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Case 3:15-cv-00174-JHM-CHL Document 85 Filed 01/31/17 Page 1 of 18 PageID #: 558

IN THE UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

LEROY PHILLIP MITCHELL p/k/a Prince )


Phillip Mitchell and d/b/a HOT STUFF )
PUBLISHING COMPANY, )
)
Plaintiff, )
) CIVIL ACTION NO. 3:15-cv-00174-JHM-CHL
v. ) Electronically Filed
)
PRIORITY RECORDS, LLC, ANDRE )
ROMELLE YOUNG, p/k/a Dr. Dre, d/b/a )
N.W.A, LORENZO JERALD )
PATTERSON, p/k/a MC Ren d/b/a N.W.A. )
)
Defendants. )

DEFENDANTS PRIORITY RECORDS LLCS AND


ANDRE ROMELLE YOUNG P/K/A DR. DRES
RESPONSE IN OPPOSITION TO PLAINTIFFS AMENDED MOTION TO COMPEL

Defendants Priority Records, LLC (Priority) and Andre Romelle Young p/k/a Dr. Dre

(Young; collectively Defendants), by counsel, respond in opposition to Plaintiff Leroy Phillip

Mitchell p/k/a Prince Phillip Mitchell d/b/a Hot Stuff Publishing Companys Amended Motion to

Compel (Amended Motion) supplemental discovery responses [DN 83], and state as follows:

The Court should deny Plaintiffs Amended Motion in its entirety. Among other things,

Plaintiffs Amended Motion: mischaracterizes the discovery that has occurred thus far in this

matter; fails to justify why Plaintiff is entitled to financial information beyond the three years for

which he is able to recover damages under the Copyright Acts statute of limitations; ignores the

burdensomeness, time, and expense required for Defendants to gather and produce an additional

25-years-worth of financial information dating back to 1989; and raises non-existent disputes

about information and documents that Defendants have either informed Plaintiff they do not

possess or that they will produce if located. Defendants plan to make a supplemental document
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production to Plaintiff shortly. Defendants submit that the only real discovery dispute before this

Court concerns whether Plaintiff is entitled to financial information dating back to 1989.

BACKGROUND

General Background

Plaintiffs copyright infringement claims against the Defendants arise out of the song If It

Aint Ruff by N.W.A., which was initially published in 1989 and registered in 1990. Plaintiff

claims that the song infringes on his copyrighted work of A Star in the Ghetto by improperly

sampling that composition. Plaintiffs claims arise under the Copyright Act, 17 U.S.C. 501 et

seq.

Plaintiff filed his original Complaint in this action on February 26, 2015, and then

subsequently amended the Complaint on July 2, 2015. Priority answered the Amended Complaint

on July 23, 2015. Due to various issues Plaintiff had in effectuating service of process, Young

was not served with the Amended Complaint until April 26, 2016. This case was largely in a

holding pattern until service on Young. The Defendants have dutifully worked to move this case

forward through discovery.

Discovery-related Background

Plaintiff served his discovery requests on Priority on January 15, 2016. Priority, by agreed

mutual extension of the parties, served its responses to those requests on March 1, 2016. Plaintiff

did not allege a single discovery concern with Priority until almost six months later, when Plaintiff

sent Priority a letter containing alleged discovery deficiencies on August 26, 2016.

Plaintiff served his discovery requests on Young on August 8, 2016. Young, by agreement

of the parties, served his responses to those requests on November 2, 2016. Plaintiff sent an alleged

discovery deficiency letter to Young a month later, on December 1, 2016.

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Throughout the Fall of 2016, the parties engaged in good faith settlement discussions.

When it became clear that the case would not settle at that time, and after subsequent meet-and-

confer discussions on discovery issues, Defendants codified their oral responses to Plaintiffs

alleged discovery deficiencies in writing. Defendants sent a combined response letter to Plaintiffs

alleged discovery deficiencies on December 21, 2016. (See Exh. D to Plaintiffs Amended Motion

to Compel.)

