Case 2:13-cv-06004-JAK-AGR Document 250 Filed 02/05/15 Page 1 of 5 Page ID #:7482

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Paul H. Duvall (SBN 73699)

E-Mail: pduvall@kingballow.com
KING & BALLOW
6540 Lusk Blvd., Suite 250
San Diego, CA 92121
(858) 597-6000
Fax: (858) 597-6008
Attorneys for Defendants and CounterClaimants Frankie Christian Gaye and
Nona Marvisa Gaye

Richard S. Busch (TN BPR 014594)

(pro hac vice)
E-Mail: rbusch@kingballow.com
KING & BALLOW
315 Union Street, Suite 1100
Nashville, TN 37201
(615) 259-3456 Fax: (615) 726-5417
Attorneys for Defendants and CounterClaimants Frankie Christian Gaye and Nona
Marvisa Gaye

Mark L. Block (SBN 115457)

E-Mail: mblock@wargofrench.com
WARGO & FRENCH LLP
1888 Century Park East; Suite 1520
Los Angeles, CA 90067
(310) 853-6355 Fax: (310) 853-6333
Attorneys for Defendants and CounterClaimants Frankie Christian Gaye and
Nona Marvisa Gaye

Paul N. Philips (SBN 18792)

E-Mail: pnp@pnplegal.com
The Law Offices of Paul N. Philips
9255 West Sunset Boulevard
West Hollywood, CA 90069
(323)813-1126 Fax: (323) 854-6902
Attorney for Defendant and Counter-Claimant
Marvin Gaye III

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

PHARRELL WILLIAMS, an
individual; ROBIN THICKE, an
individual; and CLIFFORD HARRIS,
JR., an individual,

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Plaintiffs,
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vs.

Case No. CV13-06004-JAK (AGRx)

Hon. John A. Kronstadt
COUNTER-CLAIMANTS JOINT
OBJECTIONS TO PLAINTIFF AND
COUNTER-DEFENDANTS TRIAL
WITNESSES

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BRIDGEPORT MUSIC, INC., a

Michigan corporation; FRANKIE
CHRISTIAN GAYE, an individual;
MARVIN GAYE III, an individual;
NONA MARVISA GAYE, an
individual; and DOES 1 through 10,
inclusive,

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Defendants.
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_______________________________
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AND RELATED COUNTERCLAIMS

Trial Date: February 10, 2015

Date: 9:00 p.m.
Ctrm: 750

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Action Commenced: August 15, 2013

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Case 2:13-cv-06004-JAK-AGR Document 250 Filed 02/05/15 Page 2 of 5 Page ID #:7483

Counter-Claimants Nona Marvisa Gaye, Frankie Christian Gaye, and Marvin Gaye III

2 (the Gayes), by and through counsel, hereby object to certain witnesses to be called at trial
3 by Plaintiffs and Counter-Defendants as listed in their parties Joint Trial Witness List filed
4 Witness List, filed with the Court on February 4, 2015.
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I. Introduction
Pursuant to Local Rules 16-2.4 and 16-5,

Plaintiffs and Counter-Defendants,

7 Pharrell Williams; Robin Thicke; Clifford Harris, Jr.; More Water from Nazareth
8 Publishing, Inc.; Paula Maxine Patton d/b/a/ Haddington Music, Star Trak Entertainment,
9 Geffen Records, Interscope Records, UMG Recordings, Inc., and Universal Music
10 Distribution, filed a Joint Trial Witness List. Plaintiffs and Counter-Defendants have listed
11 witnesses to testify at trial that were either disclosed on the same day of the discovery
12 deadline or were not disclosed until the filing of the aforementioned list. Allowing these
13 witnesses to testify will unduly prejudice the Gayes because they had no opportunity to
14 depose the potential witnesses. Further, Plaintiffs and Counter-Defendants have refused to
15 allow Chris Knight to be deposed even though this Court specifically ordered such a
16 deposition.

II.

