Free Response in Opposition to Motion - District Court of Arizona - Arizona

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MESCHKOW & GRESHAM, P.L.C.
Jordan M. Meschkow (AZ Bar No. 007454) Lowell W. Gresham (AZ Bar No. 009702) 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818
(602) 274-6996 (602) 274-6970 (facsimile) Email: [email protected] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, v. AVNET, INC., Roy Vallee and Cindy Vallee, husband and wife, and Al Maag and Michaelle Maag, husband and wife, Defendants. Case No.: CV-04-0621 PHX SRB PLAINTIFF'S RESPONSE TO AVNET'S MOTION FOR EXTENSION OF EXPERT DISCLOSURES AND REQUEST FOR EXPEDITED BRIEFING AND/OR RULING (Assigned to The Hon. Susan R. Bolton)

Plaintiff Dan Coogan ("Coogan"), by and through undersigned counsel, hereby responds to Avnet's Motion for Extension of Expert Disclosures and Request for Expedited Briefing and/or Ruling 1 , and respectfully requests the Court deny any such extension request. Plaintiff's producing 900 pages of documents pursuant to Avnet's discovery requests 2 had nothing to do with damages calculations in a copyright The instant Motion is undated and is not signed pursuant to Case Management/Electronic Case Filing Administrative Polices and Procedures Manual, Rule II.C.1 and II.C.3, has an equally not signed Certificate of Service, plus the Certificate of Service certifies the document was served on August 3rd, 2005, not September 2, 2005 per the CM/ECF emailing the undersigned received. For these reasons alone, the Motion should be struck. 2 Confidential Attorneys Eyes Only, Subject to Protective Order documents, Bates Nos. CGN0016-CGN0893, were provided pursuant to Plaintiff's Supplemental Responses to Avnet's First Request for Production of Documents (Exhibit 1), Request No. 3, which read "Copies of any and all invoices, contracts, agreements and receipts relating to all of Plaintiff's editorial and corporate photography assignments from April 1, 2000 to April 1, 2002. This request specifically includes but is not limited to all documents relating to any "executive portraits" of individuals taken by Plaintiff during this time period" and Request
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infringement action, they had to do with answering Avnet's discovery requests, after Avnet promised in writing to make good in updating answers to Plaintiff's discovery that has been outstanding in many areas, for example, since 1 November 2004 when Avnet answered: "Response: Defendants object to this request on the grounds that it is overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. The request is not limited in scope and time and fails to specify with sufficient particularity which promotional documents Plaintiff seeks. Nonetheless and without waiving its objections, Avnet hereby produces promotional materials that make use of the photographs that are the subject of the instant lawsuit." To Plaintiff's First Document Request 3 , No. 10 (served 27 September 2004), which read: "All Avnet promotional documents that make use of photographs, including without limitation, advertisements, brochures, fliers, sales tools, catalogs, order forms, price lists, training materials, memoranda and bulletins, trade magazines, annual reports, and all documents related to the use of that photography." Avnet has not attached any annual reports then, or since then. Since then (1 November 2004), also despite the requirements of FED. R. CIV. P. 26(a)(1) 30, 33, and 34, Plaintiff has pointed out far more than one dozen times to Avnet in writing (including doing so again on more than one issue in the very letter Avnet attached as its Exhibit 6), Avnet has failed to properly answer or supplement its discovery answers, and remains deficient to date. For example, to date, Avnet has not produced any of its Annual Reports (including either of the two in which Avnet used Plaintiff's photography), or any of the backup materials for such Annual Reports, despite that Avnet says that the very same Defendant that cajoled, degraded, and showed a disregard for Plaintiff and his photography in his very own writings and was working for Avnet No. 8, which read "Copies of your federal and state income tax returns for the years 20002002 including all schedules, W-2s, Forms 1099 and attachments. This request includes but is not limited to all income tax returns for you and for any business owned by you, whether partnership or corporate." In answering Request No. 3, Plaintiff also pointed out an objection that Plaintiff's invoices, contracts, agreements and receipts relating to all of Plaintiff's editorial and corporate photography assignments from April 1, 2000 to April 1, 2002 were irrelevant, when the infringement committed by Defendants occurred over a period from May, June or July 2001, through at least February 2004, and an April 9, 2002 agreement granting Avnet one-year limited-use rights to the photography was breached and/or materially breached at least by July 2002, if not earlier. 3 See Exhibit 2, at Request No. 10.