Plaintiffs Amended Motion ignores the December 21 letter in material ways. The

Amended Motion restates alleged deficiencies where there is no dispute. Among other things,

Defendants have informed Plaintiff that they: (i) do not possess (and, therefore, cannot provide)

certain information but would produce the information if located and, (ii) believe several of

Plaintiffs requests are premature because they require expert participation that has not yet

occurred in this matter; and (iii) have not located any privileged documents to include on a

privilege log. (See Exh. D to Plaintiffs Amended Motion to Compel.) Defendants have provided

the information and documents that they possess, but cannot produce information and documents

that do not exist and/or that they do not possess.

Defendants have provided written responses to Plaintiffs discovery requests and have

produced documents on multiple occasions. Priority has produced documents in its possession

that relate to the ownership of the copyright and the registration of the copyright for the allegedly

infringing song. Priority has produced Profit/Loss Reports (P/L Reports) for the three years

preceding the filing of the Complaint until the present. The P/L Reports provide detailed

financial information about the revenue, profit, loss, sales (physical and digital), fees, accrued

royalties (domestic and foreign), special market/licensing, and marketing associated with the

allegedly infringing song. It took Priority several months to compile the necessary data to produce

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the P/L Reports.1 Priority also has produced SoundScan computations detailing the number of

copies sold of the allegedly infringing song. Furthermore, Young has produced a myriad of royalty

reports, requiring heavy redaction, detailing the relatively minimal amounts he has received as the

co-author, producer and publisher of If It Aint Ruff for the three years preceding the filing of

the Complaint to the present.

Plaintiff appears to misunderstand Defendants respective roles and relationships to the

allegedly infringing song. In Defendants December 21 letter, they explain why many categories

of information or documents sought by Plaintiff cannot be provided by Defendantsthey do not

have the information. (See Exh. D to Plaintiffs Amended Motion to Compel.)

Priority was/is merely the distributor for the allegedly infringing song and album; it had no

involvement in the creation, production, recording, editing or mixing of the song, nor did it have

involvement with the original copyright registration of the song. Priority does not, and would not,

possess much of the information or documents relating to the allegedly infringing song that

Plaintiff seeks to compel from it. And its ability to identify individuals who might have had factual

knowledge about a song created in 1989 is extremely limitedif Priority had more information to

provide, it would provide it. Similarly, even if Priority had documents relevant to the creation of

the song in 1989, the passage of time and normal document maintenance has seriously limited

Priority from identifying such documents on reasonable search.

The length of time since the creation of the song similarly hampers Youngs recollection

of the circumstances surrounding the creation of If It Aint Ruff and any related documents he

has in his possession. Young was involved in the creation and production of the allegedly

infringing song, but does not possess much in the way of documentation relating to the late 1980s,

1
As explained in more detail below, to create a P/L Report for 1989-2012 would place an undue burden on Defendants
and require an extended period of time to accomplish. (See Declaration of Steven Drellishak, attached as Exhibit A.)

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through natural passage of time or the lack of any formal recordkeeping during the creation of the

song. The allegedly infringing song was never an immensely popular song, was never released as

a single, and was not as widely distributed or performed as other songs from N.W.A.

Simply stated, Defendants cannot produce information or documents that they do not

possess or cannot locate after a reasonable search.

ARGUMENT

Plaintiffs Amended Motion fails to raise any issues that would merit this Court compelling

further responses from Defendants. First, Plaintiff is only entitled to recover damages for the three

years preceding the filing of the Complaint under the Copyright Act. Financial information and

related data beyond that timeframe should not be discoverable. Second, the financial information

that Plaintiff seeks all the way back to 1989 is unreasonable, burdensome and disproportional.

Third, Defendants have provided full and complete responses to Plaintiffs remaining discovery

requests based on the information and documents available to them. Fourth, Plaintiffs requests

for a privilege log and to compel documents Defendants already have agreed to produce are

unnecessary. Priority has not withheld any documents based on privilege and has agreed to

produce certain documents to the extent they exist and are located on reasonable search.

