Exhibits 1 to 5 (Skidmore v. Led Zeppelin "Stairway to Heaven" lawsuit)

8/17/2019 Exhibits 1 to 5 (Skidmore v. Led Zeppelin "Stairway to Heaven" lawsuit)

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EXHIBIT 1

Case 2:15-cv-03462-RGK-AGR Document 210-1 Filed 05/09/16 of 75 Page ID #:5512



From: Peter J. Anderson

To: Malofiy, Francis Alexander

Cc: Helene M. Freeman

Subject: Skidmore

Date: Friday, March 25, 2016 2:43:00 PM

Francis:

I’m following up regarding scheduling expert depositions. Since you haven’t provided

dates I propose the following (some experts didn’t state their place of residence or

business, so please let me know asap if I’ve got their cities wrong):

• Stewart: April 6 in Burlington, VT, with a 9 or 9:30 a.m. start.

• Bricklin, Johnson, Hanson and Somach: April 7 in Philadelphia, as follows:

o Bricklin at 9 a.m.

o Johnson at 11:00 a.m.

o Hanson at 3:00 p.m.

o Somach at 4:30 p.m.

• Einhorn: April 8 in New Jersey, with a 9 or 9:30 a.m. start.

Please let me know if these dates work for you and these gentlemen, and also please

get back to me as to whether they will accept service of their subpoenas.

Thanks.

Peter.

______________________________

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EXHIBIT 1

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To: Malofiy, Francis Alexander

Cc: Helene M. Freeman

Subject: RE: Skidmore

Date: Monday, March 28, 2016 2:47:00 PM

Attachments: Nottice of Subpoenas.pdf

Francis:

Since I didn’t hear back from you, attached is a courtesy copy of the notice served

today of the subpoenas issued for your expert witnesses, for the dates proposed

below.

Of course, I remain willing to schedule these for other dates if we can reach

agreement on those dates beforehand.

Finally, I again ask that you let me know if your witnesses will accept service of their

subpoenas. Alternatively, please immediately provide their addresses, which were

not included with their disclosures.

Best regards.

Peter.

EXHIBIT 1

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From: Francis Alexander Malofiy

To: Peter J. Anderson; Helene M. Freeman

Cc: Francis Alexander Malofiy; AJ Fluehr; Glen Kulik



Dear Peter,

I will get back to you by Wednesday of this week.

*****

With every good wish, I am,

Francis Malofiy, Esquire

Francis Alexander, LLC

280 N. Providence Road | Suite 105

Media, PA 19063

T: (215) 500-1000F: (215) 500-1005

E: [email protected]

EXHIBIT 1

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To: "Francis Alexander Malofiy"; "Helene M. Freeman"

Cc: "AJ Fluehr"; "Glen Kulik"



Francis:

Okay, but in the meantime please provide the experts’ addresses so that I can make

arrangements to have them served if they decline to accept service.

Thanks.

Peter.

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From: Peter J. Anderson [mailto:[email protected]]Sent: Wednesday, March 30, 2016 12:36 PMTo: 'Francis Alexander Malofiy'Cc: 'AJ Fluehr'; 'Glen Kulik'; 'Helene M. Freeman'Subject: RE: Skidmore

Francis:

I do need to hear from you about the expert depositions and their addresses andsubpoenas. If you don’t get back to me and don’t provide addresses, that will beanother reason we will raise that you can’t call your experts.

Also, we haven’t heard from you regarding conferring re exhibits and such. When doyou want to have that conference?

Best regards.

Peter.

EXHIBIT 1

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From: Francis Alexander Malofiy [mailto:[email protected]]

Sent: Wednesday, March 30, 2016 4:06 PM


Cc: Francis Alexander Malofiy; AJ Fluehr; Glen KulikSubject: RE: Skidmore

Peter,

I’m confused by your request.

The Discovery Cut-Off Date identified by Judge Klausner’s Order was February 11, 2016. See attached

Order.

The deadline to conduct discovery and depositions has long passed.

Kindly review Judge Klausner’s Orders:

In regards to Discovery Cut-Off:“The Court has established a cut-off date for discovery in this action [February 11, 2016]. All discovery

shall be complete by the discovery cut-off date specified in the Scheduling Order. This is not the date by

which discovery requests must be served; it is the date by which all discovery is to be completed.”

In regards to Depositions:

“All depositions shall be scheduled to commence sufficiently in advance of the discovery cut-off date

[February 11, 2016] to permit their completion and to permit the deposing party enough time to bring

any discovery motion concerning the deposition prior the cut-off date.

Peter, if you recall, I had repeatedly reached out to you with the hopes of addressing the expert

discovery issue and extending the discovery deadline so that we would have ample time to conduct

expert depositions. You refused to submit a joint stipulation to extend the deadlines or set the expert

deadlines.