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while doing so, Al Maag "is responsible for selecting the images of Vallee to appear in Avnet's Annual Report" 4 , and that Annual Reports are to be kept as Permanent records. 5 Avnet has not produced any of its records regarding photography contracts it has made over the years, claiming this would be an overwhelming burden, as if Plaintiff producing over 700 pages of billings to clients for photography work, from April 2000 to April 2002 was not, and many more relating to its tax payments. Moreover, what Avnet requested were documents representing fees Plaintiff charges its clients at arms-length negotiations, and Avnet's first and second use of Plaintiff's photography was anything but. Neither was its upfront breaching use in June or July 2002, or any of the usages after that. There was no pre-use arms-length negotiation, here, for the initial Avnet Global Perspective uses, or for any or all of the use past April 2003, when Avnet's rights would have lapsed, but these rights should be deemed actually ending when the grant contract was materially breached in June or July 2002, because of the 2002 Annual Report using Plaintiff's photography was made by Avnet per Maag. This makes all of Plaintiff's business records, which were made at arms-length negotiations, irrelevant to Plaintiff's claim for damages, here, where no such factors or conditions, apply. LEGAL ANALYSIS I. Plaintiff's Business Records (Invoices) are Irrelevant to Plaintiff's Damages Avnet bases its motion on the time needed to review Plaintiff's 900 pages of business records (and tax returns), but these 900 pages are no more than what Avnet asked for in discovery, Plaintiff's April 2000-2002 "invoices, contracts, agreements and receipts relating to all of Plaintiff's editorial and corporate photography assignments..." and Plaintiff's 2000-2002 tax returns. Plaintiff properly warned Avnet by the objections in answering this request (and before Avnet filed the instant Motion) that the many pages Plaintiff produced pursuant to Avnet's asking, are not relevant to Plaintiff's claim for See Exhibit 3, Avnet's Supplemental Responses to Plaintiff's First Interrogatories to Avnet, at Answer to Interrogatory No. 3. 5 See Exhibit 4, AVN0064-AVN0067 (Avnet's Record Retention Policy), attached to Avnet's Reponses to Plaintiff's First Interrogatories to all Defendants (not attached), at AVN0067.
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damages in a copyright infringement matter. Whether these documents were produced early or late, they are irrelevant to Plaintiff's claim for damages, so any Avnet expert disclosure based on them is also irrelevant. As has been held in many copyright infringement and other intellectual property law cases, the defendant "cannot expect to pay the same price in damages as it might have paid after freely negotiated bargaining, or there would be no reason scrupulously to obey the copyright law." Iowa State Univ. Research Found., Inc. v. American Broadcasting Cos., 475 F. Supp. 78 (S.D.N.Y. 1979), aff'd, 621 F.2d 57 (2d Cir. 1980); Ackee Music, Inc. v. Williams, 650 F. Supp. 653, 1986 U.S. Dist. LEXIS 16131 (D. Kan. 1986), and others. It is also apparent for this reason that the determination of market value may often be most difficult. For this reason, the courts are inclined to look to indirect evidence bearing upon such value. Fitzgerald Pub. Co. v. Baylor Pub. Co., 807 F.2d 1110, 1118 (2d Cir. 1986), See also Softel, Inc. v. Dragon Med. & Scientific Comms. Ltd., 891 F. Supp. 935, 941 (S.D.N.Y. 1995), aff'd in part, vacated in part, 118 F.3d 955 (2d Cir. 1997). Plaintiff has timely provided Avnet with such indirect evidence; but Avnet's Motion for an extension for expert disclosure is not based on such 6 . Therefore, this is but one reason Avnet's current Motion must fail. II. Avnet has Failed to Disclose any Rule 26(a)(2) Witness under its FED. R. CIV. P. Rule 26(a)(1) Requirement Under a heading labeled for FED. R. CIV. P. 26(a)(2), Plaintiff's August 2004 Rule 26(a)(1) disclosure noted that "Plaintiff plans on calling one or more experts on ..., but no such experts have been selected or retained as yet." 7 Plaintiff's February 2005 Updated Rule 26(a)(1) disclosure similarly noted, "Plaintiff plans on calling one or more experts on..., as follows" and then identified three expert witnesses, including that at least one or more could/would opine on damages theories and/or calculations 8 . Plaintiff's June 2005 Second Updated Rule 26(A)(1) Disclosure Statement provided two expert witness reports,
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The Court is asked to see Section III below as to what documents might be relevant. See Exhibit 5, Page 7. See Exhibit 6, Pages 7-8.
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including opinions on ways to calculate damages in a copyright infringement case 9 . Yet, despite the clear mandates of FED. R. CIV. P. 26(a)(1) and 26(a)(2)(A) 10 and even as of Avnet's Motion date 11 (and with a 6 September 2005 disclosure deadline), Avnet has disclosed no experts under FED. R. CIV. P. Rule 26(a)(2). See Avnet's 25 March 2005 1st Supplemental Disclosure Statement 12 , a "Supplements in Bold" version of Avnet's only other Initial Disclosure Statement (not attached). Also, see Exhibit 2, and Avnet's answer to Request No. 14, which remained the same in Avnet's more recent supplemental answers to these, and not only still did not provide copies of Annual Reports (or photography contracts), but also reiterated that "Avnet has not retained any experts in this action." Avnet should therefore be barred from making an expert disclosure now that this deadline has passed. III. Avnet has not been Prejudiced Except under its Own Guises According to Avnet's own Motion, Avnet wants to use Plaintiff's 900 pages of business records (actually Plaintiff's billings for April 2000-2002 and its old tax returns) for damage calculations. These documents are irrelevant to such. Additionally, Avnet has never made a disclosure of an expert under FED. R. CIV. P. 26(A)(2) despite the mandate of such under it, and the mandate of FED. R. CIV. P. 26(A)(1). Avnet should therefore be barred from using any expert, now. Plaintiff wants the Court to know, though, that in November 2004, Plaintiff produced documents supporting his claim for damages in print-outs from a photography quoting software program Plaintiff uses in his business and many other professional photographers use, called FotoquoteTM 13 . In June 2005, Plaintiff served on Avnet its