I. Defendants should not be required to provide financial data preceding the three
years prior to the filing of the Complaint.

The focal point of Plaintiffs Amended Motion is the claim that Defendants have

improperly limited financial documents and information produced to the three-year time period

preceding the filing of the Complaint.2 Plaintiff asserts he is entitled to financial data and

information since the date the allegedly infringing song was created and initially published, 1989.

2
It should be noted that Defendants have only limited financial and related information to the three years preceding
the filing of the Complaint, but have not otherwise limited their responses and production to that timeframe. Plaintiff
suggests that Defendants have limited all discovery to three years, which is not the case.

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This belief is directly contrary to the three-year statute of limitations in the Copyright Act, which

limits damages to the three years preceding the filing of the Complaint. Because the financial

information Plaintiff seeks can only be relevant to determining his damages, financial information

beyond the three-year statute of limitations is irrelevant, unduly burdensome, beyond the scope of

discovery in this matter, and not proportional to the needs of this case.

A. The Copyright Act undisputedly contains a three-year statute of limitations.

Plaintiffs claims are unquestionably subject to the Copyright Act. The Copyright Act

states, No civil action shall be maintained under the provisions of this title unless it is commenced

within three years after the claim accrued. 17 U.S.C. 507(b). Plaintiff agrees that this statute

governs his claims here. (See Plaintiffs Amended Motion to Compel, pp. 3-4.)

B. The Supreme Court has held that damages are limited to the three years preceding
the filing of the Complaint under the Copyright Act.

The Supreme Court has analyzed issues related to the three-year statute of limitations. In

Petrella v. Metro-Goldwyn-Mayer, Inc., the Supreme Court stated:

Under the Acts three-year provision, an infringement is actionable within three


years, and only three years, of its occurrence. And the infringer is insulated from
liability for earlier infringements of the same work. Thus, when a defendant has
engaged (or is alleged to have engaged) in a series of discrete infringing acts, the
copyright holders suit ordinarily will be timely under 507(b) with respect to more
recent acts of infringement (i.e., acts within the three-year window), but untimely
with respect to prior acts of the same or similar kind.

134 S.Ct. 1962, 1969-70 (2014) (citation omitted). And the Supreme Court further stated: a

successful plaintiff can gain retrospective relief only three years back from the time of suit. No

recovery may be had for infringement in earlier years. Profits made in those years remain the

defendants to keep. Id. at 1973.

Based on these pronouncements, Defendants respectfully submit that Plaintiff is only

theoretically entitled to relief, i.e. damages, for the three years prior to the filing of his Complaint

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until the present.3 Because Plaintiffs damages are limited to three years, there is no reasonable

basis to permit him discovery of financial information for an additional 25 years. Plaintiff does

not explain how any of the older financial information requested would have material bearing on

any issue other than damages not otherwise covered by his discovery requests.

C. Even under the discovery rule, the three-year damages period should be applied.

Plaintiffs reliance on the discovery rule and related cases does not demonstrate that he

would be entitled to damages beyond the three-year statutory period.

The Sixth Circuit has not addressed the damages period available to a plaintiff who brings

a copyright infringement claim under the discovery rule. Plaintiff cites to several cases that

discuss the discovery rule in the context of determining the proper accrual date to assess whether

the suit had been timely filed. See, e.g., Lefkowitz v. McGraw-Hill Global Educ. Holdings, LLC,

23 F. Supp. 3d 344, 357 (S.D.N.Y. 2014); Aspen Tech., Inc. v. M3 Tech. Inc., 569 Fed. Appx. 259,

265 (5th Cir. 2014); Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 889 (6th Cir.

