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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
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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
-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
1. 877. GO. DEPOSZANARAS REPORTI NG & VI DEO
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
1. 877. GO. DEPOSZANARAS REPORTI NG & VI DEO
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.)
504: 46: 06 THE VIDEOGRAPHER: The time is
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
1. 877. GO. DEPOSZANARAS REPORTI NG & VI DEO
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?
1104: 51: 15 MR. ANDERSON: Objection, vague
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?
2104: 51: 43 MR. ANDERSON: Objection,
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 --
204: 51: 48 MR. ANDERSON: Objection, vague
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?
1304: 52: 22 MR. ANDERSON: Objection.
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?
2304: 52: 58 MR. ANDERSON: Objection,
2404: 52: 58 argumentative, vague and ambiguous.
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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?
404: 53: 07 MR. ANDERSON: Objection,
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?
604: 57: 24 MR. ANDERSON: Objection.
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
104: 58: 06 MR. ANDERSON: Objection, vague
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?
1704: 59: 02 MR. ANDERSON: Objection.
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?
1705: 00: 12 MR. ANDERSON: Objection, vague
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?
1605: 01: 18 MR. ANDERSON: Objection, vague
1705: 01: 19 and ambiguous.
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?
1205: 02: 01 MR. ANDERSON: Objection,
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?
1805: 08: 03 A That's 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?
2205: 09: 24 A That's 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?
1005: 09: 58 A That's correct.
1105: 09: 59 Q Excuse me, for the defendants as an
1205: 10: 00 expert?
1305: 10: 01 A That's correct.
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?
2405: 11: 28 MR. ANDERSON: Objection.
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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
505: 13: 55 report and opinion, correct?
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,
2005: 14: 37 ambiguous and compound.
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?
605: 17: 51 MR. ANDERSON: Objection, vague,
705: 17: 52 ambiguous and compound.
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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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
105: 22: 12 expert report and opinion, correct?
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
1505: 23: 31 retained by the defendants to produce an expert
1605: 23: 34 report and opinion, correct?
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?
305: 23: 59 A That's correct.
405: 23: 59 Q Okay. Marino v. Usher, you were
505: 24: 02 retained by the defendants to produce an expert
605: 24: 05 report and opinion, correct?
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
2205: 24: 44 retained by the defendants to produce an expert
2305: 24: 47 report and opinion, correct?
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
2305: 25: 59 expert report and opinion, correct?
2405: 26: 01 A That's correct.
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 --
1205: 28: 43 MR. ANDERSON: Objection, vague
1305: 28: 43 and ambiguous.
1405: 28: 44 Q -- or musician, or writer of some
1505: 28: 47 sort?
1605: 28: 47 MR. ANDERSON: Objection, vague,
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?
2405: 29: 06 A That's correct.
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Page 53
105: 29: 07 Q So he's a superstar artist, correct,
205: 29: 09 from the Eagles?
305: 29: 10 MR. ANDERSON: Objection, vague
405: 29: 11 and ambiguous.
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?
1105: 29: 26 A That's 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?
205: 31: 37 MR. ANDERSON: Objection, vague,
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?
805: 33: 11 MR. ANDERSON: Objection, vague,
905: 33: 12 and ambiguous.
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.
1405: 33: 22 THE VIDEOGRAPHER: The time is
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.)
2305: 49: 00 THE VIDEOGRAPHER: The time is
2405: 49: 25 5:49 p.m. This marks the beginning of
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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
605: 50: 56 and ambiguous.
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?
2005: 54: 11 MR. ANDERSON: Objection, vague
2105: 54: 12 and ambiguous.
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: