IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CASEY DIENEL, )
)
Plaintiff, ) Case No. 3:16-cv-00978
) Chief Judge Sharp
v. ) Magistrate Judge Newbern
)
WARNER-TAMERLANE PUBLISHING ) JURY DEMAND
CORP., et al., )
)
Defendants. )

DEFENDANT JUSTIN BIEBERS RESPONSE IN OPPOSITION TO

MOTION TO COMPEL AND MOTION FOR SANCTIONS

Justin Bieber did not participate in composing the allegedly infringing portion of the song

Sorry. Plaintiffs Expedited Motion to Compel and Motion for Sanctions against Mr. Bieber

Bieber (Plaintiffs Motion) therefore appears to be a litigation tactic designed to harass him

and extract an unfair settlement. Plaintiffs strategy in this case has been revealed to (1) seek

Justin Biebers deposition immediately, (2) hope for his non-appearance, (3) attack his character

if he is unable to appear, and (4) seek sanctions in order to coerce settlement on a basis other

than the merits of the lawsuit.

Mr. Bieber respectfully requests the Court to deny Plaintiffs Motion and to refuse to

reward her strategy. Plaintiff has failed to articulate any reasonable basis for deposing Mr.

Bieber at all, let alone first, yet she persists in her effort to compel his appearance within the next

two weeks. As explained in his motion for protective order, Mr. Bieber asks the Court (1) to

order that Plaintiff shall not be permitted to depose him during the liability phase or (2), at the

very least, to sequence discovery so that Plaintiff shall not be permitted to depose him until the

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other four co-writers have been deposed, and only then if the evidence shows that Mr. Bieber

contributed to the allegedly infringing portion of Sorry, which he did not.

Mr. Bieber also requests the Court to deny Plaintiffs motion for monetary sanctions. Mr.

Bieber could not appear for his deposition due to illness, as established by his physicians note

filed contemporaneously with a motion to file his declaration under seal. Mr. Biebers non-

appearance therefore was substantially justified.

Even if missing the deposition were not substantially justified, Mr. Bieber has offered to

pay the reasonable fees and costs related to the Plaintiff and both her lawyers traveling to

California for the deposition. See Email from T. Warnock to H. ORear dated February 16, 2017

9:18 A.M. (Doc. No. 60-1, page 2). As soon as Mr. Bieber made that offer, Plaintiff filed this

motion and has yet to offer any other response.

Even if the Court finds that some monetary sanction is warranted, the award of

$35,404.98 sought by Plaintiff is outrageous. Counsel for Plaintiff spent over 70 hours preparing

for the deposition of one witness on the sole issue of liability. Plaintiff then spent another 30

hours preparing her motion for sanctions. Plaintiff has prioritized harassing Mr. Bieber over

actually litigating the merits of this case. Mr. Bieber requests the Court to deny Plaintiffs

motion to compel and motion for sanctions.

FACTS

I. Plaintiffs infringement claim.

Plaintiff has brought a copyright-infringement claim against eleven defendants, including

Mr. Bieber. (See Doc. 32.) Plaintiff alleges that Sorry infringes her copyright in Ring the

Bell. (Id. 116-140.) The credited writers for Sorry are Julia Michaels, Justin Tranter,

Sonny Moore, Michael Tucker, and Justin Bieber. (Id. 3, 5, 9, 23, 28.)

Case 3:16-cv-00978 Document 66 Filed 02/23/17 Page 2 of 14 PageID #: 525

 The sole basis for Plaintiffs infringement claim regarding the composition Sorry is that

Defendants allegedly copied a four-note motive contained in Ring the Bell. Sorry contains a

six-note motive (plus a breath sound) that Plaintiff alleges infringes her four-note motive. (Id.

81-99.) 1

Plaintiff admits in her Complaint that her claim regarding the underlying musical

composition is limited solely to what she calls the four-note vocal riff. (See id. 81-99.)

In the attachment to the demand letter that is explicitly referenced in her First Amended

Complaint ( 106), Plaintiff notes that the only significant similarity that she identifies in the

works is the four-note vocal riff. (Doc. 32 106.)2 In response to a friends question about

her allegation of infringement, Plaintiff also admitted her claim is limited to just the vocal line, i

cant hear any other components of the song. (Id. 2, Ex. 1, WH 0273.)

