Professional Documents
Culture Documents
653118/2014
NYSCEF DOC. NO. 1221 RECEIVED NYSCEF: 05/31/2018
Counterclaim-Plaintiff, :
:
-against- :
:
LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ :
("Gottwald" "Plaintiff'
Pursuant to CPLR section 3042(b), Plaintiff Lukasz Gottwald or "Plaintiff"),
by and through his counsel Mitchell Silberberg & Knupp LLP, responds to Defendant Kesha
"Demand"
individually, "Demand") as follows:
GENERAL OBJECTIONS
(" Objections"
The following general objections ("General Objections") apply to the entirety of the
Demands propounded by Defendant, and are incorporated by reference into each specific
response made herein. The assertion of the same, similar, or additional objections or the
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provision of partial answers in the individual responses to the Demands does not waive any of
1. Plaintiff notes that Defendant has not served a Demand for a Bill of Particulars
with respect to the allegations and claims contained in the operative pleading in this action,
Plaintiffs'
Second Amended Complaint ("SAC"). For the sake of completeness, to amplify the
SAC pursuant to CPLR § 3041 et seq., and without waiver of any rights or remedies, Plaintiff
2. Plaintiff objects to the Demands to the extent they purport to impose burdens or
obligations beyond those required by the New York Civil Practice Law and Rules ("CPLR"), the
(" Rules"
Rules of the Commercial Division of the Supreme Court ("Commercial Division Rules"), the
(" Rules"
Practice Rules of Judge Shirley Kornreich of this Court ("Judge Kornreich's Practice Rules"),
any orders entered in this action, and any agreements between the parties.
3. Plaintiff objects to the Demands to the extent they seek evidentiary material,
which is inappropriate pursuant to the CPLR and relevant case law. See, e.g., Mahr v. Perry, 74
4. Plaintiff objects to the Demands to the extent they seek information regarding
subjects on which Plaintiff does not bear the burden of proof. By providing any information in
response to these Demands, Plaintiff does not concede that Plaintiff bears the burden of proof on
any particular subject or that any particular information is necessary to satisfy any applicable
burden of proof, and expressly reserves the right to argue that Defendant bears the burden of
proof.
5. Plaintiff objects to the Demands to the extent that they seek information protected
from disclosure pursuant to the attorney-client privilege, the work-product doctrine, or other
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applicable privileges. To the extent that a Demand may be construed as seeking information
subject to the attorney-client privilege or work-product doctrine, Plaintiff hereby claims the
attorney-client privilege and invokes the work-product doctrine as to the Demand. The fact that
Plaintiff does not specifically object to an individual Demand on the ground that it seeks
information subject to the attorney-client privilege and/or work-product doctrine is not deemed a
product doctrine, and in the event any information is produced that is privileged, it is to be
6. By providing a response to any specific Demand, Plaintiff does not concede that
the information provided is discoverable, relevant or admissible, and reserves the right to
challenge further discovery into the subject matter of the specific request. Plaintiff also reserves
the right to challenge the competency, relevance, materiality, privilege and/or admissibility into
evidence of any document, information or material produced in response to the Demands in this
7. Plaintiff objects to the Demands to the extent they purport to require Plaintiff to
provide information in the possession, custody and/or control of any other corporation or person
or entity.
8. Plaintiff objects to the Demands to the extent they seek information not currently
available to Plaintiff. Fact discovery is not yet complete, and all responses contained herein are
based only on the information and documents that are presently available and specifically known
to Plaintiff. Further discovery, investigation, review of records, research, and analysis may
reveal additional responsive material. Accordingly, Plaintiff reserves the right to present
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evidence of any subsequently discovered facts at the trial of this action and to change any and all
responses herein as additional facts are ascertained, analyses are made, legal research is
9. Plaintiff objects to the Demands as unduly burdensome and harassing in that they
10. Plaintiff objects to each Demand to the extent it purports to seek confidential,
proprietary, sensitive, personal, and/or corporate information covered by the right to privacy
under the U.S. and/or any applicable state Constitutions, and/or under any other federal and/or
Each of the foregoing objections is, to the extent applicable, incorporated into Plaintiff's
DEMAND NO. 1:
As to the First Cause of Action for Defamation, particularize and identify the specific
The foregoing General Objections are incorporated herein by reference. Subject to and
without waiving the foregoing objections, with respect to the First and Second Causes of Action
As part of her smear campaign against Plaintiffs Lukasz Gottwald ("Gottwald"), Kasz
(" Songs"
Money, Inc. ("KMI"), and Prescription Songs, LLC ("Prescription Songs") (collectively,
"Plaintiffs"
"Plaintiffs"), beginning in 2013 and continuing through the present, Defendant and her
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communications with third-parties, in her various sham pleadings in this action and her
voluntarily dismissed lawsuit against Plaintiffs filed on October 14, 2014 in the Superior Court
Action"
for the State of California, Los Angeles County (the "California Action"), and in countless public
forums. Without limitation, Defendant's false assertions which underlie the First and Second
Causes of Action for Defamation in the SAC include that: (1) Gottwald gave her drugs against
her will; (2) Gottwald raped Defendant; and (3) Gottwald raped Kathryn Hudson p/lda Katy
Perry.
