08-5043-cv
Pyatt v. Jean
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATIO N M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 23 rd day of December, two thousand nine.

PRESENT:         RALPH K. WINTER,
                 REENA RAGGI,
                 DEBRA ANN LIVINGSTON,
                                          Circuit Judges.
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WADENA PYATT,

                         Plaintiff-Counter-Defendant-Appellant,
                         v.                                                   No. 08-5043-cv

WYCLEF JEAN, JERRY DUPLESSIS, SONY MUSIC
ENTERTAINMENT, INC., COLUMBIA RECORDS,
SONY/ATV TUNES, LLC, HUSS ZWINGLI
PUBLISHING, INC.,

                         Defendants-Appellees.
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APPEARING FOR APPELLANT:                          FR A N K A . D ELLE DONNE, M onaco &
                                                  Monaco, LLP, Brooklyn, New York.

APPEARING FOR APPELLEES:                          DOROTHY M. WEBER, Shukat Arrow Hafer
                                                  Weber & Herbsman, LLP (Judith A. Meyers,
                                                  Shukat Arrow Hafer Weber & Herbsman, LLP,
                                           New York, New York, Michael G. Williams,
                                           Freeport, New York, on the brief), New York,
                                           New York.


       Appeal from the United States District Court for the Eastern District of New York

(Thomas C. Platt, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court’s October 3, 2008 judgment is AFFIRMED.

       Wadena Pyatt appeals from a final judgment, entered after a jury trial at which she

proceeded pro se, in favor of defendants on her copyright infringement claim. On appeal,

Pyatt challenges various discovery and evidentiary rulings. We review a district court’s

discovery rulings, including the denial of a motion for sanctions, and its evidentiary rulings

for abuse of discretion, see In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 102 (2d Cir.

2008); Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 135 (2d Cir. 2007); Meloff

v. N.Y. Life Ins. Co., 240 F.3d 138, 148 (2d Cir. 2001), and we will not grant a new trial

unless error affects a substantial right, see Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007).

In applying these standards, we assume the parties’ familiarity with the facts and the record

of prior proceedings, which we reference only as necessary to explain our decision to affirm.

       1.      Discovery Sanctions

       Pyatt submits that the district court erred in refusing to sanction defendants for their

“continual failure” to comply with a March 28, 2008 discovery order. Appellant’s Br. at 58.

We disagree.

       The district court’s March 28, 2008 order, issued at a pretrial conference, directed

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defendants to comply with any non-financial discovery requests contained in a list of

outstanding discovery submitted by Pyatt. The order did not make any findings with respect

to the existence or nonexistence of the evidence requested, nor did it impose on defendants

an obligation to produce specific material. On July 9, 2008, the district court held a hearing

at which it addressed Pyatt’s claim that certain evidence had been destroyed or improperly

withheld. Although defendants had provided written responses to all of Pyatt’s discovery

requests in accordance with the March 2008 order, in some instances their response was that

they could not locate any documents responsive to the request.             The district court

acknowledged Pyatt’s concern that certain documents appeared to be missing, but concluded

that unless Pyatt could prove that defendants had destroyed or withheld specific documents,

she was bound by defendants’ answers and their inability to produce what they did not have.

Pyatt submitted no such proof to the district court, nor do the portions of trial testimony she

cites on appeal demonstrate that defendants unlawfully destroyed or withheld evidence.

Accordingly, we identify no abuse of discretion in the district court’s refusal to sanction

defendants.

       2.     Evidentiary Challenges

              a.     Pyatt’s Testimony

       Pyatt contends that the district court erred in precluding her from testifying at trial,

thereby preventing her from “sing[ing] at trial the unique melodic lyrical chorus

combinations common to [the songs at issue or] . . . indicat[ing] musically as defendants-

appellees did.” Appellant’s Br. at 55. Contrary to Pyatt’s claims, a thorough review of the


                                              3
record indicates that she was fully apprised of her right to testify but declined to do so. See

Trial Tr. at 106 (“And [Pyatt] can take the witness stand, herself, if she wishes to do so.”);

id. at 603 (“THE COURT: You can’t introduce this as an exhibit, as such, unless you take

the witness stand. MS. PYATT: Okay. That’s fine. I have enough with the testimony that

was made.”); id. at 833-34 (“THE COURT: I have to take the complaint, your complaint you

filed, for the court, counsel, and the jury to see. Do you want to testify to something

different? You have to get on the stand and testify to it. But we are not going to reopen the

entire case. MS. PYATT: No. Only background. It was only a little typo error. I think it

was a tiny error in my deposition.”); see also id. at 576–81 (reserving decision on Pyatt’s

right to testify to permit defendants to brief issue, but noting that “unless [defendants had]

some recent authority on the subject, . . . [the court would] have to receive [Pyatt’s

testimony]”).