2004). None of the cases, however, addresses the issue whether actual damages are recoverable

beyond the three-year limitations period.4

Plaintiffs reliance on an unpublished decision from the Middle District of Tennessee in

Castronuovo v. Sony Music Entmt, 2013 WL 4597038, at *14 (M.D. Tenn. Aug. 29, 2013), is

unavailing. The case was decided prior to Petrella, so it did not have occasion to consider the

3
Even the dissent in Petrella agreed that the limitations period limits damages to the three years preceding the filing
of the Complaint. Id. at 1981 (The majority correctly points out that the limitations period limits the retrospective
relief a plaintiff can recover. It imposes a cap equal to the profits earned during the prior three years, in addition to
any actual damages sustained during this time. Thus, if the plaintiff waits from, say, 1980 until 2001 to bring suit, she
cannot recover profits for the 1980 to 1998 period. But she can recover the defendants profits from 1998 through
2001, which might be precisely when net revenues turned positive).
4
Plaintiffs citation to cases regarding concealment suffer from the same issue. See, e.g., Gomba Music, Inc. v. Avant,
62 F. Supp. 3d 632, 646 (E.D. Mich. 2014). The allegation of concealment only relates to whether the SOL can be
tolled, which is virtually the same inquiry as the discovery rule. Those cases still only bear on the timeliness of the
Complaint rather than providing any insight into what damages are recoverable by statute under the Copyright Act.

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Supreme Courts pronouncements. Further, Castronuovo relied on a Ninth Circuit case, Polar

Bear Productions Inc. v. Timex Corp., 384 F.3d 700 (9th Cir. 2004), that other courts within this

circuit have declined to follow under Sixth Circuit law. See, e.g., Goldman v. Healthcare Mgmt.

Sys., Inc., 2008 WL 2559030, at *3 (W.D. Mich. June 19, 2008) (This Court declines Plaintiffs

invitation to follow the Ninth Circuits decision in Polar Bear); Bridgeport Music, Inc. v. Robert

Hill Music, 2006 WL 3720349, at * 5 (M.D. Tenn. Dec. 14, 2006) (Even setting aside that this

case [Polar Bear] is not controlling and contradicts Hoste). As the Goldman Court stated,

Although harsh, the purpose of a statute of limitation is to preclude stale claims and to force a

plaintiff to be vigilant about vindicating his or her rightsPlaintiff here, like the plaintiffs in Hoste

and Roger Miller, is limited to seeking damages for infringements which occurred during the three

years prior to the date the complaint was filed. Goldman, 2008 WL 2559030 at *3. Castronuovo

appears to be an outlier case.

Plaintiffs citation to the unpublished decision from the Middle District of Tennessee in

Frank Betz Associates v. J.O. Clark Construction, L.L.C., 2009 WL 47143, at *1 (M.D. Tenn. Jan.

7, 2009) is also flawed. First, that case was decided prior to the Supreme Courts opinion in

Petrella. Second, the case is prior to the recent amendments to Rule 26, which requires

reasonableness and proportionality. (As explained below, reasonableness and proportionality are

additional and independent reasons the Amended Motion should be denied). Third, the discovery

sought in Frank Betz Associates was not limited to only the type of financial information at issue

here. It appears that the defendant in that case attempted to limit all discovery to within the three-

year time period. Here by contrast, Defendants assert only that the financial and related

information requested by Plaintiffwhich go to damagesshould be limited to the three-year

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period. Defendants have not limited other requested information and documents to the three-year

period.

The case of Wu v. John Wiley & Sons, Inc. is instructive. There, the defendant in a

copyright infringement case achieved partial summary judgment because the statute of limitations

bars recovery of damages prior to three years before the filing of the original complaint. 2015 WL

5254885, at *1 (S.D.N.Y. Sept. 10, 2015). The Court used the discovery rule to determine that

the complaint had been timely filed. Id. at *6-7. However, that did not end the inquiry. The Court

stated, citing Petrella: A plaintiff claiming copyright infringement has three years from the date

their claim accrues to sue, and may recover retrospective relief running only three years back

from the date the complaint was filed. Id. at *6 (emphasis added). The Court then went on to

correctly find that plaintiffs recoverable damages were limited to the three years preceding the

filing of the complaint, regardless of when the discovery occurred. Id. at *7 (Following Petrella,

Wu can recover damages only for any Wiley infringing acts that occurred on or after May 16,

2010).

