mr alexander good morning your honor may i please the court i'd like to reserve two minutes for rebuttal for may thank you article three of the contract between the a paramount the question in this case is how to interpret and apply the term produced when there are two production companies involved in making a motion picture whether on the evidence in the a company and mary parent is a individual producer that had an exclusive production producing relationship with paramount at the time that the movie was being but it really wasn't exclusive and that's part of your pardon but i'm just asking to started by saying there were two production companies and i'm asking martha really three not for purposes of determining who produced the motion picture because the disruption production company who acted operationally mary parent was  paramount and disruption which is married parents company expressly states that exclusivity of her producing work is of the essence of that contract and the only  opportunity she could produce outside of working as a producer for paramount is if paramount rejected a motion picture four and a third party that employed and paid back to paramount the overhead money that paramount stayed for the purpose of keeping her exclusive paramount producer so in this case disruption acted we think a jury could find was the eyes and ears of paramount making the movie on the ground  for purposes of interpret ing in applying this work preservation provision of the common sense notion and the industry notion of producing being synonymous with making creating a motion picture doesn't change whether it's a single producer or two producers making the motion picture the important aspect is whether the signatory producer had the ability and the control and took the actions that are consistent with the creative and financial interest and control in making a motion picture and the reason for that is that the whole purpose of article three is to preserve work for american musicians to score motion pictures when the signatory producers are acting in the fashion of making a motion picture and with the creative role and the financial well that they do it's doesn't change because there are two production companies that are making the motos their position that there was an issue of fact about who was really the producer or that she should have been able to determine that as a matter of law we believe that it's a question of fact that the that you could not tell it make a decision as a matter of law well who produced the motion picture it's clear as a matter of law that paramount was a producer under the collective bargaining agreement that's not disputed what is disputed is whether paramount's activities and relationship to the motion picture and control over the motion picture was such that they can be deemed to have produced it under article three and our position is that the evidence in the record absolutely provides more than enough basis for a jury to determine paramount did in fact take the actions acted as a producer that produced the motion picture which is called same kind of different as me everyone calls it's go down so let me share understanding of the ruling is that the district court seem to say that it was a producer in so far as what it did but it wasn't for purposes of article three because it didn't have ploy yes i i think if it didn't right couldn't have had employees or didn't have control over the employees what exactly are understanding of what the district court's opinion stated as this was not actually argued in this way to the court is that although there is evidence in the record that paramount did in fact produce the motion picture as that term is used as it had purpose of that term under article three in order for article three to preserve the work for american musicians paramount how  in any of it even if paramount was the producer there's this problem because paramount didn't employ the musicians right to turn to that so every man on whether or not paramount was a producer isn't going to get you anywhere it's this other issue that's of your problem isn't it and just quickly related to that because you spent a fair amount of time in your opening brief asking us to take a broader view of what was a producer and i don't understand why that has any impact on this case and you sort of said that in europe library so should we just forget all that for now i think it's appropriate because if you look on less you disagree with the district court's finding that there was sufficient evidence for joy to find this so let's into intervention with producer employer we were were talking about its interpretation of the application of article three as a whole whether or not they could be required to score the because it's undisputed that the term producer which is a capital p is the signatories to the contract so as a matter of law no one disputes that paramount is a producer under the collective bargaining agreement let's say there's a question of fact about the actions paramount took on this project yes and i'm giving you that i'm saying if you win right assuming that that paramount was the producer on this project not just the capital p producer odd relationship in the motion picture industry the pool of available musicians is the bargaining unit and the produce the scoring is done through a bunch of intermediaries who are the direct so biased priscilla play it's not a question of them and plying them it's a question of them saying that whoever employs them follows this requirement like an article free requires paramount to take such with and then leaves from there to determine first that paramount has to be the employer of the musicians in order to be required to be the employer of musicians which makes no sense i think the second part is that the district court relies entirely on those same two provisions to say they also paramount also has to be the employer of the cast in the crew which has nothing to do with this collective bargaining agreement and so you cannot draw a interpretation of article three from articles one and two to require paramount to be the employer of the cast and crew especially since there's a lot of evidence in the record that you can produce a motion picture and in fact  district court looked at some of that agreed with us on that and you can produce a motion picture without directly employing the persons on the ground making you know what i was going to ask if you want to speak to the affirmative defense but i might be changing the subject  right and i understand construction of article three which does get directly to the from defense in a way because i means it your contention is that this is a work preservation agreement just see that there and they don't contract away the employees but i think the mysterious parchin may and i understand that this has to do with the way the industry is set up but in fatih musicians employed by the producer are not in fact employed by the producer in the usual sense of the word employ right that's true as a literal technical matter and that was something that was addressed by the the employment of recording musicians episodic in the work for various employers at various times on various movies that out the bargaining unit includes all of the professional recording musicians who are available to make we do your honor it's independent motion picture producers if you like i can give you the ok ma pied its own one and three and is actually notice no reasonable dispute about that because if we agree with your contract interpretation right i mean that basically our draft if you disagree with my contract interpretation then the article three doesn't apply because