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Counter-Claimants Objections
A. Untimely Disclosure of Witnesses
Plaintiffs and Counter-Defendants submitted their Initial Witness Disclosure on

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20 February 18, 2014 and Supplement Witness Disclosure on October 20, 2014. By Court
21 Order, the non-expert discovery period closed on October 31, 2014, (Dkt. No. 78), the
22 date on which Plaintiffs and Counter-Defendants further supplemented their Witness
23 Disclosure by adding Art Stewart and Preston Bugsy Wilcox. Thereafter, on January 25,
24 2015, months after the close of discovery, Plaintiffs included Stewart and Wilcox, along
25 with two totally non-disclosed witnessesCarolyn Veazey and Peter Paterno1on the
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Paterno, a partner at the law firm representing Plaintiffs and Counter-Defendants, had

28 initially been listed on Counter-Claimants Witness Disclosure. However, any testimony

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Case 2:13-cv-06004-JAK-AGR Document 250 Filed 02/05/15 Page 3 of 5 Page ID #:7484

1 Joint Witness List filed with the Court. (Dkt. No. 220).
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The Federal Rules of Civil Procedure require parties to timely provide the names of

3 individuals likely to have discoverable information. Fed. R. Civ. P. 26(a)(1)(A)(I); see

4 also Fed. R. Civ. P. 26(e)1)(A)(requiring a supplemental disclosure if new information
5 becomes available). Failure to do so prevents use [of] that information or witness to
6 supply evidence . . . at a trial, unless the failure was substantially justified or is
7 harmless. Fed. R. Civ. P. 37(c)(1)(emphasis added). Disclosure of witnesses on the last
8 day of discovery is untimely. Jackson v. Am. Family Mut. Ins. Co., No. 2:10-CV-018749 LRH, 2012 WL 845646, at *3 (D. Nev. Mar. 12, 2012) (disclosure on the discovery
10 deadline prohibits the other party from conducting discovery).
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The Gayes were never able to conduct discovery on either Stewart or Wilcox

12 because they were disclosed on the same date of the close of discovery. Veazey and
13 Paterno were initially disclosed to the Gayes as potential witnesses only sixteen days
14 before the start of trial. Plaintiffs and Counter-Defendants have proffered no evidence as
15 to why their failure to timely disclose these witnesses was substantially justified or is
16 harmless. It is the opposite of harmless and is highly prejudicial. The Gayes were never
17 able to conduct any form of discovery on Stewart, Wilcox, Veazey or Paterno, and with
18 little over two weeks prior to the start of trial, the Gayes must now attempt to anticipate
19 Veazey and Paternos testimony. This is unfair and detrimental to the Gayes.
20 Accordingly, Stewart, Wilcox, Veazey or Paterno should be excluded under Rule
21 37(c)(1).
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B. Failure to Produce Chris Knight for a Deposition

At the Pre-Trial Conference the Court stated, Mr. Knight should be deposed with

24 respect to those lay opinions. (Ex. 1 to Decl. of Paul Duvall at 51:16-19). The Court
25 confirmed that ruling in its January 26, 2015 Minute Order, stating if Plaintiffs elect to
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he may offer is prohibited by Rule 5-210 of the California Rules of Professional Conduct

28 and its accompanying Discussion.

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1 proffer the opinions of Chris Knight, they shall be disclosed to Defendants prior to trial
2 and Defendants shall have the right to depose Knight prior to . . . trial. (Dkt. 226 at 3).
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After the Courts ruling, the Gayes attempted to schedule a deposition of Mr. Knight.

4 (Decl. of Paul Duvall). Despite repeated attempts to schedule the deposition, Plaintiffs
5 and Counter-Defendants have refused to make Mr. Knight available. (See e.g. Ex. 2 to
6 Decl. of Paul Duvall).

In initial telephone calls, counsel for Plaintiffs and Counter-

7 Defendants asked for a short period of time to speak to Mr. Knight and set a date.
8 Nonetheless, in a February 4, 2015 e-mail Plaintiff and Counter-Defendants counsel
9 stated there is no need to present Mr. Knight for deposition. (Id.).
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This is a clear violation of the Courts Order. Pursuant to Federal Rule of Civil

11 Procedure 37, such a violation must result in exclusion. As such, Plaintiffs and Counter12 Defendants must be prohibited from presenting Mr. Knight at trial.
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III.

Conclusion
Based on the foregoing, the Gayes object to Plaintiffs and Counter-Defendants

15 presentation of these witnesses who were either untimely-disclosed or not produced for
16 deposition be excluded at trial.
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18 Dated: February 05, 2015
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Respectfully submitted,
KING & BALLOW

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By: /s/ Richard S. Busch

RICHARD S. BUSCH
PAUL H. DUVALL
WARGO & FRENCH, LLP

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By: /s/ Mark L. Block

MARK L. BLOCK

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Attorneys for Defendants and

Counter-Claimants Nona and Frankie Gaye

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THE LAW OFFICES OF PAUL N. PHILIPS

By: /s/ Paul N. Philips
PAUL N. PHILLIPS
Attorney for Defendant and Counter-Claimant
Marvin Gaye III

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