declaration of francis malofiy in support of plaintiff’s motion for sanctions and to preclude dr....

7/26/2019 Declaration of Francis Malofiy in Support of Plaintiffs Motion for Sanctions and to Preclude Dr. Ferrara From Testify

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DECL. OF F. MALOFIY MOTION IN SUPPORT OF MOTION FOR SANCTIONS AND TOPRECLUDE DR. LAWRENCE FERRARA FROM TESTIFYING AT TRIAL

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Francis Malofiy, Esq.Francis Alexander, LLC280 N. Providence Rd. | Suite 105Media, PA 19063T: (215) 500-1000; F: (215) 500-1005

E: [email protected] for Plaintiff

Glen L. Kulik, Esq. (SBN 082170)Kulik Gottesman & Siegel LLP15303 Ventura Blvd., Suite 1400Sherman Oaks, CA 91403T: (310) 557-9200; F: (310) 557-0224E: [email protected]

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

MICHAEL SKIDMORE, as Trustee forthe RANDY CRAIG WOLFE TRUST,

Plaintiff,

v.

LED ZEPPELIN; JAMES PATRICKPAGE; ROBERT ANTHONY PLANT;JOHN PAUL JONES; SUPER HYPEPUBLISHING, INC.; WARNER MUSICGROUP CORP., Parent ofWARNER/CHAPPELL MUSIC, INC.;ATLANTIC RECORDING

CORPORATION; RHINOENTERTAINMENT COMPANY,

Defendants.

Case No. 15-cv-03462 RGK (AGRx)

Hon. R. Gary Klausner

DECLARATION OF FRANCIS

MALOFIY IN SUPPORT OF

PLAINTIFFS MOTION FOR

SANCTIONS AND TO PRECLUDE

DR. FERRARA FROM

TESTIFYING AT TRIAL

Filed concurrently with Motion; and[Proposed] Order

Trial Date: June 14, 2016Time: 9:00 a.m.Courtroom: 850

Case 2:15-cv-03462-RGK-AGR Document 230-1 Filed 06/11/16 Page 1 of 157 Page ID#:6126


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DECL. OF F. MALOFIY MOTION IN SUPPORT OF MOTION FOR SANCTIONS AND TO

PRECLUDE DR. LAWRENCE FERRARA FROM TESTIFYING AT TRIAL

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I, Francis Malofiy, declare:

1.

I am an attorney in the law firm of Francis Alexander, LLC, and

represent Plaintiff Michael Skidmore, as Trustee for the Randy Craig Wolfe Trust

the above-captioned matter. I have personal knowledge of the facts recited belowand, if called as a witness, I could and would testify competently to the fac

contained in this declaration.

2. On May 27, 2016, Plaintiff deposed Defendants lead musicologic

expert, Dr. Lawrence Ferrara. Attached as Exhibit 1 is a full and accurate transcrip

of that deposition.

3.

During that deposition it was revealed that Dr. Ferrara had previous

analyzed the sound recording of Taurus as compared to the sound recording o

Stairway to Heaven in 2013 for Rondor Music, a subsidiary of Universal Mus

Publishing Group.

4. Based on filings that Universal Music Publishing Group made wi

Copyright Office in 2013 on behalf of Hollenbeck Music with respect to the Tauru

copyright (attached as Exhibit 2), it is believed that Dr. Ferrara analyzed Taurus an

Stairway to Heaven for Hollenbeck Music.5. Never at any point, until Plaintiffs counsel sedulously had to pull it o

of Dr. Ferrara, was this conflict disclosed, nor was this highly relevant prior analys

of the songs in question. During the deposition defense counsel feigned ignorance

to who had hired Dr. Ferrara, despite having extensive contacts with Rondor.

6. Discovery requests for this information were made by Plaintiff durin

discovery (attached as Exhibits 3 and 4), and also in the subpoena for Dr. Ferrara

deposition (attached as Exhibit 5). This information and conflict should also hav

been disclosed pursuant to Rule 26, as Dr. Ferrara considered it in coming to h

opinions and conclusion.

7. Universal Music, Rondor Music, and Hollenbeck administer the Tauru

copyright on behalf of Plaintiff. Hollenbeck Music is a fiduciary for Plaintiff, an



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owes it a duty of the utmost good faith and affirmative disclosure, and also owes

an implied covenant of good faith and fair dealing.

8.

During the deposition of Dr. Ferrara it became apparent th

Hollenbeck has been secretly working with Defendants for years. Hollenbeck waexplicitly noticed of the suit by Plaintiff in 2014 (attached as Exhibit 6).

9. This cooperation with Defendants has manifested itself in two ma

ways, both attempts to undermine Plaintiffs case. As Hollenbeck is a fiduciary o

Plaintiff, something which both defense counsel are well aware, this is high

improper.

10.

First, Hollenbeck and Defendants knew from the beginning of this cas

that Dr. Ferrara was conflicted from serving as an expert for Defendants b

deliberately concealed this fact from Plaintiff. Defendants absurdly claimed that the

had waived the conflict by obtaining permission from Rondor to use Dr. Ferrara. N

such waiver could come from Rondor, Hollenbeck, or Defendantsany conflict ha

to be waived by Plaintiff.

11.

Second, Hollenbeck by and through Universal Music Publishing Grou

attempted to file copyright registration corrections to the Taurus copyright iFebruary 2016, after discovery closed but immediately before Defendants motio

for summary judgment was due. Hollenbecks correction was to erroneously asse

to the Copyright Office that Taurus was a work for hire. This was nothing less than

deliberate and blatant attempt to defeat Plaintiffs lawsuit, an egregious breach o

Hollenbecks fiduciary duties. It was also illegal under 17 USC 506(e).

12.

In addition, the correction to a copyright under litigationapparently

the behest of Defendantswas false, as Taurus is not a work for hire. After th

argument was denied at summary judgment, Defendants have told the Court they a

completely abandoning it.

13. Prior to Dr. Ferraras deposition, Plaintiff had no evidence Defendan

was working with Hollenbeck against Plaintiff. It is, however, apparent followin



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Dr. Ferraras deposition that both Defendants and Hollenbeck (by and throug

Universal Music Publishing) have been working together to defeat Plaintiff

copyright action. This is highly improper.

14.

There is no practical way at this late hour to cure the prejudice Plaintihas suffered due to the late disclosure. This warrants the preclusion of Dr. Ferrara,

at a minimum the jury be instructed that they may draw a negative inference h

failure to disclose his prior analysis indicates that it would have been harmful

Defendants case.

15.

Sanctions are also warranted under section 1927, for the bad fai

multiplication of proceedings, and also under the Courts inherent powers. Plainti

expended a good deal of money deposing Dr. Ferrara, including paying for his tim

However, Defendants were concealing the fact that Dr. Ferrara has a major confli

which prevents him from serving as an expert in this case. Defendants als

necessitated a re-deposition of Dr. Ferrara because, in bad faith, they lodge

frivolous objections and refused to allow Dr. Ferrara to answer highly releva

questions. The cost and expense for Dr. Ferraras deposition should be borne b

Defendants.16. Plaintiff and his counsel reaffirm that they had no idea that Dr. Ferra

worked for Hollenbeck Music, Rondor Music, or Universal Music Publishin

Group, and furthermore had no idea that Defendants were actively conspiring wit

Plaintiffs own publisher and fiduciary against him.

I declare under penalty of perjury under the laws of the United States o

America that the foregoing is true and correct.

Executed this 11th day of June, 2016 at Los Angeles, California.

/s/ Francis AlexanderFrancis Malofiy



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Exhibit 1



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CONFI DENTI AL

1. 877. GO. DEPOSZANARAS REPORTI NG & VI DEO

1 (Pages 1 t o 4)

Page 1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

- - - - - - - - - - - - - - - - - - x

MICHAEL SKIDMORE, as Trustee for :

the Randy Craig Wolfe Trust,

: CONFIDENTIAL

Plaintiff,

:

-against- : Case No.

2:15-cv-03462

LED ZEPPELIN, JAMES PATRICK PAGE, : RGK (AGR)

ROBERT ANTHONY PLANT, JOHN PAUL

JONES, SUPER HYPE PUBLISHING, INC., :

WARNER/CHAPPELL MUSIC, INC.,

ATLANTIC RECORDING CORPORATION, :

RHINO ENTERTAINMENT COMPANY,

:

Defendants.

:

- - - - - - - - - - - - - - - - - - x

C O N F I D E N T I A L

VIDEOTAPED DEPOSITION of LAWRENCE FERRARA,

Ph.D., taken by Plaintiff at the offices of Fink &

Carney Reporting and Video Services, 39 West 37th

Street, New York, New York 10018, on Friday, May

27, 2016, commencing at 4:21 o'clock p.m., before

Carol Mele and Linda A. Marino, Registered

Professional Shorthand (Stenotype) Reporters and

Notaries Public within and for the State of New

York.

Page 2

12 A P P E A R A N C E S:3 FRANCIS ALEXANDER LLC

Attorneys for Plaintiff4 280 N. Providence Road, Ste. 105

Media, Pennsylvania 190635

BY: FRANCIS ALEXANDER MALOFIY, Esq.

6 Tel. (215) 500-1000 [email protected]

78

PHILLIPS NIZER LLP9 Attorneys for James Patrick

Paige and Robert Plant10 666 Fifth Avenue

New York, New York 1010311

BY: HELENE M. FREEMAN, Esq.12 Tel. (212) 977-9700

[email protected]

-and-14

LAW OFFICES OF PETER J. ANDERSON15 Attorneys for James Patrick

Paige, Robert Plant, Warner/Chappell16 Music, Inc., Rhino Entertainment

Corporation and Atlantic Recording17 Corp.

