IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION. ) ) No. 3:17-cv-743 v. ) ) SUCCESS GROUP, INTERNATIONAL ) ) ) )

Transcription

1 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION HILLER, LLC, Plaintiff/Counter-Defendant, No. 3:17-cv-743 v. SUCCESS GROUP, INTERNATIONAL LEARNING ALLIANCE and REBECCA CASSEL, Defendants/Counter-Plaintiffs, and CLOCKWORK IP, LLC, Intervenor/Counter-Plaintiff PRETRIAL ORDER 1. Jurisdiction This Court has jurisdiction under 28 U.S.C and 1338(a with respect to Hiller s claim that Defendants Rebecca Cassel and Success Group International Learning Alliance, LLC have infringed Hiller s copyright in the Hiller Technician s Guide U.S. Copyright No. TX (Effective March 13, This Court has jurisdiction under 28 U.S.C and 2202 with respect to Clockwork s declaratory judgment action with respect to the Hiller Technician s Guide. Case 3:17-cv Document 231 Filed 03/01/19 Page 1 of 19 PageID #: 11190

2 2. Short Summary of Case for Voir Dire In this case, Plaintiff Hiller brought a copyright infringement action against Defendants Success Group International Learning Alliance, LLC and Rebecca Cassel and Clockwork filed a complaint in intervention. You must consider each claim and the defenses to them separately and decide each without regard to your determination as to any other. The claim by Hiller against SGI LA and Ms. Cassel is for copyright infringement of the Technician s Guide. In addition to other defenses, SGI LA and Ms. Cassel contend that they were joint authors of the Technician s Guide and therefore authorized to use it. The claim by Clockwork is for declaratory judgment against Hiller. Clockwork claims that Hiller does not own a valid copyright in the Technician s Guide and that, instead, Clockwork owns it. 3. Respective Contentions of the Parties a. Plaintiff s Contentions Hiller, LLC ( Hiller is a home services company that provides HVAC and electrician services to homeowners across Tennessee, Alabama, and Mississippi. Hiller employs approximately 630 technicians throughout the area. In order to ensure consistent customer service, Hiller trains its technicians in customer service, sales, and other soft (non-technical skills which Hiller believes greatly effects customer satisfaction and loyalty. In 2015, Hiller paid a third-party developer The Bob Pike Group ( Bob Pike over $70,000 to develop training manuals for use by Hiller. Hiller, Bob Pike, and Bob Pike s contractor Janice Horne developed the Technician s Guide. Hiller owns the copyrights to the Technician s Guide. The Technician s Guide has been duly registered with the United States Copyright Office, U.S. Copyright No. TX (Effective March 13, Case 3:17-cv Document 231 Filed 03/01/19 Page 2 of 19 PageID #: 11191

3 Defendants Rebecca Cassel and Success Group International Learning Alliance, LLC ( SGILA, a company owned in part and controlled by Cassel, copied the Technician s Guide and used it to prepare infringing Learner Guides for the Service Essentials training class they offer. Prior to the Service Essentials class first session, Cassel and Success Group International, LLC ( SGI (a separate company from Defendant SGILA were provided access to the electronic version of the Technician s Guide based on a then-existing relationship between Hiller and SGI. Defendants used the electronic version of the Technician s Guide to create the Learner s Guide for Defendants Service Essentials class without authorization. There have been at least four versions of the Service Essentials guide that were used in SGILA class sessions. The first generation of the Service Essentials Learner s Guide was created by making edits to an electronic copy of the Hiller Technician s Guide. Subsequent generations of the infringing Service Essentials Learner s Guide were created by making further edits to the same native file that was originally the Technician Guide. Across all versions, many of the pages of the infringing works are unaltered from their original form in the Technician Guide, other than changes to font, spacing, or graphics. Other pages contain minor alterations of the original Technician Guide content. Where Hiller s Technician Guide is used only to train Hiller technicians, Defendants offer the Service Essentials class to home services technicians for approximately $1199 per class. SGILA provides copies of the Learner s Guide to each of the attendees to the Service Essentials class. During class, the Learners Guide serves as the core of the training session. Participants are directed to specific pages of the Learners Guide during instruction and asked to complete various Learner s Guide tasks during the training session. 3 Case 3:17-cv Document 231 Filed 03/01/19 Page 3 of 19 PageID #: 11192

