Elliott v. Cartagena

22-255
Elliott v. Cartagena, et al.


                       United States Court of Appeals
                          For the Second Circuit
                                      August Term 2022

                                   Argued: March 31, 2023
                                  Decided: October 17, 2023

                                          No. 22-255



                               ERIC A. ELLIOTT, AKA FLY HAVANA,

                                      Plaintiff-Appellant,

                                               v.

 JOSEPH ANTHONY CARTAGENA, AKA FAT JOE, KARIM KHARBOUCH, AKA FRENCH
MONTANA, SHANDEL GREEN, AKA INFARED, REMINISCE SMITH MACKIE, AKA REMY
MA, EDWARD F. DAVADI, JR., AKA EDSCLUSIVE, JOEY AND RYAN MUSIC, EXCUSE MY
  FRENCH MUSIC, EXCUSE MY FRENCH MUSIC II, MR. GREEN MUSIC, REMYNISCE
    MUSIC, UNIVERSAL MUSIC-Z TUNES LLC, DBA UNIVERSAL MUSIC Z SONGS,
WARNER-TAMERLANE PUBLISHING CORP., WARNER/CHAPPELL MUSIC, INC., SONGS
OF UNIVERSAL INC., ROC NATION LLC, ROC NATION MANAGEMENT LLC, SNEAKER
   ADDICT TOURING LLC, TERROR SQUAD PRODUCTIONS, INC., TERROR SQUAD
  ENTERTAINMENT, RNG (RAP'S NEW GENERATION), EMPIRE DISTRIBUTION, INC.,
     BMG RIGHTS MANAGEMENT (US) LLC, DBA BMG PLATINUM SONGS US,

                                     Defendants-Appellees,

 KOBALT SONGS MUSIC PUBLISHING, KOBALT MUSIC PUBLISHING AMERICA, INC.,
   REACH GLOBAL INC., SONY/ATV ALLEGRO, FIRST N PLATINUM PUBLISHING,
SONY/ATV TUNES LLC, CUTS OF REACH MUSIC, SONGS OF REACH GLOBAL, FIRST N
   GOLD PUBLISHING, INC., REACH MUSIC PUBLISHING INC., SONY/ATV MUSIC
 PUBLISHING, INC., MARCELLO VALENZANO, AKA COOL, ANDRE LYON, AKA DRE,
                 DADE CO. PROJECT MUSIC, INC., PO FOLKS MUSIC,

                                    Defendants.




                 Appeal from the United States District Court
                     for the Southern District of New York
                No. 1:19CV01998, Naomi Reice Buchwald, Judge.

      Before:      NARDINI AND MERRIAM, Circuit Judges. *



Plaintiff-appellant Eric A. Elliott alleges that he co-created the song “All the Way
Up,” but that he has not been properly credited or compensated for his
contribution. He filed this action in the United States District Court for the
Southern District of New York (Buchwald, J.), asserting claims under the
Copyright Act, 

, et seq., as well as various tort claims. Defendants-
appellees maintain that Elliott assigned away any rights he may have had in the
song, but the agreement has never been produced, and the parties disagree about
its content and effect. The District Court admitted a draft version of the missing
agreement as a duplicate, and then granted defendants’ motion for summary
judgment without allowing Elliott to conduct discovery. We hold that the District
Court abused its discretion in finding the draft admissible as a duplicate original
under Federal Rule of Evidence 1003, but properly admitted the draft as “other
evidence of the content” of the original under Rule 1004. We further hold that the
District Court abused its discretion in denying Elliott’s request to conduct
discovery prior to the entry of summary judgment and erred in concluding that
no genuine dispute of material fact existed based on the current record. We
therefore VACATE the judgment and REMAND for further proceedings.



*Senior Circuit Judge Rosemary S. Pooler, originally a member of this panel,
passed away on August 10, 2023. The two remaining members of the panel, who
are in agreement, have determined the matter. See 

(d); 2d Cir. IOP
E(b); United States v. Desimone, 

 (2d Cir. 1998).
                                         2
                                      ALFRED J. (AJ) FLUEHR, Francis Alexander,
                                      LLC, Media, PA, for Plaintiff-Appellant.

                                      ELEANOR M. LACKMAN, Mitchell Silberberg &
                                      Knupp LLP, New York, NY, for Defendants-
                                      Appellees.

SARAH A. L. MERRIAM, Circuit Judge:

      Plaintiff-appellant Eric A. Elliott alleges that he co-created the song “All

the Way Up” (the “Song”) with defendant-appellee Shandel Green, but that he

has not been properly credited or compensated for his contribution. He filed this

action in the United States District Court for the Southern District of New York

(Buchwald, J.), asserting claims under the Copyright Act, 

, et seq.,

as well as various tort claims. Defendants-appellees maintain that Elliott signed

an agreement assigning away any rights he may have had in the Song. Elliott

agrees that he signed a document, but the signed agreement has never been

produced, and the parties disagree about its content and effect. The District

Court accepted defendants’ contention that the signed agreement was identical

to a draft version (the “Draft”) produced by defendants and found the Draft

admissible as a duplicate. It then granted defendants’ motion for summary

judgment without allowing Elliott to conduct discovery, holding that this was

among the “rarest of cases” in which summary judgment before discovery was


                                         3
appropriate. Hellstrom v. U.S. Dep’t of Veterans Affs., 

, 97 (2d Cir.

