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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE TAUBMAN COMPANY
LIMITED PARTNERSHIP,
 
Plaintiff, 
 Civil Action No. 01-72987
v.
 District Judge Zatkoff
WEBFEATS and HENRY MISHKOFF, Magistrate Judge Komives
 
Defendants. 


MEMORANDUM IN SUPPORT OF
MOTION TO DEFER TRIAL
TO PERMIT FURTHER DISCOVERY
ON THE COPYRIGHT CLAIM

Defendants have moved the Court to postpone the trial on the merits in this case to permit them enough time to conduct discovery on the copyright claims, for the following reasons:

  1. The trial in this case, which originally contained only trademark claims, was originally scheduled to be held in August, 2002. When the Court granted plaintiff's motion to amend the complaint to add a copyright claim to the complaint as Count IV, it rescheduled the trial for October, 2002, and allowed approximately forty-five days for discovery. Mishkoff promptly served a set of interrogatories and requests for documents, with a view to taking depositions based on the answers and documents produced in response to those requests.

  2. Plaintiff did not send its responses to Mishkoff's counsel until only two weeks remained before the expiration of discovery; the responses were evasive and incomplete; and the one document that was produced was not furnished until a few days before the discovery deadline. Mishkoff promptly moved to compel further answers and asked the Court either to impose sanctions for incomplete and evasive responses, or to bifurcate the trial in this matter and set the copyright claim down for trial separately from the trial on the trademark issues.

  3. By order dated June 13,2002, the Court indicated that, for reasons of judicial economy, it was not inclined to hold two separate trials, but directed Mishkoff to separate his motion to delay trial from his motion to compel further discovery. In effect, this order made clear to Mishkoff that, if he needed more time to prepare for trial on the copyright claims, he would have to be prepared to defer trial on the trademark claims as well, thus potentially extending the effective date of the preliminary injunction against the maintenance of his original "shopsatwillowbend" web site.

  4. Mishkoff then filed a new motion to compel discovery on the copyright issues. By order dated June 28, 2002, the Court referred that order to Magistrate Judge Komives for disposition.

  5. Mishkoff now moves to defer the trial on the merits to permit him to take the discovery he needs on the copyright issue. Recognizing that plaintiff has two weeks to respond to the pending motion to compel, it seems unlikely that Magistrate Judge Komives will be able to rule on the pending motion before late July. Assuming that Magistrate Judge Komives orders further responses to written discovery, Mishkoff will not have received such responses until the middle of August at the earliest, and will not be able to take depositions to pursue the information provided in such responses until mid- to late September.

  6. Accordingly, the Court is requested to set a schedule requiring that Mishkoff's discovery on the copyright matters be concluded by the end of September; that dispositive motions be filed by the end of October; and that trial be held during February, 2003.

  7. The schedule that is being suggested will also accommodate the problem that, in light of the original trial setting for August, 2002, defendant Mishkoff scheduled a vacation outside the United States in October, and purchased non-refundable airline tickets for that vacation. The Court was apprised of this scheduling problem as soon as counsel received the new trial schedule.

  8. Mishkoff's counsel has attempted to consult with Taubman's counsel, Julie Greenberg, about conflicts with the proposed dates. Ms. Greenberg refused to respond to the request for such consultations.

CONCLUSION

The motion to reschedule the trial should be granted.

Respectfully submitted,

    Barbara Harvey (P25478)
    Suite 3060
    Penobscot Building
    645 Griswold
    Detroit, Michigan 48226
    (313) 963-3570

    Paul Alan Levy (DC Bar 946400)
    Public Citizen Litigation Group
    1600 - 20th Street, N.W.
    Washington, D.C. 20009
    (202) 588-1000

    Attorneys for Defendants

July 7, 2002


Next: Our Motion to Defer is Denied

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