4 Hiller seeks a permanent injunction and monetary damages in the form of disgorgement of defendants profits attributable to the infringement, up to a $1.3MM from Defendant SGILA and up to $2.95MM from Cassel, minus whatever additional deductions and elements of profit attributable to factors other than the copyrighted work that Defendants prove. b. Defendants Contentions The parties in this case are all involved in the home service industry. Ms. Cassel and SGI LA provide training to technicians who provide those services. Plaintiff provides commercial and residential plumbing, heating, cooling, and electrical services. Plaintiff s owner, James Hiller, and Ms. Cassel used to be business partners. Mr. Hiller was an investor with Ms. Cassel in Aquila Investment Group, LLC, which does business as Success Group International ( SGI and is a corporate affiliate of SGI LA. SGI is still owned and run by Ms. Cassel and also provides training in the home services industry. In 2015, when they were still friendly, Mr. Hiller, Ms. Cassel, and their respective employees worked together with an educational consultant, the Bob Pike Group, to develop a training manual to teach technicians how to run service calls and communicate with customers. The resulting joint product was the Technician Guide. Ms. Cassel and SGI LA provided much of the content for the Technician Guide to Janice Horne (the contractor for the Bob Pike Group in charge of this project who then inserted this content into the Technician Guide. Ms. Horne also inserted into the Technician Guide pre-existing materials of the Intervenor Clockwork IP, LLC, for which SGI had a license. Indeed, Ms. Horne has stated that she only drafted five original pages in the jointly authored Technician Guide. As was understood all along between the parties, Ms. Cassel and SGI LA were sent the Technician Guide by the Bob 4 Case 3:17-cv Document 231 Filed 03/01/19 Page 4 of 19 PageID #: 11193

5 Pike Group at the request of Plaintiff so that they could use it in their training classes. However, because the Technician Guide was insufficient for their training classes, SGI LA used ideas from SGI s pre-existing resources, other third parties from whom SGI LA received a license, their own experience and knowledge, and the Technician Guide to develop their own training material. Plaintiff was fully aware of this. Plaintiff hosted SGI LA classes (in which SGI LA s training manuals were used and even directed one of its employees to serve as an SGI LA facilitator. Not long thereafter, Mr. Hiller and Ms. Cassel had a falling out. Mr. Hiller wanted to sell his investment in SGI and was dissatisfied both with the price he received and the noncompete to which he became bound. Plaintiff subsequently filed this case in Tennessee alleging that Ms. Cassel and SGI LA unlawfully copied and used four training manuals developed with the Bob Pike Group in While Plaintiff was eventually forced to concede that only one manual was developed with the help of Bob Pike (i.e. the Technician Guide and not four, Plaintiff still asserts a copyright infringement claim against Ms. Cassel and SGI LA based on the Technician Guide. This claim is without merit because Ms. Cassel and SGI LA were joint authors of the Technician Guide and, regardless, the SGI LA works are not substantially similar to the Technician Guide and thus are not the product of infringement. c. Intervenor s Contentions Intervenor Clockwork IP LLC owns a series of manuals, presentations, and other documents that express Clockwork s best practices for the home services industry (i.e., HVAC, plumbing, electrical, and roofing. The content of these manuals, presentations and other 5 Case 3:17-cv Document 231 Filed 03/01/19 Page 5 of 19 PageID #: 11194

