Authors Guild, Inc. v. Hathitrust

Filing 209

MOTION, to seal document, on behalf of Appellant Australian Society Of Authors Limited, Australian Society Of Authors Limited, Authors Guild, Inc., Authors League Fund, Inc., Authors' Licensing and Collecting Society, Pat Cummings, Pat Cummins, Erik Grundstrom, Angelo Loukakis, Norsk Faglitteraer Forfatter0OG Oversetterforening, Roxana Robinson, Helge Ronning, Andre Roy, Jack R. Salamanca, James Shapiro, James Shapiro, Daniele Simpson, Danielle Simpson, T.J. Stiles, Sveriges Forfattarforbund, Union Des Ecrivaines Et Des Ecrivains Quebecois, Fay Weldon and Writers' Union of Canada, FILED. Service date 06/21/2013 by CM/ECF. [971858] [12-4547]

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: [phone]
MOTION INTORMATION STATEMENT

Docket Number(s):

Motion for:
Set forth

1 24547

Caption [use short titlel

Authors Guild, Inc., et al. v. HathiTrust, et al.

Permission to File Sealed Reply Brief

below precise, complete statement of relief sought:

Plainitffs-Appellants intend to refer to portions of the
record in their reply brief that could be considered
confidential under the Protective Order entered by
the District Court (attached to declaration).
MOVING PARTY: Plaintiffs-Appellants
Defendant
Plaintiff
Appellee/Respondent
AppellantIPetitioner
11

OPPOSING PARTY:

Defendants-Appellees

Li

MOVING ATTORNEY:

Edward H. Rosenthal

OPPOSING

ATTORNEY:

See attached

[name of attorney, with firm, address, phone number and e-mail]

See attached

Frankfurt Kurnit Klein & Selz, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
[phone]; [e-mail]
Court-Judge/Agency appealed from:

Please check appropriate boxes:
Has mov

otified opposing counsel (required by Local Rule 27.1):
YesNo (explain):__________________________________

FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND
INJUNCTIONS PENDING APPEAL:
No
Yes
Has request for relief been made below?
Yes
No
Has this relief been previously sought in this Court?
Requested return date and explanation of emergency:______________________

Opposin counsel’s position on motion:
Unopposed 3pposed LiDon’t Know

Does opposing counsel intend to file a response:
YesNo LiDon’t Inow

IIYes IINo

Is oral argument on motion requested?

Yes

Has argument date of appeal been set?
Si

nature of

Movin Attorne

Edward H. osen’hal

Date:

(requests for oral argument will not necessarily be granted)

No If yes, enter date:__________________________________________________________________

6/21/2013

Service by: CMIECF

flOther [Attach proofof service]

ORDER
IT IS HEREBY ORDERED THAT

the motion is GRANTED

DENIED.

FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court

By:

Date:

Form T-1080

(rev.

7-12)

OPPOSING COUNSEL

Joseph Petersen
Robert Potter
Kilpatrick Townsend & Stockton LLP
1114 Avenue of the Americas
New York, NY 10036
[phone]
[e-mail]
Joseph Beck
Andrew Pequignot
Allison Scott Roach
Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309
[e-mail]
Attorneysfor Defendants-Appellees

Daniel F. Goldstein
Jessica P. Weber
Brown, Goldstein & Levy, LLP
120 E. Baltimore Street, Suite 1700
Baltimore, Maryland 21202
[phone]
dfgbrowngold.com
Robert J. Bernstein
The Law Office of Robert J. Bernstein
th
380 Lexington Avenue, 17 Floor
New York, New York 10168
[phone]
rjbrobert-bernsteinlaw.com
Peter Jaszi
5402 Surrey Street
Chevy Chase, Maryland 20815
[phone]
pj [e-mail]
Attorneysfor Intervenor Defendants-Appellees

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

x

THE AUTHORS GUILD, INC., et al.,
Plaintiffs -Appellants,
-

against

:

-

Docket Number: 12-4547

HATHITRUST, et a!.,
Defendants-Appellees.

DECLARATION OF EDWARD H. ROSENTHAL IN SUPPORT OF PLAINTIFFSAPPELLANTS’ MOTION FOR PERMISSION TO FILE SEALED REPLY BRIEF

I, Edward H. Rosenthal, hereby declare under penalty of perjury, pursuant to 28 U.S.C.
1746, that the following is true and correct:
1.

