Opinion
Civil Action No. 10-cv-02912-CMA-KMT.
June 8, 2011
ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION REQUESTING ISSUANCE OF LETTER OF REQUEST
This matter is before the court on Plaintiffs' "Unopposed Motion Requesting Issuance of Letter of Request." (Doc. No. 68, filed June 3, 2011). The court, being fully advised in the premises, hereby
ORDERS that the Court will execute and transmit the attached Letter of Request. The Clerk shall make arrangements for Plaintiffs to obtain the original, signed documents.
ATTACHMENT 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 2010-CV-2912-CMA-KMT REGAS CHRISTOU, R.M.C HOLDINGS, L.L.C. D/B/A THE CHURCH, BOUBOULINA, INC. D/B/A VINYL, MOLON LAVE, INC. D/B/A 2 A. M., CITY HALL, LLC, 1037 BROADWAY, INC. D/B/A BAR STANDARD F/K/A THE SHELTER, 776 LINCOLN ST., INC. D/B/A/FUNKY BUDDHA LOUNGE 1055 BROADWAY, INC. D/B/A THE LIVING ROOM Plaintiffs, v. BEATPORT, LLC, BRADLEY ROULIER, BMJ J, LLC D/B/A BETA NIGHTCLUB AND BEATPORT LOUNGE, AM ONLY INC., Defendants.LETTER OF REQUEST
The United States District Court for the District of Colorado, to the Superior Court of Justice of Ontario, GREETINGS.WHEREAS, the above-captioned civil action is pending in the United States District Court for the District of Colorado, in which Plaintiffs are represented by their counsel The Law Office of Jeff Vail LLC, 8310 S. Valley Highway, Third Floor, Englewood, Colorado 80112; Defendant Beatport, LLC is represented by its counsel Berg Hill Greenleaf and Ruscitti LLP, 1712 Pearl Street, Boulder, Colorado 80302; Defendants Bradley Roulier and BMJ J, LLC are represented by their counsel Silver Debosky, P.C., 1801 York Street, Denver, CO 80206; and Defendant AM Only Inc. is represented by its counsel The Robertson Law Firm, P.C., 1675 Larimer Street, Suite 730, Denver, Colorado 80202.
WHEREAS, Defendant Beatport, LLC operates an online music sales business that caters to the needs and interests of DJs and the Electronic Dance Music Industry.
WHEREAS, Defendant BMJ J, LLC operates Beta Nightclub in Denver, Colorado, which hosts performances by many of the world's top DJs.
WHEREAS, Defendant Bradley Roulier is an owner of BMJ J, LLC and a co-founder and member of Beatport, LLC.
WHEREAS, Plaintiffs operate several nightclubs in Denver, Colorado, including The Church and Vinyl, which compete with Defendant BMJ J, LLC.
WHEREAS, in this action, Plaintiffs allege antitrust law violations including illegal monopolization and illegal tying, racketeering, theft of trade secrets, and civil conspiracy against the Defendants. Among other things, Plaintiffs allege that Defendants illegally tied top DJs' access to Beatport's online music sales platform to those DJs performing only at BMJ J's nightclub at the exclusion of Plaintiffs' nightclubs in the Denver area. Defendants dispute these claims.
WHEREAS, David Brady is an agent with Spin Artist Agency, Inc., a Toronto, Ontario based booking agency for DJs, and worked with both Plaintiffs and Defendant BMJ J to book top DJs for performances in the Denver area. Plaintiffs allege that Mr. Brady has personal knowledge of at least once instance of the alleged tying described above wherein Plaintiffs allege they attempted to book DJ Armin van Buuren, one of the world's top DJs, to play at their venues. Plaintiffs allege that Mr. Brady consulted with David Lewis, the manager for Mr. van Buuren, and then explained to Plaintiffs that Mr. van Buuren would not play for them, despite his desire to do so and being offered the most money to do so, out of concern for angering Mr. Roulier and sacrificing his promotion on Beatport's online sales site. Plaintiffs have produced as a part of discovery in this case a recorded phone call between Mr. Brady and Plaintiffs' lead talent buyer Jonny Shuman to that effect.
WHEREAS, it appears to this Court that justice cannot be completely done between the parties to this action without the testimony within your jurisdiction of the following individual:
David Brady
Owner, Spin Artist Agency, Inc.
90 Wingold Avenue, Suite 2
Toronto, ON M6B 1P5
Canada
(416) 963-0800WHEREAS, Rule 28(b) of the Federal Rules of Civil Procedure governing procedures in civil actions in the Federal Courts of the United States provides that depositions upon oral examination may be taken in a foreign country pursuant to a letter of request before a person duly authorized to administer oaths.
AND WHEREAS this Court is willing to provide similar assistance to the appropriate judicial authorities of Canada upon request.
NOW THEREFORE, we do hereby appoint the Superior Court of Justice of Ontario, and hereby authorize it to cause David Brady to come before it and in response to oral questions posed by counsel herein to testify orally under oath (or solemn affirmation) as a witness in the above-entitled civil action pending in this Court; and to cause Mr. Brady to come before it and produce and identify the documents described herein and to transcribe or have transcribed verbatim the testimony so obtained and to mark such books, papers or other articles as are produced or identified as Plaintiffs' exhibits or as Defendants' exhibits in the manner indicating during the proceedings; and to close up the deposition under his hand and to return it to the Clerk of this Court in the manner hereinafter set forth in order that such testimony and exhibits be used at the trial of this action before this honorable Court.