2000). We disagree. We hold that the District Court abused its discretion in

finding the Draft admissible as a duplicate original under Federal Rule of

Evidence 1003, but properly admitted the Draft as “other evidence of the

content” of the original under Rule 1004. We further hold that the District Court

abused its discretion in denying Elliott’s request to conduct discovery prior to

the entry of summary judgment and erred in concluding that no genuine dispute

of material fact existed based on the current record. We therefore VACATE the

judgment and REMAND for further proceedings.

                                I. BACKGROUND

      The parties agree on certain facts, but many are disputed. The background

discussed below is based on the parties’ submissions at summary judgment, as

well as on the verified complaint. See Gayle v. Gonyea, 

 (2d Cir.

2002) (“A verified complaint is to be treated as an affidavit for summary

judgment purposes, and therefore will be considered in determining whether

material issues of fact exist, provided that it meets the other requirements for an

affidavit” described in Rule 56(c)(4). (citation and quotation marks omitted)).

      Elliott alleges that he “co-created the song” that became “the hit single ‘All



                                         4
the Way Up’” with defendant-appellee Shandel Green in 2015. App’x at 167.

Green then collaborated with others, including defendant-appellee Joseph

Cartagena, 1 to prepare the final version of the Song that was released on March 2,

2016, as performed principally by Cartagena. 2 

      Elliott asserts, and Cartagena does not deny, that he and Cartagena “spoke

several times between March 4, 2016, and March 6, 2016,” about the Song. Id. at

540. 3 Elliott alleges that, during these telephonic discussions, Cartagena

acknowledged that “Elliott was a co-author of ‘All the Way Up’ and should get

credit.” Id. at 173. According to Elliott, Cartagena

      told Elliott that (1) he would get him “some bread” up front (which
      Plaintiff understood to be a significant sum [of money] for a song that
      was becoming a hit single) for his contributions to the song[,] (2) more
      bread later as the song produced income, (3) that they would begin
      working together because Mr. Elliot was hot and “in the zone,” and
      (4) that Elliot needed to realize that he would have an ‘incredible

1Cartagena is known as “Fat Joe” in the music industry. He is often referred to
by that name in the parties’ submissions.

2Elliott brought claims against a number of defendants, all of whom he contends
had some involvement with the creation, release, or marketing of the Song. Some
defendants never appeared in the District Court action; some were never
properly served; some appeared but did not file dispositive motions. The District
Court nonetheless entered final judgment in favor of all defendants.

3 Cartagena did not contest the substance of this statement at summary
judgment; rather, he responded to it in his Rule 56 statement solely by asserting
it was “[i]mmaterial.” App’x at 540.
                                          5
      relationship’ with Fat Joe going forward if he respected Fat Joe.

Id. Elliott alleges that on March 14, 2016, Cartagena “called [him] and told him to

come to an address, but did not say why. Mr. Elliott had assumed it was an office

for an attorney, and only when [he] was almost there did he realize that Fat Joe

had actually picked an IHOP in Miami Beach” as a meeting place. Id. at 174.

       The parties agree that at the IHOP meeting Cartagena gave Elliott a $5,000

check and “put a piece of paper in front of” Elliott for Elliott to sign, which he

did. Id. at 541. Elliott maintains that the piece of paper “seemed to state that [he]

was going to be compensated and credited as a writer” and that Cartagena told

him that the document “essentially memorialized [Cartagena’s] representations

about getting ‘some bread’ up front, more later, and working together.” Id. at

328-29, 176. Elliott further maintains that Cartagena also reiterated his earlier

promises, specifically that Elliott “was going to get some money then, more later,

that [they] were going to be working together in the studio, and that [Cartagena]

was going to promote [Elliott] as an artist and also [Elliott’s] songs.” Id. at 484-85.

Elliott asserts that Cartagena told him that the “piece of paper” that Elliott signed

at the meeting was “supposed to protect Elliott’s rights and secure Fat Joe and

[Elliott’s] future relationship.” Id. at 176. Elliott contends that Cartagena left the



                                           6
meeting with the signed document and did not provide Elliott with a copy.