I am an attorney licensed to practice in the State of New York and before this

Court. I am a member of the law firm Frankfurt Kurnit Klein & Selz, P.C., counsel for
Appellants.
2.

This declaration is submitted in support of Appellants’ Motion for Permission to

File Sealed Reply 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.

Dated: New York, New York
June 21, 2013

Edward H. Rosenthal
1

§

><
I

m

Case 1:11-cv-06351-HB Document47

Filed 01/24/12 Page 1 of 7
-,i

USDS SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:

01%.

DATE FILED:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
—-

THE AUTHORS GUILD, INC., et al,
IndeA No. 11 Civ. 6351 (JIB)
Plaintiffs,
-againnt

HATHITRUST, ci al.
Defendants.
—.———--___

STIPULATION AND PROTECTIVE ORDER
WHEREAS, the parties to the above-captioned action have agreed to the fbllowing terms
of confidentiality, and the Court having found that good cause exists for issuance of an
appropriately-tailored confidentiality order governing the pm-trial phase of this action, ii is
therefore hereby
ORDERED that any person subject to this Order Including, without limitation, the
—

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 of contempt.
—

I.

This Protective Order shall govern all “Discovery Material” (i.e., information of

any kind provided in the course of discovery in this action) produced or disclosed by any person
(“Producing Party”

to

any other person (“Receiving Party”), when same is designated as

“Confidential” or “For Attorneys’ Eyes Only” pursuant to the terms of this Order (“Confidential
Discovery Material”). A Receiving Party shall not disclose such Confidential Discovery
Material to anyone else except as expressly permitted hereunder.

2.

A Producing Party and/or its attorney may designate us Confidential any

materiaLs that the Producing Party reasonably believes reflect confidential, proprietary and/or
trade secret information and/or other privatc information by stamping or otherwise clearly
PlOts

44080.,l

l9$94.3Q

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 Information or material is contained
as “CONFIDENTIAL” prior to disclosure or by other written communication expressly
designating the Information or material as confidential. With respect to deposition transcripts
and exhibits, any person or that person’s counsel may designate as Confidential Information
disclosed at a deposition taken in connection with tins proceeding by:
a.

designating testimony as Confidential on the record during the taking of the

deposition, in which case the court reporter shall mark each page as prov Wed above; or
I,.

notitiIng 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 transcript of a deposition, of
specific pages andlor lines thereof to be treated as Confidential.
3.

The transcript of any deposition and all exhibits or altachments shall be

considered Confidential for fourteen (14) days following the date of service of the transcript by
the party that took the deposition.lf at any time prior to the trial of this action, a Producing Party
realizes that some portion(s) of Discovery Material that that Party 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) of the 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 shall disclosc any

of the Discovery Material designated by the Producing Party as Confidential to any other person
whomsoever, except to:
(a)

the principals, employees, Insurers and agents of the parties to this action;

(1)

counsel retained specifically for this action, including any paralegal,
clerical and other assistant employed by such counsel and assigned to this
matter;

ri(KS: 44$U5O.vI

2

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

(c)

Filed 01/24/12 Page 3 of 7

as to any document, Its 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 testif’ at trial or deposition in this action, provided such person has first
executed 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 potion has fast 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 support personnel.

Prior to any disclosure of any Confidential Discovcy Material to any person

referred to in subparagruphs 4(d) or 4(c) above, such person shall be provided by counsel with a
copy of this Protective Order and shall sign a Non-Disclosure Agreement in the form annexed 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 SM of this Court’s Individual
FiCKS: 44$O*OvI

3

)91943c0

Case 1:11 -cv-06351 -HB

Document 47

Filed 01/24/12 Page 4 of 7

Practices, which provides that a party or parties seeking to file a pleading under seal must first
obtain leave of the Court. The parties will use their best efforts to 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 lime prior to the trial of this action serve upon counsel for the
Producing Party a written notice stating with particularity the grounds of the objection or request
If agreement cannot be reached within five (5) calendar days, counsel for all affected persons
will convene a joint telephone call with the Court or follow other procedures set forth by the
Court to obtain a ruling. The materials at issue shall continue to be treated in the manner
designated by the Producing Party until the parties reach written agreement as to a new

designation, or until the Court orders otherwise.
8.

As a subset of Confidential Discovery Material, a Producing Party shall have the

right to designate Discoveiy 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 information, disclosure of which could be especially detrimental or harmful
to the Producing Party if publicly disclosed. Confidential Discovery Material marked “For
Attorneys’ Eyes Only” may only be shown to the Receiving Party’s in-house counsel and the
persons identified in sub-paragraphs 4(b), 4(c), 4(e), 4(f), and 4(g) above.
9.