Similarly, the Plaintiff here is only entitled to hypothetical relief for the three years

preceding the filing of the Complaint regardless of when discovery occurred. Plaintiffs

argument to the contrary would effectively erase the Copyright Acts specific limitations of

damages for infringement claims.5

To hold otherwise, would lead to a ridiculous outcome where a party can claim 30-plus

years of damages, or even more, on a publicly-released song on a famous album that has been

5
See also Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994) (This interpretation is consistent
with the prevailing view that the statute bars recovery on any claim for damages that accrued more than three years
before commencement of suit); Gaste v. Kaiserman, 669 F. Supp. 583, 584 (S.D.N.Y. 1987) (A victorious
plaintiff is thus limited to recovery of only those monetary damages which accrued within the three-year period
immediately preceding the filing of the lawsuit).

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released and re-released on multiple occasions. Such a result is untenable. See Petrella, 134 S.Ct.

at 1976 (Section 507(b)s three-year limitations period, however, coupled to the separate-accrual

rule, avoids such litigation profusion. It allows a copyright owner to defer suit until she can

estimate whether litigation is worth the candle. She will miss out on damages for periods prior to

the three-year look-back, but her right to prospective injunctive relief should, in most cases,

remains unaltered).

Defendants have properly limited their production of financial and related information to

the three years preceding the filing of the Complaint until the present.

D. It is not reasonable or proportional to the needs of this case to require production


of financial and related information beyond the three-year period because of the
immense burden it would place on Defendants.

Even if this Court were to agree with Plaintiffs legal analysis that he could be entitled to

more than three years of damages under the discovery rule, it still should not require Defendants

to produce any additional financial information outside of the three-year window. It would be

unreasonably burdensome and costly to require Defendants to produce 25 more years of financial

information based solely on Plaintiffs mere statement in his pleading that he did not know about

his claims earlier because of alleged fraudulent concealment by Defendants. Alleged fraudulent

concealment that would have occurred in the form of a song released and re-released on a famous

album for all of the public to hear.

The three-year limitations period contained in the statute is a default rule, and there should

be some requirement that Plaintiff do more than merely plead that he did not know or should not

have known of the alleged infringement to get financial discovery related to alleged damages going

back three decades.6 This is especially true where, as here, the burdens on the Defendants to

6
Plaintiffs reliance on his bald assertion of fraudulent concealment to toll the limitations period is unhelpful. In order
to show fraudulent concealment, he must establish: (1) wrongful concealment of their actions by the defendants; (2)

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produce almost three decades of financial information are unreasonable and disproportionate. (See

Exh. A.)

Plaintiff contends that the Defendants invocation of the proportionality objection to the 25

years of additional financial information requested is unfounded. It is not.

Federal Rule of Civil Procedure 26 was revised effective December 1, 2015 to include an

emphasis on discovery needing to be proportional to the needs of a case. See FRCP 26(b) (Parties

may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or

defense and proportional to the needs of the case) (emphasis added). FRCP 26 lays out the

factors to consider in assessing proportionality as: the importance of the issues at stake in the

action, the amount in controversy, the parties relative access to relevant information, the parties

resources, the importance of the discovery in resolving the issues, and whether the burden or

expense of the proposed discovery outweighs its likely benefit. Id.

The 2015 amendments to Rule 26s Advisory Committee Notes, intended to encourage

judges to be more aggressive in identifying and discouraging discovery overuse, establish that the

party seeking to compel discovery must show how the underlying discovery information bears on

the issues, while the party opposing discovery must show that the material sought either falls

beyond the scope of relevance, or is so marginally relevant that the potential harms of production