DEMAND NO. 2:
As to the First Cause of Action for Defamation, particularize how and in what manner the
The foregoing General Objections are incorporated herein by reference. Plaintiff further
objects to this Demand as vague and ambiguous, particularly in its use of the phrase "how and in
manner,"
what which fails to provide Plaintiff with adequate notice of the information sought by
this Demand. Subject to and without waiving the foregoing objections, with respect to the First
"renegotiated"
called contracts with Defendant, Defendant and her representatives embarked on
a highly public extortion and smear campaign against them. SAC, ¶¶ 2-4. As part of their
Plaintiffs'
coordinated effort to ruin business and reputation, Defendant and her representatives
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have repeatedly publicized Defendant's false claims that Gottwald purportedly drugged and
Defendant and her representatives began publicizing her defamatory allegations in late
2013. Their initial statements in connection with this smear campaign include the following:
Plaintiffs'
• On October 29, 2013, Defendant's mother, Pebe Sebert, emailed longtime
public"
entertainment lawyer, stating that she would "start making the false assertions
18" pills."
that "[Gottwald] date raped Kesha when she was and "gave Kesha SAC, ¶ 50.
Pebe further threatened to send these false accusations to "the blogger who had started
Kesha' thing,"
the whole 'Free i.e. Michael Eisele. Id., ¶ 51. Plaintiff is informed and
believes that Pebe Sebert sent these emails from Nashville, Tennessee and that they were
Plaintiffs'
received by attorney in New York City.
• On December 30 and 31, 2013, Pebe Sebert sent a letter via email to a substantial number
similarly falsely claimed, among other things, that "[Gottwald] abused Kesha, both
mentally."
physically and SAC, ¶ 52.
Knolls Residential Treatment Center in Lemont, Illinois with knowledge that such letters
would be widely disseminated on the Internet by her fans and thereafter published in the
"abused"
press. SAC, ¶ 55. Defendant's letters falsely claimed that Gottwald had
Defendant, referring to Defendant's false accusations that Gottwald had drugged and
statements to the general counsel of Sony Music Entertainment, Julie Swidler, during a
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meeting in New York City. SAC, ¶ 56. Mr. Meiselas showed Ms. Swidler a copy of a
complaint"
so-called "draft which detailed, among other falsehoods, Defendant's false
claims that Gottwald had drugged and raped Defendant years prior. Id. During this
meeting, Defendant's representatives threatened that if Plaintiffs did not agree to let
Defendant out of her recording agreement, they would file this defamatory "draft
complaint."
Id., ¶ 57.
As the SAC further alleges, after Defendant's initial defamatory smear campaign did not
succeed in obtaining business concessions from Plaintiffs, Defendant and her representatives
followed through with this threat, and filed the defamatory complaint in California Superior
Complaint"
Court (the "Sham Complaint") on October 14, 2014 (SAC, ¶¶ 5, 57):
her.1
repeated Defendant's false claim that Gottwald had drugged and raped To ensure
that these defamatory allegations would be widely circulated and achieve Defendant's
Plaintiffs'
goal of tarnishing reputation, Defendant and her representatives developed a
Plan,"
so-called "Press the stated goal of which was "to help extricate CLIENT K [ i.e.,
Defendant] from her current professional relationship with PERSON L [ i.e., Gottwald] by
inciting a deluge of negative media attention and public pressure on the basis of the
lawsuit."
horrific personal abuses presented in the
1
On June 8, 2015, Defendant amended her Sham Complaint in the California Action (the "Sham Amended
Complaint"
Complaint") and on July 7, 2015, Defendant filed Counterclaim in the above-captioned action ("the Sham
Counterclaims"
Counterclaims"), which Defendant subsequently amended on October 16, 2015 (the "Sham Amended
Counterclaims"
Counterclaims"). The Sham Amended Complaint, Sham Counterclaims, and Sham Amended Counterclaims
repeated Defendant's false claim that Gottwald had drugged and raped her.
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• Prior to filing the Sham Complaint, Defendant's public relations agents Sunshine Sachs
provided TMZ with an advance copy of the Sham Complaint "in order to achieve the
[Gottwald]."
maximum level of negative publicity for
• The advance copy of the Sham Complaint provided to TMZ was accompanied by a press
statement by Defendant's attorney at the time, Mark Geragos, which again repeated
wholehearted effort by Kesha to regain control of her music career and her personal
freedom after suffering for ten years as a victim of mental manipulation, emotional abuse
Luke."2
and an instance of sexual assault at the hands of Dr.
representatives'
• Moments after the Sham Complaint was filed, and at Defendant's
direction, TMZ broke the story, repeating Defendant's defamatory statements, including
and published similar articles repeating Defendant's false assertions. This result was
intended by Defendant's Press Plan, which expressly anticipated that "[o]ther tabloid and
celebrity outlets, as well as mainstream media, follow TMZ closely for their breaking
outlets."
news so the story will quickly spread from there and onto other online
• Defendant and her representatives also distributed the Sham Complaint and/or portions
thereof and/or Mr. Geragos's press statement to numerous media outlets, including but
not limited to CBS, ABC, New York Daily News, LA Times, NBC, Us Weekly, Rolling
Stone, The Hollywood Reporter, Fox News, USA Today, Time, The Wrap, and HITS
2
Mr. Geragos and Defendant's PR representatives subsequently revised this press statement to remove the phrase
of'
"an instance in order to falsely suggest that Gottwald had committed multiple sexual assaults against Defendant.