100 Wilshire Boulevard, Ste. 201018 Santa Monica, California 9040119 BY: PETER J. ANDERSON, Esq.

Tel. (310) 260-603020 [email protected]

ALSO PRESENT:22

Omar Melendez, Video Specialist23 Alexander Stewart, Ph.D.24

Page 3

1 I N D E X

2 Witness Examination by: Page

3 LAWRENCE FERRARA

4 Mr. Malofiy 6

5

6 E X H I B I T S

7 Depositionfor Iden. Description Page

8

9 2700 Subpoena to Testify at a Deposition

in a Civil Trial 12

10 2701 Invoices 15

11 2702 Document entitled Jazzology 16

12 2703 Document entitled Ferrara Cases 29

13 2704 ("Taurus" deposit copy 57

14 2705 Musical Example 1 114

15 2706 Report 128

16 2707 Transcription 131

17 2708 "Stairway to Heaven" deposit

18 copy, D000562 through D000565 153

19 2708 Policy, Academic Integrity20 for Students at NYU 159

21

22 REQUESTS

23 Pages 69, 105, 108, 114

24

Page 4

104: 21: 08 THE VIDEOGRAPHER: Good

204: 21: 08 afternoon. We're now going on the

304: 21: 10 record. The time is 4:21 p.m. on

404: 21: 14 May 27, 2016. This is the videotaped

504: 21: 19 deposition of Lawrence Ferrara, Ph.D.,

604: 21: 22 in the matter of Michael Skidmore, as

704: 21: 26 trustee for the Randy Craig Wolfe Trust,

804: 21: 29 Plaintiffs, versus Led Zeppelin, James

904: 21: 32 Patrick Paige, Robert Anthony Plant,

1004: 21: 37 John Paul Jones, Super Hype Publishing,

1104: 21: 39 Inc., Warner Music Group Corp., parent

1204: 21: 44 of Warner/Chappell Music, Inc., Atlantic

1304: 21: 49 Recording Corporation and Rhino

1404: 21: 50 Entertainment Company, Defendants.

1504: 21: 53 This deposition -- excuse me --

1604: 21: 55 under the jurisdiction of the United

1704: 21: 57 States District Court, Central District

1804: 21: 59 of California, Western Division. This1904: 22: 02 deposition is being held at 39 West 37th

2004: 22: 05 Street, New York, New York. My name is

2104: 22: 07 Omar Melendez and I'm the video

2204: 22: 10 specialist, the court reporter is Carol

2304: 22: 11 Mele, and we're representing Zanaras

2404: 22: 13 Reporting, with offices located in



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CONFI DENTI AL


2 (Pages 5 t o 8)

Page 5

104: 22: 17 Philadelphia, Pennsylvania.

204: 22: 18 May I have an introduction from

304: 22: 20 counsel?

404: 22: 20 MR. MALOFIY: Attorney Francis

504: 22: 21 Alexander Malofiy, with the law firm

604: 22: 24 Francis Alexander, representing the

704: 22: 26 plaintiff in this matter, Michael

804: 22: 27 Skidmore, as Trustee for the Randy Craig

904: 22: 27 Wolfe Trust. With me here today is

1004: 22: 31 Alexander Stewart.

1104: 22: 33 MR. ANDERSON: Peter Anderson

1204: 22: 34 for defendants James Patrick Paige,

1304: 22: 35 Robert Plant, Warner/Chappell Music,

1404: 22: 38 Rhino Entertainment Company and Atlantic

1504: 22: 41 Recording Corporation.

1604: 22: 45 MS. FREEMAN: Helene Freeman,

1704: 22: 45 Phillips Nizer, co-counsel for Robert

1804: 22: 52 Plant and James Patrick Paige.

1904: 22: 54 THE VIDEOGRAPHER: Will the

2004: 22: 55 court reporter please swear in the

2104: 22: 57 witness.

2204: 23: 07 L A W R E N C E F E R R A R A, Ph.D, called

2304: 23: 07 as a witness, having been first duly

2404: 23: 07 sworn by Carol Mele, a Notary Public

Page 6

104: 23: 07 within and for the State of New York, was

204: 23: 07 examined and testified as follows:

304: 23: 08 EXAMINATION BY MR. MALOFIY:

404: 23: 08 Q All right. We just met briefly a

504: 23: 14 second ago. Couple of questions -- well, I know you

604: 23: 16 had your deposition taken a number of times,

704: 23: 18 correct?

804: 23: 18 A Yes.

904: 23: 19 Q All right. How many times have you

1004: 23: 20 had your deposition taken?

1104: 23: 22 A I would say at least 20.

1204: 23: 23 Q All right. So you're familiar with

1304: 23: 24 the normal admonitions, correct?

1404: 23: 26 A I am.

1504: 23: 27 Q All right. I'll just give them to you

1604: 23: 27 briefly. This is a question/answer session. I ask

1704: 23: 31 questions, you have to answer those questions. If

1804: 23: 33 you don't understand a question I ask, please ask me1904: 23: 38 to restate or clarify my question. If you

2004: 23: 41 understand -- excuse me. If you answer a question I

2104: 23: 46 ask, the record is going to reflect you understood

2204: 23: 49 the question.

2304: 23: 57 You're not under the influence of any

2404: 23: 59 alcohol or drugs or medication that would affect

Page 7

104: 24: 01 your memory or judgment here today, correct?

204: 24: 04 A That's correct, I am not.

304: 24: 05 Q Okay. Did you understand all the

404: 24: 07 prior admonitions before the last one?

504: 24: 09 A Yes, I did.

604: 24: 10 Q Okay. You understand your testimony

704: 24: 16 here has the same weight as if you were before a

804: 24: 19 judge and jury?

904: 24: 20 A Yes, I do.

1004: 24: 21 Q Now, you had said that you were

1104: 24: 24 deposed before. How many times?

1204: 24: 27 MR. ANDERSON: Asked and

1304: 24: 27 answered.

1404: 24: 29 A Around 20, I think.

1504: 24: 30 Q Okay. And when was the last time you

1604: 24: 35 had your deposition taken?

1704: 24: 37 A Two days ago.

1804: 24: 38 Q Okay. And what was that for?

1904: 24: 41 A That was in the litigation Copeland,2004: 24: 45 C-o-p-e-l-a-n-d, versus Bieber, B-i-e-b-e-r, et al.

2104: 24: 57 Q In that case were you representing the

2204: 25: 01 plaintiff or the defendant?

2304: 25: 03 MR. ANDERSON: Objection.

2404: 25: 04 MS. FREEMAN: Objection.

Page 8

104: 25: 05 MR. ANDERSON: Vague and

204: 25: 05 ambiguous.

304: 25: 07 A I was engaged on behalf of defendant.

404: 25: 09 Q Who were the et al. involved as the

504: 25: 11 defendants?

604: 25: 12 A I believe Usher is a co-defendant and

704: 25: 15 I'm not sure of the other co-defendants.

804: 25: 20 Q What's the facts in that case --

904: 25: 23 MR. ANDERSON: Objection,

1004: 25: 23 lacks --

1104: 25: 24 Q -- as you understand them?

1204: 25: 26 A As I understand them, the plaintiff

1304: 25: 30 believes that his song, "Somebody to Love", has been

1404: 25: 35 infringed by a song that was recorded by Justin

1504: 25: 39 Bieber with the same title.

1604: 25: 44 Q Did you produce an expert report in

1704: 25: 47 that case?

1804: 25: 48 A Yes, I did.1904: 25: 49 Q When was that produced?

2004: 25: 52 A I believe it was produced in April.

2104: 25: 55 Q April of what?

2204: 25: 58 A I don't recall it -- the middle of

2304: 26: 00 April.

2404: 26: 00 Q Of this year?



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CONFI DENTI AL


4 ( Pages 13 to 16)

Page 13

104: 30: 56 A Perhaps on Tuesday. It was sent to me

204: 31: 00 by Mr. Anderson.

304: 31: 01 Q Of this week?

404: 31: 02 A Of this week, yes, Tuesday or

504: 31: 04 Wednesday, but certainly two or three days ago.

604: 31: 08 Q Do you see any -- excuse me. Did you

704: 31: 10 bring any documents responsive to this subpoena for

804: 31: 13 you to appear and testify?

904: 31: 15 MR. ANDERSON: Dr. Ferrara has

1004: 31: 16 provided me with documents. Again, as I

1104: 31: 20 indicated in the deposition of Mr.

1204: 31: 22 Mathes, excuse me, earlier this week I

1304: 31: 25 sent you written objections to the

1404: 31: 28 subpoenas. The -- I have copies for

1504: 31: 33 you, however, of documents that are

1604: 31: 36 being produced. One is invoices with

1704: 31: 42 attorney/client information redacted and

1804: 31: 45 one is excerpts from works that are

1904: 31: 50 cited in Dr. Ferrara's report.

2004: 31: 53 MR. MALOFIY: Is there anything

2104: 31: 54 else?

2204: 31: 55 MR. ANDERSON: That's it.

2304: 31: 55 MR. MALOFIY: All right. So

2404: 31: 56 before we mark -- I'm sorry. This is

Page 14

104: 32: 00 just one copy, correct?

204: 32: 02 MR. ANDERSON: Yes, but I

304: 32: 03 brought extra copies, so I have a copy

404: 32: 05 already and I just handed Helene a copy.

504: 32: 09 MR. MALOFIY: Okay. Do we have

604: 32: 11 a copy for the witness?

704: 32: 12 MR. ANDERSON: No, but --

804: 32: 14 MR. MALOFIY: We have to make a

904: 32: 15 copy, then.

1004: 32: 16 MR. ANDERSON: But you don't

1104: 32: 17 need to make three is what I'm trying to

1204: 32: 18 say.

1304: 32: 19 MR. MALOFIY: Okay, so we just

1404: 32: 19 make one extra copy.

1504: 32: 20 MR. ANDERSON: Yeah, except on

1604: 32: 21 the excerpts we'll need extra copies of

1704: 32: 24 that because I only have the two, one

1804: 32: 27 for the court reporter and one for you.1904: 32: 28 MR. MALOFIY: All right. So

2004: 32: 28 let's go off the record and let's make

2104: 32: 31 copies real quick.

2204: 32: 33 THE VIDEOGRAPHER: The time is

2304: 32: 37 4:33 p.m. Off the record.

