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Case 2:15-cv-03462-RGK-AGR Document 135 Filed 03/25/16 Page 1 of 21 Page ID #:3381

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Peter J. Anderson, Esq., Cal. Bar No. 88891


E-Mail: pja@pjanderson.com
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
100 Wilshire Boulevard, Suite 2010
Santa Monica, CA 90401
Tel: (310) 260-6030
Fax: (310) 260-6040
Attorneys for Defendants
JAMES PATRICK PAGE, ROBERT ANTHONY
PLANT, JOHN PAUL JONES, WARNER/CHAPPELL
MUSIC, INC., SUPER HYPE PUBLISHING, INC.,
ATLANTIC RECORDING CORP., RHINO
ENTERTAINMENT COMPANY and WARNER
MUSIC GROUP CORP.
Helene Freeman, Esq., admitted pro hac vice
E-Mail: hfreeman@phillipsnizer.com
PHILIPS NIZER LLP
666 Fifth Avenue
New York, NY 10103-0084
Tel: (212) 977-9700
Fax: (212) 262-5152
Attorneys for Defendants
JAMES PATRICK PAGE, ROBERT ANTHONY
PLANT and JOHN PAUL JONES

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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MICHAEL SKIDMORE, etc.,


Plaintiff,

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vs.
LED ZEPPELIN, et al.,
Defendants.

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Case No. 2:15-cv-03462 RGK (AGRx)


DEFENDANTS NOTICE OF
MOTION AND MOTION IN
LIMINE NO. 2 RE NEWSPAPERS
AND BOOKS; MEMORANDUM OF
POINTS AND AUTHORITIES AND
DECLARATION IN SUPPORT
Date: May 10, 2016
Time: 9:00 a.m.
Courtroom of the Honorable
R. Gary Klausner
United States District Judge

Case 2:15-cv-03462-RGK-AGR Document 135 Filed 03/25/16 Page 2 of 21 Page ID #:3382

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on May 10, 2016, at 9:00 a.m. or as soon

thereafter as the matter may be heard in Courtroom 850 of the above-entitled District

Court, located at 255 East Temple Street, Los Angeles, California, defendants James

Patrick Page, Robert Anthony Plant, John Paul Jones, Warner/Chappell Music, Inc.,

Super Hype Publishing, Inc., Atlantic Recording Corporation, Rhino Entertainment

Company and Warner Music Group Inc., will move the above-entitled Court, the

Honorable R. Gary Klausner, United States District Judge presiding, for an Order

excluding all evidence and argument as to newspapers and books that purport to

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attribute statements to defendants or to otherwise establish unproven facts.

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This Motion is brought on the grounds that, as stated more fully in the

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accompanying Memorandum of Points and Authorities, the claimed out of court

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statements are inadmissible hearsay and also would confuse or mislead the jury,

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prejudice defendants and result in undue delay and wasted trial time.

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This Motion is based upon this Notice of Motion and Motion, the

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Memorandum of Points and Authorities filed with this Notice of Motion and

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Motion, the pleadings and papers on file in this action, the matters of which this

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Court may take judicial notice, and such additional matters and oral argument as

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may be offered in support of the Motion.

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The Motions are made following the conference with plaintiffs counsel

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pursuant to Local Rule 7-3, which took place on March 22, 2016.

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Dated: March 25, 2016

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/s/ Peter J. Anderson


Peter J. Anderson, Esq.
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
Attorney for Defendants
JAMES PATRICK PAGE, ROBERT
ANTHONY PLANT, JOHN PAUL JONES,
WARNER/CHAPPELL MUSIC, INC.,
SUPER HYPE PUBLISHING, INC.,
ATLANTIC RECORDING CORP., RHINO
ENTERTAINMENT COMPANY and
WARNER MUSIC GROUP CORP.
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Helene M. Freeman, Esq.


PHILLIPS NIZER LLP
Attorney for Defendants
JAMES PATRICK PAGE,
ROBERT ANTHONY PLANT and
JOHN PAUL JONES

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MEMORANDUM OF POINTS AND AUTHORITIES


1.

INTRODUCTION

In this copyright infringement action, plaintiff claims that forty-five years ago

members of Led Zeppelin copied the beginning of Stairway to Heaven from an

instrumental titled Taurus by the late Randy Wolfe. Plaintiff intends to rely upon

newspaper or magazine articles and books to try to prove that the individual

defendants or others made statements attributed to them or that other unproven facts

are true.