6 documents is Clockwork s creative expression, and Clockwork invested years of effort in choosing that expression, including drafting the content, phrasing, language, arrangement of topics, and other features. The best practices embodied in Clockwork s copyrighted materials include, among other things, training on service calls. Clockwork (through its predecessors in interest also owns the STRAIGHTFORWARD PRICING trademark and a related patent that are referenced throughout its copyrighted materials. Clockwork s copyrighted works, trademarks, and patents are referred to as the Clockwork Preexisting Materials. Germane to this case, Clockwork (through an affiliate licenses the Clockwork Preexisting Materials to Success Group International ( SGI, a home services industry affinity group that is affiliated with Defendant SGILA and operated by Defendant Rebecca Cassel. SGI has used the Clockwork Preexisting Materials for almost twenty years as the foundation of its programming for members. The license agreement between SGI and Clockwork ( SGI License only allows SGI to use the Clockwork Preexisting Materials in the SGI business to train its members. It does not allow SGI to make derivative works or compilations of the Clockwork Preexisting Materials or grant sublicenses to others of any kind. Plaintiff Hiller was an SGI member from 1999 to 2016, was intimately familiar with the Clockwork Preexisting Materials, and received copies of Clockwork Preexisting Materials. Hiller agreed through his SGI member agreement that he could not claim any ownership interest in the Clockwork Preexisting Materials. Clockwork has never authorized Hiller to create compilations or derivative works of any of the Clockwork Preexisting Materials. In 2015, Hiller and Defendant Rebecca Cassel worked jointly to freshen up the Clockwork training materials for technicians. A third party, Bob Pike Group, and an independent contractor, Janice Horne, assembled these materials. The manual that resulted from this collaboration was attached as 6 Case 3:17-cv Document 231 Filed 03/01/19 Page 6 of 19 PageID #: 11195

7 Exhibit C to the Complaint (the Technician Guide. Hiller did not draft the Technician Guide and does not claim personal authorship. Instead, Hiller and representatives from SGI provided the Clockwork Preexisting Materials to Bob Pike and Horne, and Horne compiled and copied verbatim the Clockwork Preexisting Materials to create the Technician Guide. Hiller then claims ownership of the Technician Guide due to a 2017 assignment from the Bob Pike Group, even though this assignment could not encompass the work done by Horne, an independent contractor with no work for hire agreement. 4. Statement of Uncontested Facts 1. The Technician Service Training Manual Guide, [which the parties will refer to as the Technician s Guide], which Hiller registered with the United States Copyright Office, contains pre-existing material whose copyright is not owned by Hiller. [RFA 153] 2. Direct Energy purchased an affinity group known as Success Group International ( SGI and the training organization known as Success Academy as part of the Clockwork Home Services business in [SUMF 7] 3. SGI is a home services business that provides management tools, marketing, group buying, coaching, and training to companies offering heating, air conditioning, plumbing, electrical, and roofing services in Canada and the United States. [SUMF 11] 4. Hiller LLC ( Hiller is a home services company that provides plumbing, heating, cooling, and electrical services to residential and commercial customers. [SUMF 19] 5. Hiller was a member of SGI from 1999 to mid [SUMF 20] 6. In 2015, Bob Pike contracted with Hiller to provide Hiller with new methods for teaching technicians how to perform service calls using content that Hiller was to provide (the Hiller Project. [SUMF 42] 7 Case 3:17-cv Document 231 Filed 03/01/19 Page 7 of 19 PageID #: 11196

8 7. In connection with the Hiller Project, Bob Pike was to provide Hiller with a two-day training course, a leader s guide (or manual that the course leader could use to teach the class, and a learner s (or participant s guide (or a manual that the participant s taking the class could use to take notes. [SUMF 51] 8. Of the deliverables from the Hiller Project, only the learner s guide, which the parties will refer to as the Technician s Guide, is at issue in this case. [SUMF 53] 5. Contested Issues of Fact a. Hiller s Proposed Contested Issues of Fact i. Does Hiller own a valid copyright with respect to its Technician Guide? ii. Did SGILA copy the Technician Guide? iii. Did Cassel copy the Technician Guide? iv. Whether SGILA s infringement of Hiller s copyright was willful. v. Whether Cassel s infringement of Hiller s copyright was willful. vi. What amount of damages should Hiller recover as a result of SGILA s infringement of Hiller s copyrighted material? vii. What amount of damages should Hiller recover as a result of Cassel s infringement of Hiller s copyrighted material? viii. Is Hiller s copyright claim barred by estoppel? ix. Is Hiller s copyright claim barred by license? x. Is Hiller s copyright claim barred by unclean hands? xi. Does Clockwork own a valid copyright with respect to [insert specific works]? xii. Are Hiller s manuals unauthorized derivative works of [insert specific Clockwork works]? xiii. Does protected material of Clockwork tend to pervade the entirety of Hiller s manuals? xiv. Did Hiller knowingly fail to advise the Copyright Office facts that would have led the Copyright Office to refuse the application? b. Defendants Proposed Contested Issues of Fact i. Have Clockwork, Rebecca Cassel and/or SGI LA proven by a preponderance of the evidence that the Technician Guide is an unauthorized copy, compilation or derivative work of materials owned by Clockwork as the Technician Guide was developed with and/or contains materials owned by Clockwork? ii. Has Hiller proven by a preponderance of the evidence that it owns a valid copyright with respect to the Technician Guide? 8 Case 3:17-cv Document 231 Filed 03/01/19 Page 8 of 19 PageID #: 11197

