Cambridge University Press et al v. Patton et al

Filing 309

RESPONSE in Opposition to 291 MOTION to Amend Trial Exhibit List attached to the 278 Proposed Pretrial Order filed by J. L. Albert, Mark P. Becker, Kenneth R. Bernard, Jr, Larry R. Ellis, Rutledge A. Griffin, Jr, Robert F. Hatcher, C. Thomas Hopkins, Jr, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, William NeSmith, Jr, Risa Palm, Doreen Stiles Poitevint, Willis J. Potts, Jr, Neil L. Pruitt, Jr, Wanda Yancey Rodwell, Nancy Seamans, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Philip A. Wilheit, Sr. (Attachments: # 1 Exhibit A)(Bates, Mary) Modified on 5/13/2011 in order to update docket text (ank).

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al., Plaintiffs, Civil Action No. 1:08-CV-1425-ODE -vMARK P. BECKER, in his official capacity as President of Georgia State University, et al., Defendants. DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION TO AMEND THEIR TRIAL EXHIBIT LIST Pursuant to Local Rule 7.1(B) and the Court’s May 10, 2011 Order (Dkt. 294) directing Defendants to file their response, if any, by May 12, 2011, Defendants Mark P. Becker, et al., hereby file this response in opposition to Plaintiffs’ Motion to Amend Their Trial Exhibit List (Dkt. 291) (“Motion”). Defendants do not object to the amendment of Plaintiffs’ exhibit list to include the document Bates numbered OUP900003-OUP900005, which Plaintiffs inadvertently left off their exhibit list (See Dkt. 291 at 2), reserving all other objections regarding this document and the associated allegation of infringing use. Defendants oppose the balance of Plaintiffs’ motion. The issue before this Court is whether Plaintiffs will suffer a manifest injustice if the pretrial order is not amended to add to Plaintiffs’ exhibit list seven irrelevant and prejudicial documents that were in Plaintiffs’ or their affiliates’ possession at the time the proposed pretrial order was filed. In the Motion, Plaintiffs move this Court to amend the pretrial order signed by this Court May 2, 2011. (Mot., Dkt. 291; Pretrial Or., Dkt. 280 at 20.) The pretrial order, in accordance with Local Rule 16.4(B)(29) and Federal Rule of Civil Procedure 16(e), states that the Pretrial Order “shall not be amended except by Order of the court to prevent manifest injustice.” (Dkt. 280 at 20 (emphasis added)); see Fed. R. Civ. P. 16(e) (“The order following a final pretrial conference shall be modified only to prevent manifest injustice.”); LR 16.4(B)(29), NDGa (providing limiting language for pretrial order). Plaintiffs have not even attempted to establish any manifest injustice. At most, Plaintiffs claim that these seven additions would not prejudice Defendants, and about this they are wrong. The Defendants would suffer prejudice. First, not only were the documents not listed in the pretrial order, but over half of them were not provided to Defendants until the day the instant motion was 2 filed. (See Email from T. Larson to S. Schaetzel, attached hereto as Exhibit A.) Plaintiffs excuse for not having previously even looked for these documents is that they were motivated to find them in response to Defendants’ Motion In Limine to Exclude Evidence of Alleged Infringement of Improperly-Asserted Copyrights (Dkt. 277), filed the same day as the proposed pretrial order. (Dkt. 291 at 2-3.) But Plaintiffs were under an obligation to look for and produce two of these four documents pursuant to this Court’s scheduling order of November 5, 2010, which provided that “Plaintiffs shall produce . . . [s]upplemental responses to Defendants’ document requests and interrogatories relating to Plaintiffs’ ownership and/or licensing of the subject works.” (Dkt. 240 at 2.)1 It cannot be a manifest injustice to disallow amendment of the pretrial order to add documents Plaintiffs failed to even look for, despite this Court’s order to do so six months earlier. Second, Defendants would be prejudiced by allowing the addition of these two previously-undisclosed documents. Defendants have prepared their defenses to the allegations of infringement of these two works—Vocabulary and Writing: Resource Books for Teachers—based, in part, on Plaintiffs’ failure to produce certain documents they now seek to add. 1 Defendants, for example, included Plaintiffs alleged infringements of the works Vocabulary and Writing: Resource Books for Teachers in the parties’ joint filing on March 5, 2011. (Dkt. 266.) 3 specific objections relating to Plaintiffs’ rights in these works in the parties’ joint filing on March 15, 2010. (See Dkt. 266-4 at 9-10.) They then defended those objections in their response to Plaintiffs’ Motion In Limine to Overrule Objections to Evidence of Alleged Infringements (Dkt. 273). (Dkt. 289.)2 Defendants also filed a motion in limine to exclude evidence of alleged infringement of improperlyasserted copyrights where just such documentation had not been provided (Dkt. 277), leading Plaintiffs to seek out this information in response (Dkt. 291 at 2-3)). And Defendants have prepared their witnesses in accord with their understanding that these documents did not exist. It is far too late for Plaintiffs to be searching for such documents, presenting them for the first time to Defendants, and adding them to the pretrial order. The other two previously-undisclosed documents Plaintiffs propose to add relate to a work not at issue in this case, Evolutionary Medicine and Women’s Health. (See Joint Filing, Dkt. 266 at Exs. A-D.) Accordingly, those documents are irrelevant, inadmissible, and prejudicial. These documents are the subject of 2 Defendants note that Plaintiffs’ “discovery” that they had not produced evidence of their rights to the copyrights of certain subject works after the pretrial order was filed validates the point in Defendants’ Brief in Opposition to Plaintiffs’ Motion In Limine to Overrule Objections to Evidence of Alleged Infringements that until the parties have made their showings on the issue of ownership at trial, it is premature for the Court to rule on Defendants’ objections with regard to Plaintiffs’ ownership, and Plaintiffs’ motion (Dkt. 273) accordingly should be denied. (See Dkt. 289 at 2-5.) 