Thus, to date plaintiff has relied upon:


x a 1970 newspaper article purporting to quote Jimmy Page as praising

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Spirit and enjoy[ing] seeing them.

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x a reprint of a 1972 article purporting to quote Jimmy Page as praising

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Spirit and as saying he saw Spirit a couple of times.

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x a 2006 reprint of an article purporting to quote the late John Bonham,

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who died in 1980, as saying that Stairway to Heaven had become one

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of the biggest things weve ever done and playing its first chord

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created bedlam at Led Zeppelin concerts.

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x a 2012 unauthorized biography that, in a purported chronology of Led

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Zeppelin concerts, asserts that at a December 30, 1968 concert Led

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Zeppelin had begun playing a bass riff similar to Spirits Fresh

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Garbage.

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Without either the authors testimony or the individual defendants

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confirmation that they indeed made the statements attributed to them, the statements

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in articles and books are indisputably hearsay and even hearsay-on-hearsay.

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Alternatively, they are properly excluded because any probative value is outweighed

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by the risk of confusing issues, misleading the jury, prejudicing defendants and

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unduly delaying the case and wasting trial time.

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///
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2.

EVIDENCE AND ARGUMENT AS TO ASSERTIONS IN

NEWSPAPERS, MAGAZINES AND BOOKS ARE PROPERLY

EXCLUDED

(a)

Published articles offered for the truth of their assertions, including when they

purport to quote a defendant, are inadmissible hearsay. Larez v. City of Los Angeles,

946 F.2d 630, 642 (9th Cir. 1991) (As the reporters never testified nor were

subjected to cross-examination, their transcriptions of Gatess statements involve a

serious hearsay problem; articles inadmissible). Hearsay is inadmissible unless it

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comes within one of the exceptions set forth in Federal Rules of Evidence 803 or

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804 or the residual exception in Rule 807, and the articles and books do not come

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within any exception.

Assertions in Articles and Books Are Inadmissible Hearsay

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The newspaper and magazine articles do not come within Rules 803 and 804,

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and do not come within Rule 807s mandate that the hearsay must have

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circumstantial guarantees of trustworthiness equivalent to the listed exceptions to the

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hearsay rule . . . [and] must (1) be evidence of a material fact; (2) be more probative

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on the point for which it is offered than any other evidence which the proponent can

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procure through reasonable efforts; and (3) serve the general purposes of the Rules

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of evidence and the interests of justice by its admission into evidence. United

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States v. Sanchez-Lima, 161 F.3d 545, 547 (9th Cir. 1998). This residual hearsay

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exception is to be used only rarely, in truly exceptional cases. Pozen Inc. v. Par

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Pharm., Inc., 696 F.3d 1151, 1161 (Fed. Cir. 2012), quoting United States v. Walker,

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410 F.3d 754, 547, 757 (5th Cir. 2005) (Rule 807 applied to videotaped testimony

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under oath, based on the witnesses personal knowledge and consistent with their

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prior statements; the jury had the opportunity to view their demeanor; and the

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government was provided the opportunity to cross-examine the witnesses). Nothing

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of the sort applies to the articles and books plaintiff intends to present at trial.

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Accordingly, the articles and books should be excluded.


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(b)

Articles and Books Would Confuse Issues, Mislead the Jury,


Unfairly Prejudice Defendants and Waste Trial Time

Newspaper and magazine articles and books also are properly excluded

because any probative value is substantially outweighed by a danger of one or more

of the following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, . . . . Fed. R. Evid. 403; United States v. McFall, 558 F.3d

951, 963-64 (9th Cir. 2009) (Rule 403 balancing test requires the assessment of

probative value in order to weigh it against the danger of undue prejudice). Any

probative value in articles and books is substantially outweighed by the Rule 403

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considerations.

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First, because newspapers, magazines and books frequently misquote people

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and sometimes misstate facts, there is little or no probative value in statements

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contained in articles and books. Indeed, it is telling that out of the hundreds of

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articles and books about Led Zeppelin, plaintiff cherry-picks the ones that claim

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statements or purported facts he thinks are helpful. And, the individual defendants

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have testified that they have no recollection of making the statements attributed to

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them.

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In addition, purported statements by Jimmy Page in 1970 or 1972 that he liked

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Spirit or had seen them perform a couple of times have little or no probative value

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because by late 1968 Spirit had released its break-out, second album and Spirit

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performed its new and later songs at concerts, and by 1972 Spirit had released

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additional successful albums, none of which included Taurus. The two surviving

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members of Spirit identified the tent-pole or mainstay songs they performed in

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concerts and those songs did not include Taurus. Anderson Decl. at 8, 3-4, &

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Exh. 1-3.