2404: 45: 35 (Whereupon, at 4:33 o'clock

Page 15

104: 45: 35 p.m., a recess was taken to 4:46 o'clock

204: 45: 35 p.m.)

304: 45: 35 (The deposition resumed with all

404: 45: 35 parties present.)


604: 46: 08 4:46 p.m. On the record.

704: 46: 11 MR. MALOFIY: All right. Back

804: 46: 12 on the record. The initial exhibit of

904: 46: 15 2700 was the subpoena. We're going to

1004: 46: 18 make 2701 the packet of invoices that

1104: 46: 29 Dr. Ferrara produced here in response to

1204: 46: 32 the subpoena.

1304: 46: 43 (Invoices were marked as

1404: 46: 43 Deposition Exhibit No. 2701 for

1504: 46: 43 identification, as of this date.)

1604: 46: 43 THE WITNESS: Thank you.

1704: 46: 50 MR. MALOFIY: All right.

1804: 46: 52 Peter?

1904: 46: 53 MR. ANDERSON: Thank you. Oh, I

2004: 46: 54 actually have -- that's one of the ones

2104: 46: 55 I have, so either --

2204: 46: 58 MR. MALOFIY: Okay, great. Do

2304: 46: 58 you want one, Helene?

2404: 47: 02 MS. FREEMAN: I've got a copy of

Page 16

104: 47: 03 the invoices, if that's what you mean.

204: 47: 15 MR. MALOFIY: And then we're

304: 47: 16 going to mark as this packet of --

404: 47: 19 L A W R E N C E F E R R A R A, Ph.D.,

504: 47: 19 resumed and testified further as follows:

604: 46: 02 BY MR. MALOFIY:

704: 47: 19 Q How would you describe this packet

804: 47: 22 which you produced, Dr. Ferrara?

904: 47: 24 A These are the book covers, the

1004: 47: 25 bibliographic page, if the bibliography information

1104: 47: 31 was not on the cover and the pages in those books

1204: 47: 36 that were referenced with respect to the descending

1304: 47: 39 chromatic line progression.

1404: 47: 44 Q Okay.

1504: 47: 45 MR. MALOFIY: We'll mark that as

1604: 47: 47 2702.

1704: 47: 48 (Document entitled Jazzology was

1804: 47: 48 marked as Deposition Exhibit No. 27021904: 47: 48 for identification, as of this date.)

2004: 47: 47 Q Now, going back to 2700, the subpoena,

2104: 48: 30 is there any other communications, documents or

2204: 48: 34 things you exchanged by and between counsel?

2304: 48: 40 A I sent to counsel PDFs --

2404: 48: 44 MR. ANDERSON: It's a yes/no



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CONFI DENTI AL


5 ( Pages 17 to 20)

Page 17

104: 48: 48 question because then I may object

204: 48: 49 depending on what --

304: 48: 51 THE WITNESS: I am sorry.

404: 48: 51 A Yes.

504: 48: 53 Q What are those things?

604: 48: 55 MR. ANDERSON: And that's why I

704: 48: 55 object on the grounds of attorney/client

804: 48: 57 privilege and work product. We have

904: 48: 59 produced the non-privileged documents

1004: 49: 04 within the first category of the

1104: 49: 05 subpoena.

1204: 49: 09 Q Let me go to number A, facts and data

1304: 49: 12 you considered in writing your reports or

1404: 49: 16 declarations for this lawsuit, did you produce all

1504: 49: 20 those things?

1604: 49: 21 MR. ANDERSON: Objection --

1704: 49: 22 A Yeah --

1804: 49: 22 MR. ANDERSON: -- vague and

1904: 49: 22 ambiguous.2004: 49: 23 A Yeah, facts and data with respect to

2104: 49: 33 my reports are in the reports themselves, not only

2204: 49: 39 in the narratives and the examples, but, of course,

2304: 49: 41 in the visual exhibits and in the audio exhibits.

2404: 49: 47 Other facts or data that are not in the reports but

Page 18

104: 49: 51 that are cited in the report is what I brought,

204: 49: 55 the -- this packet of -- of portions of largely jazz

304: 50: 02 theory and chord progression books.

404: 50: 05 Q Is there any reason why this wasn't

504: 50: 06 produced prior to your deposition here today if you

604: 50: 09 relied on it in any way?

704: 50: 12 MR. ANDERSON: Objection, vague

804: 50: 13 and ambiguous as to what you mean by

904: 50: 15 "this."

1004: 50: 21 A This was sent to counsel on the basis

1104: 50: 25 of the document production request.

1204: 50: 27 MR. ANDERSON: These are books

1304: 50: 29 that are cited in his report.

1404: 50: 30 Q Okay. In your report, is there any

1504: 50: 32 reason why you didn't attach these?

1604: 50: 34 A No.

1704: 50: 35 Q Okay.

1804: 50: 35 A They are cited properly.1904: 50: 42 Q Were you told to make any assumptions

2004: 50: 43 in coming to your conclusions or were you made to

2104: 50: 46 make -- or were you told to make any assumptions in

2204: 50: 50 forming your opinions in this case?

2304: 50: 51 A Not to my --

2404: 50: 52 MR. ANDERSON: Objection --

Page 19

104: 50: 53 THE WITNESS: I'm sorry.

204: 50: 54 MR. ANDERSON: -- vague and

304: 50: 54 ambiguous and compound.

404: 50: 55 A Not to my recollection.

504: 50: 57 Q Okay. Are you saying that there could

604: 51: 00 have been assumptions that you were told to make? I

704: 51: 03 mean, when you say not to your recollection, do you

804: 51: 05 have a document, or communication, or an email which

904: 51: 09 would indicate or help you recall whether or not you

1004: 51: 11 were told make certain assumptions is this case?


1204: 51: 15 and ambiguous and compound.

1304: 51: 17 A I don't have to the best of my

1404: 51: 19 knowledge any documents, emails, written

1504: 51: 22 communications from defendants' counsel that -- that

1604: 51: 28 would provide any assumptions as to what my findings

1704: 51: 32 might be.

1804: 51: 33 Q Okay. So to be clear, you said you

1904: 51: 36 don't recall whether or not you were told to make

2004: 51: 40 any assumptions?


2204: 51: 43 mischaracterizes the testimony.

2304: 51: 45 Q Is that accurate or is that

2404: 51: 45 inaccurate?

Page 20

104: 51: 46 A What I said is --


304: 51: 48 and ambiguous.

404: 51: 49 A What I said is to the best of my

504: 51: 50 recollection I don't recall anyone -- the only

604: 51: 53 people I've discussed this with are Helene Freeman

704: 51: 56 and Peter Anderson. I don't remember them ever

804: 51: 59 saying anything to me with respect to you should

904: 52: 02 assume this, you should assume that or to in any way

1004: 52: 07 try to sway my opinion.

1104: 52: 18 Q How much were you paid in this case,

1204: 52: 18 about a hundred thousand dollars?


1404: 52: 23 A No.

1504: 52: 23 Q A little less?

1604: 52: 26 A As -- as per the invoices that I've

1704: 52: 29 provided, there are several invoices, I think in

1804: 52: 37 2015 about $17,000 and in 2016 about $60,000. Those1904: 52: 44 are approximates.

2004: 52: 46 Q So the approximately $80,000 that you

2104: 52: 51 were paid for your opinion, do you believe that

2204: 52: 55 swayed your opinion in any way?


2404: 52: 58 argumentative, vague and ambiguous.



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CONFI DENTI AL


6 ( Pages 21 to 24)

Page 21

104: 53: 00 A No.

204: 53: 02 Q Okay. How much money do you make as a

304: 53: 06 university professor?


504: 53: 07 privacy.

604: 53: 09 A My salary at NYU which is a private

704: 53: 14 university is confidential and I've never been asked

804: 53: 17 by any court to provide the dollar amount of my

904: 53: 20 compensation at New York University, and so I ask

1004: 53: 22 that you honor that privilege.

1104: 53: 24 Q Well, I mean, it's my position I'm

1204: 53: 29 entitled to know that because I'm entitled to know

1304: 53: 32 how much money from this case or from testifying as

1404: 53: 36 an expert compares to what you make in your usual

1504: 53: 43 profession as a university professor.

1604: 53: 45 MR. ANDERSON: And the witness

1704: 53: 46 declines to tell what you his

1804: 53: 47 confidential personal compensation is.

1904: 53: 49 MR. MALOFIY: No, he said he

2004: 53: 51 would like me to respect that and I'm

2104: 53: 53 instructing him that I'd like him to

2204: 53: 55 answer that question.

2304: 53: 57 A I am happy to provide approximate

2404: 54: 01 percentages which I have been informed by other

Page 22

104: 54: 05 courts is -- is appropriate, that is, what

204: 54: 08 percentage of my overall compensation is -- consists

304: 54: 16 of testifying and -- and work as a music

404: 54: 21 copyright -- music expert as compared to my

504: 54: 24 compensation as a professor at New York University.

604: 54: 27 I'm more than happy to do that.

704: 54: 29 Q Well, what's the percentage?

804: 54: 31 A Well, as of last year because of

904: 54: 35 the -- because of the trial, not merely as extensive

1004: 54: 38 as this, that was Fahmy, F-a-h-m-y, v. Jay Z, et

1104: 54: 47 al., and that went to trial last October in Los

1204: 54: 52 Angeles. Because that went to trial which is not

1304: 54: 58 often, I would say that for the first time in 2015

1404: 55: 03 my salary, my compensation at New York University

1504: 55: 08 for an entire calendar year, was about equal. It

1604: 55: 13 was about the first time that I would say that my

1704: 55: 15 compensation in -- in this consultation that I do as

1804: 55: 21 a music expert had equaled.1904: 55: 25 This year because of this litigation

2004: 55: 30 and the year is not over, but we're about halfway

2104: 55: 32 through, I can predict I think for the very first

2204: 55: 37 time that -- that the compensation that I accrue

2304: 55: 42 from this kind of work will be greater than my

2404: 55: 46 compensation at the university. It's a -- it's a

Page 23

104: 55: 50 first time and I think it will be anomalous simply

204: 55: 53 because of the -- of the extent of this -- of the

304: 55: 57 work in this particular case.