      Defendants 4 produced a draft version of the “piece of paper,” claiming it is

identical in substance to the version that Elliott signed. The Draft, which is

riddled with errors, purports to assign all of Elliott’s rights in the Song to an

entity called R4 So Valid, LLC. 5

      The Draft states that Elliott 6 “irrevocably grants to R4 So Valid, LLC . . .

any and all rights of ownership or any other rights in and to” the Song in

exchange “[f]or good and valuable consideration, the receipt and sufficiency of

which Elliot hereby acknowledges.” Id. at 323. The Draft states that the

consideration as “set forth above” is the “full and complete consideration for all

of Elliot’s services” and that “no additional compensation (including mechanical




4We refer to defendants-appellees simply as “defendants” throughout, but, as
noted, numerous defendants were named in this action that did not participate in
the proceedings below and did not move for summary judgment.

5At oral argument, defendants’ counsel stated that R4 So Valid, LLC is a
publishing company affiliated with Cartagena. Plaintiff’s counsel stated that he
had not received any information regarding R4 So Valid, LLC prior to oral
argument, and the record provides no such information.

6The Draft spells Elliott’s name wrong, as “Elliot,” throughout. Defendants-
appellees’ other submissions often misspell the name as well. Where such an
error occurs in quoted language, we have reproduced it without a “sic” notation
or brackets, for ease of reading.
                                          7
royalty or any other payments) will be due to Elliot.” Id. The Draft does not

describe what the purported consideration was.

      The Draft also contains a merger clause: “This Agreement contains the

entire understanding of the parties hereto relating to the subject matter hereof

and cannot be changed or terminated except by an instrument signed by the

parties hereto.” Id.

      Cartagena’s former attorney, Erica Moreira, submitted a declaration saying

that she prepared the Draft for Cartagena to present to Elliott. Cartagena

submitted a declaration stating: “I did not modify the Agreement that Ms.

Moreira prepared, and Mr. Elliot did not make any changes to the Agreement. I

presented the Agreement in the form received from Ms. Moreira and Mr. Elliott

signed it in the form in which it was presented.” Id. at 314. Defendants admit,

however, that the Draft is “not a copy of the executed Agreement.” Id. at 545.

      Elliott maintains that the Draft “does not comport with [his] recollection of

the document [he] signed” and that the paper he signed “seemed to state that

[he] was going to be compensated and credited as a writer.” Id. at 485.

      Elliott brought claims pursuant to the Copyright Act as well as various tort

claims, seeking damages and credit as an author of the Song. Defendants sought



                                         8
leave to file a motion to dismiss, arguing that Elliott had assigned away any

rights he had in the Song. In advance of a pre-motion conference, the District

Court ordered the parties to file any versions of the agreement in their

possession. In response, defendants submitted the declarations of Cartagena and

Moreira, the latter of which attached the Draft. At the pre-motion conference, the

District Court expressed its view that if the Draft represented an enforceable

contract, that would dispose of the case. The District Court viewed the validity of

any assignment of rights as a threshold issue, indicating that it could be

addressed without discovery. Because the parties sought to rely on affidavits, the

District Court suggested that a dispositive motion directed to the effect of the

alleged agreement “maybe should be styled summary judgment.” Spec. App’x. at

59. Elliott’s counsel objected to this approach, arguing that summary judgment

before Elliott was permitted to conduct discovery would be prejudicial. In

particular, Elliott’s counsel argued that at least limited discovery of the issues

surrounding the alleged agreement, including depositions of people such as

Moreira, was necessary. The District Court observed that discovery is not

required before summary judgment in every case, and indicated that it was not

persuaded that pre-motion discovery was necessary in this case.



                                          9
      Defendants then moved for summary judgment. Elliott opposed the

motion on substantive grounds, and once again argued that he needed discovery

to properly respond to the motion. In support of his request for discovery,

Elliott’s counsel submitted a declaration under Federal Rule of Civil Procedure

56(d) 7 describing the discovery Elliott sought and the reasons for seeking it. The

declaration of counsel described eighteen categories of evidence Elliott sought,

indicated how each type of evidence would be obtained, and explained how the

expected evidence would demonstrate genuine disputes of material fact

sufficient to defeat summary judgment.

      In a July 2020 ruling, the District Court concluded that the Draft was

“admissible under Federal Rule of Evidence 1003 as a duplicate of the ‘piece of

paper’ that was presented to plaintiff at the meeting.” Elliott v. Cartagena (Elliott

I), No. 1:19CV01998(NRB), 

, at *3 (S.D.N.Y. July 31, 2020). It

rejected the Rule 56(d) declaration of Elliott’s counsel, finding it amounted to

“mere speculation that the Draft Agreement might not be an authentic duplicate




7The subsection now known as Rule 56(d) was numbered as Rule 56(f) until the
2010 Amendments. See Fed. R. Civ. P. 56(d) advisory committee’s note to 2010
amendment (“Subdivision (d) carries forward without substantial change the
provisions of former subdivision (f).”). The parties’ papers sometimes refer to
Rule 56(f).
                                         10
of the ‘piece of paper,’ which is insufficient to raise a genuine question about

authenticity under Rule 1003.” 

