Case 1:03-cv-11661-NG Document 731 Filed 01/15/2009 Page 1 of 5

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________
)
CAPITOL RECORDS, INC. et al., )
) Civ. Act. No. 03-cv-11661-NG
Plaintiffs, ) (LEAD DOCKET NUMBER)
)
v. )
)
NOOR ALAUJAN, )
)
Defendant. )
___________________________________________)

__________________________________________
)
SONY BMG MUSIC ENTERTAINMENT, et al. )
) Civ. Act. No. 07-cv-11446-NG
Plaintiffs, ) (ORIGINAL DOCKET NUMBER)
)
v. )
)
JOEL TENENBAUM )
)
Defendant. )
___________________________________________)

DEFENDANT’S RESPONSE TO PLAINTIFFS’ RESPONSE TO DEFENDANT’S

DISCOVERY PLAN

On November 18, 2008, the Court ordered Defendant to confer with Plaintiffs and submit a

discovery 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 the

conference in order to record the discussion. Plaintiffs refused to allow an audio recording of the

conference and accordingly the parties did not verbally confer on the substance of Defendant’s

discovery plan. Defendant further attempted to confer with Plaintiffs via email. (Ex. A, at 6.)
 Case 1:03-cv-11661-NG Document 731 Filed 01/15/2009 Page 2 of 5

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 February

2009” and assert that remaining depositions should be scheduled at convenient times prior to a

discovery cut-off date set by the Court. Defendant has no intention of conducting discovery after an

as 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 have

already been deposed.” Defendant has not yet deposed any opposing witness and does not

understand the purpose of this objection.

c. Plaintiff again objects to discovery beyond an as yet undetermined Court ordered

deadline. As stated above, Defendant has no intention of violating any Court determined deadline

for conducting discovery. Information gleaned from these depositions may suggest additional

appropriate discovery requests.

d. Defendant is confused by Plaintiffs’ objection that insists on a hard — and quite

immediate — 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.
 Case 1:03-cv-11661-NG Document 731 Filed 01/15/2009 Page 3 of 5

Any decision regarding deadlines for expert reports should be stayed until the January 22, 2009

omnibus hearing. In any event, with the trial date postponed until March 30, 2009, there is no need

for Defendant to be preoccupied with preparing expert reports when his central focus is on his

counterclaim, his constitutional arguments, and his motion for joinder of RIAA, each of which

requires 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 before

January 22, 2009. Accordingly, Defendant intends to arrange a mutually convenient time, provide

notice, 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, 2008

Leave to file granted: January 15, 2009
Respectfully submitted,

/s/ Charles R. Nesson______________

Charles R. Nesson
1575 Massachusetts Avenue
Cambridge, MA 02138
E-mail: nesson@law.harvard.edu
Telephone: (617) 495-4609

ATTORNEY FOR DEFENDANT

 Case 1:03-cv-11661-NG Document 731 Filed 01/15/2009 Page 4 of 5

CERTIFICATE OF SERVICE

I, Charles Nesson, hereby certify that on January 15, 2009, a true copy of the above

document will be served, via first class mail and e-mail, on counsel for Plaintiffs at the addresses

below.

/s/ Charles R. Nesson______________

Charles R. Nesson
1575 Massachusetts Avenue
Cambridge, MA 02138
E-mail: nesson@law.harvard.edu
Telephone: (617) 495-4609

ATTORNEY FOR DEFENDANT

Claire E. Newton
Robinson & Cole LLP
One Boston Place
Suite 2500
Boston, MA 02108
617-557-5900
Fax: 617-557-5999
Email: cnewton@rc.com

Eve G. Burton
Holme Roberts & Owen LLP
Suite 4100
1700 Lincoln Street
Denver, CO 80203-4541
303-866-0551
Email: eve.burton@hro.com

John R. Bauer
Robinson & Cole LLP
One Boston Place, 25th Floor
Boston, MA 02108
617-557-5900
Fax: 617-557-5999
Email: jbauer@rc.com

Laurie Rust
Holme Roberts & Owen LLP
 Case 1:03-cv-11661-NG Document 731 Filed 01/15/2009 Page 5 of 5

Suite 4100
1700 Lincoln Street
Denver, CO 80203-4541

Nancy M. Cremins
Robinson & Cole LLP
One Boston Place
Boston, MA 02108-4404
617-557-5971
Fax: 617-557-5999
Email: ncremins@rc.com

Timothy M. Reynolds
Holme Roberts & Owen LLP
1801 13th Street
Suite 300
Boulder, CO 80302
393-861-7000
Email: timothy.reynolds@hro.com