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UNITED STATES DISTRICT COURTDISTRICT OF MASSACHUSETTS __________________________________________ )CAPITOL RECORDS, INC. et al., )) Civ. Act. No. 03-cv-11661-NGPlaintiffs, ) (LEAD DOCKET NUMBER))v. )) NOOR ALAUJAN, ))Defendant. ) ___________________________________________) __________________________________________ )SONY BMG MUSIC ENTERTAINMENT, et al. )) Civ. Act. No. 07-cv-11446-NGPlaintiffs, ) (ORIGINAL DOCKET NUMBER))v. ))JOEL TENENBAUM ))Defendant. ) ___________________________________________)
DEFENDANT’S RESPONSE TO PLAINTIFFS’ RESPONSE TO DEFENDANT’SDISCOVERY PLAN
On November 18, 2008, the Court ordered Defendant to confer with Plaintiffs and submit adiscovery plan. Defendant made a good faith effort to confer with Plaintiffs to identify areas of agreement and disagreement. (Ex. A.) Defendant requested Plaintiffs’ consent to record theconference in order to record the discussion. Plaintiffs refused to allow an audio recording of theconference and accordingly the parties did not verbally confer on the substance of Defendant’sdiscovery plan. Defendant further attempted to confer with Plaintiffs via email. (Ex. A, at 6.)
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Plaintiffs did not respond. In an attempt to assist the Court in identifying areas of agreement between the parties, Defendant submits this response.Defendant regrets that Plaintiffs find his plan “woefully inadequate.” (Doc. No. 707, at 2.)This is particularly surprising in view of the apparent substantial agreement between the parties.
I. Defendant’s responses to Plaintiffs’ Objections
 Plaintiffs objections (Doc. No. 707) are largely objections in form rather than substance.a. Plaintiffs purport to object to “limiting the scheduling of depositions to February2009” and assert that remaining depositions should be scheduled at convenient times prior to adiscovery cut-off date set by the Court. Defendant has no intention of conducting discovery after anas yet undetermined Court ordered deadline. Instead, Defendant was proposing that the end of February (i.e., February 28) would be an appropriate tentative deadline for completion of depositions. b. Plaintiffs object to “any effort by Defendant to re-depose any witnesses who havealready been deposed.” Defendant has not yet deposed any opposing witness and does notunderstand the purpose of this objection.c. Plaintiff again objects to discovery beyond an as yet undetermined Court ordereddeadline. As stated above, Defendant has no intention of violating any Court determined deadlinefor conducting discovery. Information gleaned from these depositions may suggest additionalappropriate discovery requests.d. Defendant is confused by Plaintiffs’ objection that insists on a hard — and quiteimmediate — December 15 deadline for expert reports. There is no reason why Defendant should be forced to submit expert reports when the parties are unsure of the issues to be tried in this case.
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Any decision regarding deadlines for expert reports should be stayed until the January 22, 2009omnibus hearing. In any event, with the trial date postponed until March 30, 2009, there is no needfor Defendant to be preoccupied with preparing expert reports when his central focus is on hiscounterclaim, his constitutional arguments, and his motion for joinder of RIAA, each of whichrequires considerable work with limited resources in preparation for the omnibus hearing.
II. Discovery that can proceed immediately in advance of the January 22, 2009 hearing
 Plaintiffs did not object to Defendants’ proposal to depose Matthew Oppenheim beforeJanuary 22, 2009. Accordingly, Defendant intends to arrange a mutually convenient time, providenotice, and conduct the deposition in due course.
 CONCLUSION
The Court should allow discovery to proceed in accordance with Defendant’s discovery plan, with such further changes as the Court deems appropriate.Dated: December 4, 2008Leave to file granted: January 15, 2009Respectfully submitted,/s/ Charles R. Nesson______________ Charles R. Nesson1575 Massachusetts AvenueCambridge, MA 02138E-mail: nesson@law.harvard.eduTelephone: (617) 495-4609ATTORNEY FOR DEFENDANT
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