As a consequence, the only relevant issue at this liability stage is whether the composers

of the six-note motive contained in Sorry had access to or copied the four-note motive

contained in Ring the Bell.

II. Composition of Sorry.

Mr. Bieber had no role in composing the allegedly infringing portion of Sorry.

Michaels and Tranter wrote the vocal melody and the lyrics for the original demo of the song

Sorry. (Michaels Decl. 2; Tranter 2.) Michaels sang the vocals on the demo version of

Sorry. (Michaels Decl. 3; Tranter 3.) While recording the demo version, Michaels

1
Although Plaintiff alleges that Sorry contains a sample, allegedly lifted directly from her
work Ring the Bell, Plaintiff has disclosed no evidence that a sample actually exists, either in
the demand letter referenced in her First Amended Complaint or otherwise. No defendant could
have discoverable knowledge to support a claim that itself lacks any factual basis.
2
Plaintiff has never disputed that her infringement claim is limited solely to the six-note motive
in Sorry that allegedly infringes the four-note motive in Ring the Bell. For that reason, Mr.
Bieber does not submit the demand letter or its attachments. If Plaintiff does dispute that issue,
Mr. Bieber is prepared to submit the demand letter and its attachments to the Court.
3

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improvised the sequence of six notes and breath-like ha sound that were eventually

incorporated into the final version of Sorry. (Michaels Decl. 4; Tranter Decl. 4.) Mr.

Bieber had no role in composing or recording the demo version of Sorry. (Michaels Decl. 5;

Tranter 5.)

In sum, Mr. Bieber did not compose the six-note motive that forms the exclusive basis for

Plaintiffs copyright infringement claim. In fact, the six-note motive was created before Mr.

Bieber did any recording on Sorry.

III. Mr. Biebers scheduled deposition.

Nonetheless, on December 5, 2016, Plaintiff asked for dates to take the deposition of

Justin Bieber first, before deposing any other persons. (Barger Decl. 3, Ex. 2.) Mr. Bieber did

not file a motion for protective order at that time in an effort to conserve both his and the Courts

resources and avoid a public legal dispute about such matters. After negotiation, the parties

agreed to schedule Mr. Biebers deposition at noon on February 8, 2017 in Santa Monica,

California. (Barger Decl. 4, Ex. 3.) Although several other witnesses with knowledge of

discoverable facts are located in Southern California, including the four co-writers, Plaintiff has

not yet been willing even to discuss their depositions. Plaintiff made no attempt to schedule

more than one deposition, which would conserve resources.

Although only one lawyer would be needed to depose Mr. Bieber about his participation

in the creation of the musical composition Sorry, both of Plaintiffs lawyers flew from

Nashville to Los Angeles to attend the deposition, logging more than 70 hours between travel

and preparation. Moreover, even though Plaintiff herself had nothing to contribute to the taking

of Mr. Biebers deposition since she could not possibly have personal knowledge of the creation

of Sorry, she flew from Massachusetts to Los Angeles to attend the deposition.

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 At approximately 8:00am Pacific on the morning of February 8, 2017, counsel for Mr.

Bieber notified counsel for Plaintiff that Mr. Bieber could not appear for the deposition due to

illness. (Doc. 60-3.) Later that morning, counsel for Mr. Bieber received a note from a

physician confirming the illness, and Mr. Bieber is submitting that note under seal

contemporaneously. (Barger Decl. 5, Ex. 4.)

In an effort to avoid the further expenditure of resources, counsel for Mr. Bieber

suggested that, since Mr. Bieber could not appear at the deposition scheduled for noon, counsel

for the parties should cancel the stenographer and videographer and return to Nashville. Counsel

for Plaintiff refused. Instead, counsel for Plaintiff insisted on retaining the stenographer and

videographer, keeping everyone in Santa Monica until noon, and then appearing on the record to

note Mr. Biebers non-appearance.

