Hearing Transcript

in Leiber et al. v. Consumer Empowerment BV et al. (Mar. 4, 2002)

[cover pages elided]



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3 (COURT IN SESSION at 1:30 p.m.)

4 THE CLERK: Item number 12, CV 01-9923-SVW, Jerry
5 Leiber, et al versus Consumer Empowerment BV, et al.

6 Counsel, please make your appearances.

7 MR. RAMOS: Your Honor, Carey Ramos, for the
8 plaintiffs.

9 MR. BRIDGES: Good morning, your Honor.
10 Andrew Bridges and Richard Nessary, for defendants
11 Streamcast Networks and Music City Networks.

12 THE COURT: Now, this is your motion to consolidate.
13 You've been here for the prior hearing, correct?

14 MR. RAMOS: Yes, your Honor, I have.

15 THE COURT: I'm going to grant the motion to
16 consolidate so I don't think we need any further discussion.
17 I think the same observations I made with respect to the
18 previous matter are equally applicable here.

19 MR. RAMOS: Understood, your Honor.
20 And we certainly we agree to the schedule that the
21 Court has set forth.

22 THE COURT: All right.

23 MR. RAMOS: Thank you.

24 MR. WILSON: Your Honor, Ken Wilson from Perkins
25 Coie, on behalf of defendant Kazar. There's a separate


1 issue here which is class certification.

2 Plaintiffs have moved for class certification. We've
3 discussed the schedule which would allow for discovery on
4 the class certification issue, a briefing schedule and a
5 hearing on May 3. The motion is already filed. We're still
6 working on the stipulation.

7 My question, really, is, how is the schedule going to
8 work because we're not going to know whether the class is
9 certified in this case until less than 30 days before the
10 proposed discovery off that's been provided in the MGM case.

11 THE COURT: Well, even if there's not a class, you're
12 still going to proceed, aren't you?

13 MR. RAMOS: Absolutely, your Honor.

14 THE COURT: Then operate on two fronts.

15 MR. RAMOS: The schedule that we've agreed to with
16 defendants provides for a period of class discovery after
17 which there would be a hearing on class certification. So
18 we believe that's been accounted for in the schedule. That
19 would fit within the three-month discovery schedule that the
20 Court provided.

21 THE COURT: Why can't you participate in discovery on
22 the merits at the same time as you participate in discovery
23 on the question of class certification?

24 MR. WILSON: Well, your Honor, I suppose we'll have
25 to, but it's a little difficult. There's 29 plaintiffs


1 doing discovery for the studios in the MGM case. We've got
2 class certification discovery. I don't represent a record
3 studio. I represent a start-up company. It's difficult to
4 throw four or five lawyers doing depositions at the same
5 time in a case like this. The schedule is going to be truly
6 onerous for --

7 THE COURT: Why are you going to have to depose all
8 29 of the individuals?

9 MR. WILSON: Well, your Honor, it's not just the
10 depositions of the individuals. We will need to take some
11 of the depositions of individual plaintiffs. But beyond
12 that, there's going to be a fair amount of third party
13 discovery.

14 In the parties' initial disclosures, they have
15 identified, I believe, 120 people with knowledge or relevant
16 evidence in this case. A lot of third party discovery is
17 going to go on in this case.

18 THE COURT: How do you respond?

19 MR. RAMOS: Your Honor, we only have five -- I'll
20 step up here.

21 THE COURT: Yes.

22 MR. RAMOS: We only have five representative
23 plaintiffs in our case. So I really don't think that's
24 going to put any great burden on defendants to take their
25 depositions. I'm not aware of what third party discovery


1 would really be necessary on a class certification
2 application.

3 We've moved for class certification in the Napster
4 case. There were a handful of depositions and the class was
5 certified. And there was very good defense counsel in that
6 case as well.

7 THE COURT: All right.

8 The Order that I made in MGM versus Grokster is
9 equally applicable to Leiber versus Consumer Empowerment.
10 And we'll hear the class action motion on May 3.

11 Thank you.

12 MR. RAMOS: Thank you, your Honor.

13 MR. BRIDGES: Thank you, your Honor.

14 MR. WILSON: Thank you, your Honor.


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