Case 2:15-cv-03462-RGK-AGR Document 207 Filed 05/06/16 Page 1 of 9 Page ID #:5479

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Francis Malofiy, Esq.

Francis Alexander, LLC
280 N. Providence Rd. | Suite 105
Media, PA 19063
T: (215) 500-1000; F: (215) 500-1005
E: francis@francisalexander.com
Attorney for Plaintiff
Glen L. Kulik, Esq. (SBN 082170)
Kulik Gottesman & Siegel LLP
15303 Ventura Blvd., Suite 1400
Sherman Oaks, CA 91403
T: (310) 557-9200; F: (310) 557-0224
E: gkulik@kgslaw.com
Attorney for Plaintiff

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL SKIDMORE, as Trustee for

15 the RANDY CRAIG WOLFE TRUST,
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Hon. R. Gary Klausner

Plaintiff,
v.

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Case No. 15-cv-03462 RGK (AGRx)

LED ZEPPELIN; JAMES PATRICK

PAGE; ROBERT ANTHONY PLANT;
JOHN PAUL JONES; SUPER HYPE
PUBLISHING, INC.; WARNER MUSIC
GROUP CORP., Parent of
WARNER/CHAPPELL MUSIC, INC.;
ATLANTIC RECORDING
CORPORATION; RHINO
ENTERTAINMENT COMPANY,

MOTION FOR LEAVE TO DEPOSE

NEWLY DISCOVERED WITNESS
OR ALTERNATIVELY TO HAVE
WITNESS TESTIFY BY VIDEO
CONFERENCE AT TRIAL
Filed concurrently with Declaration of
Francis Malofiy; and [Proposed] Order
Trial Date: June 14, 2016
Time:
9:00 a.m.
Courtroom: 850

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Defendants.

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MOTION FOR LEAVE TO DEPOSE NEWLY DISCOVERED WITNESS OR ALTERNATIVELY TO
HAVE WITNESS TESTIFY BY VIDEO CONFERENCE AT TRIAL

Case 2:15-cv-03462-RGK-AGR Document 207 Filed 05/06/16 Page 2 of 9 Page ID #:5480

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on June 14, 2016, at 9:00 a.m., or as soon

thereafter as this matter can be heard before the Honorable R. Gary Klausner of the

United States District Court for the Central District of California, at 255 East

Temple Street, Los Angeles, California, Courtroom 850, Plaintiff Michael

Skidmore, Trustee for the Randy Craig Wolfe Trust, will move and hereby moves to

allow the testimony of witness Michael Ware as Plaintiff was only recently apprised

that Mr. Ware has valuable information.

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Plaintiffs counsel makes this motion after being so directed by the Court on
April 25, 2016, at the pre-trial conference.

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This motion is based on the attached memorandum of points and authorities in

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support thereof, the declaration of Francis Malofiy in support thereof, and all files

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and pleadings in this action.

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Dated: May 6, 2016

FRANCIS ALEXANDER, LLC

/s/ Francis Alexander Malofiy
Francis Alexander Malofiy
Attorneys for Plaintiff

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MOTION FOR LEAVE TO DEPOSE NEWLY DISCOVERED WITNESS OR ALTERNATIVELY TO
HAVE WITNESS TESTIFY BY VIDEO CONFERENCE AT TRIAL

Case 2:15-cv-03462-RGK-AGR Document 207 Filed 05/06/16 Page 3 of 9 Page ID #:5481

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Francis Malofiy, Esq.

Francis Alexander, LLC
280 N. Providence Rd. | Suite 105
Media, PA 19063
T: (215) 500-1000; F: (215) 500-1005
E: francis@francisalexander.com
Attorney for Plaintiff
Glen L. Kulik, Esq. (SBN 082170)
Kulik Gottesman & Siegel LLP
15303 Ventura Blvd., Suite 1400
Sherman Oaks, CA 91403
T: (310) 557-9200; F: (310) 557-0224
E: gkulik@kgslaw.com
Attorney for Plaintiff