IV. Plaintiffs motion to compel.

During a telephone conference held on February 14, 2017 before the Court, counsel for

Mr. Bieber informed the Court and opposing counsel that Mr. Bieber did not compose the six-

note motive that, by Plaintiffs own admission, forms the entire basis for her claim regarding the

musical composition. Plaintiff has no proof to the contrary and no factual basis to contest the

declarations of the co-writers who performed the allegedly infringing portion of Sorry. In fact,

Plaintiff concedes in her pleading that she has no proof that Mr. Bieber contributed to the

allegedly infringing portion of the musical composition:

At a songwriting session for Bieber in 2015, songwriters Julia Michaels and Justin
Tranter were invited to Biebers studio to listen to rough tracks that Skrillex,
Diplo, and Tucker had created for Bieber. The intent, and ultimately the product,
of that session was for Michaels and Tranter to craft lyrics to the song that
eventually became Sorry.

First Amended Complaint 74 (Doc. No. 32).

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 Moreover, counsel for Mr. Bieber stated during that call that Mr. Bieber was unavailable

due to his 2017 Purpose Tour, which requires him to travel worldwide. The tour lasts until

September 6, 2017. (Barger Decl. 6, Ex. 5.) Nonetheless, counsel for the Plaintiff still insists

on taking Mr. Biebers deposition first, unnecessarily delaying other discovery, and forcing the

parties to waste resources litigating this issue, which is unrelated to the merits of the lawsuit.

On February 15, Plaintiff proposed that the parties enter an agreed order compelling Mr.

Bieber to appear for a deposition in Nashville between February 27, 2017 and March 3, 2017, on

the condition that Plaintiff would not seek monetary sanctions against Mr. Bieber. (Barger Decl.

7, Ex. 6.)

On February 16, 2017, Mr. Bieber made a counterproposal. Mr. Bieber offered to pay the

reasonable expenses incurred by Plaintiff and her two lawyers for his non-appearance, on the

condition that Plaintiff agree to depose the other co-writers first. (Barger Decl. 8, Ex. 7.) Mr.

Bieber offered to provide the declarations of his co-writers, which clearly establish that he

played no role in writing the allegedly infringing portion of Sorry. (Id.)

Mr. Bieber offered to revisit at a later time whether the facts then warranted taking his

deposition on the issue of liability. (Id.) This arrangement would allow discovery to continue,

avoid court intervention, streamline discovery on the real issues of liability, and allow Mr.

Bieber to focus on his 2017 Purpose Tour.

Plaintiff never responded to this offer. Instead, and without any reasoned basis, Plaintiff

again insisted on deposing Mr. Bieber first. (Doc. 58 & 60.) Plaintiff noticed Mr. Biebers

deposition for March 2, 2017; moved to compel Mr. Bieber to appear in Nashville on a date

between February 27, 2017 and March 3, 2017; and asked for an award of $35,404.98 in

sanctions, including 30 hours of two attorneys time just to prepare the motion. (Doc. 58 & 60.)

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 In so doing, Plaintiff mooted Mr. Biebers reasons for having not sought a protective

order in the first instance: conserving judicial resources and avoiding a public legal dispute over

this issue. Plaintiff forced Mr. Bieber to move for a protective order, and that motion is pending.

Also, Plaintiff has accomplished her goal of creating a public legal dispute and attempting to

embarrass Mr. Bieber, as evidenced by the attached articles from Law360 and The Tennessean.

(Exhibits A and B.) Of course, the articles quote extensively from Plaintiffs papers, including

the unsupported assertion that a picture depicts Mr. Bieber implicitly celebrating that he

violated the law.

STANDARD OF REVIEW

A district courts decision regarding Rule 37 sanctions is reviewed for an abuse of

discretion. See Tisdale v. Fed. Exp. Corp., 415 F.3d 516, 526 (6th Cir. 2005). While that

discretion is broad, it is not limitless. Bon Air Hotel, Inc. v. Time, Inc., 376 F.2d 118, 122 (5th

Cir. 1967).