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Similarly, plaintiff relies on the late John Bonhams supposed statement that

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Stairway to Heaven had become one of the biggest things weve ever done and

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playing its first chord caused bedlam at concerts, as proof of the value of the
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opening chord progression. That the opening chord progression alerted audiences at

Led Zeppelin concerts as to what song was about to be performed does not mean

that the opening is more important than the rest of the song. Put another way, there

would have been no bedlam, and no song, if it did not contain the rest of the music

and the lyrics that make up Stairway to Heaven. Further, John Bonhams supposed

statements prior to his 1980 death are not probative of anything thirty-six years later.

As to the statement in a 2012 unauthorized biography that at a December 30,

1968 concert Led Zeppelin had begun playing a bass riff similar to Spirits Fresh

Garbage, the statement has no probative value since it lacks any foundation as to

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either personal knowledge of the author or source. Moreover, the assertion that Led

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Zeppelin only began playing the medley with the bass riff in December 1968 is flatly

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wrong: the evidence is they played that medley with the bass riff in Europe and

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Scandinavia earlier that year.

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Accordingly, the probative value of articles and books is slim or nil.

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Second, any probative value is outweighed by the certainty of prejudice.

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Plaintiffs reliance on statements in articles and books is likely to mislead the jury

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into believing that, since the statements appear in publications, they are entitled to

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credit and perhaps more credit than witness testimony. And, battling articles and

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books would only waste time and delay the proceedings.

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Accordingly, articles and books are also properly excluded under Rule 403.
3.

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CONCLUSION
Lacking direct and admissible evidence, plaintiff hopes to rely on unsworn,

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out-of-court assertions in newspaper and magazine articles and books. The

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statements in articles and books are hearsay not within any exception and,

alternatively, properly excluded under Rule 403.

Dated: March 25, 2016

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/s/ Peter J. Anderson


Peter J. Anderson, Esq.
LAW OFFICES OF PETER J. ANDERSON
A Professional Corporation
Attorney for Defendants
JAMES PATRICK PAGE, ROBERT
ANTHONY PLANT, JOHN PAUL JONES,
WARNER/CHAPPELL MUSIC, INC.,
SUPER HYPE PUBLISHING, INC.,
ATLANTIC RECORDING CORP., RHINO
ENTERTAINMENT COMPANY and
WARNER MUSIC GROUP CORP.
Helene M. Freeman, Esq.
PHILLIPS NIZER LLP
Attorney for Defendants
JAMES PATRICK PAGE,
ROBERT ANTHONY PLANT and
JOHN PAUL JONES

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Case 2:15-cv-03462-RGK-AGR Document 135 Filed 03/25/16 Page 9 of 21 Page ID #:3389

DECLARATION OF PETER J. ANDERSON

I, Peter J. Anderson, declare and state:

1.

I am an attorney admitted to practice before this Court and all Courts of

the State of California. I have personal knowledge of the following facts and could

competently testify to these facts if called upon to do so.

2.

I represent defendants Warner/Chappell Music, Inc., Super Hype

Publishing, Inc., Atlantic Recording Corp., Rhino Entertainment Company, James

Patrick Page, Robert Plant and John Paul Jones in this action. This Reply

Declaration is submitted in support of their foregoing Motion in limine.

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3.

I took the deposition of Jay A. Ferguson on January 13, 2016, in this

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action.

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Attached to this Declaration as Exhibit 1 are true and correct copies of pages from

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the transcript of Mr. Fergusons deposition and which is marked to identify the

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testimony cited in the foregoing Motion.

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4.

Mr. Ferguson provided corrections to the transcript of his deposition.

I took the deposition of Mark Christopher Andes on January 15, 2016,

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in this action. Mr. Andes has not provided corrections to the transcript of his

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deposition. Attached to this Declaration as Exhibit 2 are true and correct copies of

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pages from the transcript of Mr. Andes deposition and which is marked to identify

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the testimony cited in support of the foregoing Motion.

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5.

Attached to this Declaration as Exhibit 3 is a true and correct copy of

deposition exhibit 352 at the deposition of Mr. Andes.


I declare under penalty of perjury that the foregoing is true and correct.
Executed on March 25, 2016.