 The District Court nonetheless denied

defendants’ motion for summary judgment without prejudice, concluding “that

defendants ha[d] failed to fully satisfy their burden to invoke Rule 1004(a),” 

, which provides, as relevant here, that “[a]n original is not required and other

evidence of the content of a writing, recording, or photograph is admissible if . . .

all the originals are lost or destroyed, and not by the proponent acting in bad

faith.” Fed. R. Evid. 1004(a). The District Court granted defendants leave to

renew the motion at a later date if they were able to “meet the requirements of

Rule 1004(a).” Elliott I, 

, at *5.

      Over a period of months, defendants attempted to locate the executed

agreement, during which time the District Court granted defendants’ request to

stay all other activity in the case, including any discovery sought by Elliott. See

Elliott v. Cartagena (Elliott II), 

, 430 (S.D.N.Y. 2022). As part of

that effort, defendants filed four separate letters updating the District Court on

their progress and moved for permission to serve a subpoena by alternative

means on a former associate of Cartagena’s, whom Cartagena believed might

have possessed the signed agreement.



                                          11
      Defendants then filed a renewed motion for summary judgment, which the

District Court granted. The District Court adhered to its prior finding that the

Draft was admissible as a duplicate under Rule 1003. It further found that the

executed agreement was lost, not through the bad faith of defendants, or that it

was outside the reach of the Court. See 

. It then concluded that the

Draft was admissible as other evidence of the original under Rule 1004 and that

the assignment of rights in the agreement defeated all of Elliott’s claims against

all defendants. See 

. The entire case was dismissed, including the

claims against many defendants who had never moved for summary judgment.

See 

.

      In its summary judgment ruling, the District Court denied Elliott’s request

for discovery in a cursory fashion, stating: “[I]t is clear that a signed copy [of the

agreement] cannot be located. Plaintiff does not suggest otherwise. Thus, this is

one of the ‘rarest of cases’ in which summary judgment is appropriate despite

the lack of formal discovery.” 

 at 428 (quoting Hellstrom, 201 F.3d at 97).

Elliott appeals, challenging the District Court’s admission of the Draft into

evidence under Rules 1003 and 1004, the denial of discovery before summary

judgment, and the ultimate grant of summary judgment.



                                          12
                                 II. DISCUSSION

A.    The Draft was not admissible as a duplicate original under Rule 1003,
      but it was admissible as “other evidence” of the content of the
      agreement under Rule 1004.

      Rule 1002, known as the best evidence rule, states that “[a]n original

writing . . . is required in order to prove its content unless these rules or a federal

statute provides otherwise.” Fed. R. Evid. 1002. Rules 1003 and 1004 “provide[]

otherwise.” Id.

      The District Court determined that the Draft was admissible as a duplicate

under Rule 1003 and as other evidence of the original under Rule 1004. We

review the District Court’s admission of the Draft under Rules 1003 and 1004,

like all evidentiary rulings, for abuse of discretion. See Gen. Elec. Co. v. Joiner,

 (1997). “A district court has abused its discretion if it has (1)

based its ruling on an erroneous view of the law, (2) made a clearly erroneous

assessment of the evidence, or (3) rendered a decision that cannot be located

within the range of permissible decisions.” United States v. Zhong, 

 (2d Cir. 2022) (citation and quotation marks omitted).

      1.     Federal Rule of Evidence 1003

      Rule 1003 states: “A duplicate is admissible to the same extent as the



                                          13
original unless a genuine question is raised about the original’s authenticity or

the circumstances make it unfair to admit the duplicate.” Fed. R. Evid. 1003. A

duplicate is defined as “a counterpart produced by a mechanical, photographic,

chemical, electronic, or other equivalent process or technique that accurately

reproduces the original.” Fed. R. Evid. 1001(e). Elliott, as the party opposing the

admission of the Draft, has the burden of “demonstrating a genuine issue as to

. . . the trustworthiness of the duplicate, or as to the fairness of substituting the

duplicate for the original.” United States v. Chang An-Lo, 

 (2d

Cir. 1988) (citation and quotation marks omitted).

      Cartagena submitted a sworn statement asserting that the Draft is identical

in substance to the “piece of paper” that Elliott signed. The statement explained

that Cartagena received “an email from Ms. Moreira,” his attorney at the time,

“attaching a short agreement.” App’x at 314. Cartagena stated that he then

“printed the Agreement in the concierge of the complex where [he lived] and

brought it with” him to the IHOP meeting. 

 Moreira also submitted a

declaration stating that she had “drafted and sent” a “work for hire agreement”

to Cartagena after Cartagena contacted her regarding Elliott’s claims related to

the Song. Id. at 318. The Draft was attached to this declaration.



                                          14
      Relying on these declarations, the District Court found the evidence

“sufficient to establish the authenticity of the Draft Agreement as a duplicate of

the ‘piece of paper’ that was presented to plaintiff.” Elliott I, 

, at

*3. This was an abuse of discretion.