FURTHER, we respectfully request that you command the attendance and testimony of David Brady and the production by him of the documents described herein, at the date, time and place designated by you (or at such other date as the person designated by you and the attorneys for the parties to this action may agree), and that you enforce such command in like manner as an Order made by you in a case pending before you; provided, however, that Plaintiff provides funds to you or to any person designated by you in accordance with the law of Canada to be paid to witnesses on account of the travel and inconveniences entailed by the person to be examined by compliance with any Order issued by you pursuant to this request.
THE following documents are to be produced by David Brady to the extent such documents are in the possession, custody or control of the said individual, pursuant to this Request:
(a) All e-mail messages sent or received by Mr. Brady related to the booking of DJ Armin van Buuren at The Church nightclub, Vinyl nightclub, and Beta nightclub during 2008, 2009 and 2010;
(b) All e-mail messages between Mr. Brady and Bradley Roulier in 2008, 2009 and 2010;
(c) All e-mail messages between Mr. Brady and David Lewis related to the booking of Armin van Buuren at The Church, Vinyl and Beta nightclubs and related to the importance or influence of Beatport in the electronic music industry;IT is requested that the deposition upon oral examination requested hereby be taken in the manner provided by Rule 30 of the Federal Rules of Civil Procedure, a copy of which is attached hereto as Exhibit 1, by the counsel of record for Plaintiff herein, Jeffrey S. Vail of The Law Office of Jeff Vail LLC, Englewood, Colorado.
WHEN this Request is executed in accordance with the directions given herein, the Request and the transcripts of the depositions and any exhibits are to be enclosed in an envelope bearing the name of this action and the name of the person deposed, and mailed with all convenient speed to the Clerk of the Honorable Kathleen M. Tafoya, United States Magistrate Judge, Byron G. Rogers United States Courthouse C251, 1929 Stout Street, Denver, Colorado 80294. WITNESS, the Honorable Kathleen M. Tafoya, United States Magistrate Judge, this 8th day of June, 2011.
BY THE COURT ________________________________________ Kathleen M. Tafoya, United States Magistrate JudgeEXHIBIT 1
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Federal Rules of Civil Procedure
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V. DEPOSITIONS AND DISCOVERY Rule 30.
Rule 30. Deposition by Oral Examination
(a) When a Deposition May Be Taken.
(b) Notice of the Deposition; Other Formal Requirements.
(1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45.
(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2):
(A) if the parties have not stipulated to the deposition and:
(i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants;
(ii) the deponent has already been deposed in the case; or
(iii) the party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or
(B) if the deponent is confined in prison.
(1) Notice in General.
A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.
(2) Producing Documents.
If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition.
(3) Method of Recording.
(A) Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition.
(B) Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.
(4) By Remote Means.
The parties may stipulate — or the court may on motion order — that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions.
(5) Officer's Duties.
(A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer must begin the deposition with an on-the-record statement that includes:
(i) the officer's name and business address;
(ii) the date, time, and place of the deposition;
(iii) the deponent's name;
(iv) the officer's administration of the oath or affirmation to the deponent; and
(v) the identity of all persons present.
(B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i)-(iii) at the beginning of each unit of the recording medium. The deponent's and attorneys' appearance or demeanor must not be distorted through recording techniques.
(C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters.
(6) Notice or Subpoena Directed to an Organization.
In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
(1) Examination and Cross-Examination.
The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer.
(2) Objections.
An objection at the time of the examination — whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition — must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
(3) Participating Through Written Questions.
Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.
(1) Duration.
Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
(2) Sanction.
The court may impose an appropriate sanction — including the reasonable expenses and attorney's fees incurred by any party — on a person who impedes, delays, or frustrates the fair examination of the deponent.
(3) Motion to Terminate or Limit.
(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.
(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.
(C) Award of Expenses. Rule 37(a)(5) applies to the award of expenses.
(1) Review; Statement of Changes.
On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.
(2) Changes Indicated in the Officer's Certificate.
The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.
(1) Certification and Delivery.
The officer must certify in writing that the witness was duly sworn and that the deposition accurately records the witness's testimony. The certificate must accompany the record of the deposition. Unless the court orders otherwise, the officer must seal the deposition in an envelope or package bearing the title of the action and marked "Deposition of [witness's name]" and must promptly send it to the attorney who arranged for the transcript or recording. The attorney must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.
(2) Documents and Tangible Things.
(A) Originals and Copies. Documents and tangible things produced for inspection during a deposition must, on a party's request, be marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the originals, the person may:
(i) offer copies to be marked, attached to the deposition, and then used as originals — after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or
(ii) give all parties a fair opportunity to inspect and copy the originals after they are marked — in which event the originals may be used as if attached to the deposition.
(B) Order Regarding the Originals. Any party may move for an order that the originals be attached to the deposition pending final disposition of the case.
(3) Copies of the Transcript or Recording.
Unless otherwise stipulated or ordered by the court, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent.
(4) Notice of Filing.
A party who files the deposition must promptly notify all other parties of the filing.
A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney's fees, if the noticing party failed to:
(1) attend and proceed with the deposition; or
(2) serve a subpoena on a nonparty deponent, who consequently did not attend.Donations cover only 20% of our costs.