Free Reply to Response to Motion - District Court of Arizona - Arizona

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FENNEMORE CRAIG Jordan Green (No. 001860) Charles Houston (No. 020844) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: [email protected] Email: [email protected] Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, No. CV2004-0621 PHX SRB

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v.
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AVNET' REPLY IN SUPPORT OF ITS S MOTION FOR EXTENSION OF EXPERT DISCLOSURES (Assigned to The Hon. Susan R. Bolton)

AVNET, INC., a foreign corporation, Roy Vallee and Jane Doe Vallee, husband and wife; and ALLEN MAAG and JANE DOE MAAG, husband and wife, Defendants.

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F ENNEMORE C RAIG
PROFESSIONAL CORPORATION P HOENIX

Plaintiff' Response to Avnet' Motion for Extension of Expert Disclosure seeks to s s excuse his failure to produce his business records by contending that the records are not relevant to the calculation of plaintiff' damages in this case. Plaintiff is mistaken for two s reasons: (1) the business records produced by plaintiff bear directly on the actual damages suffered by plaintiff; and (2) plaintiff previously admitted that the documents are relevant by disclosing their existence in his Initial Disclosure Statement and his Second Updated (actually First Supplemental) Disclosure Statement.

Case 2:04-cv-00621-SRB

Document 87

Filed 09/09/2005

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LEGAL ANALYSIS I. Plaintiff' Business Records Are Relevant Pursuant to the Terms of s Plaintiff' "Terms and Conditions" Page s

According to the Terms and Conditions page attached to the Invoice at issue, in the event of copyright infringement, "[p]hotographer shall be entitled to recover the greater of Photographer' actual damages, or statutory damages in a sum not to exceed $20,000, in s cases of non-willful infringement."1 See Terms and Conditions page at ¶ J, attached as Exh. 1. Thus, according to plaintiff' own Terms and Conditions page, determining s plaintiff' "actual damages" is one of the methods that may be used in calculating the s amount of damages to be awarded to plaintiff in this case. And while plaintiff may dispute the applicability of Paragraph J based on his belief that Avnet' infringement was s "willful", the fact of the matter is that no determination has been made as to the willfulness of Avnet' infringement. s It cannot be disputed that plaintiff' "actual damages" constitute one possible s measure of damages in this case. It is likewise beyond dispute that plaintiff' business s records constitute the best evidence of plaintiff' "actual damages." These records show s the fees charged by plaintiff for his services during the relevant time period and provide the best picture of plaintiff' actual damages. Plaintiff' claim that his business records s s are "irrelevant to [his] claim for damages" is inconsistent with the language contained in his own Terms and Conditions page and should be disregarded. II. Plaintiff Previously Disclosed His Business Records as Relevant Documents

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Plaintiff' contention that his business records are irrelevant to the calculation of s his damages is also inconsistent with his Disclosure Statements. In his Initial Disclosure
Plaintiff asserts that this limitation of liability provision does not apply because Avnet' infringement was allegedly s "willful." As of this date, however, no determination has been made as to the willfulness of Avnet' infringement and s so plaintiff' assertion that Paragraph J' limitation of liability does not apply is merely a hopeful theory. The issue s s of Avnet' "willfulness" has previously been briefed by the parties and is currently before the Court. s

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F ENNEMORE C RAIG
P R O F E S S I O N A L C O R P O R A TION P HOENIX

Case 2:04-cv-00621-SRB

Document 87 2 Filed 09/09/2005

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F ENNEMORE C RAIG
P R O F E S S I O N A L C O R P O R A TION P HOENIX

Statement and again in his Second Updated Rule 26 Disclosure Statement, plaintiff listed "business records of Plaintiff" and "records regarding Plaintiff' operations" under the s "Documents" section. See Initial Disclosure Statement at 5, attached as Exh. 2; see also Second Updated Disclosure Statement at 6, attached as Exh. 3. Plaintiff clearly deemed his "business records" relevant at the time he prepared his disclosure statement; moreover, he has failed to adequately explain why or when the business records he deemed relevant on August 20, 2004 and May 27, 2005 became "irrelevant." Plaintiff' argument that his s business records are irrelevant to his claim for damages should be summarily dismissed. III. The Late Disclosure of Relevant Documents Justifies an Extension of Expert Disclosures

As fully set forth above, the nearly 900 pages of business records at issue are relevant to this case. Moreover, these records should have been produced long ago. Instead, plaintiff withheld these records for nearly a year after his Initial Disclosure which first referenced these records, repeatedly refused Avnet's requests to produce the records, finally produced the records 45 days before Avnet' expert disclosure deadline, and now s claims that he was not required to produce these records because they are not relevant. The documents are relevant according to the terms of his own Terms and Conditions page as well as his own Disclosure Statements. Plaintiff' delay in producing these longs overdue records more than justifies an extension of Avnet' expert disclosure deadline by s at least 30 days. RESPECTFULLY SUBMITTED this 8th day of September, 2005. FENNEMORE CRAIG By s/Charles Houston Jordan Green Charles Houston Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

Case 2:04-cv-00621-SRB

Document 87 3 Filed 09/09/2005

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F ENNEMORE C RAIG
P R O F E S S I O N A L C O R P O R A TION P HOENIX

Certificate of Service I hereby certify that on September 9th, 2005, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for filing and s transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Meschkow, Esq. Meschkow & Gresham, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 s/ Charles Houston
1708850/12444.027

Case 2:04-cv-00621-SRB

Document 87 4 Filed 09/09/2005

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