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Daily Double, who reported on Defendant's false allegations that she had been drugged
In September 2015, Defendant filed a motion for a preliminary injunction in this action
seeking, inter alia, to terminate her contractual relationships with Plaintiffs, and allow Defendant
to sign a new, lucrative agreement with a third-party record label. SAC, ¶ 6. Defendant
Affidavit"
submitted an affidavit (the "Sham Affidavit") in support of her motion for a preliminary
injunction (NYSCEF No. 331). The Sham Affidavit again repeated Defendant's defamatory
statements that she had been drugged and raped by Gottwald years prior:
• "The first inexcusable assault was sexual and related ... Upon the
glaring drug leaving
pill.'
club he gave to me, and told me to take, what he referred to as a 'sober I remember
only a little after this, just moments, but what I do very much remember was waking up
naked in his bed, feeling like I was going to die ... At some point over the following few
days I called my best friend and poured over the details ... I told her how I believed Dr.
me."
Luke had raped NYSCEF No. 331, ¶ 3.
Mr. Geragos made countless public statements in both on and off the record
communications with the press on Defendant's behalf which repeated her defamatory
• On or around October 15 and 16, 2014, Mr. Geragos appeared for interviews on Good
Defendant's false allegations that she was drugged and raped by Gottwald. (Mr. Geragos
also posted links on his Twitter page to further publicize the interviews). Mr. Geragos
went so far as to falsely assert on the aforementioned Access Hollywood program that the
GHB."
drug which Defendant falsely claims Gottwald gave her "turned out to be
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• On or around October 16, 2014, Mr. Geragos repeated Defendant's false claim of sexual
assault in a press statement that described Gottwald as "the predator that sexually
assaulted"
Defendant. This statement was disseminated widely in the press, including in
• On or about October 17, 2014, Mr. Geragos appeared for an interview with E! News,
during which he again repeated Defendant's false allegations that she was drugged and
raped by Gottwald. During that interview, Mr. Geragos also falsely stated that Defendant
quickly."
reported the purported sexual assault to medical professionals "fairly
assaults"
of Defendant. This statement was also disseminated widely by Defendant and
her representatives, and appeared in articles published by The Huffington Post, The LA
Times, Page Six, People, TMZ, and Us Weekly, among others. Mr. Geragos
• On October 22, 2014, Mr. Geragos appeared for a second interview with Access
further falsely asserted that there were other women with similar claims against Plaintiffs.
• On November 17, 2014, November 19, 2014 and December 13, 2014, Mr. Geragos
compared Kesha's assertions to the date rape allegations that had been brought against
Bill Cosby.
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• Mr. Geragos also devoted portions of his podcast Reasonable Doubt to repeating
long
Defendant's false claims against Plaintiffs, including but not limited to during the
episodes on or around January 22, 2016 and March 4, 2016. Mr. Geragos repeated
compared Gottwald to Mr. Cosby in order to communicate to listeners the equally false
assertion that Gottwald has drugged and raped multiple women. Mr. Geragos also made
similar comparisons between Gottwald and Mr. Cosby in multiple of his press statements
regarding Gottwald, including those published by the Daily Beast on or about September
22, 2015, and by TMZ and Page Six on or about February 23, 2016.
As alleged in the SAC, Defendant and her representatives have also utilized social media
to publicize Defendant's defamatory statements in connection with their public smear campaign
against Plaintiffs. SAC, ¶¶ 8, 11, 60. Defendant has repeated her defamatory assertions through
her own social media accounts, including on her Facebook and Instagram pages:
• On February 24, 2016, Defendant posted a lengthy statement to her Facebook page,
which stated, among other things, that "[a]11 I ever wanted was to be able to make music
without being afraid, scared, or abused"; "This is about being free from my abuser"; "I
would be willing to work with Sony if they do they do the right thing and break all ties
abuser."
that bind me to my Defendant and her representatives intended that this
statement receive significant media attention. And as they intended, it was immediately
picked up by numerous media outlets, including but not limited to Billboard, People,
New York Daily News, Entertainment Tonight, Page Six, and the Huffington Post. The
news coverage of Defendant's Facebook post make clear that readers understood
"abuse"
to refer to Defendant's defamatory accusation that Gottwald had raped her.
