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) Attorneys for Plaintiff

GILES LEGAL, P.L.C.

Nancy R. Giles (AZ Bar No. 020163) 733 West Willetta Street Phoenix, Arizona 85007 (602) 252-1788 Attorney for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as COOGAN PHOTOGRAPHIC, Plaintiff, v. AVNET, INC., et al., Defendants. Case No.: CV-04-0621 PHX SRB

PLAINTIFF DAN COOGAN'S RESPONSE TO DEFENDANTS' MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT AFTER THE DISPOSITIVE MOTION DEADLINE

Any and all delay in this case is due to Defendants' continual refusal to produce relevant information and requested documents from the very beginning of the discovery period. Defendants should not be allowed to benefit from these delay tactics and, therefore, should not be granted leave to file a Motion for Summary Judgment at this late date. This Response is based on the attached Memorandum of Points and Authorities and exhibits thereto, and the entire record in this case, incorporated by reference herein.

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MEMORANDUM OF POINTS AND AUTHORITIES DEFENDANTS HAVE DELIBERATELY CAUSED THE DELAYS ABOUT WHICH THEY COMPLAIN. On September 27, 2004, Plaintiff served written discovery requests on Defendants that included requests for any documents demonstrating or evidencing any and all of Defendants' uses of Plaintiff's copyrighted photographs, and the following interrogatory: · Interrogatory No. 4: State the date (month, day, and year) and circumstances concerning Defendants' first use and all subsequent uses of Plaintiff's Photographs of Roy Vallee and the manner and extent of such first and all subsequent uses, whether on an Avnet website, a third-party website, or in any report or publication. See Defendants' Responses to Plaintiff's First Set of Interrogatories to Defendant Avnet, Inc. and to Plaintiff's First Request for Production of Documents to Defendants, September 27, 2004, attached as Exhibit B to Document #108, incorporated by reference herein. Since propounding this discovery in September 2004, Plaintiff has made numerous attempts to get Defendants to identify each of its infringing uses of Plaintiff's photographs. Despite numerous letters and discussions with Plaintiff, however, Defendants continued, and continue, to refuse to fully answer these discovery requests. See also the similarly obtuse and

incomplete answers to at least Interrogatory No. 4 in Defendants' Supplemental Responses to Plaintiff's First Set of Interrogatories to Defendant Avnet, Inc., attached as Exhibit E to Document #108 (and dated March 30th, 2004 (sic), but served under Document # 53, dated 3/30/2005). When Plaintiff produced his expert reports timely on June 24, 2005, Defendants still had not identified all of their uses of Plaintiff's photographs, despite the specific interrogatory on the subject, nine months earlier, and Plaintiff's numerous attempts to obtain them since. In both the Expert Report of Richard Weisgrau, and the Expert Report of Jeff Sedlik, the expert preparing the Report was adamant that a calculation of actual damages was dependent upon
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knowing each infringing use and that, because Defendants' productions were deficient, the expert reports may require supplementation in the future if and when Defendants were to identify additional infringing uses. See Expert Report of Richard Weisgrau, attached as Exhibit B to Defendants' instant Motion, incorporated by reference herein, at 7-15, and Expert Report of Jeff Sedlik, attached as Exhibit A to Defendants' Motion ("Sedlik Report"), incorporated by reference, at 15-16. After expert reports were disclosed on June 24, 2005, Defendants began planning to take Plaintiff's experts' depositions. 1 Defendants soon let this plan go by the wayside, however, presumably when they realized that, due to their own deficient productions, Plaintiff's experts would have to supplement their reports. Plaintiff made numerous attempts during the discovery period to get Defendants to produce the documents they were hiding. See Plaintiff's Motion to Compel, Document 91, September 27, 2005, incorporated herein by reference. Finally, on October 17, 2005, Defendants made a supplemental production at the instruction of this Court, but the production still did not identify all of Defendants' infringing uses. Less than two months ago, after discovery was over, on March 14, 2006, a year and a half after Plaintiff issued his first document requests and interrogatories to Defendants, and over eight months after the experts had finished their first reports, Plaintiff received Avnet's Second Supplemental Response to Plaintiff's First Set of Interrogatories, attached as Exhibit D to Plaintiff's Motion in Limine, incorporated by reference herein, in which Defendants purport to finally identify each of their multiple infringing uses of Plaintiff's photographs.