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/s/ Peter J. Anderson


PETER J. ANDERSON

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EXHIBIT 1

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JAY A. FERGUSON - 01/13/2016

UNITED STATES DISTRICT COURT


FOR THE CENTRAL DISTRICT OF CALIFORNIA

MICHAEL SKIDMORE, ETC., )


)
PLAINTIFFS, ) CASE NO.
)
VS. ) 2:15-CV-03462 RGK (AGRx)
)
LED ZEPPELIN, ET AL., )
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DEFENDANTS. )
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___________________________)

VIDEOTAPED DEPOSITION OF JAY A. FERGUSON


WEDNESDAY, JANUARY 13, 2016

JOB NO. 68321


REPORTED BY: DAYNA HESTER, C.S.R. 9970

Personal Court Reporters, Inc.


800-43-DEPOS

EXHIBIT
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JAY A. FERGUSON - 01/13/2016

09:39 1 Trust.
09:39 2 THE VIDEOGRAPHER: We're on the record.
09:39 3 Would the court reporter, please, swear in
09:39 4 the witness.
09:39 5 THE REPORTER: And I do want to
09:39 6 acknowledge my Rule 30 obligation for a federal
09:39 7 case.
09:39 8 My name is Dayna Hester, and I am
09:39 9 contracted by Personal Court Reporters.
10 At this time, please raise your right
11 hand.
12 THE WITNESS: (Witness did as requested.)
13 THE REPORTER: Do you affirm the testimony
14 you are about to give in the cause now pending will
15 be the truth, the whole truth, and nothing but the
16 truth?
17 THE WITNESS: I do.
18 THE REPORTER: Thank you.
19
20 JAY A. FERGUSON,
21 having been first duly sworn, was
09:39 22 examined and testified as follows:
09:39 23 ///
09:39 24 ///
09:39 25 ///
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JAY A. FERGUSON - 01/13/2016

09:50 1 Sorry. I can't just nod?


09:50 2 Q. -- did you and he discuss "Taurus"?
09:50 3 A. No.
09:50 4 Q. Do you know if "Taurus" was played by
09:50 5 Spirit that night?
09:50 6 A. You know, it was a song that would be in
09:51 7 the set and out of the set, in the set and out of
09:51 8 the set, depending on the length of time usually.
09:51 9 So I can't remember specifically.
09:51 10 It was not -- there were certain songs
09:51 11 that we played religiously every show. "Taurus" was
09:51 12 not, but it was played often.
09:51 13 Q. What were the songs you played religiously
09:51 14 every show in the time period from '67 to '71, to
09:51 15 the end of '71?
09:51 16 A. "Fresh Garbage," "I Got a Line on You,"
09:51 17 "Nothing to Hide," "Mechanical World."
09:51 18 I wish I had a song list. I could -- I
09:51 19 could be more accurate. But those were sort of the
09:51 20 tent pole songs.
09:51 21 Q. Anything else you recall being said by
09:51 22 Mr. Malofiy or you in that first conversation last
09:51 23 month?
09:51 24 A. In December?
09:51 25 Q. In December of 2015.
Personal Court Reporters, Inc.
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EXHIBIT 2

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MARK CHRISTOPHER ANDES - 01/15/2016

UNITED STATES DISTRICT COURT


FOR THE CENTRAL DISTRICT OF CALIFORNIA

MICHAEL SKIDMORE, ETC., )


)
PLAINTIFFS, ) CASE NO.
)
VS. ) 2:15-CV-03462 RGK (AGRx)
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LED ZEPPELIN, ET AL., )
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DEFENDANTS. )
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___________________________)

VIDEOTAPED DEPOSITION OF MARK CHRISTOPHER ANDES


FRIDAY, JANUARY 15, 2016

JOB NO. 69364


REPORTED BY: DAYNA HESTER, C.S.R. 9970

Personal Court Reporters, Inc.


800-43-DEPOS

EXHIBIT 2
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MARK CHRISTOPHER ANDES - 01/15/2016

09:37 1 Publishing, Rhino Entertainment Company, Jimmy Page,


09:37 2 Robert Plant, and John Paul Jones.
10:07 3 MR. MALOFIY: My name is Francis Alexander
10:07 4 Malofiy with the law firm Francis Alexander.

