Case 2:15-cv-03462-RGK-AGR Document 212 Filed 05/10/16 Page 1 of 4 Page ID #:5626

1
2
3
4
5
6
7
8
9
10
11
12
13
14

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

15

UNITED STATES DISTRICT COURT

16

CENTRAL DISTRICT OF CALIFORNIA

17

WESTERN DIVISION

18

MICHAEL SKIDMORE, etc.,

Plaintiff,

19
20
21
22
23
24
25
26
27
28

vs.
LED ZEPPELIN, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

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

DEFENDANTS REPLY IN
SUPPORT OF EX PARTE
APPLICATION FOR ORDER
CONFIRMING FEBRUARY 11,
2016 DISCOVERY CUT-OFF DOES
NOT APPLY TO EXPERT
DEPOSITIONS

Case 2:15-cv-03462-RGK-AGR Document 212 Filed 05/10/16 Page 2 of 4 Page ID #:5627

REPLY MEMORANDUM OF POINTS AND AUTHORITIES

1
2
3

Plaintiffs opposition confirms that defendants Application should be

granted.

First, plaintiff confirms the narrow issue presented:

(1)

Plaintiff contends that the Scheduling Orders February 11, 2016

discovery cutoff applies to expert depositions, so that this Court

barred all expert depositions by requiring that they be completed

by February 11, 2016 even though initial expert reports were not

due until February 10, 2016; and

10

(2)

Defendants contend that the Courts Order for Jury Trial, as well as

11

the Courts statement the day of the Scheduling Conference that

12

experts are by code, establish that Federal Rule of Civil Procedure

13

26 governs experts and the Scheduling Orders discovery cut-off

14

applies to fact discovery.

15

Plaintiffs interpretation leads to the absurd and patently unfair result that the Court

16

barred all expert depositions in this case, in contravention of Federal Rule of Civil

17

Procedure 26(b)(4).1 Defendants interpretation avoids that absurd result, gives

18

effect to the Order for Jury Trials provision that experts are per Rule 26 and

19

complies with Rule 26(b)(4).

20

Second, plaintiff does not even try to dispute that his initial reports were ruled

21

inadmissible; that it would have been a waste for defendants to depose his experts as

22

to those reports; and that defendants would be substantially prejudiced by the

23

inability to depose his experts on the new reports that plaintiff provided on May 2,

24

2016.

25

26
27
28

Rule 26(b)(4) provides:

A party may depose any person who has been identified as an
expert whose opinions may be presented at trial. If Rule 26(a)(2)(B)
requires a report from the expert, the deposition may be conducted only
after the report is provided.
1

Case 2:15-cv-03462-RGK-AGR Document 212 Filed 05/10/16 Page 3 of 4 Page ID #:5628

Third, a careful review of the past filings in connection with plaintiffs

application to extend the scheduled dates confirms that plaintiff is confusing issues

and that at no time did defendants counsel state or agree that expert depositions had

to be completed by February 11, 2016, the day after initial expert reports were due.

Rather, defendants counsel raised early on that the deadline for initial expert reports

was close to the February 25, 2016 deadline to file dispositive motions and that, as a

result, plaintiff stood to be prejudiced by rebuttal reports being provided after his

opposition was due to defendants summary judgment motion. See, e.g., Pltfs

Oppn. Decl. (Doc. 211-1) at Exh. 1 (Anderson Dec. 28, 2015 e-mail) at 4-5 (on

10

experts, defendants experts are by way of rebuttal, and under Rule 26 rebuttal

11

reports arent due until March 11, after the deadline for defendants to file their

12

motion for summary judgment). Since defendants have always understood from

13

the Courts Order for Jury Trial that Rule 26, not the February 11, 2016 discovery

14

cut-off, governed experts, there was no reason for defendants to seek a change to the

15

discovery cut-off.

16

Defendants respectfully request that the Court confirm that the February 11,

17

2016 discovery cut-off does not apply to expert disclosures and depositions and that

18

defendants may proceed with the depositions of plaintiffs experts on May 17-19,

19

2016.

20
21
22
23
24
25
26
27

Dated: May 10, 2016

/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.

28
2

Case 2:15-cv-03462-RGK-AGR Document 212 Filed 05/10/16 Page 4 of 4 Page ID #:5629

1
2
3
4

Helene M. Freeman, Esq.

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

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3