The Authors Guild v. Google, Inc.

Filing 146

OPPOSITION TO MOTION to file amended sealed amicus curiae brief [138],to file supplemental appendix [138], on behalf of Appellant Google, Inc., FILED. Service date 03/11/2013 by CM/ECF. [870869][146] [12-3200]--[Edited 03/11/2013 by KG] [Entered: 03/11/2013 02:12 PM]

No. 12-3200
IN THE UNITED STATE 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, Entered on
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
___________________
OPPOSITION TO AMICI MOTION TO FILE AMENDED AMICUS
BRIEF AND TO SUPPLEMENT THE APPELLATE RECORD
The sole purpose of Amici’s motion is to place documents before this Court
that Amici obtained in a different case and that were not submitted below or in this
appeal by Plaintiffs-Appellees. Amici Mot. 5-6. Amici concede that these
documents were not part of the record below, and are therefore not part of the
appellate record. Id.; see also Fed. R. App. P. 10(a) (“[T]he record on appeal”
includes “the original papers and exhibits filed in the district court[.]”). Amici
concede as well that their request is “unusual” and that appellate courts grant such
requests only in “‘exceptional circumstances.’” Amici Mot. 6 (quoting Wiggins

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Bros., Inc. v. Department of Energy, 667 F.2d 77, 83 (Temp. Emer. Ct. App.
1981); see also id. (“in the absence of exceptional circumstances, amicus curiae is
not entitled to introduce additional evidence (particularly evidence offered in
another action after entry of the judgment which is the subject of this appeal)”).
Amici do not, however, identify anything remotely exceptional about the
circumstances here.
Ordinarily, this Court will allow parties to supplement the record only with
“material” documents that were “omitted from or misstated in the [district court]
record by error or accident,” which is the sole circumstance described in the
Federal Rules of Appellate Procedure. Fed. R. App. P. 10(e)(2); see, e.g., Gasser
v. Amboy Nat’l Bank, No. 11-3773, Doc. No. 216, at 2 (2d Cir. Jan. 3, 2013)
(“Motions to supplement the record are governed by Rule 10(e)[.]”); Tehan v.
Sacred Heart Univ., 388 F. App’x 42, 45 (2d Cir. 2010) (A party seeking to
supplement the record “must satisfy the requirements of Fed. R. App. P. 10(e)(2)
by demonstrating that such evidence was erroneously or accidentally omitted from
the record.”); Jeffreys v. United Techs. Corp., 357 F. App’x 370, 372-373 (2d Cir.
2009) (denying motion to supplement for failure to show that the supplemental
documents “were omitted from or misstated in the record”); Leibowitz v. Cornell
Univ., 445 F.3d 586, 592 n.4 (2d Cir. 2006) (declining to supplement the record
with new evidence where appellant did not “provide evidence of an erroneous or

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accidental omission of material evidence”). Amici do not contend that any error or
accident occurred here.
Instead, Amici argue that their request is “exceptional” because the
documents at issue are “highly relevant,” and were produced in a related case, but
not below. Amici Mot. 7. But that hardly makes their request exceptional. Parties
regularly attempt to expand the appellate record with documents they believe are
relevant to issues raised on appeal, and this Court regularly rebuffs those attempts.
See, e.g., United States Polo Ass’n v. PRL USA Holdings, Inc., 2013 WL 490796,
at *5 (2d Cir. Feb. 11, 2013); DeBoe v. Du Bois, 2012 WL 5908447, at *3 n.1 (2d
Cir. 2012); Weaver v. Indymac Fed. Bank, FSB, 488 F. App’x 522, 523 (2d Cir.
2012); Weisshaus v. Port Auth. of N.Y. & N.J., 2012 WL 4123185, at *3 (2d Cir.
Sept. 20, 2012). That includes cases in which the documents were obtained in
another case. See Gasser, Doc. No. 216, at 2 (denying motion to add transcript
from a deposition taken in another case); United States v. Allen, 472 F. App’x 35,
37 (2d Cir. 2012) (denying motion to add trial transcripts from a different
proceeding). Given how regularly such attempts are made, it is difficult to imagine
any request less “exceptional” than the one Amici now make.
Moreover, Amici are incorrect that the documents they seek to present are
relevant to the issues on appeal. Amici first claim (at 8-9) that the documents are
relevant because they purportedly prove that Google Books does not provide

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market benefits to authors, which is relevant to the fourth fair use factor. But that
is not what the documents show, and in any event, Amici’s claim confuses the
merits of Google’s fair use defense with class certification. At issue in this appeal
is how fair use will be adjudicated, not whether Google’s fair use defense should
be upheld. In its opening brief, Google pointed to considerable evidence (at 3032)—including testimony from the Executive Director of the Authors Guild—that
different authors benefit in different ways and to different extents from Google
Books. Amici’s documents could not in any way relieve the district court of the
need to consider such individual evidence before rejecting Google’s fair use
defense. Accordingly, the documents are irrelevant to the only fair use-related
question the Court must answer in this appeal: whether individual fair use issues
preclude a finding of predominance under Rule 23(b)(3).
Amici also contend (at 9-11) that the documents are relevant to Google’s
argument that Appellees-Plaintiffs cannot adequately represent class members who
benefit from Google Books and do not want to see it undone. But in their own
amended amicus brief, Amici do not even refer to or cite these documents in
connection with the adequacy issue. See Berube Decl., Ex. A, at 4, 7-12
(discussing adequacy without referencing or citing new documents). It is therefore
difficult to see what relevance the documents could have to the Court’s
consideration of the adequacy issue.

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Finally, Amici accuse Google (at 3-5, 7-8) of improperly withholding these
documents from Plaintiffs-Appellees in discovery. Even putting aside the
propriety of non-parties raising a supposed discovery dispute and asking an
appellate court to adjudicate it, there is absolutely no merit to Amici’s accusation.
Amici claim (at 3-4) Google should have produced these documents in response to
four document requests. But the first three of those requests were made during the
initial period of document discovery, which ended in 2007 (see Gratz Decl. ¶ 2),
before any of Amici’s documents were created (in 2008 and 2011) (see Berube
Decl., Ex. B). And when discovery resumed in 2011, the parties agreed that
Google would not be required to supplement its responses to earlier document
requests. See Gratz Decl. ¶ 3. As for the fourth request, Google only agreed to
“produce formal corporate analyses responsive to th[at] request,” and none of
Amici’s documents meet that description. See Berube Decl., Ex. D, at 7. In short,
Amici have their facts wrong—unsurprisingly, since they were not involved in any
of the relevant discovery in this case.
Amici are free to submit an amicus brief that does not refer to these
documents, which in fact, they have already done with Google’s consent (see Doc.
No. 107). It would, however, be fundamentally unfair to allow Amici to inject new
documents into the closed record of this appeal, without Google having had an

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opportunity to respond with new documents of its own. Amici’s motion should be
denied.

Dated: March 11, 2013

Respectfully submitted,
/s/ Seth P. Waxman
SETH P. WAXMAN
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
[phone]
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Second Circuit by using the
appellate CM/ECF system on March 11, 2013. All participants in the case are
registered CM/ECF users and will be served by the appellate CM/ECF system.

/s/ Seth P. Waxman
SETH P. WAXMAN

CERTIFICATE OF ELECTRONIC FILING
I hereby certify that I electronically filed a pdf version of the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Second
Circuit by using the appellate CM/ECF system on March 11, 2013. Prior to
transmittal, the pdf was scanned for viruses and no viruses were detected.
/s/ Seth P. Waxman
SETH P. WAXMAN