***** With every good wish, I am,

Francis Malofiy, EsquireFrancis Alexander, LLC280 N. Providence Road | Suite 105Media, PA 19063 T: (215) 500-1000

F: (215) 500-1005E: [email protected]

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From: Peter J. Anderson [mailto:[email protected]]Sent: Wednesday, March 30, 2016 4:22 PMTo: 'Francis Alexander Malofiy'; 'Helene M. Freeman'Cc: 'AJ Fluehr'; 'Glen Kulik'Subject: RE: Skidmore

Francis:

Feigning confusion is very dangerous for you and your client, both because the Courtwill not buy it and because if you refuse to cooperate and disclose the expert’saddresses you are likely, and perhaps certainly, going to be precluded from callingthem.

February 11, 2016 was the fact discovery cut-off and these are expert, not fact,depositions. Also, since the Court left experts “to code,” expert disclosures were dueand provided on February 10, 2016. It is absurd for you to suggest that the depositionsof the experts disclosed on February 10, 2016, as well as any rebuttal experts disclosed

in March, 30 days later, were supposed to occur by February 11.

I ask you once again to cooperate in the taking of these expert depositions and, if yourefuse to arrange for them to accept service of their deposition subpoenas, provide theexperts’ addresses.

Peter.

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From: Glen Kulik

To: Francis Alexander Malofiy; Peter J. Anderson; Helene M. Freeman

Cc: AJ Fluehr


Date: Wednesday, March 30, 2016 4:40:46 PM

Attachments: image001.png

I wasn’t directly involved in the scheduling but the order does say “Discovery Cut Off Date.” If the judge meant percipient

witness cut-off date only then in my experience he would have distinguished, or he would have set a separate date for expert

discovery cut off. Isn’t that your experience, too, Peter?

___________________________________________________________________________

Glen L. Kulik, Esq.

KULIK GOTTESMAN SIEGEL & WARE LLP

15303 Ventura Boulevard, Suite 1400

Sherman Oaks, California 91403

(310) 557-9200 Main

(310) 557-0224 Fax

________________________ _ _______________________ _______ _____ ______ _________

This electronic message contains information which may be confidential and privileged and is intended only for the named addressee. Unless you are the addressee of this message you may not use, copy or disclose the contents of this message to anyone. If you have received this message in error, please delete the message and advis e the sender by repl y e-mail or by calling (310) 557-9200. Thank you.

To ensure compliance with Internal Revenue Service Circular 230, we inform you that any U.S. Federal Tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

EXHIBIT 1

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To: "Glen Kulik"; "Francis Alexander Malofiy"; "Helene M. Freeman"

Cc: "AJ Fluehr"




He also said that morning that he was leaving experts “to code,” meaning the FRCP 26 default provisions,

which necessarily means that expert depositions occur after the fact discovery cut-off. There’s no getting

around that Glen.

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From: Glen Kulik

To: Peter J. Anderson; Francis Alexander Malofiy; Helene M. Freeman

Cc: AJ Fluehr



Attachments: image002.pngimage003.png

Peter,

What specific language are you referring to in Rule 26?

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Cc: "AJ Fluehr"




Rule 26(a)(2)(D) It provides that absent the court setting or the parties agreeing to a different schedule, the

default is initial expert disclosures go out 90 days before the trial date, etc., and 90 days before the trial date

was February 10, the day before the discovery cut-off.

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From: Glen Kulik


Cc: AJ Fluehr




Ok, I’m aware of that language but it has to do with expert disclosures, not expert depositions. I don’t recall Rule 26 saying

anything about the timing of expert depositions. When the judge mentioned the default date, I have a faint recollection he

meant for expert designations.

As for whether the schedule was logical, I’ve seen a few examples the last two months where I thought the schedule set by the

court did not make sense in hindsight, but the judge does not seem inclined to modify it.

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Cc: "AJ Fluehr"




I’m not sure what to make of your e-mail, but the fact remains that (1) we could not have possibly taken the

expert depositions before the February 11, 2016 discovery cut-off date and (2) we cannot assume that the

Judge meant to prevent the parties from taking expert depositions. That leads inexorably to the conclusion that the February 11 date didn’t apply to experts.

EXHIBIT 1

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Cc: "AJ Fluehr"




And, to add to that: Rule 26(b)(4)(A) expressly directs that parties are entitled to depose those identified as

experts.

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From: Glen Kulik


Cc: AJ Fluehr




I don’t know what was intended but I know what the order says, and it refers to “discovery cut-off” without making any

distinction between expert discovery and percipient witness discovery.