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account: "I got offered my freedom IF I were to lie. I would have to APOLOGIZE
publicly and say that I never got raped. THIS IS WHAT HAPPENS behind closed
doors. I will not take back the TRUTH. I would rather let the truth ruin my career than
again."
lie for a monster ever Defendant intended that her republication of her
media. After publishing this post, Defendant urged Michael Eisele to "make sure the
world"
saw it. At Defendant's direction, Mr. Eisele reposted this tweet on the
campaign to also republish the post on social media. (According to Mr. Eisele, over
15,000 people reposted the defamatory Instagram post.) And as Defendant intended,
numerous press outlets reported on her post, and repeated her false allegations regarding
Gottwald. These press outlets include, but are not limited to, Billboard, Cosmopolitan,
New York Daily News, People, Rolling Stone, The Wrap, TMZ, USA Today, CNN and
ABC News.
Defendant also coordinated with and instructed the promoters of the so-called "Free
Kesha"
Kesha campaign, including Mr. Eisele, to further disseminate and publicize her false assertions
that Gottwald drugged and raped her on social media and in the press, and through bogus
"petitions."3
Internet SAC, ¶¶ 7-8, 11, 60-61. Some illustrative examples of Mr. Eisele's
3
Mr. Geragos repeatedly reposted tweets from the @KeshaTODAY account on his Twitter and used the hashtag
#FreeKesha in connection with at least one of his tweets. Similarly, Defendant's mother also reposted tweets from
the @KeshaTODAY account, including those which repeated Defendant's defamatory statements about Plaintiffs.
For example, on or around November 9, 2015, Pebe Sebert reposted on her Twitter page Mr. Eisele's defamatory
"rapist."
tweet which described Gottwald as Defendant's And on February 19, 2016, Pebe Sebert reposted on her
Twitter page a series of tweets posted by Kesha fans which contained the hashtag "#SonySupportsRape".
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• On October 27, 2015, Mr. Eisele posted a tweet on his Twitter account @KeshaTODAY
years..."
which stated that "Kesha was raped and abused by her producer for 10
"#SonyMusicSupportsRape."
accompanied by the hashtag
• On November 9, 2015, Mr. Eisele posted a tweet from his Twitter account
#KeshaDeservesFreedom."
related until [Defendant] is free from her rapist
• On February 9, 2016, Mr. Eisele posted another tweet on the @KeshaTODAY Twitter
which stated that he was "refusing to buy any @Sony product until Kesha is free from
@TheDoctorLuke."
her abuser,
• On February 18, 2016, Mr. Eisele posted a tweet on the @KeshaTODAY Twitter which
abuse"
referred to Gottwald's "years of mental manipulation & sexual of Defendant.
• On February 19, 2016, Mr. Eisele posted a tweet on the @KeshaTODAY Twitter account
abuse"
which referred to Gottwald's purported "[s]exual of Defendant.
• On February 21, 2016, Mr. Eisele posted a tweet on the @KeshaTODAY account, which
abuse"
again referred to Defendant as a "victim of rape and by Gottwald.
• On February 26, 2016, Defendant provided Mr. Eisele with statements for Mr. Eisele and
Kesha"
other "Free participants to repeat to the press at a protest which took place
outside of Sony's offices that day. The statements included references to Defendant's
abuse."
purported "sexual Upon information and belief, Mr. Eisele and the other
intended.
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• On March 29, 2016, Mr. Eisele tweeted a link on the @KeshaTODAY Twitter page to an
defamatory statements.
The context of these tweets, including the surrounding tweets and the hashtag used
therein, made clear that in all of the posts, Mr. Eisele was referring to Gottwald's purported
Defendant.4
sexual misconduct towards Defendant.
Plaintiffs'
For the purpose of furthering her malicious plan to destroy reputation and
blacklist them from the music industry, Defendant also repeated her false statements that she had
been drugged and raped by Gottwald to other artists. SAC, ¶¶ 63-73. In addition, she also
spread a knowingly false and wholly defamatory accusation that Gottwald had raped another
• On February 26, 2016, Defendant sent a text message to Stefani Germanotta p/k/a Lady
Gaga which repeated Defendant's false claim that Gottwald had raped her. 63-
SAC, ¶¶
73. In this text message, Defendant also falsely asserted that Gottwald had also raped
Kathryn Hudson p/k/a Katy Perry. Following this text message conversation, and with
in the press and on social media. SAC, ¶ 71. For example, in February 2016, Ms.
4
Defendant has repeatedly encouraged, thanked, and rewarded supporters for these efforts, both on social media and
Kesha"
in private communications, and provided them with materials to post on their "Free social networking
accounts. Defendant also compensated Mr. Eisele for these activities. For example, in February 2016, Defendant
provided Mr. Eisele with a new computer, which, upon information and belief, Mr. Eisele used to further publicize
Defendant's defamatory statements. She also paid for Mr. Eisele's hotel rooms in New York so that he could attend
Kesha" Kesha"
the "Free protests he had organized, at which protests Mr. Eisele and other "Free supporters
repeated Defendant's defamatory statements regarding Plaintiffs both verbally and on printed signs. In advance of
one protest outside of Sony's offices in New
York City, Defendant provided Mr. Eisele with specific talking points,
which he and the other protesters repeatedto the press. Pebe Sebert also compensated Mr. Eisele for his activities,
including by providing him with a free plane ticket and accommodations during a trip to Nashville and sending him
money.