A district court cannot order payment of expenses if the partys non-appearance for a

deposition was substantially justified. Fed. R. Civ. P. 37(d)(3). In considering whether to

impose sanctions, a court should consider prejudice resulting from the [alleged] discovery

abuse, whether the noncooperating party was warned that violations would result in sanctions,

and whether the court considered less drastic sanctions. Tisdale, 415 F.3d at 525 (quotation

omitted).

Moreover, in the event a court determines sanctions of some sort may be appropriate,

[t]he court should always impose the least harsh sanction that can provide an adequate remedy.

Nacco Materials Handling Grp., Inc. v. Lilly Co., 278 F.R.D. 395, 405 (W.D. Tenn. 2011)

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(quoting Pension Comm. Of the Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685

F. Supp. 2d 456, 469 (S.D.N.Y. 2010)).

ARGUMENT

Mr. Bieber asks the Court to deny Plaintiffs motion to compel and her motion for

sanctions. As explained in Mr. Biebers contemporaneously filed motion for protective order,

the evidence establishes that he played no role in composing the allegedly infringing portion of

Sorry. Accordingly, there is no reason to depose Mr. Bieber at all, let alone depose him within

two weeks while he is preparing for and conducting his 2017 Purpose Tour. Mr. Biebers

reasonable proposal to sequence depositions and his offer to pay reasonable expenses and fees

stand in stark contrast to Plaintiffs inflammatory and unreasonable positions.

Mr. Bieber also asks the Court to deny Plaintiffs motion for monetary sanctions. Mr.

Bieber could not appear at the scheduled deposition due to illness, and therefore his absence was

substantially justified. Plaintiffs unfair speculation that Mr. Bieber deliberately sought to skip

the deposition is not supported by any admissible evidence and, in fact, riddled with glaring

inaccuracies. If the Court nonetheless determines some monetary sanctions are warranted, then

Plaintiffs shocking request for $35,404.98 should be substantially reduced. Even without an

award of sanctions, Mr. Bieber has already offered to pay the reasonable fees and costs

associated with the deposition.

I. Plaintiff cannot articulate any reasonable basis for compelling the deposition of Mr.
Bieber, let alone compelling him to be deposed first.

Mr. Bieber respectfully requests the Court to deny Plaintiffs motion for compel his

deposition to occur in Nashville on or before March 3, 2017. Plaintiff cannot articulate any

reasonable basis for compelling the deposition of Mr. Bieber, let alone compelling him to be

deposed first.

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 As explained in Mr. Biebers motion for protective order, Mr. Bieber did not compose the

six-note motive at issue, and therefore his testimony would have no relevance. (See Michaels

Decl. 5; Tranter Decl. 5.) On the other hand, deposing Mr. Bieber during his world tour and

disrupting his substantial business obligations would impose an undue burden. (See Barger Decl.

6, Ex. 5.) Measured against the facts, Plaintiffs insistence on deposing Mr. Bieber, before

conducting any other depositions, is simply a litigation tactic designed to harass him in an effort

to extract an unfair settlement.

The more reasonable course is (1) to order that Plaintiff shall not be permitted to depose

Mr. Bieber during the liability phase or (2), at the very least, to sequence discovery so that

Plaintiff shall not be permitted to depose Mr. Bieber until the other four co-writers have been

deposed, and only then if the evidence shows Mr. Bieber contributed to the allegedly infringing

portion of Sorry.

Plaintiff will not be prejudiced from sequencing discovery in this manner. See Tisdale,

415 F.3d at 525 (requiring court to consider prejudice resulting from the [alleged] discovery

abuse) (quotation omitted). The dispositive-motion deadline for the liability phase is December

15, 2017. (Doc. 36.) Plaintiffs attempt to rush the deposition of Mr. Bieber is not warranted by

the facts or discovery deadlines of this case.

Due to her inability to articulate any good reason for expediting the deposition of Mr.

Bieber, Plaintiff now claims that Mr. Bieber somehow waived any protection from her

harassment. (Doc. 60 p. 8.) Plaintiff notably fails to cite any law supporting her waiver

argument, and with good reason: such a rule would encourage excessive motion practice on

discovery issues and waste valuable judicial resources.

