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Case 1:16-cv-03798-LAK Document 38 Filed 02/17/17 Page 1 of 4

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
GABOR PRESSER and ANNA ADAMIS, :
:
Plaintiffs, : 16-CV-03798 (LAK)
:
-against- : DECLARATION OF
: PETER S. CANE IN
KANYE WEST, : SUPPORT OF PLAINTIFFS
PLEASE GIMME MY PUBLISHING INC. and : MOTION TO COMPEL
SONY/ATV MUSIC PUBLISHING LLC, : DEPOSITION OF DEFENDANT
: KANYE WEST IN NEW YORK
Defendants. :
---------------------------------------------------------------x

I, Peter S. Cane, declare under penalty of perjury:

1. I am counsel to the Plaintiffs herein. I submit this declaration in support of

Plaintiffs motion to compel Defendant Kanye West (West) to appear in New York for his

deposition.

BACKGROUND

2. This is an action for copyright infringement and other claims resulting from

Wests unauthorized use of Plaintiffs musical composition, Gyongyhaju Lany, in the song New

Slaves. The Scheduling Order (ECF No. 19) requires all discovery to be completed less than two

months from now, by April 15, 2017.

3. Plaintiffs have bent over backwards to accommodate Defendants aggressive

discovery demands. For example, Defendants insisted that Plaintiff Gabor Presser travel from

Budapest to New York at his own expense for his deposition and would not consent to a more

convenient and efficient deposition by video or telephone. Even worse, Defendants noticed

Pressers deposition for February 22, 2017 and confirmed that date as recently as February 7,

2017. After being informed that Presser had booked his travel plans in reliance on this

confirmation, defense counsel threatened to cancel the deposition or call Presser back for a
Case 1:16-cv-03798-LAK Document 38 Filed 02/17/17 Page 2 of 4

second deposition unless Plaintiffs agreed to produce documents prior to the date set forth in

Defendants Request for Production (and well before Defendants will agree to produce

documents to Plaintiffs). Plaintiffs agreed to this unreasonable request rather than involve the

Court.

4. Defendants latest unreasonable demand, however, cannot be resolved by

agreement without substantial prejudice to Plaintiffs.

THE WEST DEPOSITION

5. Plaintiffs served deposition notices on West and the two corporate defendants on

January 13, 2017. The two corporate depositions are proceeding as noticed.

6. Wests deposition was noticed for March 1, 2017 at the offices of Plaintiffs

counsel in New York, the only office that Plaintiffs counsel maintains.

7. On February 7, 2017, three weeks after service of Wests notice, his counsel

advised me that she was confirming [his] availability.

8. On February 13, 2017, one month after service, counsel informed me for the first

time that West would be made available only in Los Angeles. Counsels only stated reason for

Wests refusal to comply with the notice was that he primarily resides in California. Counsel

has otherwise declined to discuss the issue. Although counsel asserted that she would be seeking

a ruling of this Court, she has declined to do so or discuss why she has not.

9. It is undisputed that West maintains a residence in New York, as the Court may

recall from Wests failed motion to transfer this case to California. Even Wests friend of

thirty-one years acknowledges that West has an apartment in New York City. Declaration of

J. Sakiya Sandifer 4 (ECF No. 29).

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Case 1:16-cv-03798-LAK Document 38 Filed 02/17/17 Page 3 of 4

10. Counsel does not deny that West has been staying in New York this month.

Bending over backwards yet again, Plaintiffs offered to take Wests deposition at a convenient

time during his current stay in New York even before receiving any requested documents in

order to accommodate his schedule. Counsels response, issued yesterday, was that it was

absurd to suggest that West suddenly drop all business to give a deposition.

11. It is respectfully submitted that the law applies even to Kanye West.

LEGAL ARGUMENT

12. The caselaw does establish a general presumption that a defendants deposition

will be held in the district of his residence. However, this rule is often honored in the breach.

Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 549 (S.D.N.Y. 1989) (citations omitted).

Here, West can only allege that he primarily resides in California while maintaining a

residence in this District. His home in New York is enough by itself to require his deposition

here. See id. at 551.

13. Even without his home in New York, however, West is not entitled to the

presumption on which he relies because this presumption is not applicable in a suit in which

plaintiff had little choice of forum. Ambac Assur. Corp. v. Adelanto Pub. Util. Auth., No. 09

CIV. 5087 JFK, 2012 WL 1589597, at *6 (S.D.N.Y. May 7, 2012). Here, as set forth at length in

Plaintiffs opposition to Wests motion to transfer, New York was the only plausible forum for

Plaintiffs.

14. In determining the location of Wests deposition, the Court should weigh the

factors of cost, convenience, and litigation efficiency as between the parties. Devlin v. Transp.

Commns Intl Union, Nos. 95 Civ. 0752, 95 Civ. 10838, 2000 WL 28173, at *3 (S.D.N.Y. Jan.

14, 2000).

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15. Cost considerations relevant to the location of a deposition may be looked at

from two perspectives: the impact that the choice of site has on total costs and the relative ability

of the parties to bear the expenses. Id. Here, both perspectives weigh heavily in favor of New

York all of the lawyers in this case would otherwise have to travel across the country and the

Plaintiffs have nothing close to Wests ability to bear the expenses.

16. Factors relevant to convenience include any hardship to counsel, the residence of

the deponents, and the extent to which the witness affairs might be disrupted. Id. In this case,

the interests of counsel would best be served by holding the depositions in New York, since the

attorneys all practice here. In addition, plaintiff's counsel is a solo practitioner, making it more

difficult for him to arrange his schedule to travel to California. Mill-Run Tours, Inc., supra, 124

F.R.D. at 551.

17. Finally, a court should take into account overall litigation efficiency. For

instance, a court can compel a deposition to occur where a relevant document repository is

located, but no such considerations exist in this case. Robert Smalls Inc. v. Hamilton, No. 09

CIV. 7171 (DAB)(JLC), 2010 WL 2541177, at *3 (S.D.N.Y. June 10, 2010).

18. I certify that I have conferred in good faith with counsel for West in an effort to

resolve this dispute without court action.

19. For the foregoing reasons, Plaintiffs respectfully request an order of the Court

directing West to comply with the deposition notice served on him in all respects.

Dated: New York, New York


February 17, 2017
_____________________________
Peter S. Cane

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