Telemundo Gets More Time for Discovery

     MIAMI (CN) – A federal magistrate judge rebuked a regional Spanish-language television network for lying during discovery, but refused to throw out claims Telemundo violated its copyright on a popular soap opera.
     Latele Television C.A. sued Telemundo on July 10, 2012, claiming the NBCUniversal-owned company repeatedly infringed on its copyright to the Venezuelan soap opera “Maria Maria.”
     In a complaint filed in the federal court in Miami, Latele Television said it produced 198 episodes of the show, which aired in 1989.
     Later, it said, it learned that Telemundo aired 178 of those episodes, without permission, under the guise of a copycat show called “El Rostro de Analia.”
     To carry out the scheme, the complaint said, Telemundo hired “Maria Maria” author Humberto Olivieri Michelena, to develop “El Rostro de Analia,” a show so similar to its predecessor as to be a virtual remake.
     Latele Television contends a side-by-side comparison of “Maria Maria” and “El Rostro de Analia” reveals the programs are two versions of the same story, with both articulating the theme of personal transformation through identity substitution in substantially the same manner.
     The two programs share not only the same author, but the same core plot, and the same exposition, conflict, climax and closure, the network said.
     Telemundo moved to have lawsuit dismissed in March 2013, but the court declined to toss it at that time.
     In its most recent motion for dismissal, Telemundo asked the court to dismiss the suit for lack of subject matter jurisdiction because, it says, Latele assigned its rights to the original program to its principal, Fernando Fraiz, and then to another entity he owns, Latele Productions Inc.
     Alternatively Telemundo asked the court for the most extreme sanction available — dismissal — for Latele Television’s failure to comply with court orders concerning discovery.
     “Focusing on the first argument for dismissal, the Court cannot now dismiss the case for lack of standing because Defendants’ argument depends on contested facts,” wrote U.S. Magistrate Judge Jonathan Goodman as he set aside Telemundo’s motion.
     “Defendants contend that Plaintiff lacks standing to pursue this claim because it did not own the copyright at issue on the date it filed this lawsuit. … But there is a significant factual dispute as to the effectiveness of {the assignments of rights to Fraiz and his company] and, assuming that Plaintiff in fact assigned away the copyright at issue, whether those assignments were, for all practical purposes, rescinded (or undone or reversed or corrected — all terms used by the parties, witnesses and counsel in evidentiary hearings and post-hearing memoranda).
     “The Court does not believe it prudent to wade into this murky factual morass and unilaterally make credibility assessments,” Goodman wrote.
     The magistrate then went on to discuss Latele Television’s many failures during the discovery phase of the trial.
     Goodman said the plaintiff failed to produce relevant documents responsive to discovery requests, provided an incorrect or significantly misleading interrogatory answer, submitted a false or substantially incorrect declaration, provided incorrect or misleading deposition testimony, and never timely advised its own trial counsel about significant transactions which might affect its standing to prosecute the case.
     In response, the magistrate took the case off the trial calendar in order to give Telemundo the opportunity to take additional discovery concerning documents the plaintiff failed to produce. Goodman then made a point of noting that “[b]ecause Plaintiff generated the need to obtain more discovery, it is only the Defendants who are being permitted to pursue additional discovery after expiration of the discovery deadline.”
     Goodman said Latele Television will be required to pay the attendance fees for court reporters and videographers used at any new depositions, and that it will need to pat the travel costs for one defense attorney for any depositions taken out of town.
     The magistrate also awarded Telemundo defendants attorney’s fees in connection with the instant motion to dismiss.
     “Finally, if the additional discovery (or other evidence obtained by Defendants) establishes that Plaintiff fraudulently manufactured and post-dated a critical document (the so-called ‘addendum’) in order to avoid the dismissal Defendants seek in their motion for lack of standing, then the Court will entertain another dismissal motion for fraud on the court/intentional bad faith discovery abuse,” Goodman wrote.
     “Likewise, if the Undersigned concludes that Plaintiff destroyed relevant evidence after a duty to preserve evidence was created, then the Court will also consider another defense-filed dismissal motion,” he said.
     Telemundo now has until February 10, 2015, to complete additional discovery.

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