That said, I see that you’ve proposed Friday to meet and confer with Francis so hopefully he’ll be available and you’ll work

something out.

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From: Glen Kulik


Cc: AJ Fluehr




Of course there is a right to depose experts, just as there is the right to depose percipient witnesses. But there is a cut-off.

EXHIBIT 1

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Cc: "AJ Fluehr"




Rule 26(b)(4)(A) is specific to deposing experts, and that confirms experts are treated separately from

percipient witnesses. Otherwise, there would be no need for Rule 26(b)(4)(A).

And, with all respect, it makes no sense to acknowledge that we have the right to depose the experts you identified on February 10, 2016 but, as Francis and perhaps you contend, we had to do so by February 11,

2016.

The position plaintiff is taking is untenable and the consequences of taking that untenable position include

adding to the reasons plaintiff is properly precluded from calling these experts.

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Attachments: image001.pngimage005.pngimage006.pngimage010.png

Dear Peter,

It was Plaintiff who complained that expert discovery would not be completed before the February 25, 2016 deadline for

dispositive motions. This was an issue we discussed at length. Both sides attempted to come up with a proposed schedule for

expert disclosures and depositions. In the end you, Peter, refused to enter into a joint stipulation to set the expert disclosures

and depositions so that both sides with have time to conduct the depositions.

Plaintiff was forced to file a motion with the court to extend expert disclosures and depositions.

You, Peter, opposed that motion and opposed setting a time for expert disclosures and depositions.

In fact, Judge Klausner was clear that he would not entertain any of the set deadlines – including Expert Reports or Expert

Depositions. See below:

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There’s no getting around the fact that Plaintiff addressed the exact issue of Expert Depositions with the Court, you opposed

the extension—even as it related to expert depositions! The Court ruled and DENIED any extension of Expert Depositions.

There’s no getting around that fact Peter.

You can’t decide that the Courts ruling is no longer applicable because it no longer favors your client. That would be

gamesmanship. Plaintiff will not agree to violate Judge Klausner’s Order.

*****





Media, PA 19063

T: (215) 500-1000

F: (215) 500-1005

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To: "Francis Alexander Malofiy"; "Helene M. Freeman"

Cc: "AJ Fluehr"; "Glen Kulik"




Francis:

You are confusing issues: the judge’s denial of your request to move the dates, including when expertdisclosures would be provided, has nothing to do with deposing experts after they have been identified.

Defendants have the express right under Rule 26(b)(4)(A) to take the depositions of those you identified as

experts. If you continue to refuse to cooperate and don’t provide their addresses, you solidify yet another

reason that you can’t call the experts. It’s that simple.

Best regards.

Peter.

EXHIBIT 1

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From: Glen Kulik


Cc: AJ Fluehr



Attachments: image001.pngimage002.pngimage003.pngimage004.pngimage005.png

You haven’t provided any authority that you have a right to conduct expert depositions after the discovery cut-off date set by

the court. You have given us authority on the default date to disclose experts. You have given us authority that parties have a

right to take expert depositions, just as they have a right to depose percipient witnesses. You are correct on both of those

points. But you’ve given us no authority which says that you have a right to take discovery after the deadline set by the court

for “discovery cut off.”

EXHIBIT 1

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Cc: "AJ Fluehr"




This is not productive. It is patently absurd for you to suggest that the Court cut off expert discovery on February 11, with expert disclosures left “to code” and initial expert disclosures due February 10 and

rebuttal disclosures due a month later. But, if that’s the position you and Francis continue to take, you take the position knowing full well the consequences.

EXHIBIT 1

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EXHIBIT 2





To: Francis Alexander Malofiy

Cc: Helene M. Freeman; Glen Kulik ; AJ Fluehr

Subject: Re: Skidmore

Date: Tuesday, April 05, 2016 7:00:11 AM

Francis:

I'm leaving for a mediation and will be out of the office all day, and I haven't had a chance to review your filings, but please send us a Word copy of your exhibit and witness lists so that we can shoot for getting you back revised joint versions tomorrow.

I won't comment on the rest of your e-mail, but please also note that I'll be re-noticing the depositions of Dr. Stewart et al. and, accordingly, their depositions won't be proceeding this week.

Best regards.

Peter.

On Tue, Apr 5, 2016 at 1:00 AM, Francis Alexander Malofiy <[email protected]> wrote:

Dear Peter,

As you know, I was under the weather and Plaintiff was under time constraints to get the

Contentions of Fact & Law filed, along with the Witness List and Exhibit List.

