The Authors Guild, Inc. et al v. Hathitrust et al

Filing 68

ENDORSED LETTER addressed to Judge Harold Baer from Joseph Petersen dated 5/10/2012 re: Discovery dispute and to request direction from the Court on scheduling as it relates to the parties' filing of summary judgment motions. ENDORSEMENT: This problem should have been brought to my attention earlier and certainly not on the eve of the discovery cutoff and I trust it will not happen again. (1) l'd like a list of all depositions-name and role and schedule, (2) the three who are "too busy" will appear in NY wit hin the next ten (10) days at their convenience and I'd like a note from Mr. Salamanca's doctor as to his ability or lack thereof to participate at his bedside or wherever in an hour (1) of questions and answers. (Signed by Judge Harold Baer on 5/14/2012) (cd)

Download PDF
05/10/2012 15: 37 FAX m 212 77 iiii.-ci\oa;;E=--C-== .... ii'K':i'1,L ::---=E=' r-"~-·· l ,... ~ KILPATRICK .... TOWNSEND , "1.fil'>'i":l!'iL......II.'I7'IC'KTON 141002/004 ~- MAY 10 20~ ] KILPATRICK TOWNSEND & STOCKTON UP www.kilpa\ricktownsend.com hAROLD8A~R u.s DISTRICT JUIDGE ATTORNEVS AT LAW S.D.N.Y. The Grace Building 1114 Avenue of the Americas New York, NY 10036 ;212 77S 8700 f212 775 8800 1-;:=============11 USDSSDNY DOCUMENT ELECTRONICALLY FILEDj May 10,2012 DOC#: __--~+n~~r DATE FILED: VIA FACSIMILE direct dial 212 775 8715 direct fax 212 775 8815 rsen@kiJpatricktownsend.com The Honorable Harold Baer, Jr. United States District Judge Daniel Patrick Moynihan United States C~urthouse 500 Pearl Street ' New York, New York 10007 Re: The Authors Guild, et al. v .• HathiTrust, et ai., Civil No. 11 CV 6351 (HB) (JLC) Your Honor: We represent the universities and university presidents on behalf of their libraries ("Libraries") in the above-referenced action. We write in advance of the May 17 hearing scheduled in this matter to raise a discovery dispute with the court and to request direction from the Court on scheduling as it relates to the parties' filing of summary judgment motions (which, under the Court's current scheduling order, are due to be fully briefed by July 20). Discovery Dispute - Scheduling of Plaintiffs' Depositions For at least the past few weeks we have been in discussions with plaintiffs' counsel concerning scheduling of depositions pursuant to our previously served deposition notices. Our efforts to finalize a schedule for takiI).g the depositions have unfortunately been met with resistance from plaintiffs. They have cla~ed that plaintiff J.R.~a~~:~~lt;!l)n ill health and vWlllot be dcpo~cd rcgllrdlc33 of location (oyen in hio horne in 1\ s.ry and). ey have also claimed that other noticed plaintiffs residjng outside of New York (three witnesses in total) are too busy to appear for a deposition infNew York notwithstanding the general and longstanding rule that a plaintiff who brings suit in a particular forum may not avoid appearing for examination in that forum. t I See, e.g., A.I.A. Holdings, S.A. v. Lehman Bros., l~'C., 97 Civ. 4978,2002 WL 1041356, at *1 (S.D.N.Y. May 23, 2002) ("[I]t is well settled that a plaintiff is ordinar Iy required to make him or herself available for a deposition in the jurisdiction in which the action is brought."); G otrian, HelJferich Schulz, Th. Steinweg Naclif v. Steinway and Sons, 54 F.R.D. 280,281 (S.D.N.Y. 197J) ("Since plaintiff has chosen this forum, it cannot impose upon defendant the extraordinary expense and burden of traveling tb a foreign country to conduct a deposition except on a showing of burden and hardship to the plaintiff."). I ATLMTA ~IT.A CHARLOTTI Dl.JrnR DUliAI N£wyOftK OAKlA.!..o RA1J!:;QJt &ANDaI;OO ~FRNCQ.CQ HAT1l..4 .ILICOHVALLE"I f{f~ TAIPEI TOKYO W~CREEK WA'HINOTON:,oe WWSl"QN-.SAt.E1IIl I 05/10/2012 15:38 FAX 212 775 8800 KILPATRICK STOCKTON Ig] 003/004 The Honorable Harold Baer, Jr. May 10,2012 Page 2 . i, '. We regret having to involve the C~urt in an issue that we would have hoped to have resolved without Court intervention. HO\\fever, we believe we have no choice but to raise this dispute with the Court in view of the fast approaching May 20 cutoff for fact discovery. We therefore request that the Court order the noticed plaintiffs (with the exception of Mr. Salamanca) to appear for deposition in N~ York no later than May 24.2 , Scheduling Issue On May 17, the Court will hear argument in connection with the Libraries' pending / motion requesting that the Court dismiss 41aims: (1) by associational plaintiffs that lack standing to represent unnamed and unkno~n authors; and (2) relating to non-justiciable I "orphan works" issues. As Your Honor recall, this past March the Court adjournJP6~ hearing on the Libraries' motion in order to consolidate the hearing on a motion file~ plaintiffs days before the then scheduled hearing on the Libraries' motion. ~ will Plaintiffs have expressed agreement to producingiwitnesses outside of the M 20 cutoff for fact discovefiin t IS Action. We assume that the Court has no objectioq to our taking such depositions because our doing so wQld have 0 no effect on any other deadlines set out in the Court's November 19, 2011 Pretrial Scheduling Order. 2 ! 05/10/2012 15:39 FAX 212 775 8800 KILP~ICK STOCKTON The Honorable Harold Baer, lr. May 10,2012 Page 3 Robert J. Bernstein, Esq., Dan Gol~tein, Esq. (counsel for Intervenors) ~004/004 - I Endorsement: This problem should have been brought to my attention earl and certainly not on the eve the discovery cutoff and I trust it will not happen agaip. (1) l'd like a list of all depositions - name and role and! schedule, (2) the three who are "too busy" will appear in NY wit:hin the next ten (10) days at their convenience and I'd like a note from Mr. Salamanca's doctor as to his ability or lack therebf to participate at his bedside or wherever in an hour (l) of questions and answers.