failure of the plaintiff to discover the operative facts that are the basis of his cause of action within the limitations
period; and (3) plaintiffs due diligence until discovery of the facts. Gomba Music, 62 F. Supp. 3d at 646. There
have been no acts of concealment by Defendants in this case, merely silence, which is not enough to support a
concealment claim for tolling. See University of Pittsburgh v. Townsend, 542 F.3d 513, 526 (6th Cir. 2008) (To
satisfy this burden, the invoking party must point to some affirmative independent act of concealment on the part of
the defendant. In the absence of an affirmative act, mere silence suffices as fraudulent concealment only when there
is a requisite duty to disclose). Further, Plaintiff engaged in absolutely no due diligence or investigation relating to
possible infringements of his composition that could have uncovered the alleged concealment. See Carrier Corp. v.
Outokumpu Oyj, 673 F.3d 430, 448-49 (6th Cir. 2012) (we may dismiss a claim of fraudulent concealment when it
is obvious from the complaint that the plaintiff conducted absolutely no investigation). Thus, Plaintiffs concealment
claim is specious at best and certainly should not give rise to months-and-months of financial discovery gathering by
Defendants based on the current record.

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outweigh the presumption in favor of broad disclosure. Bentley v. Highlands Hosp. Corp., 2016

WL 762686, at *1 (Slip Copy) (E.D. Ky. Feb. 23, 2016).7

Plaintiffs argument that he is entitled to 28-years of financial information based on bald

pleading assertions, and not more, constitutes discovery overuse that should be curtailed based on

the statute explained above, the reasonableness and proportionality requirements of Rule 26, and

burdensomeness. See, e.g., Jackson v. E-Z-GO Div. of Textron, Inc., 2016 WL 6211719, at *5 (Slip

Copy) (W.D. Ky. Oct. 24, 2016) (The pretrial process musteliminate unnecessary or wasteful

discovery).

First, as explained above, Plaintiff is not entitled to financial and related information

beyond the three-year limitations period. Thus, it would be clearly disproportional to the needs of

this case to require Defendants to produce financial information and documents beyond that default

timeframe. See also Sky Medical, 2016 WL 4703656 at *13 (in a case in which financial

information was sought from claims limited to a certain time period, the Court found that this

request needs to be narrowly tailored to encompass financial documents limited in scope to the

three-year time period encompassing the 177 claims in this action. To further enlarge this temporal

period would result in the burden outweighing the potential benefit which would contravene the

requirement that discovery be proportional to the needs of each case).

Second, the 25-additional years of financial information requested by Plaintiff would create

extreme undue burden for Defendants, especially where there has yet to be any finding that he is

7
Notably, although Rule 26 still permits a wide range of discovery based upon relevance and proportionality, the
provision authorizing the courtto order discovery of any matter relevant to the subject matter involved in the action
has been eliminated. The rationale behind the elimination of this phrase is the reality that it has been used by some,
incorrectly, to define the scope of discovery. Sky Med. Supply Inc. v. SCS Support Claim Servs., Inc., 2016 WL
4703656, at *2 (Slip Copy) (E.D.N.Y. Sept. 7, 2016).

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entitled to more than three years of damages at most (though Defendants believe he is not entitled

to any damages).

The burden that would be placed on Priority to produce financial information for an

additional 25 years would be immense. A wealth of information would need to be collected to

produce financial and related information for the entire period since the song was created in 1989,

including physical and digital sales revenues, licensing revenues, and royalty and other expenses

(assuming such data exists for the entire time period). (Exh. A at 3.) It would take approximately

6 to 8 days of full-time work by an employee just to collect domestic sales data. (Id. at

4.) International sales data prior to 2012 is unavailable, other than Canadian sales data dating back

to 2003. (Id. at 5.) To collect additional artist and publishing royalty statements from the internal

systems of Priority it would take an employee working full time another seven days to complete

the review of three different sets of documents, which would then need to be followed by a lengthy

redaction process. (Id. at 6.)