      Elliott has demonstrated genuine issues as to the trustworthiness of the

Draft as a purported duplicate of the agreement that was actually signed. See

Chang An-Lo, 

. Elliott submitted sworn testimony indicating that

the Draft produced is not identical to the version he signed. Elliott squarely

stated that the Draft did “not comport with [his] recollection of the document

[he] signed.” App’x at 485. Elliott averred that the document he signed “seemed

to state that [he] was going to be compensated and credited as a writer,” 

which differs from the assignment of rights contemplated in the Draft. 8

Cartagena submitted a sworn statement contradicting this claim, asserting that

he did not alter the Draft between the time he received it from Moreira and the

IHOP meeting three days later. But it was not appropriate for the District Court

to resolve this factual dispute against Elliott, the non-moving party, at the

summary judgment stage, particularly without the benefit of discovery.


8Elliott’s limited recollection of the details is not surprising given his brief
exposure to the document.
                                          15
      Under Rule 1003, a duplicate is admissible “to the same extent as the

original,” Fed. R. Evid. 1003 – that is, it will be treated as direct evidence of the

original – only “if no genuine issue exists as to authenticity,” Fed. R. Evid. 1003

advisory committee’s note to 1972 proposed rules. Elliott’s sworn statements are

sufficient to meet his burden of “demonstrating a genuine issue as to . . . the

trustworthiness of the” Draft as an accurate reproduction of the original. 9 Chang

An-Lo, 

; see also Opals on Ice Lingerie v. Bodylines Inc., 

, 371 (2d Cir. 2003) (finding genuine issue as to the trustworthiness of alleged

duplicate based, in part, on a party’s affidavit); Carroll v. LeBoeuf, Lamb, Greene

& MacRae, L.L.P., 

 (S.D.N.Y. 2009) (finding admission as

a duplicate improper where a party’s testimony “raise[d] genuine questions as to

the authenticity of both” the original and the purported photocopy). 10

      The District Court therefore abused its discretion in admitting the Draft as




9It is also notable that the Draft is titled: “WORK FOR HIRE – ASSIGNMENT OF
COPYRIGHT,” App’x at 323, but no party argues, and the record does not
support, that Elliott’s contributions were made as part of any work for hire
arrangement.

10See also RCB Equities #£3, LLC v. Martin, 

 (2d Cir.
2015) (summary order) (finding admission of duplicate proper, in part because
opposing counsel “never pointed to anything indicating that the duplicate was
somehow different than the original[]”).
                                          16
a duplicate under Rule 1003, on the record as it currently stands.

      2.     Federal Rule of Evidence 1004

      The District Court also admitted the Draft as secondary evidence of the

original under Federal Rule of Evidence 1004. The rule provides, as relevant here:

“An original is not required and other evidence of the content of a writing . . . is

admissible if: (a) all the originals are lost or destroyed, and not by the proponent

acting in bad faith; [or] (b) an original cannot be obtained by any available

judicial process.” Fed. R. Evid. 1004(a), (b). A party seeking to rely on “other

evidence” may do so “only where the [party] demonstrates that it has made a

diligent but unsuccessful search and inquiry for the missing” document. Burt

Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 

, 91 (2d Cir. 2002)

(citation and quotation marks omitted). Whether the party’s search was

sufficiently diligent is to be decided by the court. See id. at 92.

      A document admitted under Rule 1003 is treated differently than a

document admitted under Rule 1004. A duplicate admitted under Rule 1003 “is

admissible to the same extent as the original.” Fed. R. Evid. 1003. As such, it is

treated as interchangeable with the original, subject to the discretion of the finder

of fact. That is because such a duplicate is admissible only when there is no



                                         17
genuine question about the authenticity of both the original and the duplicate. By

contrast, a document admitted under Rule 1004 is admissible only as “other

evidence” of the original because admission under Rule 1004 does not require

such high guarantees of authenticity. The document, rather than being

interchangeable with the original, may be probative of the contents of the

missing document, to a greater or lesser degree, depending on its persuasive

power.

      Defendants renewed their motion for summary judgment on April 12,

2021, arguing that the executed agreement was lost and that the Draft’s contents

precluded all of Elliott’s claims. The District Court found that “defendants ha[d]

established the loss of the document,” that the signed agreement was beyond the

reach of the Court, and thus “that the requirements of Rule 1004(a) and (b) ha[d]

been satisfied.” Elliott II, 578 F. Supp. 3d at 430-31. The Court then admitted the

Draft as other evidence of the original. This was not an abuse of discretion, under

either Rule 1004(a) or 1004(b).

      The District Court based its admission of the Draft under Rule 1004(a) on

its finding that the original was lost. We discern no clear error in that factual




                                         18
finding. 11 “Loss or destruction may sometimes be provable by direct evidence,

such as testimony from a witness who destroyed the document. But more often

the only available evidence will be circumstantial, usually taking the form of

testimony that an appropriate search for the document has been made without

locating it.” 2 McCormick on Evidence §237 (8th ed. 2022) (footnote omitted).

