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]

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 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 (212) 980-0120; 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 (212) 775-8700 Joseph Beck Andrew Pequignot Allison Scott Roach Kilpatrick Townsend & Stockton LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309 Attorneysfor Defendants-Appellees Daniel F. Goldstein Jessica P. Weber Brown, Goldstein & Levy, LLP 120 E. Baltimore Street, Suite 1700 Baltimore, Maryland 21202 (410) 962-1030 Robert J. Bernstein The Law Office of Robert J. Bernstein th 380 Lexington Avenue, 17 Floor New York, New York 10168 (212) 551-1068 Peter Jaszi 5402 Surrey Street Chevy Chase, Maryland 20815 (301) 656-1753 pj 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 (212) 980.0120 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

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