If, in connection with (his litigation, a party inadvertently discloses information

subject to a claim of attorney-client privilege or attorney work product protection (“Inadvertently
Disclosed Information”), such disclosure shall not constitute or be deemed a waiver or forfeiture
of any cLaim ofprivllege or work product protection with respect to the Inadvertently DIsclosed
Information and its subject matter.

FKKS:44$QIO.v$

9s94,3cr,

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, return or destroy all copies of the Inadvertently Disclosed
information, and provide a certification of counsel 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 shalt be filed under seal, and shall not
assert as a ground for entering such an Ordcr the fbet or circumstances of the inadvertent
production.
12.

The Producing Party retains the burden of establishing the privileged or protected

nature of any Inadvertently Disclosed Infomiation. Nothing in this Order shall limit the right of
any party to request an in earners review of the Inadvertently Disclosed Information.
13.

Northing herein shall be construed to affect in any manner the admissibility at

trial of any document, testimony or other evidence.
14.

This Protective Order shall survive the temilnatlon of the litigation. Within thirty

(30) days of the final disposition of this action, all Discovery Material designated as Confidential
or For Attorneys’ Eyes Only, and all copies thereof, shall be promptly returned to the Producing
Party, or, upon permission of the Producing Party, destroyed. Any party destroying such
materials shall deliver to the Producing Party an affidavit ccrtil’ing the same.
IS.

If Confidential Discovery Matcrial Is disclosed to any person other than in the

manner authorized by this Order, the party responsible for the disclosure shall, hnmediately upon
learning of such disclosure, Inform the Producing Party of all pertinent facts related to such
disclosure, and make every effort to recover all copies of the Confidential Discovery Material
and prev further disclosure or dissemination by each unauthorized person who received such
ra
7
Confidential Discovery Material.
FKKS44BO8O.vI

5

191943X

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 Con6dential Discovery Information in any manner It sees fit, without prior consent of any
party or the Court
17.

The terms of thIs Order may be amended or modified by wriUcn agreement of the

parties, or upon motion and order of the Court,
18.

The en1y of this Order does not prevent any party from seeking a further order of

this Court pursuant to Federal Rule of Civil Procedure 26(c).
19.

ThIs Court shall retain jurisdiction over all persons subject to this Order to the

extent necessary to enfbrce any obligations arising hereunder or to impose sanctions for any
contempt thereof.
SO STIPULATED AND AGREED this

Jj day of January, 2012.

FRANKFURT KURNF KLEIN &
SE12, P.C.

KILPA
STOC

By:

By:
Edward H. Rosenthal (ER$022)
Jeremy S. Goldman (JO.7402)
488 Madison Avenue
New York, NY 10022
[phone]

WNSEND &
Lii

‘Joscphmen (JP-907 I)
31 West 52 Street, l4 Floor
New York,, New York 100)9
(212) 7754700
Attorneysfor Defendants

Attorneys for PiaInt3.

SO ORDERED.

Sealed documents may be unseated, upon notice to
the parties, pursuant to further order of the Court.

SO ORTh
Hon. Harold Baer, Jr. tJ.S.D.J.
Hon. Harold Baer, Jr., U.S.D.J.
PICKS: 441010.vI

6

Datc:

)7-’I fi-0t2-

t9194i00

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

Filed 01/24/12 Page 7 of 7

UNflED STATES DISTRiCT COURT
SOUTHSR’4 DJSTRJCT OF NEW YORK
—-—y

THE AUThORS OUILD, INC., at a],

-.

Index No. II Clv. 6351 (HB)

Plaintiffs,
-against
HATHITRUST, as al.
Defendants
-

Y

--—--—

NON-DISCLOSURE AGREZMENT
1,

__,

acknowledge that I have read and understand the

Protective Order in this action governing the non-disclosure of those portions of Discovey
Material that have been designated as Confidential. I agree that I will not disclose such
Confidential Discovery Material to anyone other than for purposes of this litigation and that at
the conclusion of the litigation I will return all discovery information to the party or attorney
from whom I received U. 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 Southern District of New York for the purpose of any issue or dispute arising hereunder and
that my willful violation of any term of the Protective Order could subject me to punishment for
contempt of Court.

Dated:

By:

PiCICS; 441010 vi

19104 300