404: 55: 58 Q So you believe it's going to be more

504: 55: 59 than -- you're going to make more money as an -- as

604: 56: 01 a paid expert rather as a university professor for

704: 56: 04 this year, 2016?

804: 56: 06 A For this year, for the very first

904: 56: 09 time, and -- and I think probably the only time.

1004: 56: 14 Q When you say the only time, was last

1104: 56: 17 year 50-50?

1204: 56: 19 A Last year was just about 50/50. As

1304: 56: 22 I -- as I recall, it got very, very close to my

1404: 56: 27 university income. This year, again, because

1504: 56: 30 there's so much work in this case, there were five

1604: 56: 32 music experts on the other side that -- who I had to

1704: 56: 38 respond to, read their reports and so forth, because

1804: 56: 41 of all the work in this case which is unusual, my

1904: 56: 45 compensation is much greater. I -- again, I can't

2004: 56: 48 predict what will happen in the future, but based on

2104: 56: 51 my experience I don't think this is going to be a

2204: 56: 54 usual. And, again, last year was also a trial and

2304: 56: 58 over the last 20-plus years I think I've testified

2404: 57: 02 at about five or six trials at most. And, so, it's

Page 24

104: 57: 04 actually rare that I testify at two trials two years

204: 57: 11 in a row.

304: 57: 13 Q Was it more or less than 50 percent of

404: 57: 17 your total income last year, the income attributable

504: 57: 23 to being an expert?


704: 57: 25 A I think it was very close. I think it

804: 57: 27 was a little bit less, but I'm happy to say that it

904: 57: 30 was approximately 50 percent, my total compensation,

1004: 57: 32 50 percent with this kind of work and 50 percent as

1104: 57: 35 a professor at New York University.

1204: 57: 38 Q What's your average report? What does

1304: 57: 40 it cost?

1404: 57: 40 A It varies from report to report and --

1504: 57: 43 on how much work is needed and -- and rebuttal

1604: 57: 46 report.

1704: 57: 46 Q What's the range?

1804: 57: 49 MR. ANDERSON: Objection, lacks1904: 57: 50 foundation.

2004: 57: 50 A Yeah, there is no range.

2104: 57: 52 Q There's no range?

2204: 57: 56 A No.

2304: 57: 57 Q Do you work more for the industry, the

2404: 58: 00 big record labels, or for individual artists?



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Page 25


204: 58: 08 and ambiguous and compound.

304: 58: 13 A I would say that the majority of the

404: 58: 17 calls that I receive with -- wish to engage my

504: 58: 23 services come from small and large publishing

604: 58: 27 companies, small and large record companies, the

704: 58: 31 larger motion picture companies, as well as

804: 58: 35 individuals. But if I were to be asked what is the

904: 58: 38 majority, I don't know there's any question that the

1004: 58: 41 majority would be from publishers, record companies

1104: 58: 44 and motion picture companies, but I do get a lot of

1204: 58: 49 calls from individuals as well.

1304: 58: 52 Q Why don't you take those cases?

1404: 58: 54 A I do.

1504: 58: 55 Q Oh. When was the last time you had a

1604: 58: 59 pro bono case to help out an artist?


1804: 59: 04 A I can't recall having done a pro bono

1904: 59: 05 case. I -- I can recall working with individuals

2004: 59: 12 and -- and greatly reducing my -- my invoice, but,

2104: 59: 16 no, I can't recall doing it completely for free.

2204: 59: 20 Q Let's be clear. You had about -- how

2304: 59: 22 many reports have you produced in your career, 200,

2404: 59: 25 about that?

Page 26

104: 59: 28 A I don't know.

204: 59: 28 Q Didn't you testify it was about 200,

304: 59: 31 20 years, 10 a year, something like that?

404: 59: 36 MR. ANDERSON: I believe that --

504: 59: 37 well, objection, mischaracterizes the

604: 59: 37 testimony, lacks foundation.

704: 59: 43 A It would depend on what kind of report

804: 59: 45 we're talking about. That's ambiguous. If we're

904: 59: 47 talking about preliminary reports which could be

1004: 59: 51 three, four, five pages which is most frequently

1104: 59: 54 what I'm asked to do, then, certainly, it could be

1204: 59: 59 10 a year. If we're talking about reports in

1305: 00: 02 full-blown litigations, certainly not 10 a year.

1405: 00: 05 That's not even close.

1505: 00: 07 Q Well, how many reports do you think

1605: 00: 10 you've done in your lifetime?


1805: 00: 13 and ambiguous.1905: 00: 17 A I would say the written reports that

2005: 00: 23 are preliminary, three to five pages, I don't think

2105: 00: 27 200 is -- is off mark. Large reports like this

2205: 00: 32 not -- not nearly as much.

2305: 00: 35 Q So out of 200 reports, how many did

2405: 00: 38 you do pro bono?

Page 27

105: 00: 40 MR. ANDERSON: Objection, asked

205: 00: 41 and answered.

305: 00: 41 A I -- I answered that question.

405: 00: 43 Q None?

505: 00: 44 A That's correct.

605: 00: 44 Q Okay. Let me remind you of some

705: 00: 56 testimony you had in the Timberland case in 2010.

805: 00: 59 You had indicated there you did 10 cases a year.

905: 01: 02 Does that sound accurate?

1005: 01: 04 A What -- you'll have to define cases

1105: 01: 06 for me.

1205: 01: 06 Q Well, I believe it was your words. I

1305: 01: 09 believe it was pages 17 to 19 of the deposition, you

1405: 01: 13 had indicated that you do about 10 cases a year.

1505: 01: 16 Does that sound about accurate?



1805: 01: 19 A Again, you'll have to define cases. I

1905: 01: 21 don't know what the context for that was. If you're

2005: 01: 24 talking about full-blown litigations, I don't

2105: 01: 26 think --

2205: 01: 26 Q Well, I don't know what full-blown

2305: 01: 28 litigation as opposed to un-full-blown litigation

2405: 01: 31 is.

Page 28

105: 01: 32 A I'd be happy to --

205: 01: 33 MR. ANDERSON: Mr. Malofiy, if

305: 01: 35 you can make sure that he finishes

405: 01: 35 before you begin your question.

505: 01: 36 A I would be happy to clarify that.

605: 01: 38 The -- by full-blown I mean wherein a claim has been

705: 01: 44 filed and -- and reports are exchanged and so forth.

805: 01: 48 I -- I don't think that that is 10 a year.

905: 01: 51 Q How many do you think that is? So

1005: 01: 53 when you refer to full-blown litigation, you're

1105: 01: 57 referring to producing an expert report?


1305: 02: 01 mischaracterizes the testimony.

1405: 02: 05 A I -- I think that contradicts what I

1505: 02: 07 said earlier.

1605: 02: 08 Q I'm sorry. Let's make it clear for

1705: 02: 10 the record.

1805: 02: 11 A Sure. When I provide an expert1905: 02: 14 report, most often the hugest majority of the time

2005: 02: 20 it is an internal report. It is for the party or

2105: 02: 24 parties who engaged my services. It is most

2205: 02: 27 frequently a three-, four-, five-page preliminary

2305: 02: 31 report and, as far as I know, the -- the matter just

2405: 02: 37 ends there. A full-blown report would be one in



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Page 29

105: 02: 42 which we have a much more extensive report, not as

205: 02: 47 big as the reports here, but very extensive and

305: 02: 52 the -- a claim has been filed with the federal

405: 02: 56 court. It would be my understanding that my report

505: 02: 59 has been exchanged. There has been an exchange

605: 03: 03 of -- of expert reports. I would have usually on

705: 03: 07 the same day received the expert report from the

805: 03: 10 other side followed by a rebuttal report most often.

905: 03: 16 Q All right.

1005: 03: 20 MR. MALOFIY: Let me mark some

1105: 03: 21 of these exhibits here,

1205: 03: 23 twenty-seven-oh --

1305: 03: 35 MR. ANDERSON: Three.

1405: 03: 37 MR. MALOFIY: -- three.

1505: 03: 37 (Document entitled Ferrara Cases

1605: 03: 37 was marked as Deposition Exhibit No.

1705: 03: 37 2703 for identification, as of this

1805: 03: 37 date.)

1905: 04: 02 Q I have here a list entitled Ferrara

2005: 04: 08 Cases. It's marked as 2703. I was able to cull

2105: 04: 15 through and find about 38 cases and in 34 of them

2205: 04: 25 you testified for the majors, the defendants?

2305: 04: 29 MS. FREEMAN: I'm sorry.

2405: 04: 30 Objection to the form of the question.

Page 30

105: 04: 31 I don't know what you mean by majors.

205: 04: 34 MR. ANDERSON: Objection, excuse

305: 04: 35 me, vague and ambiguous.

405: 04: 37 A First of all -- well, most importantly

505: 04: 39 is I don't have a recollection of testifying. You

605: 04: 44 said testified. I don't have a recollection of

705: 04: 47 testifying for any number of these cases, for

805: 04: 51 example, Santelli v. Walt Disney Company.

905: 04: 56 Q Let me -- let me correct my question.

1005: 04: 57 Thank you.

1105: 04: 58 A Thank you.

1205: 04: 58 Q All right. You're absolutely correct.

1305: 04: 58 I should have been more clear.

1405: 05: 00 I put together a list of 38 cases, 34

1505: 05: 04 of them for defendants where you've provided an

1605: 05: 07 expert report or an opinion on behalf of these

1705: 05: 12 defendants who are what I'll refer to as the majors

1805: 05: 17 in the music industry. Does that sound accurate?1905: 05: 23 MR. ANDERSON: Wait a minute.

2005: 05: 23 Excuse me. It's ambiguous as to

2105: 05: 25 whether -- I'd be happy to explain.

2205: 05: 29 MR. MALOFIY: No, no, just state

2305: 05: 30 your objection.

2405: 05: 31 MR. ANDERSON: That's fine, but

Page 31

105: 05: 31 you keep doing this, but it's ambiguous,

205: 05: 33 excuse me, and vague.

