Cambridge University Press et al v. Patton et al

Filing 274

MOTION in Limine To Preclude the Admission of Recently Created Fair Use Checklistsby Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Rains, John)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA,
ATLANTA DIVISION

CAMBRIDGE UNIVERSITY PRESS,
OXFORD UNIVERSITY PRESS, INC.,
and SAGE PUBLICATIONS, INC.,

Civil Action No. 1:08-CV-1425-ODE

Plaintiffs,
- vs. –
MARK P. BECKER, in his official
capacity as Georgia State University
President, et. al.
Defendants.

PLAINTIFFS’
MOTION IN LIMINE TO PRECLUDE THE
ADMISSION OF RECENTLY CREATED FAIR USE CHECKLISTS
Plaintiffs Cambridge University Press, Oxford University Press, Inc., and
SAGE Publications, Inc. (collectively, “
Plaintiffs” hereby move under Rules 901
)
and 1002 of the Federal Rules of Evidence to preclude the admission of checklists
which, although they apparently relate to reading materials distributed at Georgia
State University (GSU) via ERes and uLearn during 2009, were not filled out by
GSU instructors until late 2010 or early 2011 at the request of counsel for purposes
of this litigation. Admission of what Defendants have characterized as “
recreated”

874842.1

checklists is foreclosed by Rule 1002, which requires the original writing to prove
the content of the original (2009) checklists that the instructors claim to have lost
or for some reason not retained. Admission of these later-created checklists is also
foreclosed by Rule 901 because these checklists cannot reliably be authenticated as
exact duplicates of the original checklists the instructors claim to have completed
in 2009 (i.e., well over a year earlier).
Additionally, in those cases where the instructor admittedly did not complete
any checklists in 2009 (in violation of GSU’ copyright policy), the recently
s
“
recreated”
checklists are not recreations at all, as there was no original checklist
to be recreated. These later-created checklists are merely irrelevant records of how
the instructor filled them out –at the request of counsel –in late 2010 or early
2011. These checklists are neither reliable nor authentic copies of the checklists
the instructors should have completed at or about the time the material was posted
on ERes in 2009 and thus are inadmissible under Rules 1002 and 901.
FACTUAL BACKGROUND
This case focuses on copyright compliance at Georgia State University
(GSU) after the implementation of its current copyright policy in February 2009.
The Court has ordered that Defendants’
activities during the May, Summer, and
Fall 2009 academic terms be treated as representative of current activity under that
874842.1

2

policy. The GSU copyright policy centers on a “ Use Checklist”that GSU
Fair
faculty members are required to “
[c]omplete and retain”for each “ use”of a
fair
copyrighted work they propose to make available to students via the ERes or
uLearn systems. Defendants’
Proposed Trial Exhibit 13 at 7, attached hereto as
Exhibit A.1 Under the policy, therefore, there should be a contemporaneously
completed checklist for every reading posted to those systems.
In its November 5, 2010 Order, the Court directed Defendants to produce,
inter alia, available checklists for each work identified in Plaintiffs’
August 20,
2010 filing. Order, Docket No. 240. Defendants’
initial production, on December
10, 2010, included sixteen so-called “
recreated checklists,”a term Defendants
failed to define for months but eventually explained (in response to numerous
requests from Plaintiffs’
counsel) were checklists that instructors assertedly had
completed in 2009 but now were unable to locate. According to Defendants’
counsel, the instructors “
recreated” checklists to “
the
comport with the previously
completed but unlocated checklist[s].”Letter from S. Schaetzel to R. Singer, dated
March 4, 2011, Exhibit 1 to the Declaration of Todd D. Larson in Support of
Plaintiffs’
Motion In Limine, dated April 29, 2011, attached hereto as Exhibit B.
1

The Policy further instructs that “
instructors must complete a copy of the fair use
checklist before submitting material for electronic reserves.”Defendants’
Proposed Trial Exhibit 13 at 9 (emphasis added).
874842.1