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Twitter page. Subsequently, in March 2016, Defendant and Ms. Germanotta coordinated
to post graphics on their Twitter and Instagram pages (which were created by Ms.
DEMAND NO. 3:
As to the First Cause of Action for Defamation, particularize and identify which third
The foregoing General Objections are incorporated herein by reference. Subject to and
DEMAND NO. 4:
As to the First Cause of Action for Defamation, particularize and identify when the
The foregoing General Objections are incorporated herein by reference. Subject to and
DEMAND NO. 5:
As to the First Cause of Action for Defamation, particularize and identify where Kesha
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The foregoing General Objections are incorporated herein by reference. Subject to and
DEMAND NO. 6:
As to the First Cause of Action for Defamation, set forth the factual basis that in making
The foregoing General Objections are incorporated herein by reference. Plaintiff also
basis"
objects to this Demand because it improperly seeks evidentiary material (i.e., the "factual
for certain allegations), rather than seeking to amplify the pleadings (see Mahr v. Perry, 74
A.D.3d 1030, 1031 (2d Dep't 2010)). By responding to this Demand, Plaintiff does not concede
that he is required to establish that Defendant acted with malice, and expressly reserves all rights
Plaintiffs'
with respect to the applicable burdens of proof associated with claims. Subject to and
without waiving the foregoing objections, with respect to the First and Second Causes of Action
Plaintiff states that Defendant acted with both actual and common law malice because
she knew the defamatory statements referenced in the previous Responses were false. Defendant
published her initial defamatory statements in bad faith as part of a campaign specifically
targeted towards extorting Plaintiffs into releasing their valid contractual rights through, among
other things, the use of a media campaign intended to widely disseminate those defamatory
Plaintiffs'
statements, place public pressure on Plaintiffs, and destroy Plaintiffs reputation. As far back as
"Jihad"
2012, Defendant's representatives were discussing in emails their against Gottwald, and
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execution"
their desire for a "public of him. That same year, one of Defendant's personal
"ruin"
managers, Ken Levitan, stated in an email his intention to Gottwald after he completed
work on an album for Defendant (an album Mr. Levitan believed had "huge hits on it"). Then, in
business."
early 2013, Mr. Levitan stated: "Lets [sic] battle this guy in the press. Take down his
Plan"
prepared a "Press which stated, inter alia, that: "Our goal is to help extricate CLIENT K
from her current professional relationship with PERSON L by inciting a deluge of negative
media attention and public pressure on the basis of the horrific personal abuses presented in the
lawsuit."
The Press Plan further expressed the goal of "achiev[ing] the maximum level of
L."
negative publicity for PERSON
Defendant published her defamatory statements in bad faith for the purposes of exacting
revenge on Plaintiffs, and further destroying their reputation. These bad-faith purposes are
vividly demonstrated by, inter alia, the vicious nature of the statements of her representatives
which are set forth in Response No. 2 supra, as well as other hateful public statements in which
Mr. Geragos, among many other things, taunted Gottwald's mother and sister, referred to
[sic],"
Gottwald as "pathetic vermin and suggested he should be physically harmed.
Sham Amended Counterclaims, and Sham Affidavit were all sham filings. I.e., Defendant filed
these pleadings for the purpose of publicizing the false allegations therein, while knowing that
those allegations were false, and without having any intention of actually litigating on the merits
any of her causes of action arising from those allegations. The sham nature of these filings was
underscored when Defendant voluntarily dismissed the California Action in or about August
2016. The sham nature of these filings was further underscored on December 22, 2017, when
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Defendant withdrew her appeal of this Court's Order dismissing with prejudice all of her tort and
statutory Counterclaims premised upon her false allegations that Gottwald purportedly drugged
and raped her-after having falsely stated in the press for years that Defendant would proceed
DEMAND NO. 7:
As to the First Cause of Action for Defamation, set forth the factual basis that the
Plaintiffs'
allegedly false statements were made by Kesha with an intent to injure reputation,
The foregoing General Objections are incorporated herein by reference. Plaintiff also
basis"
objects to this Demand because it improperly seeks evidentiary material (i.e., the "factual
for certain allegations), rather than seeking to amplify the pleadings (see Mahr v. Perry, 74
A.D.3d 1030, 1031 (2d Dep't 2010)). Subject to and without waiving the foregoing objections,
DEMAND NO. 8:
As to the First Cause of Action for Defamation, set forth the factual basis that the
allegedly defamatory statements caused Plaintiffs damage to their reputations and to existing and
potential business relationships with other artists and record labels, and particularize and identity
which other artists and record labels you are referring to.