The information above, as well as other potential information and data, would need to be

collected before Priority would be able to produce the same type of P/L Report for 1989-2012 that

it has already created and produced for 2012-2015. A P/L Report is Prioritys standard method for

providing financial information in litigation. Priority estimates that it would take one employee

working full time approximately two additional weeks to complete a P/L Report dating back to

1989. (Id. at 8.) In total, it would take approximately 5 weeks of full-time work by skilled

employees to complete the P/L Report from 1989-2012. (Id. at 9.) And this estimate, like those

above, assumes that this employee could work full-time and exclusively on this project, rather than

performing his or her regular duties. If the employee is unable to work on a 1989-2012 P/L Report

full-time, a very likely scenario given other work obligations, then the time that would be required

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to complete this project would increase significantly. All estimates also assume that the process

runs as efficiently as possible, and that no unexpected issues or difficulties arise (which they

usually do). It took Priority approximately four months in this litigation to gather information and

compile the P/L Report for just 2012-2015.

Similarly, for Young to produce the royalty statements for just the three years preceding

the filing of the Complaint up until now, counsel had to review and redact more than 5830 pages

of statements, two-to-three feet tall when printed, in order to produce only those arguably relevant

to the allegedly infringing song. This resulted in a production of ultimately only 1068 redacted

pages after a substantial number of hours of work reviewing and redacting. The work to produce

redacted statements for an additional 25 years would be immense, burdensome and disproportional

(if all statements are even available).

In sum, it would be unreasonable, disproportionate, and burdensome to require the

Defendants to produce an additional 25 years of financial information.

II. Based on information available to them, Defendants have provided full responses
to Plaintiffs discovery requests.

Plaintiffs complaints about the alleged overuse of a proportionality objection with respect

to issues other than the three-year period are overblown and misleading. Defendants have provided

full responses and productions to Plaintiffs discovery requests, based on information and

documents available to them. Defendants have not endeavored to withhold otherwise responsive

information and documents based on the proportionality objection, which was made abundantly

clear in Defendants December 21 letter to Plaintiff. (See Exh. D to Plaintiffs Amended Motion

to Compel, pp. 3-6.)

Plaintiffs complaints about certain responses lacking substance or being incomplete lack

merit. With respect to Interrogatory Nos. 7, 12, and 17, Priority has identified all the individuals

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that it is aware of currently who may have knowledge of discoverable information in this matter.

As explained above, the nature of Prioritys relationship with the allegedly infringing song means

that it did not have involvement in the creation, production, or copyright registration of the song.

Priority has provided the names it knows and will certainly supplement if additional names are

uncovered.

Plaintiff also complains about Prioritys responses to Interrogatory Nos. 1 and 11 and RFA

No. 2 and Youngs responses to Interrogatory Nos. 1, 10 and 13. These requests relate to factual

defenses of both Defendants regarding whether there has been sampling or infringing of the

Plaintiffs work. As explained to Plaintiff in the December 21 letter, Defendants have provided

responses to these requests based on all factual information available to or recalled by them from

almost thirty years ago. (See Exh. D to Plaintiffs Amended Motion to Compel, pp. 3, 5.) Any

further, more detailed responses will be the proper subject of expert discovery. (See id.) Plaintiff

wanted to delay expert discovery until Phase II of the litigation after factual discovery and any

initial dispositive motion briefing, so expert work has not yet occurred. Defendants have provided

what they can and will supplement their responses based on a technical analysis that is part of

expert discovery yet to come.8

Plaintiff complains about Prioritys response to Interrogatory No. 15 and Youngs response

to Interrogatory No. 14. The Defendants have responded to these Interogatories regarding the total

number of copies of the allegedly infringing song that have been sold. Defendants have produced

SoundScan computations that total the number of copies of the song sold from the three years prior

to the Complaint until the present. And, Priority produced P/L Reports that contain detailed sales

8
Defendants are at a loss for what they can say currently other than that the alleged infringing song was not a sampling
or otherwise infringing. Plaintiff is asking Defendant to prove a negative as a factual matter, which is not possible.

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data and information. The royalty reports produced by Young similarly contain sales information

and data.

