Authors Guild, Inc. v. Hathitrust

Filing 101

MOTION, to seal document, on behalf of Appellee Mary Sue Coleman, Cornell University, Hathitrust, Michael McRobbie, Kevin Reilly and Mark G. Yudof, FILED. Service date 05/28/2013 by CM/ECF. [948371] [12-4547]

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IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT THE AUTHORS GUILD, INC., et al., Case No. 12-4547-cv Plaintiffs-Appellants, v. HATHITRUST, et al., Defendants-Appellees. DECLARATION OF JOSEPH PETERSEN IN SUPPORT OF DEFENDANTS-APPELLEES’ MOTION FOR PERMISSION TO FILE SEALED BRIEF I, Joseph Petersen, declare as follows: 1. I am a partner at the law firm of Kilpatrick Townsend & Stockton LLP, attorneys for the Defendants-Appellees in the above-captioned action, and am admitted to practice in the United States Court of Appeals for the Second Circuit. 2. This declaration is submitted in support of Defendants-Appellees’ Motion for Permission to File Sealed Brief. 3. Attached as Exhibit A to this declaration is a true and correct copy of the Stipulation and Protective Order signed by the District Court in this case on January 24, 2012. I declare under penalty of perjury under the laws of the United States and the State of New York that the foregoing is true and correct. Dated: May 28, 2013 /s/ Joseph Petersen Joseph Petersen EXHIBIT A Case 1:11-cv-06351-HB Document 47 Filed 01/24/12 Page 1 of 7 USDSSDNY DOCUMENT ELECTRONICALLY FILED DOC#: ____~~~~_ DATE FILED: UNJTED STATES DISTRICT COURT SOUTIlERN DISTRICT OF NEW YORK -.-....---..---··---,·-----··-.-..-x THE AUTHORS GUILD, INC.• et ai, Index No. 11 Civ. 6351 (HB) Plaintiffs, - againSl- HA1HITRUST. ct aI. Defendants. ---,----X -.-----------~.-. mlULATION AND PRO'I'EC'I'IVI; ORDER WHEREAS, the parties to the above-captioned action have agreed 10 the following terms of confidentiality, and the Court baving found that good cause exists for issuance ofan appropriately-tailored confidentiality order govcrning the pre-trial phase of this action, it is therefore hereby ORDERED that any person subject to this Order - including. without limitation, tbe: parties to this action, their representatives, agents, experts and consultants. all third parties providing discovery in this action. and all other interested persons with actual or constructive notice of this Order - shall adhere to the terms set forth below, upon pain ofcontempt. I. This Protective Order shall govern aU "Discovery Material" (i.e., illfonnation of any kind provided in the course of discovery in this action) produced or disclosed by any person ("Prod~ina Party" to any other person ("Receiving Party"), when same is desisnated as "Confidential" or "For Attorneys' Eyes Only" pursuant to the tenns of this Order ("Confidential Discovery Materialj. A Receiving Party shall not disclose such Confidential Diseovcry Material to anyone else: ex.cept as expressly pcnnltted hereunder. 2. A Producing Party and/or its attorney may designate as Confidential any materials that the Producing Party reasonably believes reflect confidential. proprietary andlor trade secret information and/or other private infonnation by stamping or otherwise clearly PICKS: 44080.vl 19894.:100 Case 1:11-cv-06351-HB Document 47 Filed 01/24/12 Page 2 of 7 marking the page, pages or media where such confidential infonnation or material is contained as "CONFIDENTIALM prior to disclos~ or by other written communication expressly designating the Information or material as confidential. With respect to deposition transcripts and exhibits. any pm?n or that person's counsel may designate as Contidentlallnformation disclosed at a deposition taken in connection with this proceeding by: I. designating testimOflY as Confidential on the record during the taking or the deposition, in wbich case the court reporter shall mark each page as provided above; or b. notifying all other parties in writing, within fourteen (14) calendar days, or other such time as the parties may agree in writing. after receipt of the lranscrlptofa deposition, of specific pages and/or lines thereof to be treated as Confidential. 3. The transcript of any deposition and all exhibits or attachments shall be considered Contldential for fourteen (14) days following the date of service of the transcript by the party that took the deposition.!f at any time prior to the trial ofthis action, a Producing Party realizes that some portiones) of Discovery Material that that PIlrty previously produced without limitation should be designated as Confidential or For Attorneys' Eyes Only, it may so designate by so appriSing all parties in writing. and such designated portion(s) orthc Discovery Material will thereafter be treated as Confidential under the terms of this Order. 