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The foregoing General Objections are incorporated herein by reference. Plaintiff also
objects to this Demand to the extent it purports to require Plaintiff to particularize its claim for
general damages (see Nazario v. Fromchuck, 90 A.D.2d 483, 484 (2d Dep't 1982)), or assumes
that Plaintiff bears the burden of proving general damages on the first cause of action in the
Second Amended Complaint for defamation per se (see Gallo v. Montauk Video, 684 N.Y.S.2d
817, 818 (2d Dep't 1998)). Plaintiff also objects to this Demand because it seeks information
that is properly the subject of expert testimony, and therefore is not a proper topic for a bill of
particulars (see McKenzie v. St. Elizabeth Hosp., 81 A.D.2d 1003, 1004 (4th Dep't 1981)).
Plaintiff additionally objects to this Request because it improperly seeks evidentiary material
basis"
(i.e., the "factual for certain allegations), rather than seeking to amplify the pleadings (see
Mahr v. Perry, 74 A.D.3d 1030, 1031 (2d Dep't 2010)). Subject to and without waiving the
Plaintiff refers to and incorporates herein by such references the statements set forth in
the expert reports of Arthur Erk, CPA and Adam Galinsky, PhD and the relevant facts stated in
the depositions taken in this action, including during the depositions of Lawrence Spielman,
Mark Beaven, Rebekah Tishker, Lukasz Gottwald, and Katheryn Hudson. Plaintiff additionally
refers to and incorporates herein its discovery responses and other disclosures in this action.
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DEMAND NO. 9:
As to the Second Cause of Action for Breach of the KMI Agreement, set forth the factual
basis that Gottwald is expressly intended as a third party beneficiary of the KMI Agreement.
The foregoing General Objections are incorporated herein by reference. Plaintiff objects
to this Request because it improperly seeks a legal conclusion. Plaintiff also objects to this
basis"
Demand because it improperly seeks evidentiary material (i.e., the "factual for certain
allegations), rather than seeking to amplify the pleadings (see Mahr v. Perry, 74 A.D.3d 1030,
1031 (2d Dep't 2010)). Subject to and without waiving the foregoing objections, Plaintiff
responds as follows:
Plaintiff directs Defendant to section 6(f) of the September 26, 2005 agreement between
Defendant and KMI, which states, inter alia, that "Artist agrees and acknowledges ... Luke 'Dr.
Luke'
Luke Gottwald . . . shall be engaged to render production services in connection with no fewer
hereunder...." ."
than six (6) Master Recordings of each Album hereunder . . .
As to the Second Cause of Action for Breach of the KMI Agreement, set forth the factual
basis on which it is claimed that Kesha has repudiated the KMI Agreement.
The foregoing General Objections are incorporated herein by reference. Plaintiff also
objects to this Demand because it calls for a legal conclusion. Plaintiff further objects to this
Demand as vague and ambiguous, because it does not identify to which of Defendant's attempts
Agreement"
to repudiate the "KMI it refers. Plaintiff also objects to this Demand because it
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basis"
improperly seeks evidentiary material (i.e., the "factual for certain allegations), rather than
seeking to amplify the pleadings (see Mahr v. Perry, 74 A.D.3d 1030, 1031 (2d Dep't 2010)).
Subject to and without waiving the foregoing objections, Plaintiff responds as follows:
support of her injunction motion and in her Sham Complaint, Sham Amended Complaint, Sham
Counterclaims, and Sham Amended Counterclaims, that she refused to perform under the KMI
the SAC, which detail how Defendant breached the KMI Agreement, as amended, by among
other things: (i) refusing to deliver recordings to KMI; (ii) refusing to permit Gottwald to
produce any recordings on her albums; and (iii) failing to account and pay KMI specified
percentages on her revenues from merchandising, touring and other ancillary income streams,
consult"
and to "meaningfully with KMI regarding all opportunities for such ancillary income.
In addition, Defendant has further breached her duty of good faith and fair dealing under the
KMI Agreement by trying to deprive KMI of its contractual rights under the agreement between
KMI and RCA/Jive. Plaintiff further directs Defendant to the terms of the KMI Agreement, and
As to the Second Cause of Action for Breach of the KMI Agreement, set forth the factual
basis on which it is claimed that Kesha has failed to deliver sound recordings to Gottwald or
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The foregoing General Objections are incorporated herein by reference. Plaintiff also
basis"
objects to this Demand because it improperly seeks evidentiary material (i.e., the "factual
for certain allegations), rather than seeking to amplify the pleadings (see Mahr v. Perry, 74
A.D.3d 1030, 1031 (2d Dep't 2010)). Subject to and without waiving the foregoing objections,
Defendant was able to, and did, write and record new songs both before and during the
pendency of this litigation, but nevertheless failed and refused to deliver any recordings to KMI
"demo"
as required by the KMI Agreement. Indeed, Defendant has been creating recordings of
her new compositions since at least 2013, but did not submit those recordings to KMI or
Prescription Songs (or to Kemosabe Records prior to the Summer of 2016). In the Summer of
2016, Defendant submitted certain of her demos to Kemosabe Records but not to KMI or
Prescription Songs.
• In her interview in the August 2014 issue of Teen Vogue, Defendant acknowledged that
she had written fourteen new songs during her stay in rehab in early 2014.
