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FILED: NEW YORK COUNTY CLERK 05/31/2018 04:42 PM INDEX NO.

653118/2014
NYSCEF DOC. NO. 1221 RECEIVED NYSCEF: 05/31/2018

SUPREME COURT FOR THE STATE OF NEW YORK


COUNTY OF NEW YORK
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LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ :

MONEY, INC., and PRESCRIPTION SONGS, LLC, : Index No. 653118/2014


:

Plaintiffs, : Judge Shirley Kornreich


:
-against- : PLAINTIFF LUKASZ
: GOTTWALD P/K/A DR.
KESHA ROSE SEBERT p/k/a KESHA, : LUKE'S AMENDED
: RESPONSE TO
Defendant. : DEFENDANT'S DEMAND
: FOR BILL OF
PARTICULARS
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KESHA ROSE SEBERT p/k/a KESHA, :
:

Counterclaim-Plaintiff, :
:
-against- :
:
LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ :

MONEY, INC., and PRESCRIPTION SONGS, LLC, and :


DOES 1 - 25, inclusive, :
:
Counterclaim - Defendants. :
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("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

("Kesha" "Defendant" "Demands"


Rose Sebert's or "Defendant") Demand for Bill of Particulars (the and

"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

Plaintiff's General Objections as set forth below:

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

herein provides responses to the Demands with respect to the SAC.

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

A.D.3d 1030, 1031 (2d Dep't 2010).

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

waiver of the protection of non-disclosure afforded by the attorney-client privilege or work-

product doctrine, and in the event any information is produced that is privileged, it is to be

returned immediately. the inadvertent disclosure of matter covered such attorney-


Also, any by

client privilege or work-product doctrine shall not be deemed a waiver thereof.

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

or any subsequent proceeding, or at the trial of this or any other action.

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

completed, and contentions are made.

9. Plaintiff objects to the Demands as unduly burdensome and harassing in that they

are duplicative of other discovery served by Defendant in this action.

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

state statutory and/or common law.

Each of the foregoing objections is, to the extent applicable, incorporated into Plaintiff's

specific responses to each individual Demand.

RESPONSE TO DEMAND FOR BILL OF PARTICULARS

DEMAND NO. 1:

As to the First Cause of Action for Defamation, particularize and identify the specific

statements regarding Plaintiffs that you allege were false.

RESPONSE TO DEMAND NO. 1:

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

for Defamation in the SAC, Plaintiff responds as follows:

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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representatives have published numerous falsehoods regarding Plaintiffs, including in

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

allegedly false statements were published to third parties.

RESPONSE TO DEMAND NO. 2:

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

and Second Causes of Action in the SAC, Plaintiff responds as follows:

Plaintiffs' Plaintiffs' so-


As alleged in SAC, as retaliation for refusal to agree to enter into

"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

raped Defendant over a decade ago. SAC, ¶ 4.

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

of recipients, including individuals with whom Plaintiffs do business, in which she

similarly falsely claimed, among other things, that "[Gottwald] abused Kesha, both

mentally."
physically and SAC, ¶ 52.

• In 2014, Defendant sent letters to certain fans from Timberline


January defamatory

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

raped her years prior. Id.

• In the Summer of 2014, Defendant's Kenneth Meiselas published


attorney defamatory

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):

• In addition to numerous other falsehoods Plaintiffs, the Sham Complaint


regarding

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

Defendant's false and defamatory allegations against Plaintiffs: "This lawsuit is a

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

through its publication of Mr. Geragos's defamatory press statement.

• TMZ's report, countless media outlets almost picked the


Following immediately up story

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

and raped by Gottwald.

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

accusations against Plaintiffs:

• On or around October 15 and 16, 2014, Mr. Geragos appeared for interviews on Good

Morning America, Nightline, and Access Hollywood, during which he repeated

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

articles published by CNN, People, and TMZ.

• 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

• On or around October 21, 2014, Mr. Geragos issued a similarly press


defamatory

statement on Defendant's behalf, which referred to Gottwald's purported "sexual

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

subsequently republished this same press statement to People Magazine on or about

February 24, 2016.