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL SKIDMORE, as Trustee for

15 the RANDY CRAIG WOLFE TRUST,
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v.
LED ZEPPELIN; JAMES PATRICK
PAGE; ROBERT ANTHONY PLANT;
JOHN PAUL JONES; SUPER HYPE
PUBLISHING, INC.; WARNER MUSIC
GROUP CORP., Parent of
WARNER/CHAPPELL MUSIC, INC.;
ATLANTIC RECORDING
CORPORATION; RHINO
ENTERTAINMENT COMPANY,

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Hon. R. Gary Klausner

Plaintiff,

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Case No. 15-cv-03462 RGK (AGRx)

MEMORANDUM IN SUPPORT OF
MOTION FOR LEAVE TO DEPOSE
NEWLY DISCOVERED WITNESS
OR ALTERNATIVELY TO HAVE
WITNESS TESTIFY BY VIDEO
CONFERENCE AT TRIAL
Filed concurrently with Declaration of
Francis Malofiy; and [Proposed] Order
Trial Date: June 14, 2016
Time:
9:00 a.m.
Courtroom: 850

Defendants.

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MOTION FOR LEAVE TO DEPOSE NEWLY DISCOVERED WITNESS OR ALTERNATIVELY TO
HAVE WITNESS TESTIFY BY VIDEO CONFERENCE AT TRIAL

Case 2:15-cv-03462-RGK-AGR Document 207 Filed 05/06/16 Page 4 of 9 Page ID #:5482

I.

MATTER BEFORE THE COURT

A new witness has come forward who helps prove that Defendants were

familiar with Spirt and its material and had a reasonable possibility of access to

Taurus. Specifically, he witnessed Robert Plant in the front row of a Spirit

concert in 1970. However, Plant claims that while he was at the venue he did not

watch the show and instead stood in the back talking to his friends, likely including

Ozzy Osbourne.

II.

FACTUAL BACKGROUND
a.

Defendants Affinity for Spirit

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One of the principal issues in this case is whether Defendants Robert Plant

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(Plant) and Jimmy Page (Page) had access to Taurus before they wrote

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Stairway to Heaven, and their familiarity with the band Spirit and its material.

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Defendants have claimed to have only the barest familiarity with Spirit, the band co-

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founded by Randy California who authored Taurus. Defendants claimed that they

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were not fans of Spirit, did not attend Spirit concerts, did not listen to Spirit albums,

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and had no reasonable possibility of access to Taurus. This was despite the fact that

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Page, Plant, and John Paul Jones admit covering a Spirit song named Fresh Garbage

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repeatedly in 1968 and 1969. Fresh Garbage is on the same album side as Taurus, on

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the eponymously named Spirit albuman album which Page admits possessing.

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Furthermore, defendant Page gave multiple interviews in the early 1970s where he

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professed his admiration for Spirit, commented on Zeppelin and Spirit touring

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together, said Spirits music struck him on an emotional level, said that he saw

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Spirit live multiple times during the period when Taurus was regularly played at

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Spirit shows, and also said that he enjoyed listening to Spirits albums. Upon being

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confronted with these interviews, Page was forced to admit in his deposition that he

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had indeed liked Spirit in the 1960s, 1970s, and still likes Spirit.

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In addition, it is documented that Robert Plant attended a Spirit concert in

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Birmingham, England at a venue named Mothers Club in January 1970. Spirits

MOTION FOR LEAVE TO DEPOSE NEWLY DISCOVERED WITNESS OR ALTERNATIVELY TO
HAVE WITNESS TESTIFY BY VIDEO CONFERENCE AT TRIAL

Case 2:15-cv-03462-RGK-AGR Document 207 Filed 05/06/16 Page 5 of 9 Page ID #:5483

bassist Mark Andes remembers that before the concert Plant briefly introduced

himself to Spirit, and that following the concert Andes and several members of

Spirit hung out with defendant Plant playing snooker and drinking. Following the

concert and snooker game, Plant was involved in a serious car crash while driving

home. While Plant admits that he attended the venue, he claims that he was totally

uninterested in Spirit, more or less turned his ears off, does not independently recall

Spirit playing, did not listen to Spirit play, and was in the back of the club talking

with his friends, including likely Ozzy Osbourne. He also denies interacting with

Spirits band members or playing snooker.

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b.