9 iii. Have SGI LA and Rebecca Cassel proven by a preponderance of the evidence that either: (1 they were joint authors of the Technician s Guide; or (2 SGI was a joint author of the Technician Guide and it provided SGI LA and Rebecca Cassel with a license to use the work? iv. Has Hiller proven by a preponderance of the evidence that the Technician Guide is an original work rather than a compilation? v. Has Hiller proven by a preponderance of the evidence that SGI LA copied the protected elements of the Technician Guide, as a compilation? vi. Has Hiller proven by a preponderance of the evidence that Rebecca Cassel copied the protected elements of the Technician Guide, as a compilation? vii. Has Hiller proven by a preponderance of the evidence that SGI LA copied the protected elements of the Technician Guide, as an original work? viii. Has Hiller proven by a preponderance of the evidence that Cassel copied the protected elements of the Technician Guide, as an original work? ix. Have SGI LA and Cassel proven by a preponderance of the evidence that: (1 Hiller was aware of their use of the Technician Guide or that they intended to use the Technician Guide; (2 SGI LA and Cassel reasonably believed that Hiller did not intend to assert an infringement claim against them; and (3 SGI LA and Cassel relied on Hiller s conduct to their detriment? x. Have SGI LA and Cassel proven by a preponderance of the evidence that the Technician Guide was created under circumstances showing Hiller intended that Cassel and SGI LA would be allowed to use the Technician Guide, thus creating an implied license in their favor? xi. Have SGI LA and Cassel proven by a preponderance of the evidence that Hiller has unclean hands because (1 Hiller invited SGI and Cassel to participate in the creation of the Technician Guide and later sent them a copy of the manual with the understanding that they could use it in preparing the SGI LA Training Manuals; (2 Hiller failed to acknowledge that the Technician Guide contains material created, owned, or licensed to SGI LA and Cassel or their affiliates when it filed its copyright registration for the Technician Guide; or (3 Hiller has copied the SGI LA Training Manuals for use in its own training classes. xii. What amount of damages, if any, do you find that Hiller should recover as a result of any infringement by SGI LA of the Technician Guide? xiii. What amount of damages, if any, do you find that Hiller should recover as a result of any infringement by Rebecca Cassel of the Technician Guide? c. Intervenor s Proposed Contested Issues of Fact i. Does the Technician Service Training Guide incorporate Clockwork intellectual property? 9 Case 3:17-cv Document 231 Filed 03/01/19 Page 9 of 19 PageID #: 11198