• In her Memorandum of Law dated September 18, 2015 in support of her Motion for
...."
has music ready to record
• At the 19, 2016 before the Court in this action, Defendant's counsel
February hearing
but not limited to the statement that "[t]he fact remains that as it is right now, because of
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the abuse allegations, because of the fact that [Defendant] does not want to work with
recording."
[Gottwald], that [Defendant]'s not
Plaintiffs'
• In her response to Interrogatory No. 2 in First Set of Interrogatories, Defendant
set forth a list of approximately forty (40) musical compositions and sound recordings
which she had created since January 1, 2013, but which had not been provided to
Plaintiffs.
• At her June 23, 2017 deposition, Defendant admitted that she wrote and recorded music
in 2013, 2014 and 2015, which she did not provide to Plaintiffs.
Gottwald to produce any recordings on her third album, and refuses to allow Gottwald to
As to the Second Cause of Action for Breach of the KMI Agreement, particularize and
identify what ancillary revenues Kesha owes under the KMI Agreement.
The foregoing General Objections are incorporated herein by reference. Plaintiff also
objects to this Demand because it seeks information that is properly the subject of expert
testimony, and therefore is not a proper topic for a bill of particulars (see McKenzie v. St.
Elizabeth Hosp., 81 A.D.2d 1003, 1004 (4th Dep't 1981)). Subject to and without waiving the
Plaintiff refers Defendant to paragraphs 1 and 2 of the May 18, 2009 Second Amendment
to the September 26, 2005 Agreement between KMI and Defendant, which set forth particular
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income streams that KMI is entitled to a royalty on, including (1) "the exploitation of
(collectively, 'Name and Likeness'), either alone or in conjunction with other elements, in
connection with the sale, lease, licensing or other disposition of any merchandising (both
physical merchandise (e.g., t-shirts, sweatshirts, posters, video games, etc.) and digital
merchandise (e.g., digital wallpaper and screen savers) (including, without limitation, any and all
'bounceback'
and endorsements], tie-ins, retail and concert tour merchandising, merchandising,
fan clubs, etc. (excluding VIP ticketing sales)), whether or not in connection with Master
Recordings hereunder; and (B) strategic partnerships related to [Defendant]."; and (2)
Defendant's "live performance engagements in all media (e.g., musical performances on tour, in
concerts or on television which shall include, for the avoidance of doubt, any DJ performances,
appearances)."
VIP ticketing sales and personal musical Without waiver or limitation, Plaintiff
further avers that: (a) Defendant is obligated to pay KMI pre-judgment interest on all ancillary
royalties belatedly paid during the pendency of this litigation; and (b) Defendant has failed to
account for, let alone pay, all ancillary royalties due and owing.
As to the Second Cause of Action for Breach of the KMI Agreement, set forth the factual
basis on which it is claimed that Kesha has refused to account for or pay KMI ancillary revenues.
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The foregoing General Objections are incorporated herein by reference. Plaintiff also
objects to this Demand because it seeks information that is properly the subject of expert
testimony, and therefore is not a proper topic for a bill of particulars (see McKenzie v. St.
Elizabeth Hosp., 81 A.D.2d 1003, 1004 (4th Dep't 1981)). Plaintiff also objects to this Demand
basis"
because it improperly seeks evidentiary material (i.e., the "factual for certain allegations),
rather than seeking to amplify the pleadings (see Mahr v. Perry, 74 A.D.3d 1030, 1031 (2d Dep't
2010)). Subject to and without waiving the foregoing objections, Plaintiff responds as follows:
As to the Second Cause of Action for Breach of the KMI Agreement, particularize and
identify what damages (including compensatory, expectation, and consequential damages) you
The foregoing General Objections are incorporated herein by reference. Plaintiff also
objects to this Demand because it seeks information that is properly the subject of expert
testimony, and therefore is not a proper topic for a bill of particulars (see McKenzie v. St.
Elizabeth Hosp., 81 A.D.2d 1003, 1004 (4th Dep't 1981)). Plaintiff further objects to this
Demand to the extent it purports to require Plaintiff to particularize any claim for general
damages (see Nazario v. Fromchuck, 90 A.D.2d 483, 484 (2d Dep't 1982)). Subject to and
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Subject to Plaintiff's right to amend this Response upon completion of discovery in this
action, Plaintiff states that damages resulting from Defendant's breaches of the KMI Agreement
include unpaid producer royalties (and accompanying music publishing royalties), unpaid
paid during the pendency of this litigation, lost profits from albums that Defendant failed and
refused to deliver to KMI, and the loss of goodwill caused by Defendant's failure to comply with
As to the Third Cause of Action for Breach of the Prescription Publishing Agreement, set
forth the factual basis on which it is claimed that Kesha has repudiated the Prescription
Publishing Agreement.
