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

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA PHOENIX DIVISION JOHAN DE MEIJ, d/b/a AMSTEL MUSIC, BV Case No.: No. CIV 04-0341 PHX RCB PLAINTIFF, DECLARATION OF BUCK McKINNEY vs. TEMPE UNION HIGH SCHOOL DISTRICT, CORONA DEL SOL BAND BOOSTERS, GREAT VIDEO PRODUCTIONS, ARIZONA MUSIC EDUCATORS ASSOC., ARIZONA ACADEMY FOR THE PERFORMING ARTS, INC., MARK D. RICHARDSON, WILLIAM J. RICHARDSON AND CHRIS EVANS DEFENDANTS

I, Buck McKinney, declare as follows: 1. I have reviewed the cross-motion for summary judgment submitted by Defendant

Arizona Academy for the Performing Arts in this matter. (Docket # 134). 2. While I believe the record establishes that the AAPA has not carried its burden of proof

on its cross-motion for summary judgment, in the event the Court disagrees, I respectfully
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submit that discovery is needed in order to rebut the AAPA's arguments. In connection therewith, I note that there is no standing scheduling order in this matter, and that other than limited written discovery conducted prior to the AAPA's joinder as defendant, no other discovery has been conducted.

Case 2:04-cv-00341-RCB

Document 157-21 - Filed 09/20/2005 -

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3.

Mark Richardson has averred that he "commenced" infringement of Plaintiff's

copyrights prior to July 6, 2002. Due to the status of discovery (outlined above) Plaintiff has not had an opportunity to take Mr. Richardson's deposition in order to cross-examine him on

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this issue.

Nor has Plaintiff had the opportunity to take the depositions of third parties

(including students and co-faculty) that might corroborate or controvert Mr. Richardson's testimony. Finally, Plaintiff has not had an opportunity to obtain relevant financial records from the AAPA, or propound written discovery aimed at various related issues, including Mr. Richardson's assertion that he used the AAPA as a "cover" to pay himself for the illegal

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arrangement in question. (See Richardson's Decl., 9). 4. Plaintiff expects to establish during discovery that Mr. Richardson has grossly

misrepresented the facts related to the "commencement" of his various acts of criminal copyright infringement, and his unsupported assertions regarding the AAPA's "passive" role in

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the sale of Plaintiff's work between December 19, 2002 and January 3, 2003.

Executed on this 20th day of September, 2005.

s/ R. Buck McKinney________________
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Case 2:04-cv-00341-RCB

Document 157-22 - Filed 09/20/2005 -

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