article three only applies to my we don't represent him catch of the affirmative defense but if we agree with it that is that there is a requirement that the producer in some sense be the employer and then if so where preservation agreement because it  the work preservation and the primary employer that is that the union is trying to enforce a contract against is trying to preserve work for the bargaining unit it doesn't have to be specifically for but and i think that the supreme court aisle a one case states that specifically because in some of these cases you're dealing with industry wide collective bargaining agreements with many employers and the question is whether a union trying to steer employment to members of its bargaining unit even if it is by enforcing a contract against an employer in the industry agreement even though it wouldn't be the end that employers employees is a legitimate work preservation provision that can be enforced notwithstanding eighty and the courts uniformly say that it can the question then does become what sort of ability did paramount have to have the scoring work assigned to american musicians under the terms of the contract and we believe suppose that and you have a construction of the contracts for this project that preserved that control are you saying that they imprimis simply gave it away i believe that they did not improve give it away at all i think that the interpretation of the contract between paramount and sco dam in the first instance reserved to paramount all sorts of control over the assignment of all sorts of work starting goodies at the end including in choice something as a company absolutely and paramount easily could have insisted that the composer that is chosen for this work once you get beyond that there is other evidence in the record that paramount in addition to requiring that mary parent be assigned and her contract itself gave her creative rights to assignment and the composer in the composing of a motion picture is part of the creative rights and in that case in her contract if mary parent who has an agreement in affiliation with paramount disagrees with sco down films on creative matter paramount has the type breaking vote so that's an additional piece of evidence that a jury could find that paramount had as much authority as it wanted to have to have the work assigned and there  cases in the record including the d c circuit case of carola for new card it in which the court said you can't just look at the literal contractual rights you have to look at that's not the end of the in korea under eight you can look on well i think that they they do but i also think that to the extent my friend is going to argue they didn't exercise those rights they gave them away i don't think that that ends the inquiry just because they didn't exercise them in good morning your honour's me please the court this is a labor contract employment matters i'll tell you why employment matters first of all under article three for a signatory to have any obligation to score in the united states or canada paramount has shifted its position in this litigation no your honor in our brief and i could find the citation to our brief in the record that's where we presented our arguments the summary judgment motion in the reply brief we had argued that in order for paramount to be producing a picture it must employ employ the crew and we also argue i mean is that because of some oddly about this of the collective bargaining agreement or is it a determination of the word produced because it's a very strange word produced in the collective bargain agreement contemplates operating crack cameras i can't imagine my saying that a camera is operated but not necessarily operating at well i mean usually i mean i would have thought you know before all this always understood that a producer was somebody who arranged for the movie to be made provided some financing and hired people to do it meaning the contractor an not necessarily any actual employees we want to there's actually two uses of the word produce in a contract through the producers the capital p producer which is the signatory to the agreement and then article three contemplates that the capital and seeing that that there is a sad in saying that there's you know a whole lot of other things no well for the purposes of this labor contract the air fams person most knowledgeable testified that produce means shoot well for the whole contractor for article three for it for the whole contract but the battle has been over article three when you say produce you mean and have control over the shooting that's that's correct your honor so on another words you know you can make the decisions on certain things well the article three looks at the location of producing so we know that producing is a physical act producers to three because there are so many right and twenty five people get up on the stage to get the best picture award so so your honor there are individual producers but that is not the producer that the collective bargaining  produced by the improved producer and i don't say anything about the fact that i can't be another producer it doesn't say that there could be another price or that's right because usually if you say it it's produced by the producer ok and then there was and somebody else joe what's wrong with that well your honor you know it's our position that if the contract doesn't contemplate more than one producer then the plain charm suggest there is one producer furthermore the plain terms suggest that the  producing the verb producing means to operate the cameras to put images on i film i say that i think those are both exceedingly weak arguments although i don't think your position i don't think the other side position is a slam dunk the way  seems not to be there well there's another really important reason your honor why we believe that the article three has to be construed in the matter that we're arguing to the court and that goes to the affirmative defense so the essence frankly of all of our arguments is that paramount did not control any aspect of this production and isn't that it going to be a question of fact and then you've got some really tough evidentiary rulings right we don't believe your honor that it is a question of fact because  admits it admits that scott in films selected the composer yes paramount had the right to approve it that's very different from controlling the decision it didn't have the right to select the composer it had to the right to approve and indicate i think that these are pretty tough evidentiary rulings for you to defend aren't they oh i don't believe so your honor there was an expert who's never been explained to me why the authority in the contract to approve i assumed it to approve includes just approve no the contract contemplates that paramount could approve or disapprove the selection of the composer but that's a far stretch from approving or disapproving of a decision to do the scoring work outside the united states i'm sorry i don't understand the scoring take place in the united states no not the kind of director that they only hire somebody who is committed to scoring in the united states you want to there's just no evidence that that was a possibility there's nothing other than the approval over the composer there's no evidence that paramount had any control at all over the scoring process and that's the eighty problem that the air found confronts because under eighty if paramount had no control over assignment of the work then as a matter of law the hot cargo provision applies and the contract was awful he says something right he joked about it all but if you make a commitment to have control