305: 05: 36 MR. MALOFIY: If he doesn't

405: 05: 37 understand a question, he can ask me to

505: 05: 39 clarify and he knows this. He's done

605: 05: 40 this more than maybe all of us in this

705: 05: 43 room he's so good at it.

805: 05: 44 MR. ANDERSON: Are you asking

905: 05: 44 him to adopt your definition of the

1005: 05: 45 majors or are you --

1105: 05: 46 MR. MALOFIY: No, I'm not.

1205: 05: 47 MR. ANDERSON: Well, that's what

1305: 05: 48 your question was.

1405: 05: 50 A That -- that was my point. I don't

1505: 05: 54 know that all of the defendants are majors. And to

1605: 05: 59 be perfectly honest, I recall perhaps in the

1705: 06: 09 Slip-N-Slide I thought I might have been on the side

1805: 06: 12 of Slip-N-Slide, but it's -- it's simply too long.

1905: 06: 16 I don't remember. It's almost 10 years ago. And so

2005: 06: 19 the point is that I don't know that TVT Records

2105: 06: 22 is -- is a major, as you say, and so I don't know

2205: 06: 27 necessarily that I'm -- I'm adopting your language.

2305: 06: 30 Q Well --

2405: 06: 31 A Some of these I recall, but some of

Page 32

105: 06: 34 these I do not recall.

205: 06: 36 Q Let me go through them. Number one,

305: 06: 38 Repp v. Lloyd Webber, Southern District of New York,

405: 06: 42 1994, do you recall being a expert for the

505: 06: 45 defendants?

605: 06: 45 A I do. I'm not quite sure why you have

705: 06: 49 it listed twice but -- because it's one case that

805: 06: 50 was ongoing.

905: 06: 52 Q Okay. Tisi versus Patrick --

1005: 06: 57 A Can you -- can you clarify why it's

1105: 07: 00 listed twice, why it's enumerated twice? It's one

1205: 07: 04 case.

1305: 07: 04 Q It's listed twice in the different

1405: 07: 06 dockets, so if it's one case thank you for

1505: 07: 09 clarifying. That's why I'm doing this.

1605: 07: 10 A Sure. I appreciate that. Thank you.

1705: 07: 11 Q So if you're telling me one and two is

1805: 07: 13 one case, you would know better than anyone else1905: 07: 17 here.

2005: 07: 18 A Yes, I'm assuming I should not write

2105: 07: 20 on the exhibit; is that correct?

2205: 07: 21 MR. ANDERSON: Correct.

2305: 07: 23 Q That's correct.

2405: 07: 24 A Thank you.



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Page 33

105: 07: 24 Q Number three, Tisi versus Patrick,

205: 07: 27 Southern District of New York, 2000, and you were --

305: 07: 31 A I think --

405: 07: 32 Q -- you were a expert to provide an

505: 07: 34 expert opinion for the defendant, correct?

605: 07: 36 A Yes. In Tisi v, Patrick, I was. I do

705: 07: 40 recall that.

805: 07: 40 Q Davis v. Arnold, Southern District,

905: 07: 42 Mississippi, you were retained to provide an expert

1005: 07: 47 opinion for the defendants, correct?

1105: 07: 49 A I do recall it now. I didn't recall

1205: 07: 52 it when I first looked, but now I do recall it, yes,

1305: 07: 54 in Mississippi.

1405: 07: 55 Q In Newton v. Diamond, you were

1505: 07: 57 retained to provide an expert opinion for the

1605: 08: 00 defendants, Central District, California, 2002,

1705: 08: 02 correct?


1905: 08: 05 Q Six on this list, Santelli versus Walt

2005: 08: 09 Disney, Eastern District of Tennessee, 2002, you

2105: 08: 13 were retained to provide an expert opinion for the

2205: 08: 15 defendants, correct?

2305: 08: 16 A Yes.

2405: 08: 19 Q BMS Entertainment/Heat Music LLC

Page 34

105: 08: 24 versus Bridges, Southern District of New York, you

205: 08: 27 were retained to provide an expert opinion for the

305: 08: 30 defendants, correct?

405: 08: 30 A Yes.

505: 08: 32 Q Griffin v. J-Records, Eastern District

605: 08: 36 of Washington, 2005, you were retained by the

705: 08: 40 defendants to provide an expert report and opinion,

805: 08: 43 correct?

905: 08: 44 A Yes. When I first saw it, I didn't

1005: 08: 46 recognize it, but now I do remember it. Thank you.

1105: 08: 49 Q Johnson v. Gordon, case in 2004, I

1205: 08: 57 guess there was some appellate activity. Do you

1305: 09: 00 recall that case?

1405: 09: 01 A I do. Johnson v. Gordon, I did work

1505: 09: 06 on behalf of Gordon. The motion for summary

1605: 09: 10 judgment by defendants was granted. It was appealed

1705: 09: 13 to the First Circuit and the appellate court, the

1805: 09: 18 First Circuit upheld the lower court's dismissal of1905: 09: 22 the case.

2005: 09: 22 Q You were retained by the defendants,

2105: 09: 24 correct?


2305: 09: 25 Q Lassin v. Island Def Jam Music Group,

2405: 09: 29 Southern District of Florida, August 9, 2005, you

Page 35

105: 09: 33 were retained by the defendants to provide an expert

205: 09: 35 report and opinion, correct?

305: 09: 37 A I vaguely remember that case, but I

405: 09: 39 have -- I have no reason to believe that I -- that

505: 09: 43 I -- that I was working for Lassin. I don't recall

605: 09: 46 working for Lassin.

705: 09: 47 Q Loussier versus Universal Music Group,

805: 09: 50 Southern District of New York, 2005, in that case

905: 09: 54 you were also retained for the experts, correct?


1105: 09: 59 Q Excuse me, for the defendants as an

1205: 10: 00 expert?


1405: 10: 02 Q Johnson v. Arista Holding, Inc.,

1505: 10: 05 Southern District of New York, 2005, you were

1605: 10: 08 retained by the defendants to produce and provide an

1705: 10: 12 expert report and opinion, correct?

1805: 10: 15 A I don't recall that case. If you will

1905: 10: 16 tell me the names of the songs involved, it would

2005: 10: 20 probably help. I'm not suggesting that I was not

2105: 10: 23 involved. I just don't recall that.

2205: 10: 25 Q So you don't recall being involved --

2305: 10: 28 being retained by Island Def Jam Music Group --

2405: 10: 31 A No, that's the wrong --

Page 36

105: 10: 32 Q -- 2005, Central District --

205: 10: 33 MR. ANDERSON: You just

305: 10: 33 jumped --

405: 10: 34 MR. MALOFIY: Did I?

505: 10: 34 Q My apologies. Strike that.

605: 10: 36 You don't recall being involved in a

705: 10: 38 case in the Southern District of New York in 2005

805: 10: 44 where the defendant was Arista Holding?

905: 10: 46 MR. ANDERSON: Arista.

1005: 10: 48 MS. FREEMAN: It's Arista.

1105: 10: 50 MR. MALOFIY: Thank you.

1205: 10: 50 A I don't recall that case. I'm not

1305: 10: 52 suggesting that I was not involved on behalf of

1405: 10: 54 Arista Holding. I -- again, sometimes the names

1505: 10: 59 help, but I just don't remember the name Johnson.

1605: 11: 02 If you have the names of the songs, they would

1705: 11: 07 probably help me.

1805: 11: 09 Q Rondor Music -- excuse me. Turino1905: 11: 12 versus Island Def Jam Music Group, 2005, Central

2005: 11: 16 District of California, you were retained by the

2105: 11: 19 defendants in that case, correct?

2205: 11: 22 A I don't recall Turino.

2305: 11: 25 Q Isn't that a case you lost?




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Page 37

105: 11: 29 A Well, I don't --

205: 11: 30 MR. ANDERSON: He's not a -- are

305: 11: 31 you suggesting he's a party?

405: 11: 33 A I'm not a party, so I don't lose a

505: 11: 37 case. If you could tell me, again, the names of the

605: 11: 39 songs, it would -- it would certainly help.

705: 11: 41 Q Well, there was a Thomas Turino. Does

805: 11: 44 that ring a bell?

905: 11: 45 A No, it does not.

1005: 11: 46 Q Okay. So you don't recall a case

1105: 11: 47 where there was a case that the plaintiffs had won

1205: 11: 50 in the Central District of California and you were

1305: 11: 55 retained by Island Def Jam Music Group?

1405: 11: 59 A I -- I don't recall. I'm not

1505: 12: 00 suggesting that it isn't the case. I just do not

1605: 12: 04 recall.

1705: 12: 04 Q Peruvian folk music, does that ring a

1805: 12: 09 bell?

1905: 12: 10 A No, it doesn't.

2005: 12: 11 Q Peruvian folk -- folk music?

2105: 12: 13 A No, it does not.

2205: 12: 17 Q Fourteen, Rondor Music Inetern, Inc.

2305: 12: 19 v. TVT Records LLC 2006 case, do you recall where

2405: 12: 27 you were retained as an expert for the defendants to

Page 38

105: 12: 31 give an expert report and opinion?

205: 12: 33 A I don't recall. I know that Rondor

305: 12: 34 Music, the plaintiff, is what you would call a

405: 12: 39 major. It's part of Universal Music Publishing

505: 12: 43 Group, but I don't recall that case. Again, not

605: 12: 47 suggesting that I was not involved, but if you have

705: 12: 48 the names of the songs it tends to help, the actual

805: 12: 51 titles of the songs.

905: 12: 53 Q Jones v. Blige, Eastern District of

1005: 12: 55 Michigan, 2006.

1105: 12: 56 A I do remember that and, yes, I did

1205: 12: 58 work on behalf of -- of Mary J. Blige and other

1305: 13: 02 defendants and that was dismissed.

1405: 13: 04 Q Sixteen, Slip-N-Slide Records v. TVT

1505: 13: 07 Records, Southern District of Florida, 2007, were

1605: 13: 12 you retained by the defense to provide an expert

1705: 13: 15 report and opinion?