      Cartagena submitted sworn testimony stating that he could not locate the

signed agreement: “I looked in my home, my personal belongings, and asked the

people in my circle at the time to see if they had the signed copy or any

information as to its whereabouts.” App’x at 314. Cartagena’s declaration also

stated that he “believe[d] [he] may have provided the document to [his] then-

manager, Mr. Elis Pacheco.” Id. Moreira, who created the Draft for Cartagena,

also submitted a declaration stating that she “never received a signed copy of the

Agreement,” and that “it was typical for Mr. Pacheco to keep track of Mr.

Cartagena’s documents.” Id. at 318. Both declarants represented that Pacheco

had reported he was unable to locate a signed copy of the agreement. See id. at

314, 318.




11Elliott also contests the District Court’s finding that there was no evidence of
bad faith in such loss, but based on this record, we cannot say that the District
Court clearly erred in this predicate factual finding, either.
                                        19
      Elliott argues that defendants failed to adequately explain why the original

had not been located. But all parties agree that an original existed (whether or

not the Draft accurately represents its content) because Elliott signed something

at the IHOP. And, as the District Court noted, Cartagena searched for the

original and asked people in his circle at the time to look for the document, to no

avail. Cartagena and Moreira both believed that the document might have been

given to Pacheco. Defendants “embarked on a months-long effort to contact

Pacheco” and “issued four subpoenas and made nineteen unsuccessful attempts

to serve Pacheco.” Elliott II, 578 F. Supp. 3d at 430. Based on this record, we hold

that the District Court did not clearly err in finding that defendants had

conducted “a diligent but unsuccessful search and inquiry for the missing”

document, and that it was lost. Burt Rigid Box, 302 F.3d at 91 (citation and

quotation marks omitted); see also 2 McCormick on Evidence §237 (8th ed. 2022).

      Nor did the District Court err in finding, in the alternative, that the Draft

was admissible under Rule 1004(b) because the original could not be obtained by

any available judicial process. The District Court properly found that “if the

document [was] within the possession of Pacheco, it [was] beyond the reach of

the Court.” Elliott II, 578 F. Supp. 3d at 431. Because there was “no other judicial



                                         20
recourse available,” the original was rendered “as inaccessible as though it had

been lost or destroyed.” Id. (citation and quotation marks omitted).

B.    Summary judgment without discovery was improper in this case.

      Elliott also challenges the District Court’s denial of his request to conduct

discovery before proceeding to consideration of defendants’ summary judgment

motion. We review the denial of Rule 56(d) discovery for abuse of discretion. See

Miller v. Wolpoff & Abramson, L.L.P., 

 (2d Cir. 2003).

      “Only in the rarest of cases may summary judgment be granted against a

plaintiff who has not been afforded the opportunity to conduct discovery.”

Hellstrom, 201 F.3d at 97. Indeed, “summary judgment [should] be refused

where the nonmoving party has not had the opportunity to discover information

that is essential to his opposition.” Anderson v. Liberty Lobby, Inc., 

,

250 n.5 (1986). When a party has not had any opportunity for discovery,

summary judgment is generally premature. See Berger v. United States, 

 (2d Cir. 1996).

      “[W]hen a party facing an adversary’s motion for summary judgment

reasonably advises the court that it needs discovery to be able to present facts

needed to defend the motion, the court should defer decision of the motion until



                                         21
the party has had the opportunity to take discovery and rebut the motion.” Com.

Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 

 (2d Cir. 2001).

This Court articulated a test in Meloff v. New York Life Insurance Co., 

 (2d Cir. 1995), to assess requests pursuant to Rule 56(d):

      A party resisting summary judgment on the ground that it needs
      additional discovery in order to defeat the motion must submit an
      affidavit pursuant to Federal Rule of Civil Procedure 56(d) (formerly
      Rule 56(f)), showing: “(1) what facts are sought and how they are to
      be obtained, (2) how those facts are reasonably expected to create a
      genuine issue of material fact, (3) what effort affiant has made to
      obtain them, and (4) why the affiant was unsuccessful in those
      efforts.”

Lunts v. Rochester City Sch. Dist., 

 (2d Cir. 2013) (summary

order) (quoting Meloff, 

).

      Elliott’s counsel submitted an affidavit in compliance with Rule 56(d)

showing “for specified reasons” that Elliott could not “present facts essential to

justify [his] opposition” without discovery. Fed. R. Civ. P. 56(d); see App’x at

436-49. The District Court denied Elliott’s request solely on the basis of the loss of

the original signed document: “[I]t is clear that a signed copy [of the agreement]

cannot be located. Plaintiff does not suggest otherwise. Thus, this is one of the

‘rarest of cases’ in which summary judgment is appropriate despite the lack of

formal discovery.” Elliott II, 578 F. Supp. 3d at 428 (quoting Hellstrom, 

).