4 Defendants’ previously-filed Motion In Limine to Exclude Irrelevant Evidence in Accordance with Order of September 30, 2010. (See Dkt. 272.) For all of the reasons stated in that motion and the associated reply (Dkt. 301), allowing presentation of evidence regarding works that are not the subject Plaintiffs’ allegations of infringement identified in the parties’ March 15, 2011, joint filing would greatly prejudice Defendants. Defendants would be forced to defend against extraneous allegations of infringement for which discovery was not conducted and witnesses have not been prepared, and which may infringe upon principles of sovereign immunity. The same is true of two more documents Plaintiffs propose to add: EReserves reports for Fall 2005 and Spring 2006. As Defendants’ motion in limine explains, uses of works prior to implementation of the 2009 Copyright Policy fall outside the scope of this litigation, as defined by this Court, and are irrelevant to establishing ongoing and continuous misuse after the adoption of that Policy, thus placing the Court’s consideration of them in violation of principles of sovereign immunity. (See Dkt. 301; Dkt. 272.) Furthermore, as explained in Defendant’s reply to that motion, EReserves does not always reflect actual uses of works thereon listed and does not indicate if a work has been licensed. (Dkt. 301 at 4-5 n.1 & n.2.) Were Plaintiffs to introduce such EReserves reports, Defendants 5 would unreasonably and prejudicially be forced to defend against allegations of use for which Plaintiffs cannot, under principles of sovereign immunity, be granted relief. Because Plaintiffs have not established any manifest injustice for denying their Motion, Defendants assert that the Motion should be denied. Plaintiffs seek to add irrelevant evidence and evidence that is extremely prejudicial to Defendants. Such evidence would require Defendants to defend additional, previouslyunspecified claims of infringement, and reexamine their defenses and objections regarding existing allegations of use. This, despite the fact that Plaintiffs or Plaintiffs’ affiliates at all times had the relevant documents and, in four cases, failed to produce them. In light of the hardship to Defendants and the absence of any demonstration of injustice to Plaintiffs, Plaintiffs’ motion to amend the pretrial order to add six of the seven specified documents (as identified above) should be denied. 6 Respectfully submitted, this 12th day of May, 2011. SAMUEL S. OLENS Georgia Bar No. 551540 Attorney General R. O. LERER Georgia Bar No. 446962 Deputy Attorney General DENISE E. WHITING-PACK Georgia Bar No. 558559 Senior Assistant Attorney General MARY JO VOLKERT Georgia Bar No. 728755 Assistant Attorney General /s/ Mary Katherine Bates Stephen M. Schaetzel Georgia Bar No. 628653 Mary Katherine Bates Georgia Bar No. 384250 KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100 Email: kbates@kslaw.com 7 Anthony B. Askew Special Assistant Attorney General Georgia Bar No. 025300 MCKEON, MEUNIER, CARLIN & CURFMAN, LLC 817 W. Peachtree Street, NW Suite 900 Atlanta, GA 30308 Telephone: (404) 645-7709 Facsimile: (404) 645-7707 Katrina M. Quicker Georgia Bar No. 590859 BALLARD SPAHR LLP 999 Peachtree Street, Suite 1000 Atlanta, GA 30309-3915 Telephone: (678) 420-9300 Facsimile: (678) 420-9301 Email: quickerk@ballardspahr.com Attorneys for Defendants 8 CERTIFICATE OF COMPLIANCE Pursuant to Rule 7.1D of the Local Rules of the Northern District of Georgia, counsel for Defendants certifies that the foregoing DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFS’ MOTION TO AMEND THEIR TRIAL EXHIBIT LIST was prepared in a font and point selection approved by this Court and authorized in Local Rule 5.1C. /s/ Mary Katherine Bates Mary Katherine Bates IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al, Plaintiffs, Civil Action No. 1:08-CV-1425-ODE -vs.MARK P. BECKER, in his official capacity as Georgia State University President, et al., Defendants. CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 12th day of May, 2011, I have electronically filed the foregoing DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFS’ MOTION TO AMEND THEIR TRIAL EXHIBIT LIST with the Clerk of the Court using the CM/ECF system, which will automatically send email notification of such filing to the following attorneys of record: Edward B. Krugman krugman@bmelaw.com Georgia Bar No. 429927 Corey F. Hirokawa hirokawa@bmelaw.com Georgia Bar No. 357087 John H. Rains IV rains@bmelaw.com Georgia Bar No. 556052 R. Bruce Rich Jonathan Bloom Randi Singer Todd D. Larson WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 BONDURANT, MIXSON & ELMORE, LLP 1201 West Peachtree Street N.W. Suite 3900 Atlanta, GA 30309 Telephone: (404) 881-4100 Facsimile: (404) 881-4111 /s/ Mary Katherine Bates Mary Katherine Bates Georgia Bar No. 384250 KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (404) 572-4600 Facsimile: (404) 572-5100 Email: kbates@kslaw.com