4. No person subject to this Order other than the Producing Party shan disclose any of the Discovery Material designated by the Producing Party as Confidential to any other person whomsoever, except to: (a) the principtlls. employees, Insurers and agents of the parties to this action; (b) counsel retained specifically for this action, including any paralegal. clerical and other assistant employed by suc:h counsel and assigned to this matter; fKKS: "'CIIO.vl 2 19&94..:100 Case 1:11-cv-06351-HB Document 47 (c) Filed 01/24/12 Page 3 of 7 as to any document, 115 author, its addressee. and any other person indicated on the face of the document as having received a copy: (d) any witness who counsel for a party in good faith believes may be called to testitY at trial or deposition in lhis action. provided such person has first e,,"uted a Non-Disclosure Agreement in the form annexed as an Exhibit hereto; (e) any person retained by a party to serve as an expert witness or otherwise provide specialized advice to counsel in connection with this action, provided such person has first executed a Non-Disclosure Agreement in the form annexed as an Exhibit hereto; (f) stenographers engaged to transcribe depositions conducted in this action; and (g) 5. the Court and its suppon personnel. Prior to any disclosure of any Confidential Discovery Material to any person refemd to in subparagraphs 4(d) or4(e) above, such person shan be provided by counsel with a copy or this Protective Order and shall sign a Non-Disclosure Agreement in the form anncoced as an Exhibit hereto stating that that person has read this Order and agrees to be bound by its terms. Said counsel shall retain each signed Non-Disclosure Agreement and produce it to opposing counsel either prior to such person being permitted to testify (at deposition or trial) or at the conclusion of the case, whichever comes first. 6. All Confidential Discovery Material filed with the Court, and all portions pleadings, motions or other papers filed with the Court that disclose such Confidential Discovery Material, shall be filed under seal with the Clerk of the Court and kept under seal until further order of the Court. This provision shall be subject to Section S.M of this Court's Individual FICXS: ..... 080,". 3 19194.300 Case 1:11-cv-06351-HB Document 47 Filed 01/24/12 Page 4 of 7 Practices. which p!:Ovides that a party or parties seeking to file a pleading under seal must first obtain leave ofthe Court. The parties will use their best efforts co minimize such scaling. 7. Any party who either objects to any designation of confidentiality, or who, by contrast, requests still further limits on disclosure (such as "For Attorneys' Eyes Only," as provided for below), may at any time prior to the trial of this action serve upon counsel for the Producing Party a written nodce stating with particularity the grounds of the objection or request If agreement cannot be reached within five (5) calendar days, counsel for all affcc::ted persons will convene a joint telephone call with the Court or follow other procedures set forth by the Court to obtain a ruling. 10c materials at issue shall continue to be treated in the manner desisnatcd by the Producing Party until the parties reac::h written agreement as to a new designation, or until the Court orders otherwise. 8. As a subset of Confidential Di$COvery Material, a Producing Party shall have the right to designate Discovery Material as "For Attorneys' Eyes Only" If it reasonably believes that such materials contain trade secrets or highly confidential, non-public, personal or proprietary business infonnalion. disclosure of which could be especially detrimental or harmful to the Producini Party if publicly disclosed. Contldential Discovery Material marked "For Attorneys' Eyes Only" may only be shown to the Receiving Party's in-house counsel and the persons identitled in sub-paragraphs 4(b). 4(c), 4(0), 4(f), and 4(g) above. 9. If. in connection with this litigation, a party inadvertently discloses information subject to a claim ofattorney-client privilege or attorney worle. product protection ("Inadvertently Disclosed Information,,), such disclosure shall not constitute or be deemed a waiver or forfeiture of any claim of priv ilege or work product protection with respect to the Inadvertently Disclosed Information and its subject matter. flCJ{S: 4480111>.