10 ii. iii. Was the individual or entity who created the Technician Service Training Guide authorized by Clockwork to use Clockwork intellectual property to create that guide? Is the Technician Service Training Guide a copy, compilation or derivative work of Clockwork s intellectual property? 6. Contested Issues of Law a. Copyright Ownership b. Copyright Validity c. Copyright Infringement d. Vicarious Infringement e. Declaratory Judgment Jurisdiction (Non-Asserted Works f. Fraud on the Copyright Office g. Estoppel h. Unclean Hands i. License j. Joint Authorship 7. List of Trial Exhibits and Objections The Parties submitted the following exhibit lists as attachments to the Proposed Pretrial Order, ECF No. 218 and the Amended Joint Pretrial Order, ECF No. 219: (i Exhibit 1-A Joint Exhibit List; (ii Exhibit 1-B Plaintiff s Exhibit List; (iii Exhibit 1-C Defendants Exhibit List; and (iv Exhibit 1-D Intervenor s Exhibit List. The Parties also submit herewith the following lists of objections to exhibits: (i Exhibit 2-A Defendants Objections to Exhibits; (ii Exhibit 2-B Plaintiff s Objections to Exhibits; and (iii Exhibit 2-C Intervenor s Objections to Exhibits. Plaintiff maintains that pursuant to ECF No. 134, all objections other than authenticity are preserved. Id. (only authenticity objections waived if not raised in pretrial exchanges. Accordingly, Plaintiff s list of exhibit objections only includes objections as to authenticity and certain exhibits subject to motions in limine. 10 Case 3:17-cv Document 231 Filed 03/01/19 Page 10 of 19 PageID #: 11199

11 Conversely, Defendants and Intervenor maintain that pursuant to ECF No. 193, all known objections not raised in the Pre-Trial Order are waived. Accordingly, Defendants and Intervenors lists of exhibit objections (and motions in limine include all their objections that can be ruled on in advance of trial and not merely those as to authenticity. Rather than raise and address all exhibit objections in the Pretrial Order and at the Pretrial Conference, Plaintiff suggests an alternative procedure to govern disputes regarding admissibility of exhibits, which it submits for the Court s consideration. Each evening by 9:00 p.m., the Party calling a witness will provide to the other parties a list of exhibits it expects to use with each witness scheduled to testify the following day, which should be separated into will use and may use lists. Each morning before trial, the Parties will meet and confer regarding any objections to the admissibility of any exhibit that have been disclosed. If the Parties remain at impasse as to the admissibility of any exhibit, the Parties will raise exhibit objections with the Court at the beginning of the trial day before the jury is brought to the courtroom. Plaintiff s lead counsel has used this procedure without difficulty in two jury trials before Judge Richard Andrews of the District of Delaware and can confirm that it decreased the number of objections brought to the Court s attention as compared to Defendants and Intervenor s suggested approach. Defendants and Intervenor believe that exhibit objections be addressed at the pre-trial conference consistent with Dkt. No To the extent that the Court decides to adopt Plaintiff s proposed procedure, Defendants and Intervenor ask that Plaintiff provide its list of objections (as Defendants and Intervenor have done prior to trial and that the only exhibits that then need be shared the in the meet-and-confer process proposed are those which have been objected to. 11 Case 3:17-cv Document 231 Filed 03/01/19 Page 11 of 19 PageID #: 11200

12 Plaintiff s Exhibit Objection for Pretrial Conference In addition to the motions in limine (which are not repeated herein, Plaintiff and Defendants wish to raise the following exhibit objection at the pretrial conference. Plaintiff objects to Exhibits Plaintiff contends that these exhibits are not admissible data summaries under Fed. R. Evid because they do not merely summarize, calculate or otherwise prove the content of voluminous records but instead are argumentative and hearsay, akin to a mini-summation of Defendants expert s testimony. See United States v. Bray, 139 F.3d 1104, 1110 (6th Cir (admissible data summaries should not be annotated or embellished with conclusions, inferences, highlighting, captions, etc. That Defendants summary proposed exhibits are inadmissible is evident from a comparison of Plaintiff s proffered Exhibits Plaintiff does not object to the use of these exhibits as demonstratives but submits that they should not be entered as evidence or submitted to the jury. Defendants contend that these exhibits are admissible under the Federal Rules of Evidence, including under Rule 611(a, as described in United States v. Bray, 139 F.3d 1104, (6th Cir Further, Defendants assert that these exhibits are no different than Plaintiff s Exhibits Accordingly, to the extent Defendants exhibits may only be used as demonstratives, Plaintiffs should only be allowed to use Exhibits as demonstratives as well. 12 Case 3:17-cv Document 231 Filed 03/01/19 Page 12 of 19 PageID #: 11201

