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WESTERN DIVISION
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vs.
LED ZEPPELIN, et al.,
Defendants.
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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.,
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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This Motion is brought on the grounds that, as stated more fully in the
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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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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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INTRODUCTION
In this copyright infringement action, plaintiff claims that forty-five years ago
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.
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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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Garbage.
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confirmation that they indeed made the statements attributed to them, the statements
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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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2.
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
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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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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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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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of the sort applies to the articles and books plaintiff intends to present at trial.
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(b)
Newspaper and magazine articles and books also are properly excluded
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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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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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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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.
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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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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Accordingly, articles and books are also properly excluded under Rule 403.
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CONCLUSION
Lacking direct and admissible evidence, plaintiff hopes to rely on unsworn,
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statements in articles and books are hearsay not within any exception and,
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the State of California. I have personal knowledge of the following facts and could
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Patrick Page, Robert Plant and John Paul Jones in this action. This Reply
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3.
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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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4.
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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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5.
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EXHIBIT 1
EXHIBIT
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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.
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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 ///
Personal Court Reporters, Inc.
800-43-DEPOS
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EXHIBIT 2 Page 6
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1 today.
2 MARK CHRISTOPHER ANDES,
3 having been first duly sworn, was
4 examined and testified as follows:
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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
Personal Court Reporters, Inc.
800-43-DEPOS
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