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 Mr. Bieber did not initially file a motion for protective order because he sought to

conserve judicial resources and avoid a public legal dispute about such matters. As the Court

noted during its conference call with the parties, private resolution is vastly preferable to judicial

intervention. Mr. Bieber heeded that advice; Plaintiff did not.

Plaintiff never responded to Mr. Biebers offer to pay her reasonable expenses and to

sequence the depositions of the co-writers. (See Barger Decl. 8, Ex. 7.) Instead, Plaintiff

decided to capitalize on her deliberate strategy to turn this lawsuit into a negative public-relations

campaign against Mr. Bieber.

In sum, Plaintiffs motion to compel Mr. Biebers deposition on or before March 3, 2017

is without merit. There is no need to depose Mr. Bieber at all because he did not compose the

allegedly infringing six-note motive at the heart of Plaintiffs infringement claim. There is no

need to expedite his deposition when the dispositive-motion deadline for liability is almost one

year away. And Plaintiff cannot articulate any prejudice that would arise from sequencing the

depositions of the co-writers. Mr. Bieber respectfully requests the Court to deny Plaintiffs

motion to compel.

II. Mr. Biebers illness substantially justified his non-appearance.

In addition to her motion to compel, Plaintiff has also asked for monetary sanctions. Mr.

Biebers illness substantially justified his non-appearance, and therefore the Court may not

award the expenses sought by Plaintiff. See Fed. R. Civ. P. 37(d)(3) (prohibiting award of

expenses when non-appearance is substantially justified).

The doctors note submitted by Mr. Bieber establishes that he could not appear at the

deposition due to illness. (Barger Decl. 5, Ex. 4.) Courts universally recognize illness as a

justified reason for a non-appearance. See, e.g., Clay v. Sothebys Chi., Inc., 257 F. Supp. 2d

10

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973, 978-79 (S.D. Ohio 2003) (denying sanctions where defendant claimed the deponent

purposefully feigned illness); Smith v. Argent Mortg. Co., 2007 WL 2727229, at *3 (D. Col.

Sept. 17, 2007) (denying sanctions because deponent became sick).

Plaintiff claims that Mr. Bieber intentionally skipped his deposition, but that speculation

is unwarranted and unsupported by any admissible evidence. Going out with friends does not

immunize someone from illness. Moreover, counsel for Plaintiff does not have personal

knowledge about the timing of the videos and pictures posted on the Internet by persons he has

never met. (Doc. 59 4.); see Fed. R. Evid. 801(c). Regrettably, counsel for Plaintiff has

overreached and made inaccurate sworn statements under oath.

Based on the actual evidence in the record, Mr. Biebers inability to appear was

substantially justified due to illness.

III. The fees and expenses sought by Plaintiff are excessive and unreasonable.

If the Court nonetheless determines that some monetary sanction is appropriate,

Plaintiffs request for $35,404.98 in fees and expenses is shocking and unreasonable.

As a threshold matter, the one-page table of expenses submitted by counsel for Plaintiff is

inadequate to support the award of any expenses. (Doc. 59-2); see Imwalle v. Reliance Med.

Prods, Inc., 515 F.3d 531, 553 (6th Cir. 2007) (holding that the documentation offered in

support of the hours charged must be of sufficient detail and probative value to enable the court

to determine with a high degree of certainty that such hours were actually and reasonably

expended in the prosecution of the litigation (emphasis added)). Where documentation is

inadequate the district court may reduce the award accordingly. Imwalle, 515 F.3d at 553.

Counsel for Plaintiff submitted categorical time entries that lack dates, do not describe

the specific tasks performed by counsel, and lump[] together such disparate activities as

11

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traveling to California and preparing for deposition. (Doc. 59-2); see Imwalle, 515 F.3d at

553. One cannot differentiate between time spent writing briefs, researching, and preparing

deposition outlines, on the one hand, versus wasted time browsing unauthenticated social media

accounts purporting to cover Mr. Bieber, on the other. Moreover, the table of expenses does not

appear to be a contemporaneous record of time, which warrants a further reduction in fees.

(Doc. 59-2); see Imwalle, 515 F.3d at 553. One cannot say with a high degree of certainty, or

even low degree of certainty, that counsel for Plaintiff reasonably expended their time.