1805: 13: 18 A I recall Slip-N-Slide Records. I1905: 13: 19 recall TVT Records. If -- if your research suggests

2005: 13: 25 that I worked on behalf of TVT Records, I'm not

2105: 13: 28 suggesting that I didn't. I just don't remember.

2205: 13: 31 Q Bridgeport Music, Inc. versus Justin

2305: 13: 33 Combs, I guess, Publications or Publishing. It

2405: 13: 39 appears to be a case -- well, a 2007 case. Do you

Page 39

105: 13: 47 have any recollection of that case being retained by

205: 13: 51 the defense?

305: 13: 52 A I do.

405: 13: 52 Q Okay. And you provided an expert


605: 13: 57 A I only provided a value assessment.

705: 13: 59 At the open of the trial, defendants admitted or

805: 14: 06 conceded the use of a sample. The only report that

905: 14: 10 I submitted in that -- in that litigation was a

1005: 14: 15 value assessment. It -- it was not an issue of

1105: 14: 19 liability because the sample was conceded at the

1205: 14: 22 start of the trial.

1305: 14: 23 Q Initially, you came to the conclusion

1405: 14: 25 that it wasn't a sample; isn't that right?

1505: 14: 28 A No, that's incorrect.

1605: 14: 29 Q Did you ever make an opinion whether

1705: 14: 31 or not it was a sample or whether or not it was

1805: 14: 33 something other than music that was copied?

1905: 14: 36 MR. ANDERSON: Objection, vague,


2105: 14: 39 A It's been almost 10 years, perhaps

2205: 14: 41 more than 10 years since the actual report. I'm

2305: 14: 45 pretty sure I have a copy of my report. And to the

2405: 14: 47 best of my recollection, when I was first contacted,

Page 40

105: 14: 50 I found that there was a sample. And much later,

205: 14: 57 very close, in fact, some months before the actual

305: 15: 03 trial, I was asked to write a brief value assessment

405: 15: 09 and -- which I did. And literally, about three or

505: 15: 13 four weeks before the trial, much to my surprise, I

605: 15: 17 was asked to -- to testify. To my surprise, one,

705: 15: 20 that it was going trial, but also because I had

805: 15: 24 found that there was a sample, but I was told that

905: 15: 26 the defendants were going to open the trial with a

1005: 15: 29 concession that there was a sample, a sample that I

1105: 15: 32 found, in fact, and that they undoubtedly conceded.

1205: 15: 36 What they wanted from me was a report with respect

1305: 15: 39 to the value of the sample in the -- the second work

1405: 15: 46 and that was what my report and what I was hired to

1505: 15: 49 do in that case.

1605: 15: 51 Q Did you find the sample or did they

1705: 15: 53 give you the sample?

1805: 15: 55 MR. ANDERSON: Objection, vague1905: 15: 55 and ambiguous.

2005: 15: 57 A I was -- in fact, some years before to

2105: 16: 00 the best of my recollection I was sent the original

2205: 16: 05 work and the work by Notorious B.I.G. It was --

2305: 16: 10 this I remember. It was "Ready to Die," a very

2405: 16: 14 prophetic work, and whereupon I said, "Yes, there is



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Page 41

105: 16: 18 a sample." And I didn't hear anything for a couple

205: 16: 22 of years.

305: 16: 24 Some months before the trial, I was

405: 16: 26 asked if I would -- given the sample that I -- that

505: 16: 34 I provided an analysis of, I was asked given the

605: 16: 38 sample, what is the value of the use of that sample

705: 16: 42 in defendant's song, "Ready to Die?" That is

805: 16: 46 exactly what my report provided. And, once again,

905: 16: 49 the defendants conceded that there was a sample at

1005: 16: 52 the start of the trial as I understand it.

1105: 16: 54 Q So, initially, when you realized there

1205: 16: 56 was a sample, did you put that in your initial

1305: 16: 59 report that was tendered to the opposing side or did

1405: 17: 03 you not address that issue?

1505: 17: 05 A I was not asked for any written report

1605: 17: 08 with respect to the sample. As I do often, I gave

1705: 17: 14 the party that called me bad news. Very often a

1805: 17: 18 plaintiff will call, a potential plaintiff, and I'll

1905: 17: 21 say, "Well, I don't think you have a case." Or a

2005: 17: 23 potential defendant will call and I'll say, "Well,

2105: 17: 25 believe it or not, there is a sample in there and I

2205: 17: 27 think it needs to be -- it needs to be licensed," so

2305: 17: 30 I gave an honest assessment. I said, "There is a

2405: 17: 32 sample in my opinion," and I didn't expect to hear

Page 42

105: 17: 34 back. The only reason I heard back in that case was

205: 17: 38 to do a value assessment.

305: 17: 43 Q Did the defendants run through trial

405: 17: 45 right -- right up to the day of trial not disclosing

505: 17: 49 or admitting that there was a sample?



805: 17: 54 A To the best of my recollection, they

905: 17: 58 opened with -- when they opened their -- their part

1005: 18: 02 of the trial, they conceded. I don't know if that's

1105: 18: 05 conceding -- well, they conceded that there was a

1205: 18: 08 sample, yes, that's my understanding.

1305: 18: 09 Q That's pretty clever. All right.

1405: 18: 13 Eighteen, Velez versus Sony Discos,

1505: 18: 17 Southern District of New York, January 16, 2007,

1605: 18: 18 you were hired by -- to provide an expert report and

1705: 18: 23 opinion for the defendants, correct?

1805: 18: 25 A That's correct. I do remember that1905: 18: 26 and I do remember the -- the judge granting

2005: 18: 30 defendants' motion for summary judgment.

2105: 18: 32 Q Nineteen, Bourne v. -- excuse me, 19,

2205: 18: 35 Bourne Co. v. Twentieth Century Fox, Southern

2305: 18: 40 District of New York, 2007, you were retained by the

2405: 18: 42 defendants to provide an expert report and opinion,

Page 43

105: 18: 47 correct?

205: 18: 48 A Yes. Bourne Company is a publishing

305: 18: 51 company. Twentieth Century Fox, needless to say, is

405: 18: 53 what it is and that was a fair use case. And, once

505: 18: 56 again, defendants' motion for summary judgment was

605: 18: 59 granted.

705: 19: 01 Q Sprockets, Inc. versus Mega TV and

805: 19: 04 Radio Productions, Inc., Southern District of New

905: 19: 06 York -- excuse me -- Southern District of Florida,

1005: 19: 09 2007, do you recall being involved in that case and

1105: 19: 14 being retained by the defendants to provide an

1205: 19: 16 expert report and opinion?

1305: 19: 19 A I only -- only very vaguely. Mega TV

1405: 19: 27 and Radio Productions is not a company that I --

1505: 19: 30 that I know, but, again, I have -- I have no reason

1605: 19: 33 to doubt that what you found is not accurate. I

1705: 19: 36 just don't remember what that issue was.

1805: 19: 38 Q Lennon v. Premise Media Corp.,

1905: 19: 41 Southern District of New York, 2008, were you

2005: 19: 44 retained to provide an expert report and opinion for

2105: 19: 47 the defendants?

2205: 19: 47 A No.

2305: 19: 49 Q Who were you retained to provide an

2405: 19: 51 expert opinion for?

Page 44

105: 19: 52 A The estate of John Lennon.

205: 19: 54 Q Was he the plaintiff in this case?

305: 19: 56 A Yes, he was. The estate was.

405: 20: 05 Q Twenty-two, Lessem v. Taylor, Southern

505: 20: 12 District of New York, 2007, do you recall being

605: 20: 14 retained by the defense to provide an expert report

705: 20: 17 and opinion?

805: 20: 18 A I don't remember the songs, but I

905: 20: 20 remember the name Lessem and so based on your

1005: 20: 23 research I have no reason to doubt that I was

1105: 20: 26 engaged on behalf of Taylor.

1205: 20: 28 Q Pyatt v. Jean, 2009 -- I believe it

1305: 20: 35 was 2000 -- it's either a 2008 or 2009 case.

1405: 20: 39 A Oh, yes.

1505: 20: 40 Q Do you recall that?

1605: 20: 41 A I do.

1705: 20: 42 Q You were retained by the defendants to

1805: 20: 43 provide an expert report and opinion, correct?1905: 20: 48 A Yes. That -- that was actually in the

2005: 20: 51 Eastern District of New York and it went to trial

2105: 20: 54 and the jury found on behalf of Jean, that's Wyclef

2205: 20: 58 Jean, but found on behalf of Jean, yes.

2305: 21: 02 Q Okay. You testified in that case?

2405: 21: 06 A I did.



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12 ( Pages 45 t o 48)

Page 45

105: 21: 09 Q Kernel Rescords v. -- excuse me --

205: 21: 09 Kernel Rescords Oy v. -- oh, I don't know.

305: 21: 20 Sometimes --

405: 21: 22 A It's a typo. It's a typo. There's no

505: 21: 24 S.

605: 21: 24 Q Kernel Records O-Y v. Molsey -- is

705: 21: 32 that supposed to be Moseley?

805: 21: 33 A Tim -- Tim Moseley, yes.

905: 21: 34 Q Okay. So another typo. Let's try

1005: 21: 36 this one more time. Kernel Records v. Moseley --

1105: 21: 42 A Yes.

1205: 21: 43 Q -- Timberland --

1305: 21: 44 A Yes.

1405: 21: 44 Q -- 2009 case, Southern District of

1505: 21: 47 Florida, do you recall that?

1605: 21: 49 A I do. Once again, defendants' motion

1705: 21: 52 for summary judgment was granted.

1805: 21: 53 Q You were retained by the defendants to

1905: 21: 55provide an expert report and opinion, right?2005: 21: 57 A Yes, I was.

2105: 21: 57 Q Twenty-five, Watt v. Butler --

2205: 22: 03 A W-a-t-t.

2305: 22: 06 Q -- Northern District of Georgia, 2010,

2405: 22: 09 you were retained by the defendants to provide an

Page 46


205: 22: 13 A Yes. As I recall, once again,

305: 22: 16 defendants' motion for summary judgment was -- was

405: 22: 20 granted. It might have even gone to the Appellate

505: 22: 22 Court and upheld there.