The foregoing General Objections are incorporated herein by reference. Plaintiff also
objects to this Demand because it calls for a legal conclusion. Plaintiff also objects to this
basis"
Demand because it improperly seeks evidentiary material (i.e., the "factual for certain
allegations), rather than seeking to amplify the pleadings (see Mahr v. Perry, 74 A.D.3d 1030,
1031 (2d Dep't 2010)). Subject to and without waiving the foregoing objections, Plaintiff
responds as follows:
injunction motion and in her Sham Complaint, Sham Amended Complaint, Sham Counterclaims,
and Sham Amended Counterclaims, that she refused to perform under the Prescription
Publishing Agreement and considers the Prescription Publishing Agreement to be invalid and
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of the SAC, which detail how Defendant breached the agreement between Prescription Songs
Commitment"
written by her (the "Minimum Delivery Commitment") within a commercially reasonable period
of time.
Plaintiff further directs Defendant to the admissions by Defendant which are set forth in
Plaintiff's Response to Demand No. 12, and which establish that Defendant had been writing
new compositions since 2013, but nonetheless refused to deliver any of those compositions to
As to the Third Cause of Action for Breach of the Prescription Publishing Agreement,
particularize and identify Kesha's Minimum Delivery Commitment under the Prescription
Publishing Agreement.
The foregoing General Objections are incorporated herein by reference. Plaintiff further
objects to this Demand because it seeks information that is properly the subject of expert
testimony, and therefore is not a proper topic for a bill of particulars (see McKenzie v. St.
Elizabeth Hosp., 81 A.D.2d 1003, 1004 (4th Dep't 1981)). Subject to and without waiver of the
Commitment"
Plaintiff directs Defendant to the definition of "Minimum Delivery
contained in the Prescription Publishing Agreement between Defendant and Prescription Songs,
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As to the Third Cause of Action for Breach of the Prescription Publishing Agreement,
particularize and identify what you claim is a commercially reasonable period of time to perform
The foregoing General Objections are incorporated herein by reference. Plaintiff further
objects to this Demand because it seeks information that is properly the subject of expert
testimony, and therefore is not a proper topic for a bill of particulars (see McKenzie v. St.
Elizabeth Hosp., 81 A.D.2d 1003, 1004 (4th Dep't 1981)). Plaintiff further objects to this
Demand as calling for a legal conclusion. Plaintiff additionally objects to this Demand as vague
time"
and ambiguous, in that it purports to require Plaintiff to define a "commercially reasonable
As to the Third Cause of Action for Breach of the Prescription Publishing Agreement,
particularize and identify Kesha's contractual duty to render her services exclusively to KMI.
The foregoing General Objections are incorporated herein by reference. Plaintiff also
objects to this Demand because it seeks information that is properly the subject of expert
testimony, and therefore is not a proper topic for a bill of particulars (see McKenzie v. St.
Elizabeth Hosp., 81 A.D.2d 1003, 1004 (4th Dep't 1981)). Plaintiff further objects to this
Demand as calling for a legal conclusion. Subject to and without waiver of the foregoing
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Plaintiff refers Defendant to the exclusivity provisions in the KMI Agreement, including,
inter alia, sections 7(a)-(b) & 8(a)-(b), and the exclusivity provisions of the Prescription
As to the Third Cause of Action for Breach of the Prescription Publishing Agreement,
particularize and identify the length of the contractual term for Kesha to render her services
The foregoing General Objections are incorporated herein by reference. Plaintiff also
objects to this Demand because it seeks information that is properly the subject of expert
testimony, and therefore is not a proper topic for a bill of particulars (see McKenzie v. St.
Elizabeth Hosp., 81 A.D.2d 1003, 1004 (4th Dep't 1981)). Plaintiff further objects to this
As to the Third Cause of Action for Breach of the Prescription Publishing Agreement,
particularize and identify through what other actions Kesha has allegedly breached her
contractual duty to render her services exclusively to KMI during the contractual term.
The foregoing General Objections are incorporated herein by reference. Plaintiff also
objects to this Demand because it seeks information that is properly the subject of expert
testimony, and therefore is not a proper topic for a bill of particulars (see McKenzie v. St.
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Elizabeth Hosp., 81 A.D.2d 1003, 1004 (4th Dep't 1981)). Plaintiff further objects to this
Demand as calling for a legal conclusion. Subject to and without waiving the foregoing
As to the Third Cause of Action for Breach of the Prescription Publishing Agreement,
consequential damages) you suffered as a result of the alleged breach of the Prescription
The foregoing General Objections are incorporated herein by reference. Plaintiff also
objects to this Demand because it seeks information that is properly the subject of expert
testimony, and therefore is not a proper topic for a bill of particulars (see McKenzie v. St.
Elizabeth Hosp., 81 A.D.2d 1003, 1004 (4th Dep't 1981)). Plaintiff further objects to this
Demand to the extent it purports to required Plaintiff to particularize any claim for general
damages (see Nazario v. Fromchuck, 90 A.D.2d 483, 484 (2d Dep't 1982)). Subject to and
Subject to Plaintiff's right to amend this Response upon completion of discovery in this
action, Plaintiff states that the damages resulting from Defendant's breaches of the Prescription
Publishing Agreement include lost publishing royalty income from compositions that Defendant
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