       Although Pyatt at one point advised the court that she wished to provide testimony

that would compare the structural and melodical elements of the songs at issue, defendants

objected to the admission of such testimony on the ground that Pyatt was not an expert within

the meaning of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See

Trial Tr. at 668-69. The district court appears to have sustained the objection, subject to

Pyatt’s right to present a qualified expert during her rebuttal case. See Trial Tr. at 669-73.

As Pyatt does not contend – nor could she contend – that she is an expert within the meaning

of Daubert, we perceive no abuse of discretion on these facts.




                                              4
               b.     Finell’s Expert Testimony

       Pyatt argues that the district court abused its discretion in failing to consider an

affidavit submitted by her expert, Judith Finell. The record does not support such a claim.

While Pyatt cites a May 20, 2009 affidavit in which Finell purports to have submitted an

affidavit and expert report prior to trial, the record reveals no instance in which Pyatt

attempted to introduce the affidavit at trial but was precluded from doing so. Nor does it

show that the district court precluded Finell from testifying. Rather, the district court

repeatedly advised Pyatt that she had the right to call Finell as an expert. When the time for

Finell to testify arrived, however, Pyatt indicated that Finell was not prepared to go forward.

Although Pyatt cited defendants’ failure to produce relevant discovery as the cause of

Finell’s unpreparedness, for the reasons discussed above, we conclude that the district court

acted well within its discretion in finding that defendants had satisfied all relevant discovery

obligations. Under these circumstances, Pyatt’s challenge respecting Finell’s evidence

necessarily fails.1

               c.     Ferrara’s Expert Testimony

       Pyatt argues that the district court erred in admitting the testimony of defendants’

expert, Lawrence Ferrara, as defendants failed timely to serve Ferrara’s expert report and

Ferrara’s testimony exceeded the scope of the report. We are not persuaded.

       Apart from her own conclusory allegations, the only evidence cited by Pyatt


       1
         Although Pyatt also contends that the district court erred in failing to consult Finell
via teleconference when determining whether defendants’ alleged destruction of relevant
evidence merited sanctions, the record makes clear that defendants offered to permit Pyatt
to telephone Finell, but she declined to do so.

                                               5
suggesting that defendants served their expert report “four months” after the court-appointed

deadline is Ferrara’s declaration of November 10, 2005, indicating somewhat ambiguously

that “[m]y initial report, dated August 16, 2005, has been submitted in this case” but also that

“[t]he Report is submitted [as an attachment to a filing] dated November 11, 2005.” Ferrara

Decl. ¶ 2 (November 10, 2005). Even assuming that the report was not submitted until the

latter date, it is not clear that it was late, as the district court issued an order on August 17,

2005, staying production of Ferrara’s report at the request of the defendants. Moreover, even

if the report was late, as Pyatt contends, it would still have been produced almost three years

before trial commenced. Pyatt can hardly claim that she was prejudiced by any delay. See

Wolak v. Spucci, 217 F.3d 157, 161 (2d Cir. 2000) (noting prejudice properly informs

decision to preclude belated expert evidence).

       Pyatt’s claim that Ferrara’s testimony exceeded the scope of his expert report is

equally unavailing. In identifying the materials that he reviewed in connection with his

analysis, Ferrara cited “a commercially released DVD entitled, Wyclef Jean: All Star Jam at

Carnegie Hall, . . . with a version of ‘Two Wrongs’ as scene 16 entitled ‘Our Song’

performed with Eric Clapton and attached to this Report as Audio Exhibit C.” Report of

Lawrence Ferrara, Ph.D., at 2-3 (August 16, 2005). Although Ferrara refers to the song

performed by Jean and Clapton as “My Song” in the portion of testimony challenged by

Pyatt, our review of the record indicates that Ferrara’s testimony regarding the structure of

that song and the likely extent of Jean and Clapton’s preparation for its performance was well

within the scope of his expert report. In any event, because Pyatt failed to raise this objection



                                                6
at trial, even if we assumed arguendo that Ferrara’s testimony exceeded the scope of his

report, our review would be limited to “plain error affecting substantial rights that goes to

the very essence of the case.” Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 1994). This

is not such an error.

              d.        Masquerade CD Liner Notes

       Pyatt asserts that the district court erred in precluding questioning regarding the liner

notes for the Masquerade CD, as the notes connect defendants Jean and Williams, tending

to prove access.    This argument is without merit.       The record demonstrates that the

Masquerade CD was admitted into evidence as Plaintiff’s Exhibit 2, that the liner notes

contained in the CD were marked for identification, and that Pyatt herself questioned three

witnesses about the notes. In at least two instances, the witnesses were either asked to read

from the liner notes or were questioned about their contents. See Trial Tr. at 157-58, 555.

Accordingly, any claim that Pyatt was precluded from eliciting testimony about the

Masquerade CD liner notes must fail.

       3.     Conclusion

       We have considered Pyatt’s remaining arguments and conclude that they are without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court


                                    By:




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