over the work and then give it had the rights completely for the project and had control over the scoring work then i will agree you wanted there was no eighty issue but those aren't the facts here the facts that we have to address are one that paramount was brought in late in the project it was an investor not and well before anything actually happened well there was a screenplay there had already been some labor decisions made the  pure flix ended up becoming one of the principal distributors there's no evidence in the record i'm just telling you what i've what i've read your honor but pure flix had been involved even before or before paramount and had some discussions with  and others on the production about possibly coming in and i believe they ultimately were involved in the distribution so are you going to speak to the evidentiary issues i'm happy to your honor so there was a declaration that had been presented by the cure the de fact when it submitted this expert report the declaration that was submitted simply said if i were to testify i would testify consistent with my expert report much on the bad well it doesn't it doesn't say that any of the cited all of the cases that we could find on expert declarations and each of the cases that we've cited discusses how the actual statements in the expert report must themselves this is key must believe that's because i am i'm i'm absolutely at a loss to understand your argument on this how is this a meaningful distinction well you have a very lengthy expert report your honor and for a witness to say you have to not say that's true that's true that's true but to instead say oh yes i would testify consistent with what i put in my report that that is not appropriate testimony unless it was very very think you ought to have done that the first time around he should have said i test all this under penalty of perjury yes honor and that's different from attaching a declaration after the fact that says if i called to testify would testify consistently with this report under penalty of perjury you know what your honor if the if the f m s admitted i'm from this expert a declaration that says i read the report would have to take an else right he would write if called to testify a trial i would testify consistent with the conclusions and opinions contained isn't that saying that i would swear to the truth of it you are i believe there's a difference between saying i would testify to about why would he be asking this question and it's a person he was talking to didn't have any authority but it's not a statement of the truth of anything what's what it's a statement the truth of what your honor i believe the air fam was offering this piece of evidence to prove the truth that paramount had control over the scoring process and the but the statement isn't a statement about that it's a state it's a question right  that somebody asked a question and it's not a speech so it's not hearsay as to the statement that was made your honor i can i can leave that he made a statement he said x rays call worst the following words unless it has an independent as if it is hearsay i don't understand that a question by definition isn't a statement of the truth of anything well your honor it's an out of court statement it's either being offered to pay for the truth or it's being offered because it has independent significance  that he said these are the words he said that's not hearsay or well it has no independent significance your honor and suppose that significance is he said these words which demonstrates that he had some understanding that hearsay problem it's still not relevant and most importantly even if it's relevant it doesn't create an issue of fact about whether paramount had control over scoring the f m in the separate statement in their opposition to separate statement admitted admitted these facts i could give the court the cite it's in the separate statement and i believe it's facts number fifty three and fifty four where they they haven't specifically admitted that are four five five to four five eight which is the consolidated separate statement the air fan who creates a quote dispute but doesn't actually if you read the response doesn't actually dispute the facts which are that scored in films made the decisions about the composer composer made all the decisions about the musicians in the contractors and the contractors supervised the conditions employment for the musicians set the conditions of employment thank you your just to address a couple of issues quickly first with respect to the term produce even the collective bargaining agreement uses the term produce in fact in the very article that my friend cites to mean more than just film it says and article nine which is our sixty four that out the agree not to produce distributor make use of a sixteen millimeter film with music soundtrack produce within the united states the term produced is not in the contract defined and certainly the employment of the craft and crew is defined in the contract defendant's own thirty six witness included a whole bunch of tasks that are part of production including monitoring the production budgeting the production doing casting that has nothing to doing with employing the cast and the crew now with rough spec to the evidence of the a f m testimony on  this the f m thirty six witness specifically stated that it was and this is at the hour forty one i believe that what he's talking about shooting the motion picture for purposes of determining where the motion picture was produced it does not mean who operates the camera and it's not understood as such by the parties similarly mr george cohen who is the chief negotiator indicated that when he was talking about making shooting the motion picture for purposes of produced in article three he was trying to it was all in the context of where the motion picture was shot now with respect to paramount's control there's beyond what i alluded to in my opening remarks of paramount did a whole whole bunch of other things that provide an inference that it could control the assignment of work for example it assigned its own employee to control all the post production at its own expense there's nothing in the contract with skoda that allowed it to do that it just did it and scott m was happy about it now with respect to the music specifically you start off with terminating whether or not they had the control or the ability to assign the work the courts look at in this is the the serious case of the d c circuit looked to whether or not the employer had an interest in whether or not the work was done under the contract or not and here the interesting that the work not be done under the f m agreement was entirely the paramount interest because paramount owned all of the music rights under the contract and under the  collective bargaining agreement the reuse of music that scored under the contract requires additional payments which would be entirely on paramount so it's in its interest that the music not be scored and it's in its interest to offshore the music you agree by the way you agree with your point that under this agreement a motion picture can only have one producer no your honor i don't think and i don't think that that's been the standard in the industry for decades indeed paramount co produces motion pictures with other signatories all the time but that's not what the district court found either and in fact i think  in the opposition brief the answering brief they admitted that there could be situations in which there was more than one producer in the work there were cope and resist the co finance agreement itself identifies paramount as a co producer in at least one