13 8. Witness Lists A. Hiller a. Hiller will call the following witnesses 1. James Hiller (live 2. Janice Horne (live or by deposition 3. Vicki Lind (live or by deposition 4. Jocelyn Silvio (live or by deposition 5. Rebecca Cassel (live and/or Rebecca Cassel (by deposition as 30(b(6 designee of SGILA 6. Kevin T. McElroy (live b. Hiller may call the following witnesses 1. Mitchell A. Mobley (live 2. Sandra Davis (live 3. Lance Sinclair (live 4. Lance Sinclair (by deposition as 30(b(6 designee of Clockwork IP B. Success Group a. Success Group will call the following witnesses 1. Rebecca Cassel 2. Kelly Robichaud 3. Jocelyn Silvio (by video deposition 4. Janice Horne (by video deposition and played during Hiller s case in chief by agreement 13 Case 3:17-cv Document 231 Filed 03/01/19 Page 13 of 19 PageID #: 11202

14 5. Vicki Lind as corporate designee of The Bob Pike Group (by video deposition and played during Hiller s case in chief by agreement 6. Glen Perdue b. Success Group may call the following witnesses 1. James P. Hiller 2. Mitchell Mobley 3. Donna Lanier (by video deposition 4. Sandra Jean Davis 5. James P. Hiller as corporate designee of Hiller, LLC (by video deposition 6. Constantine Gus Antos (by video deposition 7. Any witness called to testify at trial by Hiller, LLC 8. Any witness called to testify at trial by Clockwork IP, LLC C. Clockwork a. Clockwork will call the following witnesses 1. Lance Sinclair 2. Rebecca Cassel b. Clockwork may call the following witnesses 1. Success Group International Learning Alliance, LLC (via deposition 2. James Hiller (live or via deposition 3. Hiller LLC (via deposition 4. Sandra Davis (live or via deposition 5. Mitch Mobley (live or via deposition 6. Lon Cassel (live or via deposition 14 Case 3:17-cv Document 231 Filed 03/01/19 Page 14 of 19 PageID #: 11203

15 7. Jocelyn Silvio (live or via deposition 8. Janice Horne (live or via deposition 9. The Bob Pike Group (via deposition 10. Donna Lanier (live or via deposition 11. Jim Abrams (via affidavit only 9. Deposition Testimony and Objections and Related Issues The Parties have designated the deposition testimony of certain witnesses. If a witness is being called by deposition, attorneys need to provide a hard copy of the deposition that marks the designations, counter-designations, and objections by the end of trial the day before the witness is expected to be called. a. Deposition Objections for Pretrial Conference The Parties submit the following lists of objections to deposition designations: (i Exhibit 4-A Plaintiff s Objections to Designations; (ii Exhibit 4-B Defendants Objections to Designations; and (iii Exhibit 4-C Intervenor s Objections to Designations. b. Other High-Priority Issues Related to Deposition Testimony The Parties wish to raise the following other issues related to deposition testimony for disposition at the Pretrial Conference. i. Deposition Testimony of Jocelyn Silvio, the Bob Pike Group (Vicki Lind, and Janice Horne. 15 Case 3:17-cv Document 231 Filed 03/01/19 Page 15 of 19 PageID #: 11204

16 With respect to the designations of the Bob Pike Group (Vicki Lind and Janice Horne, the Parties have agreed to merge their respective designations and counter-designations for these witnesses and play a consolidated video for each witness during Plaintiff s case-in-chief. follows: As for Jocelyn Silvio, subject to the Court s approval, the Parties have agreed as (1 Plaintiff will read its affirmative designations for Silvio in its case-in-chief. (2 Defendants and Intervenor will withdraw their previously submitted counterdesignations from Plaintiff s case-in-chief, resolving a dispute about the propriety of such counter-designations, and play video of Ms. Silvio s deposition (including Defendants and Clockwork s designations of Ms. Silvio s testimony and Hiller s counter-designations thereto so long as the jury is instructed that, while Plaintiff will read its designations to Silvio s deposition during its proof, the deposition was also videotaped and portions of that video will subsequently be played later in the trial. 1 The Parties believe this instruction will adequately address any potential confusion caused by reading from and then playing portions of the same deposition during different portions of the trial. Without this instruction, a juror s ability to weigh the credibility of Ms. Silvio s testimony could be distorted if they are under the misimpression that there was more 1 When Defendants and Intervenors designations are played, a small number of Plaintiff s designations that were previously read will be played for completeness. These designated portions are 10:20-11:11;42:21-43:24; 91:18, 92:4-93:11, 95:20-96:17; and 188:7-189:3, 189:9-11. The Parties estimate that no more than one minute of testimony will be played twice. 16 Case 3:17-cv Document 231 Filed 03/01/19 Page 16 of 19 PageID #: 11205