\11 4 19'94.)00 Case 1:11-cv-06351-HB Document 47 10. Filed 01/24/12 Page 5 of 7 If a Producing Party makes a claim of inadvertent disclosure, the receiving party shall, within five business days. retum or destroy aU copies of the Inadvertently Disclosed Information, and provide a certification ofcounsel that all such information has been returned or destroyed. II. The Receiving Party may move the Court for an Order compelling production of the Inadvertently Disclosed Information. The motion shall be filed under seal, and shall not assert as a ground for entering such an Order the fact or circumstances of the inadvertent production. 12. The Producing Pany retains the burden of establishing the privileged or protected nature ofany Inadvertently Disclosed Information. Nothing in this Order shaUlimit the right of any party to request an in camera review of the Inadvertently Disclosed Information. 13. Northing herein shall be construed to affect in any manner the admissibility at trial ofany document, testimony or other evidence. 14. This Proteotive Order shall survive the termination of the litigation. Within thirty (30) days of the final disposition ofthis action. all Discovery Material designated as Confidential or for Attorneys' Eyes Only. and al1 copies thereof, shall be promptly returned to the Producing Party, or, upon pennission ofthe Producing Party, destroyed. Any party destroying such materials shall deliver to the Producing Party an affidavit certifYing the same. IS. If Confidential Discovery Material is disclosed to any person odler than in the manner authorized by this Order, the party responsible for the disclosure shall. Immediately upon leaming of such disclosure, Inform the Producing Party of all pertinent facts related to such dis,Josurc, and make every effort to recover all copies ofthe Confidential Discovery Material and prev?"t fUrther disclosure or dissemination by each unauthorized person who received such Confidential Discovery Material. FKKS: ....CIO.yl s 19S94.JOO Case 1:11-cv-06351-HB Document 47 16. Filed 01/24/12 Page 6 of 7 Nothing contained in this Order shall preclude a Producing Party from using its own Confidential Discovery Infonnatlon in any manner it sees fit, without prior «:onsent of any party or the Court. t 7. The terms ofth!s Order may be amended or modified by wriUen agreement of the parties, or upon motion and order of tile Court. t 8. The entry ofthis Order docs not prevent any party from seeking a furcher order of this Court pursuant to Federal Rule ofCivii Procedure 26(c). 19. This Court shall retain jurisdiction over all persons subject to this Order to the extent necessary to enforce any obligations arising hereunder or to impose sanctions for any contempt thereof. SO STIPULATED AND AGREED this ~ay of January, 2012. FRANKFURT KURNlT KLEIN & SELZ,P.C. By: (~~ ~'\ (La .. l.,,,A By: <::~~~~~===rsen (JP-907I) 31 West S2nd Street. 14111 Floor New York., New York 10019 (212) 775-B700 --~--~~--~~~~~--- Edward H. Rosenthal (ER-B022) Jeremy S. Goldman (J0-7402) 488 Madison Avenue New York, NY 10022 (212) 98()"0120 Attorneys/or De/em/an's Attorneys/or Plalnl!ffs SO ORDERED. Sealed documents may be unsealed. upon notice to the parties, pursuant to further order of the Court. <iW~~ Hon. Harold Baer, Jr. U.S.D.J. Hon. Harold Baer, Jr., U.S.OJ. FKKS: 448080.vl 6 .Date: ---.-.I,..I1,_'1o...&..l_z'o.......l- _ ... . '_ 19894.300 Case 1:11-cv-06351-HB Document 47 Filed 01/24/12 Page 7 of 7 UNfTED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -....---- ----x THE AUTHORS GUfLD. INC., et al. Index No. 11 Civ. 6351 (HB) Piainti (fs. - against- HATHITRUST. ct al. Defendants. ---------------·-x NON-PISCLQSUg AGREEMENT I. _ _ _ _ _ _ _ _---J. acknowledge that I have read and understand the Protective Order in thls action governing tho non-disclosurc ofthose portions of Discovezy Material that have: been designated as Confidential. I agree that [ will not disclose such Confidential Discovery Material to anyone other than for purposes of this litigation and that at the conclusion of the litisation I will return all discovery information to the party or attorney from whom I received It. By acknowledging these obligations under the Protective Order, I understand that I am submitting myself to the jurisdiction of the United States District Court for the Southom District ofNcw York for the purpose of Iny issue or dispute arising hereunder and that my willful violation of any term ofthe Protective Order could subject me to punishment for contempt ofCourt. Dated: ______ By: _______________________________ FKICS; 44I0I0 y 1 19.~ 300

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