          In the context of this case, the declaration of Elliott’s counsel satisfies the

Meloff test. 12 It identifies the facts Elliott seeks and how those facts could

demonstrate a genuine dispute of material fact. The declaration outlines eighteen

categories of discovery and topics to be pursued and describes what tools Elliott

would use to pursue them. It also indicates the relevance of each category and

the likelihood that the evidence to be obtained would give rise to a genuine

dispute of material fact. See Ass’n of Car Wash Owners, Inc. v. City of New York,

 (2d Cir. 2018).

          For instance, the declaration seeks records, if any, of Cartagena’s

transmission of the Draft for printing at his complex’s concierge. It also seeks

information concerning the relationship between Cartagena and R4 So Valid,

LLC, the entity to which Elliott’s rights to the Song were purportedly assigned.

Further, it seeks information concerning whether the check Elliott received was

intended by the parties to comprise all of the consideration, which the Draft does

not define. We do not address whether all of the information sought in the


12We do not analyze Meloff factors (3) and (4) because Elliott was not afforded
any discovery at all and there is no indication that Elliott could have obtained the
requested information through other means.

                                              23
declaration would ultimately be discoverable under the applicable rules, but we

do not share the District Court’s view that the declaration presents nothing more

than “mere speculation.” Elliott I, 

, at *3; see also Miller, 

 (“[P]laintiff cannot be faulted for failing to advise the district court

precisely what information he might learn during discovery given that the facts

sought were exclusively within defendants’ possession and that he had no

previous opportunity to develop the record through discovery.”).

      The matter of Seneca Beverage Corp. v. Healthnow New York, Inc., 

 (2d Cir. 2006) (summary order), is illustrative. The Seneca Beverage

Court reversed a grant of pre-discovery summary judgment, finding that

plaintiff had “met its burden under Rule 56(f)” to provide affidavits that “point

to potential facts that might raise an issue of material fact, that it has been unable

to obtain without discovery.” 

. The plaintiff in that case argued

that oral communications with the defendant had modified a written agreement.

See 

 This Court reasoned:

      Further discovery as to [defendant’s] recollection of the negotiations
      may clarify the facts of this case, may refresh the recollections of
      Seneca’s employees, and may lead to the discovery of relevant
      statements. Additionally, further discovery as to [defendant’s]
      subsequent actions under the [agreement] -- whether known to
      [plaintiff] at the time or not -- may illuminate the parties’


                                          24
         contemporaneous understanding         of   that   contract,   and   any
         surrounding negotiations.

 13
         Likewise, “[f]urther discovery as to [Cartagena’s] recollection of the [IHOP

meeting and the ‘piece of paper’] may clarify the facts of this case, may refresh

the recollections of [Cartagena and his associates], and may lead to the discovery

of relevant” evidence. 

 (emphasis added). Just as in Seneca Beverage, the

District Court here abused its discretion when it granted defendants’ motion for

summary judgment without allowing Elliott to conduct discovery.

C.       Summary judgment was improper because there are genuine disputes of
         material fact.

         Finally, Elliott challenges the District Court’s grant of summary judgment

on the merits. Although we have already concluded that the District Court erred

by considering defendants’ summary judgment motion without permitting

Elliott to conduct discovery, we address this issue because it may arise on



13Some District Courts have found ambiguity surrounding an alleged agreement
to be a sufficient reason to deny a pre-discovery motion for summary judgment.
See Murphy v. Murphy, No. 20CV02388(AMD), 

, at *2 (E.D.N.Y.
May 3, 2022) (denying pre-discovery motion for summary judgment because
parties disagreed as to whether purported contract was valid and whether it had
been forged or altered); INTL FCStone Markets, LLC v. Agro Santino OOD, No.
20CV02658(JMF), 

, at *1 (S.D.N.Y. June 9, 2021) (denying pre-
discovery motion for summary judgment to allow for “further factual
development” surrounding a disputed agreement).
                                          25
remand. We review the District Court’s grant of summary judgment de novo,

“constru[ing] the evidence in the light most favorable to the” non-moving party

and “drawing all reasonable inferences and resolving all ambiguities in [his]

favor.” Darnell v. Pineiro, 

 (2d Cir. 2017) (citation and quotation

marks omitted). Summary judgment is appropriate only where “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a).

      The District Court granted summary judgment to all defendants, finding

that the Draft “not only resolves plaintiff’s claims regarding ownership and

authorship of ‘All The Way Up,’ but it also resolves plaintiff’s remaining claims.”

Elliott II, 578 F. Supp. 3d at 432. We hold that summary judgment was improper

because genuine disputes of material fact exist as to whether Elliott validly

assigned all of his rights and as to whether any such assignment precludes all of

Elliott’s potential claims.