See Exhibit 7, including copies of the two expert witness reports (but Mr. Sedlik's was signed, dated, and mailed by him, with a copy of the Notice of Service, provided to him). 10 "In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." 11 Ostensibly 2 September 2005, as it was undated, unsigned, and contained erroneous service date information instit. 12 See Exhibit 8, Avnet's 1 Supplemental Disclosure Statement (attachments omitted, here). 13 See Exhibit 1, at Answer to Request No. 6.
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expert witness reports, which included estimated damages information obtained from publicly available photograph quotation websites such the Getty Images website at http://creative.gettyimages.com and the Corbis Images Website at

http://pro.corbis.comand 14 . Avnet's Motion does not base its need for an extension on these, though. As the instant Motion evidences, Avnet only wants to have an extension so an "expert" can examine irrelevant documents made under freely negotiated bargaining. And, Avnet only wants to do so, now, with an "expert" that was never identified, and has not as yet been disclosed, as required. If anyone has prejudiced Avnet, it has been Avnet itself. Plaintiff has completed answering all of Avnet's discovery requests, but Avnet is most incomplete in answering Plaintiff's discovery. If anyone's tactics are at stake, here, it should be Avnet, for delaying discovery, even in spite of Plaintiff filing a Motion to Compel (ill-fated, unfortunately), because even recently Avnet has been steadfast in claiming "it has no more physical documents" 15 when it has been recalcitrant and has not produced documents under the Permanent (annual reports) or 7 Years (photography contracts) categories in its Record Retention Policy, attached as Exhibit 4. Avnet cannot show it has been prejudiced by Plaintiff's actions because Avnet was not; Avnet has prejudiced itself. For this, and specifically for the lack of Rule 26(A)(2) disclosure, Plaintiff respectfully submits to this Court, that Avnet's Motion be denied. RESPECTFULLY SUBMITTED this 6th day of September, 2005. By: s/Jordan M. Meschkow____________ Jordan M. Meschkow Lowell W. Gresham MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 Again, see Exhibit 1, Answer to Request No. 6, it refers to these reports and this information, and so refers to them as "earlier provided". 15 See Exhibit 9, C. Houston 1 July 2005 letter to J. Meschkow.
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CERTIFICATE OF SERVICE I hereby certify that on September 6, 2005 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Greene and Charles Houston FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants /s Jordan M. Meschkow________________

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