In regards to the Witness List which Plaintiff filed:

I combined Plaintiff’s Witness List with Defendants’ Witness List. I labeled it as follows and filed it

with the Court:

“WITNESS LIST (COMBINED) FILED BY PLAINTIFF MICHAEL SKIDMORE, AS TRUSTEE FOR THE RANDY

CRAIG WOLFE TRUST”

Please note that I did not call it a “Joint Witness List” because you didn’t have the opportunity to

review it and for that reason I also did not put your name to the bottom of it.

In regards to the Exhibit List which Plaintiff filed:

I combined Plaintiff’s Exhibit List with Defendants’ Exhibit List. I labeled it as follows and filed it

with the Court:

EXHIBIT 2

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“EXHIBIT LIST (Combined)”

Please note that I did not call it a “Joint Witness List” because you didn’t have the opportunity to

review it and for that reason I also did not put your name to the bottom of it.

Additionally, please notice that I initially broke down our Exhibits by Deposition. Additionally, I

started Defendants’ Exhibit at 1000 rather than 1 so that there would not be overlap with the

Exhibits which we marked and used throughout the depositions and throughout the case. So,

Plaintiff’s Exhibits are 0-999. Defendants’ are 1000 on up. I figured this would make it easier for

the Court and for both sides in working with the exhibits, depositions, and at time of trial.

I will be filing either Declaration and/or Notice of Errata with the Court tomorrow to address the above. I would still like to get a Joint Witness List and Joint Exhibit List to the Court. I am hoping

we can work together in the coming days/weeks towards this goal. Of course, we will need to do

so for trial, regardless, as the final Meet & Confer regarding Exhibits is Friday, April 29, 2016.

Will you be available to discuss the above tomorrow? Please share with me a time that works for

you. Thank you.

*****





Media, PA 19063

T: (215) 500-1000

F: (215) 500-1005


EXHIBIT 2

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EXHIBIT 3







Subject: LED ZEPPELIN - EXPERT REPORTS (SERVED)

Date: Monday, May 02, 2016 11:58:36 PM

Attachments: 2016.05.02 - FINAL - Amended Expert Report of Erik Johnson (SERVED).pdf 2016.05.02 - FINAL - Amended Expert Report of Brian Bricklin (SERVED).pdf 2016.05.02 - FINAL - Amended Expert Report of Kevin Hanson (SERVED).pdf 2016.05.02 - FINAL - Amended Expert Report of Alexander Stewart (SERVED).pdf

C.V. Alexander Stewart 2016 (selected).pdf

Dear Peter,

Please see attached expert reports.

*****

NOTE: ADDRESS CHANGED TO “SUITE 1”

*****





Media, PA 19063

T: (215) 500-1000

F: (215) 500-1005


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EXHIBIT 5




From: Glen Kulik

To: Peter J. Anderson

Cc: [email protected]; Francis Alexander Malofiy ([email protected])

Subject: Expert Depositions

Date: Saturday, May 07, 2016 8:40:41 AM


Peter,

We respond again on the subject of your request to take expert depositions. We have been consistently telling you since March that your right to do so expired. The discovery cut-off date was in February. At that time we sought your cooperation

in extending the deadline. Not only did you decline to cooperate, you opposed our efforts to obtain more time for the

parties to complete discovery and the court denied our application. In addition, you withdrew your subpoenas for expert

depositions, failed to file a motion to extend the deadline, did not raise the issue with Court at the Pretrial Conference, and

are now attempting to take advantage of the unexpected continuance of the trial date. When we were notified of the trial

continuance, the court said nothing about re-opening discovery.

If you intended to raise this issue again you should have brought it to the attention of the judge at the Pretrial Conference.

Francis and I raised certain issues at that time but you did not. Thus, we respectfully repeat what we told you before, that

absent a court order re-opening discovery or extending the Court-mandated deadline,

it is our position that the right to take expert depositions has expired.

Thank you for your courtesy and cooperation.

Glen Kulik

___________________________________________________________________________ y

Glen L. Kulik, Esq.

KULIK GOTTESMAN SIEGEL & WARE LLP

15303 Ventura Boulevard, Suite 1400

Sherman Oaks, California 91403

(310) 557-9200 Main

(310) 557-0224 Fax

________________________ _ _______________________ _______ _____ ______ _________

This electronic message contains information which may be confidential and privileged and is intended only for the named addressee. Unless you are the addressee of this message you may not use, copy or disclose the contents of this message to anyone. If you have received this message in error, please delete the message and advis e the sender by repl y e-mail or by calling (310) 557-9200. Thank you.

To ensure compliance with Internal Revenue Service Circular 230, we inform you that any U.S. Federal Tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.


Exhibits 1 to 5 (Skidmore v. Led Zeppelin "Stairway to Heaven" lawsuit)

Documents

Transcript of Exhibits 1 to 5 (Skidmore v. Led Zeppelin "Stairway to Heaven" lawsuit)