• On October 22, 2014, Mr. Geragos appeared for a second interview with Access

Hollywood, during which he again repeated Defendant's defamatory assertions and

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

repeated Defendant's defamatory assertions during CNN programs during which he

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

Defendant's defamatory statements repeatedly throughout both episodes, and again

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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• On April 3, 2016, Defendant repeated her statements on her Instagram


defamatory

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

defamatory assertions in this Instagram post would be widely disseminated by the

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

@KeshaTODAY account that he operates, and encouraged other supporters of 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

defamatory statements made on behalf of Defendant include the following:

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

@mikeisstraight which stated that he "refuse[d] to support anything @SonyMusicGlobal

#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

protesters provided these defamatory statements to members of the press, as Defendant

intended.

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• On March 29, 2016, Mr. Eisele tweeted a link on the @KeshaTODAY Twitter page to an

advertisement created by women's group Ultraviolet, which repeated Defendant's

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

female recording artist (SAC, ¶ 8):

• 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

Defendant's encouragement, Ms. Germanotta spread negative messages about Gottwald

in the press and on social media. SAC, ¶ 71. For example, in February 2016, Ms.

Germanotta posted multiple articles discussing Defendant's defamatory statements on her

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.

Germanotta) that referred to Defendant's claims of sexual assault by Gottwald.

DEMAND NO. 3:

As to the First Cause of Action for Defamation, particularize and identify which third

parties the allegedly false statements were published to.

RESPONSE TO DEMAND NO. 3:

The foregoing General Objections are incorporated herein by reference. Subject to and

without waiving the foregoing objections, Plaintiff responds as follows:

Plaintiff directs Defendant to the Response to Demand No. 2.

DEMAND NO. 4:

As to the First Cause of Action for Defamation, particularize and identify when the

allegedly false statements were published to third parties.

RESPONSE TO DEMAND NO. 4:

The foregoing General Objections are incorporated herein by reference. Subject to and

without waiving the foregoing objections, Plaintiff responds as follows:

Plaintiff directs Defendant to the Response to Demand No. 2.

DEMAND NO. 5:

As to the First Cause of Action for Defamation, particularize and identify where Kesha

was when she made the allegedly false statements.

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RESPONSE TO DEMAND NO. 5:

The foregoing General Objections are incorporated herein by reference. Subject to and

without waiving the foregoing objections, Plaintiff responds as follows:

Plaintiff directs Defendant to the Response to Demand No. 2.

DEMAND NO. 6:

As to the First Cause of Action for Defamation, set forth the factual basis that in making

these allegedly false statements, Kesha acted with malice.

RESPONSE TO DEMAND NO. 6:

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

for Defamation in the SAC, Plaintiff responds as follows:

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

In October 2014, prior to the commencement of any litigation, Defendant's representative

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.

Defendant's Sham Complaint, Sham Amended Complaint, Sham Counterclaims and

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

with that appeal.

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,

including Gottwald's reputation in his business as a music producer/songwriter who works

closely with a broad range of artists and writers.

RESPONSE TO DEMAND NO. 7:

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,

Plaintiff responds as follows:

Plaintiff directs Defendant to the Response to Demand No. 6.

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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RESPONSE TO DEMAND NO. 8:

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

foregoing objections, Plaintiff responds as follows:

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.

RESPONSE TO DEMAND NO. 9:

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 . . .

DEMAND NO. 10:

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.

RESPONSE TO DEMAND NO. 10:

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:

Defendant has repeatedly expressed, including in Defendant's filings submitted in

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

Agreement and considers the KMI Agreement to be invalid and unenforceable.

Plaintiff further directs Defendant to those allegations contained in paragraphs 45-47 of

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

the amendments thereof, which speak for themselves.

DEMAND NO. 11:

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

allowed Gottwald to produce her work.

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RESPONSE TO DEMAND NO. 11:

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,

Plaintiff responds as follows:

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.

