The Authors Guild v. Google, Inc.

Filing 130

MOTION to extend time, on behalf of Movant The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Council of America, Inc., North American Nature Photography Association, Professional Photographers of America, Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback, Leland Bobbe, John Francis Ficara and David W. Moser, FILED. Service date02/22/2013 by CM/ECF.[854741] [12-3200]--[Edited 02/25/2013 by KG] [Entered: 02/22/2013 09:21 PM]

No. 12-3200
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

THE AUTHORS GUILD, INC., et al.,
Plaintiffs-Appellees,
v.
GOOGLE, INC.,
Defendant-Appellant.

On Appeal from an Order Granting Certification of a Class Action, Dated May 31,
2012, by the United States District Court for the Southern District of New York,
No. 1:05-cv-08136 Before the Honorable Denny Chin

DECLARATION IN SUPPORT OF EMERGENCY MOTION FOR
EXTENSION OF TIME TO FILE AMICUS BRIEF
Mark A. Berube hereby declares as follows:
1.

I am a partner in the law firm of Mishcon de Reya NY LLP. I submit

this Declaration in support of the emergency motion of Amici Curiae American
Society of Media Photographers, Inc., Graphic Artists Guild, Inc., Picture Archive
Counsel of America, Inc., North American Nature Photography Association,
Professional Photographers of America, Leif Skoogfors, Al Satterwhite, Morton
Beebe, Ed Kashi, John Schmelzer, Simms Taback, Leland Bobbe, John Francis
Ficara and David W. Moser (“Amici Curiae”) for a three (3) business-day

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extension of time, until February 27, 2013, to file their sealed and redacted Amicus
brief in the above-captioned matter (“Sealed Brief”).
2.

The Amici Curiae respectfully submit that good cause exists for the

short extension of time requested for the following reasons:
3.

The Amici Curiae sought and obtained consent from Plaintiffs-

Appellees and Defendant-Appellant (“Google”) to file an Amicus Brief (“Brief”) in
support of Plaintiffs-Appellees’ request that the United States Court of Appeals
for the Second Circuit (“Second Circuit”) affirm the District Court’s Order
granting Plaintiffs’ Motion for Class Certification, dated May 31, 2012.
4.

In support of the Brief, the Amici Curiae would like to submit three

(3) documents that were produced by Google to Amici Curiae in the related action
American Society of Media Photographers, Inc., et al. v. Google, Inc., Civ. Action
No. 10-CV-2977 (DC) case (“ASMP Action”)1 and designated as “Confidential” or
“Highly Confidential” pursuant to the Protective Order (Docket No. 68) in that
case. The Amici Curiae believe these documents are relevant to the Appeal
because they refute certain arguments advanced by Google, and the Amici
supporting Google, and support Appellees’ brief.

1

None of these documents were produced in the Authors Guild v. Google Inc., Civil Action No.
05 CV 8136 (DC) (“AG Action”), the lawsuit at issue in the instant Appeal. As part of its
production in the ASMP Action, Google produced the entirety of its production in the AG Action
(“AG Production”) to the ASMP plaintiffs. The ASMP plaintiffs have reviewed the AG
Production and have confirmed that these three documents were not produced in the AG Action.
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5.

Because of the Protective Order, the Amici Curiae submitted a letter

request to the Honorable Denny Chin for permission to submit these documents to
the Second Circuit under seal in connection with a motion for permission to file
these documents and the Sealed Brief referencing them (“Motion”).
6.

On February 14, 2013, the Amici Curiae filed a motion for extension

of time to file the Sealed Brief from February 15, 2013 to February 22, 2013
(Docket No. 88) in order to allow Judge Chin time to consider Amici Curiae’s
request.
7.

On February 15, 2013, the original deadline for Amici Curiae’s Brief,

Judge Chin granted the Amici Curiae’s request in the ASMP Action and a copy of
Judge Chin’s Order was submitted to the Second Circuit on February 20, 2013
(Docket No. 116-2).
8.

Since the Second Circuit did not rule on the Amici Curiae’s extension

to file the Sealed Brief before the Brief was due, the Amici Curiae filed the Brief
on February 15, 2013 (Docket No. 107).
9.

This afternoon, the Second Circuit granted the Amici Curiae’s request

for a one-week extension of time (Docket No. 126).
10.

While the Amici Curiae greatly appreciate the Court’s extension, they

could not have the Sealed Brief printed in time by a vendor to meet today’s
extended deadline. The requested one-week extension expired on the day it was

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granted, which was today. Accordingly, the Amici Curiae respectfully request a
three (3) business-day extension, until February 27, 2013, to file the Sealed Brief
and related Motion.
11.

Plaintiffs-Appellees do not oppose the requested extension of time.

12.

Google takes no position as to the requested extension of time, but

requests that should the extension be granted that it also be granted a three (3)
business-day extension of time to file its Reply.
I declare that the foregoing is true and correct, in accordance with 28 U.S.C.
§ 1746.
Dated: February 22, 2013

Respectfully submitted,
/s/Mark A. Berube
a
Mark A. Berube
MISHCON DE REYA NEW YORK LLP
750 7th Avenue, Floor 26
New York, New York 10019
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Amici Curiae The American
Society of Media Photographers, Inc.,
Graphic Artists Guild, Picture Archive
Council of America, Inc., North American
Nature Photography Association,
Professional Photographers of America,
Leif Skoogfors, Al Satterwhite, Morton
Beebe, Ed Kashi, John Schmelzer, Simms
Taback, Leland Bobbe, John Francis Ficara
and David W. Moser

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