17 than one deposition or that the testimony that was read in Plaintiff s case came from someone other than the person shown on the video. 10. Estimated Trial Length The Parties anticipate that trial will take one week, with closing arguments anticipated for the morning of Friday, March Trial by Jury This is a jury trial. Proposed Jury Instructions and Verdict Forms are attached as follows: Exhibit 5-A Agreed Instructions; Exhibit 5-B Plaintiff s Proposed Instructions and Verdict Form; Exhibit 5-C Defendants/Intervenor s Proposed Instructions and Verdict Form. Defendants/Intervenors object to Plaintiff s Proposed Instructions; Plaintiff Objects to Defendants/Intervenor s Proposed Instructions. Special questions for voir dire proposed by one or more Parties are attached as Exhibit Amount of Ascertainable Damages Plaintiff seeks disgorgement of Defendants profits attributable to the alleged infringement. Under the Copyright Act, Plaintiff bears the burden only of demonstrating gross revenue reasonably related to infringement, and Defendants must prove deductible expenses and elements of profit attributable to sources other than the alleged infringement. Plaintiff contends that it is entitled to up to $1.3MM from Defendant SGILA and up to $2.95MM from Cassel, minus whatever additional deductions and elements of profit attributable to factors other than the copyrighted work that Defendants prove. Defendants contend that Plaintiff is entitled to no more than $3,082 against Rebecca Cassel and $116,316 against SGI LA. 17 Case 3:17-cv Document 231 Filed 03/01/19 Page 17 of 19 PageID #: 11206

18 All Parties seek attorneys fees to the extent they are allowed by law. 13. Interested Attorneys Plaintiff s attorneys are Freeborn & Peters, LLP ( Freeborn and Ogletree Deakins, Nash, Smoak & Stewart P.C. ( Ogletree. The following Hiller attorneys will have a speaking role at trial: Jeffrey J. Catalano of Freeborn (Lead Counsel, Jason P. Stearns of Freeborn, and Wendy V. Miller ( Ogletree. Other interested attorneys are John G. Harrison (Ogletree, Timothy M. Nitsch (Freeborn, and Jennifer Fitzgerald (Freeborn. Defendants attorneys are Butler Snow LLP. The following of Defendants attorneys will have a speaking role at trial: Jason W. Callen (Lead Counsel, Beau C. Cresson, and C. E. Hunter Brush. Intervenor s attorneys are McGuireWoods LLP and McKellar Hyde, PLC. The following Clockwork attorneys will have a speaking role at trial: Brad R. Newberg (Lead Counsel, Lucy Jewett Wheatley, and Amanda DeFord, all of McGuireWoods. Other interested attorneys include Andrea McKellar (McKellar Hyde. 14. Special Equipment The Parties do not anticipate needing special equipment, although they will likely use the Court s computer equipment to show materials to the jury. However, the Parties request access to the trial courtroom on Friday, March 1 so that all Parties may test the compatibility of the courtroom technology with the Parties own equipment. 18 Case 3:17-cv Document 231 Filed 03/01/19 Page 18 of 19 PageID #: 11207

19 In addition, the Parties request that the Pretrial Conference include a discussion regarding the Court s preferred procedure for use of paper exhibits versus electronic presentation of evidence at trial. SO ORDERED, this 1st day of March, /s/ Jon P. McCalla JON P. McCALLA UNITED STATES DISTRICT JUDGE 19 Case 3:17-cv Document 231 Filed 03/01/19 Page 19 of 19 PageID #: 11208