Without limitation, Plaintiff directs Defendant to the following admissions by Defendant

as to her aforementioned contractual breaches:

• 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

Preliminary Injunction, Defendant's counsel admitted that Defendant "Kesha currently

...."
has music ready to record

• At the 19, 2016 before the Court in this action, Defendant's counsel
February hearing

made numerous admissions regarding the aforementioned contractual breaches, including

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.

Additionally, in further breach of the KMI Agreement, Defendant refused to allow

Gottwald to produce any recordings on her third album, and refuses to allow Gottwald to

produce any recordings on her fourth and fifth albums.

DEMAND NO. 12:

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.

RESPONSE TO DEMAND NO. 12:

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

foregoing objections, Plaintiff responds as follows:

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

[Defendant's] name, approved portraits, pictures, likenesses and biographical material

(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

uses of [Defendant's] Name and Likeness in connection with non-tour sponsorships,

endorsements [including [Defendant's] personal services in connection with any sponsorships

'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.

DEMAND NO. 13:

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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RESPONSE TO DEMAND NO. 13:

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:

Plaintiff refers Defendant to Plaintiff's Response to Demand No. 12.

DEMAND NO. 14:

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

suffered as a result of the alleged breach of the KMI Agreement by Kesha.

RESPONSE TO DEMAND NO. 14:

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

without waiving the foregoing objections, Plaintiff responds as follows:

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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

royalties on Defendant's ancillary income, pre-judgment interest owed on royalties belatedly

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

her obligations under the KMI Agreement.

DEMAND NO. 15:

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.

RESPONSE TO DEMAND NO. 15:

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:

Defendant has repeatedly expressed, including in Defendant's filings in 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 Prescription

Publishing Agreement and considers the Prescription Publishing Agreement to be invalid and

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unenforceable. Plaintiff further directs Defendant to those allegations contained in paragraph 48

of the SAC, which detail how Defendant breached the agreement between Prescription Songs

and Defendant, by failing to deliver to Prescription Songs a specified number of compositions

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

Prescription Songs within a commercially reasonable period of time.

DEMAND NO. 16:

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.

RESPONSE TO DEMAND NO. 16:

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

foregoing objections, Plaintiff responds as follows:

Commitment"
Plaintiff directs Defendant to the definition of "Minimum Delivery

contained in the Prescription Publishing Agreement between Defendant and Prescription Songs,

as well as paragraph 4 of said Agreement.

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DEMAND NO. 17:

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

under the Prescription Publishing Agreement.

RESPONSE TO DEMAND NO. 17:

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

without any context.

DEMAND NO. 18:

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.

RESPONSE TO DEMAND NO. 18:

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

objections, Plaintiff responds as follows:

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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

Publishing Agreement, including, inter alia, sections 1 & 2.

DEMAND NO. 19:

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

exclusively to KMI and when this term began.

DEMAND TO DEMAND NO. 19:

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.

DEMAND NO. 20:

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.

RESPONSE TO DEMAND NO. 20:

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

objections, Plaintiff responds as follows:

Plaintiff refers Defendant to the Responses to Demand Nos. 10 & 15.

DEMAND NO. 21:

As to the Third Cause of Action for Breach of the Prescription Publishing Agreement,

particularize and identify what damages (including compensatory, expectation, and

consequential damages) you suffered as a result of the alleged breach of the Prescription

Publishing Agreement by Kesha.

RESPONSE TO DEMAND NO. 21:

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

without waiving the foregoing objections, Plaintiff responds as follows:

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

has failed and/or refused to deliver and/or delivered belatedly.

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DATED: May 4, 2018 MITCHELL SILBERBERG & KNUPP LLP

By:/s/ Jeffrey M. Movit

Christine Lepera (ctl@msk.com)


Jeffrey M. Movit (jmm@msk.com)
Bradley Mullins (bym@msk.com)
12 East 49th Street, 30th Floor

New York, New York 10017-1028


Tel: (212) 509-3900
Fax: (212) 509-7239

Attorneys for Lukasz Gottwald plea Dr. Luke,


Kasz Money, Inc. and Prescription Songs, LLC

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