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]

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
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Case 1:11-cv-06351-HB Document 47

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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;

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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
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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.

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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.
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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.
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.Date: ---.-.I,..I1,_'1o...&..l_z'o.......l- _
...
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Case 1:11-cv-06351-HB Document 47

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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

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