When dates for such depositions were discussed between counsel via telephone in September 2005, Plaintiff sent Defendants a letter addressing such. See Meschkow & Gresham, P.L.C. September 9, 2005 letter, attached as Exhibit A.
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Plaintiff, immediately upon receiving Defendants' disclosures identifying additional infringing uses of Plaintiff's photographs, relayed the information to his experts so they could begin work on supplementary calculations in light of this newly revealed information. Plaintiff disclosed these supplemental reports just one week after Defendants disclosed the information. Because of Defendants' unreasonably delays, there was no conceivable way Plaintiff could have had his expert calculations completed prior to Defendants' disclosures on March 16, 2006. Nonetheless, even though the delay was due to Defendants' unnecessary withholding of information and documents, Defendants sought, and were granted, Court approval to depose Plaintiff's experts after the deadline. See February 13, 2006 Order. Defendants then by their own choosing after deciding to take both experts' depositions, despite warning from Plaintiff, deposed only one of Plaintiff's experts 2 . Defendants' latest tactic in their string of delay tactics is to now seek yet another extension to file a late Motion for Summary Judgment. Defendants have delayed enough. Moreover, every argument they make regarding their entitlement to filing a Motion for Summary Judgment is negated by the fact that all relevant delays have been to due to their own withholding of information and documents for a year and a half. Moreover, while Defendants' Motion states clearly: Defendants could not prepare and file their Motion for Summary Judgment on Plaintiff's Claim for Recovery of Avnet's Profits until they deposed Mr. Weisgrau and received the transcript[;] Defendants received the transcript from Mr. Weisgrau's deposition on March 27, 2006[,] Defendants too eagerly filed this Motion and their suggested Motion for Summary Judgment using the unsigned, uncorrected transcript from Mr. Weisgrau's

See Fennemore Craig letters dated February 20, 21, and 22, 2006 concerning both, all attached as Exhibit B and February 28, 2006 and March 4, 2006 Meschkow & Gresham, P.L.C. letters, attached as Exhibit C.
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deposition, whose opinions go straight to causal link, among other issues. Defendants also too eagerly filed these Motions long before Plaintiff's Motion in Limine 3 and Avnet's Motion to Withdraw Admission and to Enter Denials as to Request to Admit Nos. 15 and 43 of Avnet's Responses to Plaintiff's Third Requests for Admissions can been decided, the latter issue alone going towards branding and/or corporate profits, and is overwhelmingly prejudicial 4 . This Court has already seen that at least one of the timely-made corrections goes to the heart of at least one of Defendants' arguments 5 with another to be filed when due. Additionally, Defendants are incorrect that "Plaintiff will not be prejudiced by the filing of the Motion at this time." Plaintiff is sole-practitioner photographer who has suffered through major expense to litigate this case. Defendant Avnet, on the other hand, is a Fortune 500 company that is a willful infringer of Plaintiff's copyright with approximately $12 billion dollars in annual revenues. 6 Plaintiff will be very prejudiced by the filing of the Motion at this time using incorrect data, and all based on Defendants' delays in this matter, since discovery started. Thus, Defendants should not be granted leave to file a late Motion for Summary Judgment. II. CONCLUSION As stated herein, Defendants have been playing games with discovery throughout this lawsuit and should not be entitled to benefit from their

The Reply is Document #194, and is incorporated by reference, herein. See Document #194, incorporated by reference herein, and the Response to Avnet's Motion to Withdraw Admission and to Enter Denials as to Request to Admit Nos. 15 and 43 of Avnet's Responses to Plaintiff's Third Requests for Admissions, not due as yet. 5 See Document #192, incorporated by reference herein, Exhibit G. 6 See Bates nos. CGN 09346-09348, an Abstract of CIO Insight magazine, Number 63, January 2006 article By the Book with graph of Avnet, Inc. gross revenues from 1991 to 2005, including the period of excellent growth from 2002 to 2004, when Avnet was using Plaintiff's photographs of its CEO to promote him and it, attached as Exhibit D.
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gamesmanship. Therefore, Defendants' Motion for Leave to File Motion for Summary Judgment after Dispositive Motion Deadline should be denied in its entirety. Respectfully submitted this 27th day of April, 2006, s/Jordan M. Meschkow Jordan M. Meschkow MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014 Telephone: (602) 274-6996 Facsimile (602) 274-6970 ATTORNEYS FOR PLAINTIFF and Nancy R. Giles GILES LEGAL, P.L.C. 733 West Willetta Street Phoenix, Arizona 85007 ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE I hereby certify that on 27 April 2006 I electronically transmitted the attached document and its Exhibits to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Jordan Greene FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants

s/ Jordan M. Meschkow

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