The Authors Guild v. Google, Inc.

Filing 88

MOTION, to extend time, on behalf of Movant The American Sockety 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 date 02/14/2013 by CM/ECF.[846724] [12-3200]--[Edited 02/15/2013 by KG] [Entered: 02/14/2013 04:06 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 AMICI CURIAE’S 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 Bobb, John Francis
Ficara and David W. Moser (“Amici Curiae”) for a seven (7) day extension of

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time, until February 22, 2013, to file their Amicus brief in the above-captioned
matter.
2.

The Amici Curiae have not previously requested an extension of time

to file the Brief.
3.

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

4.

Defendant-Appellant does oppose the requested extension of time.

5.

The Amici Curiae respectfully submit that good cause exists for the

short extension of time requested for the following reasons:
6.

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, which is
due to be filed this Friday, February 19, 2013.
7.

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”) 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

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because they refute certain arguments advanced by Google, and the Amici
supporting Google, and support Appellees’ brief.
8.

None of these documents were produced in the Authors Guild v.

Google Inc., Civil Action No. 05 CV 8136 (DC) (“AG Action”).1 Given the
volume of Google’s production, the Amici Curiae only recently reviewed and
identified these documents among the hundreds of thousands of documents
produced.
9.

When these documents were brought to my attention, I contacted

counsel to Google in the ASMP Action concerning the issue on Saturday, February
9, 2013. Google’s counsel was unable to meet and confer until Monday, February
11, 2013. On the evening of February 12, 2013, Google’s counsel advised me that
it did not consent to the submission of these documents in connection with the
Brief, necessitating a request by the Amici Curiae to the Honorable Denny Chin.
10.

I submitted a letter request to the Judge Chin the evening of February

12, 2013. On February 13, 2013, my office confirmed with his chambers that it
had received the letter and was advised that the Court would be instructing Google
to respond to the letter forthwith.

1

As part of its production in the ASMP Action, Google produced the entirety of its production
in the AG Action (“AG Production”) to Plaintiffs. Plaintiffs have reviewed the AG Production
and have confirmed that these three documents were not produced in the AG Action.
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11.

At 2:20 p.m. E.S.T. this afternoon I received a copy of the letter

Google submitted, dated February 14, 2013, in opposition to the Amici Curiae’s
letter request to Judge Chin.
12.

The parties are awaiting a decision from Judge Chin.

13.

The Amici Curiae are trying to ensure that the Second Circuit has a

complete record before it in deciding the AG Appeal. Since Plaintiffs-Appellees
do not have these documents in their possession -- because they were not produced
by Google in the AG Action -- they could not have been submitted below or on
this Appeal by Plaintiffs-Appellees. If no extension to file the Brief is granted,
Judge Chin will not have an opportunity to determine whether the Amici Curiae
may move the Second Circuit for leave to submit these documents.
14.

On February 11, 2013, Google filed an unopposed motion for a seven

(7) day extension of time, to March 1, 2013, to file its reply brief. Therefore, in the
event the Amici Curiae’s present Motion is granted, Google will still have seven

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(7) days to respond to the Brief and will suffer no prejudice.
I declare that the foregoing is true and correct, in accordance with 28 U.S.C.
§ 1746.
Dated: February 14, 2013

Respectfully submitted,
/s/
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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