Plaintiffs alleged issues with responses to Request Nos. 14, 15, and 20 for Priority and

Request Nos. 14, 15, and 17 for Young are unfounded. As explained in the December 21 letter,

Defendants have produced all of the relevant documents that they have located on reasonable

search. (See Exh. D to Plaintiffs Amended Motion to Compel, pp. 4, 6.) Defendants cannot

produce documents that they do not have and/or that do not exist. And to the extent they are

located, they will be produced. Defendants plan to make a supplemental production to Plaintiff in

the near term (some additional royalty statements from Priority, one license that has been

discovered upon further search, etc.).

III. The request for a privilege log is unnecessary.

Plaintiffs request for a privilege log is unnecessary. There is no ripe dispute for the Court

to decide. Defendants December 21 letter to Plaintiff explained that while the attorney-client

privilege and work product doctrine were lodged as objections in written discovery responses out

of an abundance of caution, no responsive privileged documents have in fact been uncovered or

withheld from production. (See Exh. D. to Plaintiffs Motion to Compel, p. 2.) Accordingly, there

is nothing for Defendants to log. Defendants are perplexed by Plaintiffs continued demand for a

log. Should responsive privileged documents be discovered, they will be logged. Defendants, it

is worth noting, have not received a privilege log from Plaintiff but take Plaintiff at his word that

he has no privileged documents to log. Defendants ask for the same treatment.

IV. Plaintiffs request to compel documents Defendants already have agreed to search
for and produce, to the extent they exist, is redundant and unnecessary.

Plaintiffs request to compel production of documents that Defendants have already agreed

to produce, to the extent they exist and can be located on a reasonable search, is needless and not

16
Case 3:15-cv-00174-JHM-CHL Document 85 Filed 01/31/17 Page 17 of 18 PageID #: 574

the proper subject of a motion to compel. Defendants have agreed to produce any additional

responsive documents that are located.9

CONCLUSION

For the reasons explained above, Priority respectfully requests that this Court deny

Plaintiffs Amended Motion to Compel.

Respectfully submitted,

_/s/ Miles R. Harrison____________________


Steven M. Crawford
Cory J. Skolnick
Miles R. Harrison
FROST BROWN TODD, LLC
400 West Market Street, 32nd Floor
Louisville, KY 40202
(502) 589-5400
(502) 581-1087 (fax)
cskolnick@fbtlaw.com
scrawford@fbtlaw.com
mharrison@fbtlaw.com

Counsel for Defendants,


Priority Records, LLC and
Andre Romelle Young p/k/a Dr. Dre

9
Plaintiffs list of documents Defendants have agreed to produce likely contains several categories of documents that
do not exist and/or cannot be located on reasonable search based on the thirty-year timeframe. Defendants do not
want to leave a misimpression with the Court that all of the documents identified by Plaintiff can be produced.

17
Case 3:15-cv-00174-JHM-CHL Document 85 Filed 01/31/17 Page 18 of 18 PageID #: 575

CERTIFICATE OF SERVICE

I hereby certify that on the 31st day of January, 2017, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF System, which will send a notice of electronic
filing to all counsel of record:

Michael F. Sutton
Tracey Clemmons Smith
David L. Haney
Caitlin L. McQueen
Gwin Steinmetz & Baird, PLLC
401 West Main Street, Ste. 1000
Louisville, KY 40202
msutton@gsblegal.com
tcsmith@gsblegal.com
dhaney@gsblegal.com
Counsel for Plaintiff, Leroy Mitchell, pka
Prince Phillip Mitchell

_/s/ Miles R. Harrison___________________


Counsel for Defendant, Priority Records, LLC
and Andre Romelle Young p/k/a Dr. Dre

0131397.0626408 4811-2966-8925v7

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Case 3:15-cv-00174-JHM-CHL Document 85-1 Filed 01/31/17 Page 1 of 3 PageID #: 576
Case 3:15-cv-00174-JHM-CHL Document 85-1 Filed 01/31/17 Page 2 of 3 PageID #: 577
Case 3:15-cv-00174-JHM-CHL Document 85-1 Filed 01/31/17 Page 3 of 3 PageID #: 578