The case of the day is Tansey v. Cochlear Ltd. (E.D.N.Y. 2014). The plaintiff, Jeanini Tansey, had a cochlear implant manufactured by Cochlear Ltd., a New South Wales company, to treat her deafness. She alleged that Cochlear had failed to comply with FDA requirements and that the device cracked and stopped working. The device had to be removed, which led, she claimed, to major nerve damage that led to her total disability. Tansey served requests for the production of documents on Cochlear, which moved for a protective order requiring first resort to the Hague Evidence Convention.
The case of the day is In re Application of Berlamont (S.D.N.Y. 2014). Franck Berlamont applied for leave to serve a subpoena under § 1782 in order to obtain a transcript of testimony Rajiv Jaitly gave in a deposition in an earlier New York case, Rembaum v. Banco Santander. The deposition had, apparently, taken place in England pursuant to a letter rogatry from the New York court issued under the Hague Evidence Convention. The application was in aid of a Swiss criminal investigation into Manuel Echevarria, a former colleague of Jaitly in Optimal Investment Services. The judge allowed the application.
The case of the day is Blagman v. Apple, Inc. (S.D.N.Y. 2014). Norman Blagman sued Apple, Google, Microsoft, Emusic.com, and others on behalf of a purported class, alleging that the defendants had made musical works available for sale online without obtaining licenses from the owners of the copyrights. The theory was that foreign record labels were reproducing and uploading the infringing recordings to the internet, where US customers could purchase and download them.
In today’s case, Blagman sought the issuance of letters of request seeking depositions in the United Kingdom and France. The proposed witnesses were the owners of several record labels and the like. The proposed letters of request sought testimony concerning (1) whether the witness obtained licenses to make and distribute digital sound recordings, (2) whether the witness obtained licenses to duplicate already-fixed sound recordings, and (3) whether the witness had authorization to import the recordings into the United States.
The defendants’ main strategy was to parse the amended complaint and to argue that the discovery sought was irrelevant in light of the amended complaint’s allegations. For example: the plaintiffs sought to discover whether suppliers had authority to duplicate sound recordings. But the plaintiffs held copyrights in musical compositions, not sound recordings. But they were trying to parse things too finely. I won’t get into the details of the copyright law here, but here’s an example of the court’s conclusions:
Thus, although the claims in the Amended Complaint are tied solely to infringement of compositions, whether the Suppliers duplicated recordings without authorization from the copyright holder of the sound recording is critical to determining whether a compulsory license in the underlying composition is even available.
The judge also rejected the defendants’ argument of undue burden on the grounds that they had made only conclusory statements about the burden and had not shown the burden with specific evidence.