605: 22: 24 Q Pharmacy records v. Nassar, you were

705: 22: 27 retained by the defendants to produce an expert

805: 22: 30 report and opinion, Eastern District of Michigan,

905: 22: 34 2010?

1005: 22: 37 A I don't recall either name. If

1105: 22: 38 there's an a/k/a for Nassar, perhaps?

1205: 22: 42 Q I don't know.

1305: 22: 43 MS. FREEMAN: Can I ask you not

1405: 22: 43 to --

1505: 22: 43 A It's N-a-s-s-a-r.

1605: 22: 46 MS. FREEMAN: I'm sorry. I'm

1705: 22: 52 just having trouble because you keep

1805: 22: 55 beating on the floor.1905: 22: 56 MR. MALOFIY: I'm beating on the

2005: 22: 58 floor?

2105: 22: 59 MS. FREEMAN: With your foot.

2205: 23: 00 MR. MALOFIY: My foot tapping's

2305: 23: 00 bothering you?

2405: 23: 03 MS. FREEMAN: Yes.

Page 47

105: 23: 03 MR. MALOFIY: I didn't notice I

205: 23: 03 was even tapping.

305: 23: 05 MS. FREEMAN: Sorry. I didn't

405: 23: 05 mean to interrupt.

505: 23: 06 A So to answer your question, I don't

605: 23: 07 remember either party. And if you can find the name

705: 23: 12 of the songs or the names of the songs that might

805: 23: 15 jolt my memory. I'm not suggesting that your --

905: 23: 17 that your research is wrong, but I can't confirm one

1005: 23: 20 way or the other.

1105: 23: 21 Q Can you hear me, okay?

1205: 23: 23 A Yes, I can. Thank you.

1305: 23: 25 Q Adelaide Gail Zappa versus Rykodisc,

1405: 23: 26 Southern District of New York, 2011, you were



1705: 23: 36 A Yes.

1805: 23: 38 Q Is that -- excuse me -- Zappa v.

1905: 23: 41 Rykodisc, Inc., is this similar to earlier on where

2005: 23: 44 it's the same case, or --

2105: 23: 45 A It's the same -- I'm sorry. It's the

2205: 23: 46 same case. I'm sorry for talking over you.

2305: 23: 48 Q Okay. Straughter v. Raymond, Central

2405: 23: 53 District of California, 2011, you were retained by

Page 48

105: 23: 55 the defendants to produce an expert report and

205: 23: 58 opinion, correct?


405: 23: 59 Q Okay. Marino v. Usher, you were



705: 24: 07 A That is correct.

805: 24: 09 Q Pharmacy records v. Nassar, I think we

905: 24: 13 addressed that earlier on. I'm not sure if it's the

1005: 24: 15 same case or a similar case. Do you have any

1105: 24: 18 further information as to that?

1205: 24: 20 A I do not, but I see that they're both

1305: 24: 24 what -- well, one is the Sixth Circuit in --

1405: 24: 28 Q One looks like it's the appeals and

1505: 24: 29 the other looks like it's the trial.

1605: 24: 31 A Is Michigan part of the Sixth Circuit?

1705: 24: 34 Q I believe so.

1805: 24: 35 A Okay. Well, then it's the same case.1905: 24: 36 At least doubles, if not more that you've mentioned.

2005: 24: 38 Q Williams versus Bridgeport Music,

2105: 24: 41 Inc., Southern District of New York, 2014, you were



2405: 24: 52 A I don't recall that at all. I don't



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Page 49

105: 24: 54 recall being -- being engaged by Bridgeport Music,

205: 25: 00 no. I think that might be a mistake. I -- I rather

305: 25: 05 doubt it because it's only two years. This is 2014,

405: 25: 07 so I don't think so. It's -- it's possible that I

505: 25: 11 was engaged by Williams, but -- but I don't know,

605: 25: 15 but I don't recall ever having been engaged by

705: 25: 18 Bridgeport Music, so at the -- at the very least it

805: 25: 20 shouldn't be listed. It's possible that I was

905: 25: 24 engaged on behalf of plaintiff, Williams, but I

1005: 25: 28 don't recall.

1105: 25: 28 Q Fair enough. Batiste versus N-a-j-m.

1205: 25: 33 MR. ANDERSON: Najm.

1305: 25: 34 MR. MALOFIY: Najm?

1405: 25: 36 Q Eastern District, Louisiana, 2014?

1505: 25: 41 A This was a case that I mentioned early

1605: 25: 43 on in my testimony today and, yes, I was engaged on

1705: 25: 44 behalf of Najm.

1805: 25: 45 Q Defendants, correct?

1905: 25: 46 A Correct.

2005: 25: 47 Q All right. And Fahmy versus Jay Z,

2105: 25: 52 Central District, 2015, California, you were

2205: 25: 55 retained by the defendants, Jay Z, to produce an



Page 50

105: 26: 07 Q Now, we have plaintiffs here. I have

205: 26: 10 four plaintiffs listed besides Lennon which you

305: 26: 14 already mentioned and I believe I also have Lennon

405: 26: 17 mentioned in this list.

505: 26: 20 A Lennon was incorrectly listed along

605: 26: 22 with, what did we say, two or three others in the

705: 26: 25 first list, and of course you had two or three

805: 26: 28 doubles in the first list, so Lennon is properly

905: 26: 32 listed under plaintiffs. It's -- it's the John

1005: 26: 35 Lennon estate.

1105: 26: 36 Q Now, Grover v. Austin, Second Circuit,

1205: 26: 43 2008, were you involved in that case?

1305: 26: 48 A I think you said Grover. It's Glover.

1405: 26: 50 Q Sorry, Glover.

1505: 26: 50 A Glover, yes, I was engaged on behalf

1605: 26: 52 of Glover. I think it went to the Second Circuit

1705: 26: 56 and the Second Circuit found on behalf of Glover.

1805: 26: 59 Q Who is Glover?1905: 27: 01 A Glover was an individual who -- who

2005: 27: 10 sued. I believe the song was "Unpretty." It was

2105: 27: 15 one of the, as you call, the majors. It was one of

2205: 27: 17 the major publishing record companies for the

2305: 27: 23 defendants. I worked on behalf of Glover, an

2405: 27: 25 individual.

Page 51

105: 27: 25 Q Jean v. Bug Music?

205: 27: 28 A Yes, I worked on behalf of the

305: 27: 29 plaintiff.

405: 27: 30 Q Plaintiff was a big superstar, Wyclef

505: 27: 33 Jean, correct?

605: 27: 35 A Yes, that's correct.

705: 27: 36 MR. ANDERSON: Can I just make

805: 27: 37 a -- just -- I would like just to object

905: 27: 39 to this document, Exhibit 2703, which

1005: 27: 43 was prepared by Counsel -- excuse me --

1105: 27: 44 in addition to the issues that were

1205: 27: 46 raised by the witness in the statements,

1305: 27: 50 gratuitous statements, like not going

1405: 27: 53 for the little guy, I don't believe

1505: 27: 55 belong in an exhibit prepared by

1605: 27: 57 Counsel. I'm just saying that for the

1705: 27: 58 record.

1805: 27: 58 MR. MALOFIY: Yeah, that

1905: 28: 01 probably shouldn't have been there. It2005: 28: 02 was probably a draft copy, so, anyway, I

2105: 28: 06 didn't mean it to be in there. That was

2205: 28: 08 only for my own notes. I just realized

2305: 28: 09 it myself, so that was my own notes in a

2405: 28: 11 draft copy that somehow made it onto

Page 52

105: 28: 12 this exhibit.

205: 28: 14 MS. FREEMAN: Which I didn't

305: 28: 15 see.

405: 28: 17 MR. MALOFIY: Thank you for

505: 28: 18 pointing that out.

605: 28: 29 Q Glover, was he a superstar or a famous

705: 28: 32 artist?

805: 28: 33 A I don't recall. I don't recall the

905: 28: 34 name as an artist, as a singer, or a composer. I

1005: 28: 38 honestly don't. It's -- it's been a while.

1105: 28: 40 Q Was it a successful artist --



1405: 28: 44 Q -- or musician, or writer of some

1505: 28: 47 sort?


1705: 28: 48 ambiguous, compound.

1805: 28: 49 A Yeah. I -- I don't recall who Glover1905: 28: 51 was. In -- in fact, all that I recall was that I

2005: 28: 55 was engaged by his attorney and I never spoke with

2105: 28: 58 Mr. Glover or met Mr. Glover.

2205: 29: 01 Q Henley v. Charles Devore. Henley is

2305: 29: 05 Don Henley, correct?




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Page 53

105: 29: 07 Q So he's a superstar artist, correct,

205: 29: 09 from the Eagles?



505: 29: 12 A Don Henley was certainly a major

605: 29: 14 artist, yes, from the Eagles and also a solo career.

705: 29: 17 Q And then I also have the Lennon case

805: 29: 18 here, Lennon v. Premise Media Corp., where you

905: 29: 23 testified on behalf of the estate of John Lennon,

1005: 29: 25 correct?


1205: 29: 27 Q All right. So correct me if I'm

1305: 29: 29 wrong, but the three cases where you represented the

1405: 29: 37 plaintiffs, at least -- excuse me -- the four cases

1505: 29: 45 where you represented the plaintiff in producing an

1605: 29: 49 expert report and opinion, three of those four were

1705: 29: 52 for a superstar artist, correct?

1805: 29: 55 MR. ANDERSON: First, let me

1905: 29: 56 just state my objections. One, it's

2005: 29: 58 vague and ambiguous. I want to clarify,

2105: 29: 59 first of all, that you're referring

2205: 30: 02 specifically to the ones that are on

2305: 30: 04 Exhibit 2703. That's my understanding

2405: 30: 06 of the question.

Page 54

105: 30: 09 MR. MALOFIY: That's right.

205: 30: 12 MR. ANDERSON: With that

305: 30: 12 clarification, I think it's still vague

405: 30: 14 and ambiguous as to what you mean by

505: 30: 16 superstar, but go ahead.