      First, while Cartagena submitted evidence suggesting that the “piece of

paper” that Elliott signed was identical to the Draft, Elliott submitted competing

evidence suggesting that the “piece of paper” was not identical to the Draft.

Elliott submitted two declarations: In one, he said that the Draft “does not



                                           26
comport with [his] recollection of the document [he] signed,” App’x at 485, and

in both, he said that the document he signed “seemed to state that [he] was going

to be compensated and credited as a writer,” id. at 329, 485 – something the Draft

does not do. Just as the parties’ competing statements raised a genuine issue

about the authenticity of the Draft as a duplicate for purposes of Rule 1003, they

also raise a genuine dispute of material fact for purposes of summary judgment.

      Burt Rigid Box offers a useful contrast. There, the parties were unable to

locate an original insurance policy, and the plaintiff relied on other evidence

under Rule 1004 to prove that it had policy coverage. See Burt Rigid Box, 302

F.3d at 91-93. This Court affirmed a grant of summary judgment in favor of the

plaintiff due to “overwhelming” evidence that the plaintiff had coverage. Id. at

93. But the terms of the policy were not at issue; the parties had agreed that if the

plaintiff had policy coverage, it “would have been [the insurer’s] ‘standard’ or

‘typical’ policy.” Id. Here, while Cartagena may properly introduce the Draft as

evidence of the terms of the final, executed agreement, Elliott maintains in sworn

testimony that the Draft does not accurately reflect the terms to which he agreed,

and defendants’ submissions are not so overwhelming as to establish the terms

as a matter of law before discovery. It is ultimately for the finder of fact, when



                                         27
determining the terms of the original agreement, to decide how much weight to

accord the Draft in light of all the evidence. See United States v. Gerhart, 

 (8th Cir. 1976) (“[O]nce an enumerated condition of Rule 1004 is met, the

proponent may prove the contents of a writing by any secondary evidence,

subject to an attack by the opposing party not as to admissibility but to the

weight to be given the evidence, with final determination left to the trier of

fact.”).

       Second, Elliott established a genuine dispute of material fact regarding

whether Cartagena promised him consideration in addition to the $5,000 check

he received. Elliott submitted sworn testimony stating that Cartagena had

“reassured” him “that [Elliott] was going to get some money then, more later,

that [they] were going to be working together in the studio, and that [Cartagena]

was going to promote [Elliott] as an artist and also [Elliott’s] songs.” App’x at

484-85. Elliott also averred: “At all points it was understood that I was going to

be credited as an author and creator of the song.” Id. at 485. Elliott’s sworn

testimony creates a genuine dispute of material fact as to whether Cartagena

promised him consideration other than the $5,000 check for any assignment of

rights.



                                         28
      Finally, even if the contents of the Draft accurately reflect the terms of the

final agreement between the parties, the plain language of the Draft does not

preclude Elliott from arguing that Cartagena promised him a $5,000 check in

addition to promises of more money, credit as a co-writer, and future

collaboration and promotion. While the Draft’s merger clause states that the

“Agreement contains the entire understanding of the parties,” id. at 323, the

Draft does not specify a crucial piece of that understanding: what the

consideration was. It simply refers to “[t]he consideration set forth above” (with

nothing set forth above). Id. Because the Draft does not define the consideration,

the plain language of the Draft does not preclude Elliott from arguing that the

“good and valuable consideration,” id., that he received at the IHOP meeting

included the additional promises described above and the $5,000 check (the latter

of which Cartagena and the District Court treat as the only consideration). See

DiMauro v. Martin, 

, 8 (Fla. Dist. Ct. App. 2023) (“[A] promise, no

matter how slight, can constitute sufficient consideration so long as a party

agrees to do something that they are not bound to do.” (quoting Diaz v. Rood,




                                         29


 (Fla. Dist. Ct. App. 2003))). 14 Elliott’s sworn testimony

establishes a genuine dispute of material fact on this point.

                                  III. CONCLUSION

      For the reasons stated, we VACATE the judgment and REMAND for

further proceedings consistent with this opinion.




14The District Court applied Florida law to the substantive contract law
questions, an approach that no party contests on appeal, because the Draft states
that “the validity, interpretation and legal effect of this Agreement shall be
governed by the laws of the State of Florida.” App’x at 323. Assuming the parties
agreed to such a provision, Florida law likely applies. “A federal court sitting in
diversity or adjudicating state law claims that are pendent to a federal claim
must apply the choice of law rules of the forum state.” Rogers v. Grimaldi, 

 (2d Cir. 1989). Under New York law, “[a]bsent fraud or violation
of public policy, contractual selection of governing law is generally
determinative so long as the State selected has sufficient contacts with the
transaction.” United States v. Moseley, 

 (2d Cir. 2020) (quoting Int’l
Minerals & Res., S.A. v. Pappas, 

, 592 (2d Cir. 1996)).
                                          30