10:07 5 represent the plaintiff in this matter, Michael


10:07 6 Skidmore, trustee for the Randy Craig Wolfe Trust.
10:07 7 MR. KULIK: And I'm Glen Kulik, and I'm
10:07 8 co-counsel for the plaintiff.
10:07 9 THE VIDEOGRAPHER: Today's court reporter
10:07 10 is Dayna Hester of Personal Court Reporter.
10:07 11 Please, swear in.
12 THE REPORTER: And I want to acknowledge
13 my 30(b) -- Rule 30(b) read-on. The videographer
14 has stated this information, so I will now swear in
15 the witness.
16 Please, raise your right hand.
17 THE WITNESS: (Witness did as requested.)
18 THE REPORTER: Do you affirm the testimony
19 you are about to give in the cause now pending will
20 be the truth, the whole truth, and nothing but the
21 truth?
22 THE WITNESS: I do.
10:07 23 THE REPORTER: Thank you.
10:08 24 MR. MALOFIY: And just to be clear, I also
10:08 25 represent Mark Andes, who is the deponent here
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MARK CHRISTOPHER ANDES - 01/15/2016

1 today.
2 MARK CHRISTOPHER ANDES,
3 having been first duly sworn, was
4 examined and testified as follows:
5
6 EXAMINATION
7 BY MR. ANDERSON:
10:08 8 Q. Mr. Andes, could you please state and
10:08 9 spell your full name.
10:08 10 A. Mark Christopher Andes; M-a-r-k,
10:08 11 C-h-r-i-s-t-o-p-h-e-r, A-n-d-e-s.
10:08 12 Q. Thank you, sir.
10:08 13 A. Yes, sir.
10:08 14 Q. And, again, my name is Peter Anderson, and
10:08 15 I represent the defendants in this action.
10:08 16 Have you ever had your deposition taken
10:08 17 before?
10:08 18 A. I believe so, but it's a been a long time.
10:08 19 I'm not sure what it was in regard to. But I've
10:08 20 had -- I've been deposed before at some point.
10:08 21 Q. How long ago was it?
10:08 22 A. It's got to be, maybe, 20 years.
10:08 23 Q. Okay. Let me just go over the procedure
10:08 24 we're going to follow today.
10:08 25 The woman to your left is a certified
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MARK CHRISTOPHER ANDES - 01/15/2016

12:04 1 Anaheim Convention Center?


12:04 2 A. I think -- I would be -- I -- I really
12:04 3 can't give you a specific date. I can't, so, I
12:04 4 would be guessing.
12:04 5 Q. Okay. I'm going to ask that the court
12:04 6 reporter to mark as Exhibit 352, I believe, the next
12:04 7 exhibit.
12:04 8 (Defendant's Exhibit 352 was marked for
12:05 9 identification and is attached hereto.)
12:05 10 BY MR. ANDERSON:
12:05 11 Q. Have you ever seen this before?
12:05 12 MR. MALOFIY: What did we mark it as,
12:05 13 350-...
12:05 14 MR. ANDERSON: -2.
12:05 15 MR. MALOFIY: Thank you.
12:05 16 THE WITNESS: [Witness reviews document].
12:05 17 I -- I don't think so.
12:05 18 BY MR. ANDERSON:
12:05 19 Q. This was a document that Mr. Ferguson
12:05 20 testified was provided to him by Mr. Pates. And it
12:05 21 purports to be a set list for the February 1, 1969,
12:05 22 performance, less than -- well, approximately a
12:05 23 month and a few days after the -- the Denver
12:05 24 performance.
12:05 25 A. Uh-huh.
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MARK CHRISTOPHER ANDES - 01/15/2016

12:05 1 Q. Do you have any reason to doubt that the


12:05 2 13 compositions on Exhibit 352 are the compositions
12:05 3 that Spirit performed on February 1st, 1969?
12:06 4 A. No.
12:06 5 MR. MALOFIY: Object.
12:06 6 MR. ANDERSON: And -12:06 7 MR. MALOFIY: Objection. Vague and
12:06 8 ambiguous. Calls for speculation.
12:06 9 BY MR. ANDERSON:
12:06 10 Q. What is "Apple Orchard"?
12:06 11 A. It's a -- it's a -- a song.
12:06 12 Q. Is it an instrumental or...
12:06 13 A. No. It was a vocal.
12:06 14 Q. Is it fast or slow or...
12:06 15 A. It was about mid-tempo kind of a thing.
12:06 16 Q. And what is "Aren't You Glad"?
12:06 17 A. Another song that Jay also wrote.
12:06 18 Q. Okay. Would you describe this as a
12:06 19 typical set list for Spirit's performances in that
12:06 20 time period?
12:06 21 MR. MALOFIY: Objection. Vague and
12:06 22 ambiguous.
12:06 23 THE WITNESS: Well, I would say that this
12:06 24 is -- yeah, I would say it was typical.
12:06 25 ///
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EXHIBIT 3

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EXHIBIT 3
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