mostly civil some criminal i have never been more thoroughly confused by a caved in my life i do not understand what this case is about i don't understand  that's understandable your honor because i spent hours and hours waiting through it myself not only the discovery issues but also the underlying claims and i understand as a lawyer and certainly the court is probably keenly aware that it can be difficult healing with present parties in any capacity in this case my client is was a musician he composed certain work during the early seventies primarily early to mid seventies four of those songs were used later used by the defendant who is actually a successor defendant in a production album that was produced by the child and that album that's highlights had a couple very famous songs have you seen her and oh girl that were produced on an album i think in one nine hundred seventy six one of the four of the songs that my client produced were actually used by the child like so that it was his original composition and the allegation is that however poorly framed by the most pro se parties was that copyright law here were twenty seven other songs in a catalog that were transferred to someone named donovan jermaine which is a similar name and donovan term meaning teens his catalogue with us see the them and if the court has questions as with regard to the claims or with regard to the motion to dismiss or the failure to grant him leave to him and on the alleged fraud claim i'd be happy to answer those i'm not sure quite what yes and that with regard to the forest terms that the child lights used on their album that was produced message to the world in one nine hundred seventy six those four songs were exploited by the child lights and that was an act occurring process the defendant you were told grew up these we sent you a check you endorsed it we don't owe you anything more yes and he claims that he never received that check the address is actually a public park that's not h evidence to that effect and then he actually requested discovery with regard that would have been telling on some of those issues because they submitted a determining in an instance like this what royalties would be is that how many times the song was played what is the yes and it has to do with twenty seventh and at that time and even prior to that i think it was decided amongst the parties that they would wait until july twenty third when they had i think what appears to me from the record to have been the only hearing and they would wait and see what the on august fifth which was one day after the cut off and they i don't know that that there was any i think actually the western written discovery propounded which the plaintiffs responded to hadn't come for the death of course which i thought was the egregious part because here you shows up in good faith for his deposition on the nineteenth pounded his own discovery on the eighteenth and never do they tell him you know you don't have to show up for the depo it's after the discovery cut off you're doing this voluntarily and by the way we're not going to respond to your discovery they never tell him that they waited until the last day that it would have been too on the thirtieth day and they sent a letter saying your response or your request for profound it well after the six asked motion to allow him and he wasn't even asking for more time for discovery he was simply asking that the court compel the discovery he had already propounded i was another thing that is terribly confusing in this case is that for some reason when the court entered its order on the twenty fifth of july two days after the hearing it stated in that order that it was denying us motion to extend just calgary because it appears that extensive discovery had already taken place in this case when in fact no discovery had taken place the parties had this time she agreed to hold off on it so i think it was certainly the court should have ruled on it the discovery would have led to admissible evidence it certainly would have enabled him to respond to the motion for some three judgment in fact he said that in his opposition to the motion for summary judgment he filed the motion to comp discovery prior to filing the opposition to the motion for summary judgment and the court from marilee resolves all the issues and doesn't rule at all on the motion to compel which would have led to responses that he could  used and in his opposition to the motion for summary judgment when you become counsel i became counsel approximately march of last year it was after this court had issued an order stating that maybe the one thing we can all agree about  morning your honour's jeff goldblum for the defendant in the the appellee i'd like to i think start from the very very beginning your honour's because i think that the confusion in this case was caused by the plaintiff and now our client being disadvantaged by that on appeal because the very confusion the plaintiff created is now threatening to cause a problem for us when in fact the issues you are really very simple there are two separate business units of our client that are at issue here and really two entirely separate issues our client is both a record company and a music publishing company there are two business units the something the music publishing company owns copyright and musical compositions the words and music of and exploit those the record company creates sound recordings c d s records and sells those and i believe what the plaintiff is claiming here are two entirely different things one of which dates back thirty some performance rights societies which collect money for public performances of songs stuff the songs performed on the radio for example a few cents are generated for the the owner of the copyright including the writer of the song if he does an ownership deadline for discovery motions and a deadline for dispositive motions one point during the discovery process the we actually start to extend discovery deadline the  take discovery after the discovery cutoff date but but this is very different in the gary case because in this case all parties were aware the plaintiff was aware of the deadlines for six months he actually opposed our request to extend the deadlines and  by answering the question ok what was the check for what did it were represent payment for the check was as i mentioned earlier there was a record company issue and there was this b m i publishing issue the che dating back i don't know how many years the reason i believe it was paid in one thousand nine hundred one keep in mind your honour's that we had to go back to microfiche to figure this out was paid like ninety one because initially the plaintiff through his counsel in the seventies wouldn't sign a mechanical license there was some kind of a  how do we know that's the koran and how do we know that that's that that's the whole enchilada well your honor the burden of proof in this case needs to be on i'm just asking based on this record how do we know that that's ordinarily in a case like this this is part of the source of my confusion one side would say look we may have all you something here is that the description of her relationship calculation of exactly how much you were owed here all the records to support it the obligations been satisfied we sent you a check that's everything we owe you and then if the other side doesn't respond to that or admits that it's proper summary judgment material well i guess i guess the answer to that question your honor is more of a procedural one the plaintiff father was declaiming his world has been underpaid he had no evidence of claims he had no evidence and discovery was closed and you know i'll tamale i think that the the issue really comes down to the fact that that i don't think you can find the shown and any motions filed after these dates will be stricken that's exactly what happened in this case and i would just submit your honour's that that the confusion generated by by the plaintiff in this some of his irregular filings in the case our clients proposed to the plaintiff that represents the motion is still pending rather than then take discovery now let's ask the court to extend discovery headlight out one hundred eighty days so that we can wait till judge rules and then we were hoping we'd win and then then they wouldn't have the discovery that if we didn't take discovery that the plaintiff initially agreed orally but when we submitted the stipulation to him he said you know something absolutely not i don't want an extension of discovery i in fact filed a motion opposing the extension of discovery and he filed a motion for i always try to beat polite and err on the side of caution thank you we the b m i is proceeding in arbitration in new york i am not licensed in new york so i'm not handling that matter i know that they are working with a lawyer in new york yes and i don't know the status of it i apologize for not knowing more about it with regard to the issue and i think you raise a good point when you say is this the whole enchilada and how do we know that's exactly the point first of all he disputes receiving the check he has stated so he says he doesn't ever recall receiving that check and we don't know if that's the whole into a lot of that's the problem because they never responded to any of the discovery there could be more there could be more money there could be more production there we just simply don't know because they didn't respond to the discovery he requested documents he served them with requests for admission now knows that whatever answered discovery done in this case at u m c produced about fifty pages of documents which included some printouts on the catalog issue on august twenty ninth those were produced to my clients and there was nothing more that was ever given to him nothing was given at the conference on june twenty seventh at that time the parties did agree and with regards to my client's opposition to one hundred eighty day extension and he opposed the hundred eighty day part he certainly agreed to extend it he said at that time he would he perceived one hundred eighty days to be an unreasonable extension of course he doesn't have forty five this was his own making so he thought that that was too long and wouldn't wouldn't have agreed to one hundred eighty days but certainly did agree and agreed by his conduct when he showed up for the depo and responded to their requests after the discovery cut off that line ok thank you thank you very are we thank both sides for their argument the case just argued will be submitted her decision in the court will stand in recess for the day