In spite of counsel for Plaintiffs inadequate documentation, the individual expense

entries are clearly excessive. There was no justifiable reason for both of Plaintiffs lawyers to

travel to California for the deposition. Accordingly, the air fare, hotel, and food expenses sought

by Plaintiff should be cut in half, for a total of $1,482.48. For the same reason, Plaintiff has not

provided a basis to evaluate whether travel time incurred by Plaintiffs second lawyer should be

excluded.

In addition, a court should only award reasonable expenses and fees caused by the

failure. Fed. R. Civ. P. 37(d)(3) (emphasis added); see also Gen. Envtl. Sci. Corp. v. Horsfall,

25 F.3d 1048 (6th Cir. 1994). If Plaintiff insists on taking Mr. Biebers deposition, then the

Court should not award any fees for preparing for the deposition and not even fees for travel

where the travel time was spent contemporaneously preparing for the deposition.

Counsel for Plaintiffs also spent an excessive amount of time preparing for the deposition

of Mr. Bieber. Counsel for Plaintiffs spent 70 hours preparing to take Mr. Biebers deposition.

That amount of time is facially unreasonable, particularly when Justin Bieber has not yet

produced documents during the course of discovery because he did not have documents

responsive to Plaintiffs first document requests. Preparing to ask Mr. Bieber to recite

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everything he knows about the creation of the composition Sorry, let alone the portion at issue,

does not justify 70 hours of preparation by two lawyers.

Most egregiously of all, counsel for Plaintiff spent 30.6 hours preparing their sanctions

motion. See Colony Ins. Co. v. Kuehn, 2011 WL 4729954, at *2 (D. Nev. Oct. 5, 2011) (finding

that calculation of 24.4 hours of attorney labor is excessive to prepare motion for sanctions and

concluding counsel reasonably should have taken around 14 hours of attorney labor). How

counsel for Plaintiff spent that much time writing a ten-page motion filled with inadmissible

pictures and containing only one case citation is curious.

Based on Plaintiffs filing, most of that time appears to have been devoted to searching

for unauthenticated YouTube videos and Twitter posts. Given the relative simplicity of the legal

issues involved and Plaintiff counsels inefficient expenditure of time, the fee award sought by

Plaintiff should be drastically reduced.

Moreover, Mr. Bieber offered to pay the reasonable fees and costs for traveling to and

from California for the deposition before Plaintiff filed her motion. Thus, Mr. Bieber has already

offered to pay a sum that likely exceeds an appropriate sanction because at least some of the

travel time was likely spent preparing for the deposition. Plaintiff has yet to respond to that offer

other than to file the instant motion.

CONCLUSION

For the foregoing reasons, Mr. Bieber respectfully requests the Court to deny Plaintiffs

motion to compel and motion for sanctions.

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 Respectfully submitted,

s/ Timothy L. Warnock
Timothy L. Warnock (BPR No. 12844)
Keane A. Barger (BPR No. 33196)
Riley Warnock & Jacobson, PLC
1906 West End Avenue
Nashville, TN 37203
(615) 320-3700 (Telephone)
(615) 320-3737 (Fascimile)
twarnock@rwjplc.com
kbarger@rwjplc.com

Attorneys for Defendants Justin Bieber,

UMG Recordings, Inc., UMG Commercial
Services, Inc., and Universal Music Corp.

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing has been served upon the following
via the Courts ECF system:

Howell ORear Robb S. Harvey

Seth M. McInteer John E. Haubenreich
McInteer & ORear PLC Waller Lansden Dortch & Davis, LLP
2801 12th Avenue South 511 Union Street, Suite 2700
Nashville, TN 37204 Nashville, TN 37219
howell@mcolawfirm.com robb.harvey@wallerlaw.com
seth@mcolawfirm.com john.haubenreich@wallerlaw.com

Attorneys for Plaintiff Attorneys for Warner-Tamerlane Publishing

Corp., Sonny Moore, Kobalt Music
Publishing America, Inc., Michael Tucker,
Julia Michaels and Justin Tranter

this 23rd day of February, 2017.

s/ Timothy L. Warnock

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