Provide all Documents, software, and customizations to software sufficient to

cause data, communications, and postings previously produced concerning MP3tunes’ forums and help ticket items to be displayed in the form in which such data, communications, and postings are ordinarily displayed. 19.

Provide all Documents concerning efforts made or mechanisms used to review,

classify, categorize, control, restrict and/or filter the files made available, searched for,

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sideloaded, streamed, stored, or downloaded on MP3tunes.com or Sideload.com, including but not limited to any effort made or mechanism used by you to identify the content of the files. 20.

Provide all Documents concerning files that have been removed or to which

access has been disabled from MP3tunes.com or Sideload.com, including but not limited to any communications regarding such removals or disabling and policies, procedures, or practices regarding removing or disabling access to files. 21.

Provide all Documents concerning the feasibility or use of technical means

(including but not limited to “filtering”) to prevent users of MP3tunes.com or Sideload.com from making available, searching for, sideloading, streaming, storing, or downloading any file. 22.

Provide Documents sufficient to show the persons who wrote any of the code for,

or otherwise performed technical tasks toward the creation of, any version of MP3tunes.com, Sideload.com, or MP3tunes software. 23.

Provide all Documents concerning the number of users of MP3tunes.com or

Sideload.com on a daily and monthly basis, including historical records and future projections. 24.

Provide all Documents concerning the works available on, and artists whose

works are available on, MP3tunes.com or Sideload.com on a daily and monthly basis, including historical records and future projections. 25.

Provide, consistent with Instruction No. 20, all Documents concerning users and

members of MP3tunes.com or Sideload.com, including but not limited to Documents concerning individual users and members and any user accounts, users’ lists of files, and user lookup tables. 26.

Provide all Documents concerning communications or agreements with Users

related to MP3tunes.com, Sideload.com, or MP3tunes software, including but not limited to (a) all e-mails, telephone calls, communications, or other Documents from or to users (including “help” emails), and (b) all Documents concerning user registrations or logins. 27.

Provide all Documents concerning revenue, income or other valuable

consideration that you or the Ownership Entities have received or anticipate receiving in relation to MP3tunes.com, Sideload.com, or MP3tunes software. 28.

Provide all Documents concerning MP3tunes’ employment of Emily Richards

and Doug Reese, including but not limited to personnel files.

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29.

Provide all Documents concerning the financial books and records, including but

not limited to general ledgers, accounts receivable and payable, income ledgers, and balance sheets, for MP3tunes. 30.

Provide all Documents concerning marketing, advertising, or promotional efforts,

plans, or proposals, related to MP3tunes.com, Sideload.com, or MP3tunes software, including but not limited to Documents concerning target audiences and target media. 31.

Provide all Documents concerning business plans related to MP3tunes.com,

Sideload.com, or MP3tunes software, including but not limited to Documents concerning revenue projections, projections of revenue sources, MP3 technology, and the music industry. 32.

Provide all Documents concerning any content that has been authorized and/or

licensed for dissemination via MP3tunes’ services, any content that has been the subject of negotiations to authorize and/or license content for dissemination via MP3tunes.com or Sideload.com, and any consideration or efforts to obtain licenses for any content distributed via MP3tunes.com or Sideload.com, including but not limited to any communications concerning such licensing. 33.

Provide all Documents reflecting use of MP3tunes.com or Sideload.com by your

employees, officers or directors, using office or personal computers, including but not limited to Documents sufficient to identify any copyrighted works that such personnel have made available, searched for, sideloaded, streamed, stored, or downloaded via MP3tunes.com or Sideload.com. 34.

Provide all communications between MP3tunes and former employees of

MP3tunes. 35.

Provide Documents sufficient to show the registered DMCA agent for

MP3tunes.com and Sideload.com at all times since each site’s inception. 36.

Provide Documents, including but not limited to internal communications and

records, concerning allegations of copyright infringement occurring by virtue of MP3tunes.com or Sideload.com, including Documents concerning notices of copyright infringement received by you, and any and all actions taken by you to stop copyright infringement occurring on MP3tunes.com or Sideload.com. 37.

Provide all versions of any copyright policy posted on the MP3tunes.com or

Sideload.com websites or otherwise communicated to any user of those sites.

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38.

Provide all Documents related to your communications concerning MP3tunes

with the Ownership Entities. 39.

Provide all Documents concerning MP3tunes’ operation as a corporation,

including but not limited to: a.

All copies of any charter, by-laws or the equivalent;

b.

All board meeting minutes and drafts thereof;

c.

All corporate resolutions and formalities;

d.

Any corporate filings;

e.

Bank account information;

f.

Any transfer between MP3tunes and any of the Ownership Entities,

whether cash, assets, equipment, intellectual property, accounts receivable, debts, liabilities, accounts payable, or otherwise, and whether direct or indirect;

40.

g.

Any transactions between any of the entities;

h.

Payments to employees, investors, shareholders, and third parties; and

i.

Tax returns and financial statements.

For MP3tunes and each of the Ownership Entities, provide Documents sufficient

to show or identify: a.

The officers, directors, employees, or other agents of any entity who

perform any work for any other entity; b.

Whether any officer, director employee, or other agent of any entity is an

officer, director, employee of other agent of any other entity; c.

Any common ownership of or among two or more entities, including but

not limited to Documents reflecting any shareholder or other owner of one entity also being a shareholder or other owner of another entity; and d.

Any property (including but not limited to real property, bank accounts,

office equipment, and/or computer equipment) owned or otherwise held jointly by two or more entities. 41.

Provide all Documents that you relied upon in responding to any of Plaintiffs’

Interrogatories. Dated: October 27, 2008

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Respectfully submitted, JENNER & BLOCK LLP

Andrew H. Bart ANDREW H. BART (Bar No. AB-6724) JENNER & BLOCK LLP 919 Third Avenue, 37th Floor New York, NY 10022 Telephone: (212)891-1600 Facsimile: (212) 891-1699 STEVEN B. FABRIZIO (Bar No. SF-8639) BRIAN HAUCK (pro hac vice) JENNER & BLOCK LLP 601 Thirteenth St., NW Suite 1200S Washington, DC 20005 Telephone: (202) 639-6000 Facsimile: (202) 639-6066 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on October 27, 2008,1 served the foregoing document on the following individuals by electronic mail and facsimile: Edward M. Cramp DUANE MORRIS LLP 101 West Broadway, Suite 900 San Diego, CA 92101 Gregory P. Gulia DUANE MORRIS LLP 1540 Broadway New York, NY 10036

Brian Hauck