United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE.
the Court is the defendants' motion to exclude the
report, opinions, and testimony of Archie K. Milton, a
purported expert musicologist, from consideration on summary
judgment or at trial. For the reasons that follow, the motion
Orleans jazz musician accuses an internationally famous
hip-hop duo of copyright infringement of eleven original
songs. This litigation followed.
Batiste is a member of The Batiste Brothers Band, a New
Orleans jazz band founded in 1976. Batiste also owns Artang
Publishing, LLC. Between 1997 and 2002, Batiste composed
several original songs, entitled Hip Jazz, Kids, Starlite Pt.
1, World of Blues, Love Horizon, Tone Palette, My Bad, Salsa
4 Elise (Fur Elise), Drowning in My Blues, Sportsman's
Paradise, and Move That Body. Batiste has registered each
song with the United States Copyright Office.
Lewis and Ben Haggerty form the hip-hop duo known as
“Macklemore and Ryan Lewis.” The duo has achieved
international stardom and is best known for the singles
“Thrift Shop” and “Can't Hold Us,
” which were the most popular songs in the United
States and Australia after their releases in 2012 and
2016. The duo also received several Grammy
awards, including those for best new artist, best album, and
best rap performance.
1, 2017, Batiste sued Ryan Lewis and Ben Haggerty, alleging
they infringed on his copyrights by using unauthorized
samples and by copying elements of eleven of his original
songs in the composition of their songs Thrift Shop,
Can't Hold Us, Need to Know, Same Love, and Neon
Cathedral. Batiste also sued Andrew Joslyn and Allen Stone,
who are credited with writing the hip-hop songs, as well as
the publishing companies who own rights to the compositions,
including Macklemore Publishing, Ryan Lewis Publishing, DB
Joslyn Music, and Sticky Stones, LLC.
defendants moved to dismiss the complaint on September 11,
2017, but ultimately withdrew that motion after the plaintiff
filed an amended complaint. The defendants then moved to
dismiss the amended complaint on November 15, 2017, but again
voluntarily dismissed it after the plaintiff was granted
leave to file a second amended complaint on January 19, 2018.
Thereafter, on February 20, 2018, the defendants moved to
dismiss the second amended complaint. In its Order and
Reasons dated May 17, 2018, this Court denied the
defendants' motion to dismiss, holding that the
plaintiff's complaint plausibly alleges the three
requirements to a successful claim of copyright infringement:
(1) a valid copyright; (2) factual copying (through
allegations of striking similarity); and (3) substantial
months later, on November 25, 2018, Batiste disclosed a
68-page report signed by Archie K. Milton, an alleged expert
musicologist, in an effort to buttress his copyright
infringement claims. The report purports to analyze elements
of “copying” and “digital sampling”
and to demonstrate similarities between the defendants'
and the plaintiff's musical works through the use of
various computer software programs. Contending that the report
was ghost-written by the plaintiff, the defendants now seek
to exclude Milton's report, opinions, and testimony from
consideration on summary judgment or at trial, pursuant to
Rule 37 of the Federal Rules of Civil Procedure and Rule 702
of the Federal Rules of Evidence.
26(a)(2)(B) of the Federal Rules of Civil Procedure requires
the disclosure of an expert witness's identity to be
accompanied by a “written report - prepared and signed
by the witness” that contains:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming
(iii) any exhibits that will be used to summarize or support
(iv) the witness's qualifications, including a list of
all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
(vi) a statement of the compensation to be paid for the study
and testimony in the case.
37(c), in turn, vests the Court with authority to exclude
expert testimony for violations of Rule 26(a), “unless
the failure was substantially justified or is
harmless.” Fed. R. Civ. Proc. 37(c)(1); see
Honey-Love v. United States, 664 Fed.Appx. 358, 362 (5th
Cir. 2016) (per curiam) (emphasizing that, “under Rule
37(c), the presumptive sanction for failing to disclose a
testifying expert or supply a required expert report . . . is
to exclude or limit the expert's testimony”).
Rule of Evidence 702 provides for the admission of expert
testimony that will assist the trier of fact to understand
the evidence or to determine a fact in issue. Under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), district courts are tasked with making a
preliminary assessment as to the reliability and relevance of
proffered expert testimony. In fulfilling this
“gatekeeping” function, the trial court must
determine “whether the reasoning or methodology
underlying the ...