605: 30: 18 A Wyclef Jean is a major artist and

705: 30: 22 so -- Don Henley is a major artist, and, of course,

805: 30: 26 John Lennon was iconic, and this was on behalf of

905: 30: 33 his -- his wife, now his late wife as I understand

1005: 30: 37 it, and his son, the John Lennon estate.

1105: 30: 40 Q As you sit here today, can you think

1205: 30: 42 of any other plaintiffs other than the ones I've

1305: 30: 45 listed that you were retained to produce an expert

1405: 30: 49 report and opinion?

1505: 30: 52 A I have provided countless expert

1605: 30: 58 reports on behalf of plaintiffs. My understanding

1705: 31: 03 is that some of them may have been exchanged, if not

1805: 31: 07 most of them. The -- what I'm very proud of is when1905: 31: 14 I write a report on behalf of a plaintiff, most

2005: 31: 18 often the -- what you would call the major on the

2105: 31: 21 other side as a potential defendant takes the

2205: 31: 24 honesty and the accuracy of my work very seriously

2305: 31: 29 and most of those are settled.

2405: 31: 31 Q Do you know what the percentage is or

Page 55

105: 31: 33 can you identify those cases as you sit here today?


305: 31: 37 ambiguous, compound.

405: 31: 38 A On the basis of privilege and

505: 31: 40 confidentiality, I certainly cannot, but I can tell

605: 31: 43 you that any number of times a -- an executive at a

705: 31: 52 major company in talking about another case said,

805: 31: 56 "By the way, we" -- well, I don't think I'm breaking

905: 32: 02 privilege -- Kent Klavens who ran Famous Music as --

1005: 32: 06 that's the music publishing arm or was of Paramount

1105: 32: 10 and then the senior vice president at Universal

1205: 32: 11 Music Publishing Group just a few years ago called

1305: 32: 15 and we were talking about another matter. And he

1405: 32: 17 said, by the way, he had received a call from

1505: 32: 24 someone else in Universal Music Publishing, not a

1605: 32: 28 senior vice president, who said, "We received a

1705: 32: 30 claim and musicologist's report."

1805: 32: 32 Whereupon, Mr. Klavens told me who was

1905: 32: 36 the musicologist. He said, "Dr. Ferrara."

2005: 32: 38 And he said to me he told that person,

2105: 32: 42 "Settle it;" as he said, the ultimate compliment, so

2205: 32: 47 that very often is the case.

2305: 32: 52 MR. MALOFIY: I'm almost done.

2405: 32: 53 One more question. I know you want to

Page 56

105: 32: 56 go.

205: 32: 56 Q Let's be clear and I just want to wrap

305: 32: 59 this up. I know the court reporter has to change

405: 33: 01 out.

505: 33: 02 Besides what I've listed here, can you

605: 33: 04 tell me specifically any other cases where you were

705: 33: 07 retained by the plaintiff by case number?



1005: 33: 13 Q Besides what's listed here.

1105: 33: 14 A Not by case number, no, because most

1205: 33: 16 of them tend to be settled.

1305: 33: 18 Q All right.


1505: 33: 30 5:34 p.m. This marks the ending of Tape

1605: 33: 34 One. Off the record.

1705: 33: 35 (Whereupon, at 5:34 o'clock

1805: 33: 35 p.m., a recess was taken and Linda1905: 33: 35 Marino, RPR, CCR, took over the

2005: 33: 35 proceedings.)

2105: 33: 35 (The deposition resumed with all

2205: 33: 35 parties present.)


2405: 49: 25 5:49 p.m. This marks the beginning of



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15 ( Pages 57 t o 60)

Page 57

105: 49: 28 Tape 2. On the record.

205: 49: 30 L A W R E N C E F E R R A R A, Ph.D.,

305: 49: 30 resumed and testified further as follows:

405: 49: 33 MR. MALOFIY: I have "Taurus"

505: 49: 39 deposit copy in my hand, which I'm going

605: 49: 43 to mark as 2704.

705: 49: 47 Please let the record reflect

805: 49: 48 I'm handing it to the court reporter.

905: 49: 50 ("Taurus" deposit copy was

1005: 49: 50 marked as Exhibit 2704, D040443, for

1105: 49: 50 identification, as of this date.)

1205: 49: 50 BY MR. MALOFIY:

1305: 50: 08 Q Are you familiar with this "Taurus"

1405: 50: 11 deposit copy?

1505: 50: 12 A Yes.

1605: 50: 12 Q And why are you familiar with this

1705: 50: 14 "Taurus" deposit copy?

1805: 50: 16 A This was part of the analysis that I

1905: 50: 18completed in my report dated February 10, 2016.2005: 50: 26 Q When did you first see this "Taurus"

2105: 50: 28 deposit copy?

2205: 50: 30 A I don't recall.

2305: 50: 31 Q How did you find this "Taurus" deposit

2405: 50: 35 copy?

Page 58

105: 50: 36 A To the best of my recollection, it

205: 50: 37 would have been provided to me by Mr. Anderson.

305: 50: 49 Q Did you review the "Taurus" deposit

405: 50: 52 copy prior to coming to an opinion on this case?

505: 50: 55 MR. ANDERSON: Objection; vague


705: 51: 01 A Yes, of course. My opinion has to do

805: 51: 04 with the "Taurus" deposit copy and "Stairway to

905: 51: 07 Heaven."

1005: 51: 09 Q Were you familiar with the work

1105: 51: 13 "Stairway to Heaven" prior to becoming involved in

1205: 51: 17 this litigation?

1305: 51: 18 A Yes.

1405: 51: 19 Q Were you familiar with the work

1505: 51: 20 "Taurus" prior to becoming involved in this

1605: 51: 25 litigation?

1705: 51: 25 A No.

1805: 51: 26 Q Was your first --1905: 51: 31 A Actually, not no. I was aware of

2005: 51: 35 "Taurus" before this litigation.

2105: 51: 41 Q Why is that?

2205: 51: 46 A I think around three years ago, I was

2305: 51: 51 asked to complete an analysis -- it was

2405: 51: 57 preliminary -- of the "Taurus" studio version, not

Page 59

105: 52: 04 the "Taurus" deposit copy, and "Stairway to Heaven."

205: 52: 08 And, so, if the question was "Taurus,"

305: 52: 12 then the answer is yes. Prior to this the "Taurus"

405: 52: 16 deposit copy, the answer would be no.

505: 52: 20 Q Who asked you to you do that?

605: 52: 22 MR. ANDERSON: I have the same

705: 52: 23 concern. You're talking about people

805: 52: 24 who aren't present here. It seems to me

905: 52: 27 that they may --

1005: 52: 28 MR. MALOFIY: I don't even know

1105: 52: 29 where we're going here.

1205: 52: 31 MR. ANDERSON: Yeah, but I think

1305: 52: 32 it's privileged.

1405: 52: 32 MR. MALOFIY: I don't know if

1505: 52: 33 it's privileged. I mean...

1605: 52: 34 MR. ANDERSON: If he was

1705: 52: 35 consulted by counsel confidentially,

1805: 52: 38 then I think that's privilege.

1905: 52: 40 MR. MALOFIY: He hasn't even

2005: 52: 41 identified who it was.

2105: 52: 44 MR. ANDERSON: Was it --

2205: 52: 44 MR. MALOFIY: Wait. You can't

2305: 52: 46 ask the questions.

2405: 52: 46 Q You said three years ago you were

Page 60

105: 52: 48 retained to analyze a studio version of "Stairway to

205: 52: 50 Heaven," correct?

305: 52: 52 A To the best of my knowledge, around

405: 52: 54 three years ago I was asked to complete a

505: 52: 58 preliminary analysis of the "Taurus," "Taurus"

605: 53: 02 studio version and "Stairway to Heaven."

705: 53: 05 Q Who asked to you do that?

805: 53: 07 MR. ANDERSON: And I think

905: 53: 07 that's privileged.

1005: 53: 09 MR. MALOFIY: It depends if it's

1105: 53: 10 privileged.

1205: 53: 10 MR. ANDERSON: How does it

1305: 53: 11 depend if it's privileged?

1405: 53: 12 If he was --

1505: 53: 13 MR. MALOFIY: Because the

1605: 53: 14 communications that -- this is

1705: 53: 16 individual communications, not whether

1805: 53: 17 or not he was asked to do something. He1905: 53: 19 already identified he was asked to do

2005: 53: 21 something.

2105: 53: 22 MR. ANDERSON: Right. But what

2205: 53: 23 I'm saying is if he's consulted

2305: 53: 25 confidentially -- now, you can ask him

2405: 53: 27 was it a confidential consultation.



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Page 61

105: 53: 29 MR. MALOFIY: Look, you're

205: 53: 30 interfering with my deposition. This

305: 53: 32 man obviously before he was retained had

405: 53: 34 done an analysis on the studio version

505: 53: 36 and "Stairway to Heaven" studio album

605: 53: 39 recording.

705: 53: 40 Q Who asked to you do that?

805: 53: 41 MR. ANDERSON: Isn't that work

905: 53: 41 product of whoever asked him to do it?

1005: 53: 44 MR. MALOFIY: No, it's not.

1105: 53: 45 A I would have to get permission from

1205: 53: 46 the party who called to have done that. And so long

1305: 53: 54 as the party who called says that it's not

1405: 53: 57 confidential, I'm happy to -- to let you know.

1505: 53: 59 Q Was it defendants in this case?

1605: 54: 01 A No, no, it was definitely not

1705: 54: 06 defendants in this case.

1805: 54: 07 Q And it was obviously not anyone on

1905: 54: 09 plaintiff's side, correct?



2205: 54: 13 A Yeah, I don't --

2305: 54: 14 Q Did anyone on plaintiff's side reach

2405: 54: 17 out to you and ask you to do an analysis?

Page 62

105: 54: 20 A No.

205: 54: 20 MR. ANDERSON:

declaration of francis malofiy in support of plaintiff’s motion for sanctions and to preclude dr....

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