Plaintiff Discovers New Witness Who Saw Plant in Front Row of

the Spirit Concert at Mothers Club

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On April 19, 2016, Plaintiff Michael Skidmore (Skidmore) received an

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unsolicited email from an English rock and roll photographer by the name of Mike

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Ware. He informed Mr. Skidmore that he attended a Spirit show in 1970 at Mothers

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Club at Birmingham, England, at which time he saw Plant seated in the first row of

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the club as a fan watching Spirit perform. In his email to Skidmore, Ware wrote:

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Truth will out, and I think that Plant and Page have dug a very big hole by lying

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about their relationship with Spirit. They were big fans, as I witnessed in 1970 at

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Mothers Club, Birmingham because Robert Plant was in the front row watching the

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band. See Exhibit 1 to Declaration of Francis Malofiy. Ware told Plaintiffs counsel

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on the phone that Plant was thoroughly enjoying himself.

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On April 20, 2016, Plaintiffs counsel contacted Mr. Ware to seek to verify

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whether his version of events was credible. Mr. Ware provided numerous details

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that led counsel to conclude he was telling the truth, including that he specifically

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remembered the show because he had hitchhiked over 100 miles to get to Mothers

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Club with a friend and that the friend took ill after the first song and spent the night

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in the bathroom. Mr. Ware also accurately described the layout of Mothers Club. He

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stated that Plant was thoroughly enjoying himself in the front row of the Spirit
MOTION FOR LEAVE TO DEPOSE NEWLY DISCOVERED WITNESS OR ALTERNATIVELY TO
HAVE WITNESS TESTIFY BY VIDEO CONFERENCE AT TRIAL

Case 2:15-cv-03462-RGK-AGR Document 207 Filed 05/06/16 Page 6 of 9 Page ID #:5484

concert. Thus, on April 21, 2016, Plaintiffs counsel notified Defendants counsel of

the new witness and sent them a copy of the email Mr. Ware had sent to Mr.

Skidmore. See Exhibit 1 to Malofiy Decl.

This testimony is highly relevant as it shows that Plant was familiar with

Spirit, was an avid fan of Spirit, and attended Spirits shows before Stairway to

Heaven was written. It also rebuts and contradicts Plants testimony that he was not

at Mothers Club to see Spirit, that he stayed in the back of the club uninterested in

Spirits concert, and that he was not a fan of Spirit. It also casts doubt on Plants

denial that he interacted with Spirits band members or played snooker with them.

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Mr. Ware informed Plaintiffs counsel that he is willing to testify at the trial

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but that he is an elderly gentleman who lives in England and suffers from

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Parkinsons disease, which makes it impossible for him to travel. In addition, Mr.

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Ware has never traveled outside of Europe and does not have a passport.

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III.

LEGAL STANDARD

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In the Ninth Circuit, courts are required to consider four factors in

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determining whether to exclude a witness not listed in the pretrial witness list: (1)

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the prejudice or surprise in fact of the party against whom the excluded witnesses

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would have testified; (2) the ability of that party to cure the prejudice; (3) the extent

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to which waiver of the rule against calling unlisted witnesses would disrupt the

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orderly and efficient trial of the case or other cases in the court; and (4) bad faith or

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willfulness in failing to comply with the court's order. Price v. Seydel, 961 F.2d

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1470, 1474 (9th Cir. 1992).

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IV.

APPLICATION MR. WARE SHOULD BE PERMITTED TO TESTIFY IN

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PLAINTIFFS CASE IN CHIEF

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All four factors militate in favor of allowing Mr. Ware to testify at trial.

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First, Defendants will not be prejudiced by Mr. Wares testimony since it

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simply reaffirms the position Plaintiff has taken throughout this case that Page and

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Plant knew Spirit, Randy California and attended his concerts where Taurus was
MOTION FOR LEAVE TO DEPOSE NEWLY DISCOVERED WITNESS OR ALTERNATIVELY TO
HAVE WITNESS TESTIFY BY VIDEO CONFERENCE AT TRIAL

Case 2:15-cv-03462-RGK-AGR Document 207 Filed 05/06/16 Page 7 of 9 Page ID #:5485

regularly played.

prejudiced by a witness who will simply reaffirm the same position Plaintiff has

taken all along.

As such, Defendants cannot reasonably claim they will be

Second, Defendants have the ability to cure any potential prejudice because

Defendants would be able to cross-examine Mr. Ware and challenge his testimony

during trial. Alternatively, since the trial has been continued, there is ample time for

the parties to take Mr. Wares deposition in England on a convenient date in May or

early June.

