Capitol Records, Inc et al v. Thomas-Rasset

MEMORANDUM in Support re MOTION to Amend/Correct [17] Scheduling Order

D. Minn.May 3, 2007

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA VIRGIN RECORDS AMERICA, INC., a California corporation; CAPITOL RECORDS, INC., a Delaware corporation; SONY BMG MUSIC ENTERTAINMENT, a Delaware general partnership; ARISTA RECORDS LLC, a Delaware limited liability company; INTERSCOPE RECORDS, a California general partnership; WARNER BROS. RECORDS INC., a Delaware corporation; and UMG RECORDINGS, INC., a Delaware corporation, Plaintiffs, vs. JAMMIE THOMAS, Defendant. Civ. No.: 06-cv-1497 MJD/RLE MEMORANDUM IN SUPPORT OF STIPULATED MOTION TO AMEND PRETRIAL SCHEDULING ORDER Plaintiffs Virgin Records America, Inc., et al (collectively, “Plaintiffs”) and Defendant Jammie Thomas (“Defendant”), jointly submit this memorandum seeking to amend the Pretrial Schedule entered on March 6, 2007 for the purpose of taking the deposition of Justin Gervais. The parties respectfully request that the Court extend the pretrial schedule as indicated below. The Court previously extended the deadlines in this matter on March 6, 2007. (Doc. No. 17.) Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure and Local Rule 16.3, there is good cause for this motion, and a statement pursuant to Local Rule 16.3(b)(1)-(4) is made as follows: 1. Responding to Local Rule 16.3(b)(1), Plaintiffs need to take a deposition of Justin Gervais, whom Plaintiffs believe has information relevant to the facts of this lawsuit. Virgin Records America, Inc v. Thomas Doc. 26 Dockets.Justia.com 2 2. Responding to Local Rule 16.3(b)(2), Plaintiffs have been diligently pursuing discovery in this action. The parties have completed written discovery, and Plaintiffs have taken or are in the process of completing depositions of Defendant, Defendant’s proposed expert, and another witness. 3. Responding to Local Rule 16.3(b)(3), it will be impossible for Plaintiffs to complete a deposition of Justin Gervais prior to the May 1, 2007 discovery deadline. Plaintiffs have been diligently attempting to contact Mr. Gervais. Plaintiffs have had a working telephone number for Mr. Gervais since late March 2007, but lack a physical address at which to serve a subpoena to appear for deposition. Mr. Gervais, who is the father of one of Defendant’s children, has not responded to Plaintiffs’ phone calls and Plaintiffs have not yet been able to obtain his address despite significant effort, including searches of several public databases. 4. Responding to Local Rule 16.3(b)(4), the parties’ proposed amended schedule provides for an additional thirty days for the limited purpose of deposing Justin Gervais. The requested extension will not interfere with any other deadlines.1 Therefore, the parties respectfully request that the date in the Court’s Order be amended as follows: Current deadline Amended deadline Close of Discovery Period for the Purpose of Conducting Deposition of Justin Gervais May 1, 2007 June 1, 2007 A proposed order reflecting the foregoing changes is attached. 1 The parties have separately agreed to allow Plaintiffs to take a preservation deposition of Defendant’s Internet Service Provider, Charter Communications. This preservation deposition will not interfere with any other Court deadlines. 3 For all the foregoing reasons, the parties respectfully request that the Court amend the Order as proposed above and in the accompanying proposed Order. Date: May 3, 2007 Respectfully submitted, /s Laura G. Coates Felicia J. Boyd (No. 186168) Laura G. Coates (No. 350175) FAEGRE & BENSON LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402-3901 Telephone: (612) 766-7000 Facsimile: (612) 766-1600 OF COUNSEL Timothy M. Reynolds (pro hac vice) Andrew Mohraz (pro hac vice) HOLME ROBERTS & OWEN LLP 1700 Lincoln, Suite 4100 Denver, Colorado 80203 Telephone: (303) 866-0399 Facsimile: (303) 866-0200 ATTORNEYS FOR PLAINTIFFS /s Brian Toder Brian Toder CHESTNUT & CAMBRONNE, P.A. 3700 Campbell Mithun Tower 222 South 9th Street Minneapolis, MN 55402 Telephone: (612) 339-7300 Facsimile: (612) 336-2940 ATTORNEY FOR DEFENDANT fb.us.2002991.03