Third, allowing Mr. Ware to testify will not disrupt the orderly and efficient

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trial in this case. Mr. Wares testimony will not delay or disrupt courts proceedings

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because it can be taken by deposition in advance of the June 14 trial date or it will be

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presented within the limited number of hours this Court granted Plaintiff to present

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his case.

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Fourth, because Plaintiff was unaware until recently of the identity of Mr.

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Ware, it was not feasible for Plaintiff to list Mr. Ware in its witness list as required

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by this Courts order. As such, there is no evidence that Plaintiff seeks to call Mr.

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Ware to surprise the defense or that he had willfully or in bad faith disregarded the

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court's pretrial order. Price, supra, 961 F.2d at 1474.

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V.

PLAINTIFF REQUESTS THAT MR. WARE BE PERMITTED TO

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TESTIFY BY VIDEOTAPED DEPOSITION

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Since Mr. Ware can testify competently on issues of considerable importance

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to the case and he cannot travel, Plaintiff respectfully requests permission to take his

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videotaped deposition in England in order to present such testimony at trial; or,

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alternatively, that he be permitted to testify at trial from England by means of video

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conference or similar technology. Since the trial has been continued on the courts

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own initiative, there is ample time to take the deposition in England on a convenient

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date in May or early June.

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VI.

CONCLUSION

MOTION FOR LEAVE TO DEPOSE NEWLY DISCOVERED WITNESS OR ALTERNATIVELY TO

HAVE WITNESS TESTIFY BY VIDEO CONFERENCE AT TRIAL

Case 2:15-cv-03462-RGK-AGR Document 207 Filed 05/06/16 Page 8 of 9 Page ID #:5486

Thus, for all of these reasons, Plaintiff respectfully requests leave to depose

Mr. Ware prior to the current trial date or to call him as a witness at trial by video

conference (or similar technology).

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Dated: May 6, 2016

FRANCIS ALEXANDER, LLC

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/s/ Francis Alexander Malofiy

Francis Alexander Malofiy, Esq.
Attorney for Plaintiff

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MOTION FOR LEAVE TO DEPOSE NEWLY DISCOVERED WITNESS OR ALTERNATIVELY TO
HAVE WITNESS TESTIFY BY VIDEO CONFERENCE AT TRIAL

Case 2:15-cv-03462-RGK-AGR Document 207 Filed 05/06/16 Page 9 of 9 Page ID #:5487

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CERTIFICATE OF SERVICE
Plaintiff hereby represents that Plaintiffs MOTION FOR LEAVE TO DEPOSE NEWLY
DISCOVERED WITNESS OR ALTERNATIVELY TO HAVE WITNESS TESTIFY BY VIDEO
CONFERENCE AT TRIAL has been served upon counsel by email:
Helene Freeman, Esquire
666 Fifth Avenue
New York, NY 10103-0084
T: (212) 841-0547
F: (212) 262-5152
E: hfreeman@phillipsnizer.com
Attorneys for Defendants James Patrick Page, Robert Anthony Plant, and John Paul Jones
(collectively with John Bonham (Deceased), professionally known as Led Zeppelin)
Peter J. Anderson, Esquire
100 Wilshire Blvd. | Suite 2010
Santa Monica, CA 90401
T:(310) 260-6030
F: (310) 260-6040
E: pja@pjanderson.com
Attorney for Defendants Super Hype Publishing, Inc., Warner Music Group Corp.,
Warner/Chappell Music, Inc., Atlantic Recording Corporation, and
Rhino Entertainment Company

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*****
Respectfully submitted,

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Francis Alexander, LLC

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/s/ Francis Alexander Malofiy

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Francis Alexander Malofiy, Esquire

Attorney ID No.: 208494
280 N. Providence Road | Suite 105
Media, PA 19063
T: (215) 500-1000
F: (215) 500-1005
E: francis@francisalexander.com

/d/ May 6, 2016

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MOTION FOR LEAVE TO DEPOSE NEWLY DISCOVERED WITNESS OR ALTERNATIVELY TO
HAVE WITNESS TESTIFY BY VIDEO CONFERENCE AT TRIAL