3

Defendants’subsequent production of additional documents in the early
months of 2011 included yet more fair use checklists, many of which were dated
November 2010 –more than fifteen months after the corresponding reading
material was posted on ERes –even though GSU’ copyright policy expressly
s
requires that a checklist be completed before a reading is posted. See supra note 1.
Deposition testimony from the instructors revealed the following:
 In many cases, the instructors who supposedly “
recreated”one or more
checklists in 2010 or 2011 never completed checklists at the time the reading
was placed on ERes in 2009, such that the proffered checklists are not, in
fact, recreations of any original document. See, e.g., Deposition of Carrie
Freeman at 28:11-32:21 (Exhibit C);2 Deposition of N. Lee Orr at 8:10-10:3;
76:4-76:12 (Exhibit D); Deposition of Louis Ruprecht at 13:7-14:22; 44:925 (Exhibit E); Deposition of Marni Davis at 26:17-22; 53:6-13; 67:17-68:6;
80:13-23 (Exhibit F); Deposition of John M. Murphy at 39:15-19, 48:10-12
(Exhibit G); Deposition of Charles Hankla at 36:5-37:17 (Exhibit H).
 Even instructors who did create checklists in 2009 acknowledged at their
depositions that they could not be sure the later-created checklists accurately
duplicated the misplaced or discarded originals. See, e.g., Deposition of
Patricia Dixon at 84:5-25 (Exhibit I); Deposition of Karen Petruska at 30:2331:24 (Exhibit J); Deposition of Ann C. Kruger at 79:12-25 (Exhibit K).
 A number of checklists bearing a 2009 date were in fact created in 2010 or
2011. See, e.g., Deposition of N. Lee Orr at 91:21-92:6 (Exhibit D);
Deposition of John M. Murphy at 44:21-46:16, 48:10-12 (Exhibit G);
Deposition of Ann C. Kruger at 23:1-17 (Exhibit K); Deposition of Dennis
Gainty at 21:13-22:22 (Exhibit L).

2

Exhibits C to L, which provide excerpts of deposition testimony, are attached to
this motion.
874842.1

4

In all, of the checklists produced relating to alleged infringements on the
parties’March 15, 2011 Joint Filing, at least forty-two appear to have been
completed solely for use in this litigation long after the reading in question was
placed on ERes.3
ARGUMENT
Rule 1002 of the Federal Rules of Evidence provides that to “
prove the
content of a writing . . . the original writing . . . is required.” Fed. R. Evid. 1002.
The purpose of the rule is “ promote accurate fact-finding.” 31 CHARLES A.
to
WRIGHT & VICTOR J. GOLD,

FEDERAL PRACTICE AND PROCEDURE

§ 7182 at 366

(2000). Consequently, evidence other than the original may be excluded. Id.
§ 7183 at 379.

Although there are some exceptions to this rule, such as

photocopies, accurate fact-finding is jeopardized where the recreated evidence
raises the possibility of deviation from the original. See, e.g., Fountain v. United
States, 384 F.2d 624, 630 (5th Cir. 1967) (holding that trial court did not err in
excluding re-recording of conversation that altered original to eliminate
mechanical interference on the ground that it “
could not be accurately determined

3

Because Plaintiffs have not been able to depose every instructor on the Joint
Filing, it is possible that other checklists bearing a 2009 date were also recreated
(or created for the first time) in 2010 or 2011.
874842.1

5

whether the copy in fact accurately reproduced the conversations transcribed on the
original” 4
).
Rule 1002 clearly precludes the admission of the later-created checklists in
this case. By definition, these checklists are not the originals; in some cases,
indeed, there never was an original.

Even where an original checklist was

completed, moreover, the later-created checklists –
filled out more than a year after
the works in question were posted on ERes – inherently unreliable. There is no
are
way for the Court to know whether the recreation of a checklist requiring the
instructor to consider more than forty subfactors and to check or not check fortyplus boxes accurately reflects the choices made and boxes checked by the
instructor well over a year earlier. Instructor after instructor has admitted under
oath that he or she could not be sure the recreations accurately reflect the original
(if one existed) in every respect. Indeed, one professor produced two differing
recreations of the same checklist –meaning at least one of them differs from the
original. See Dixon Dep. at 109:11-113:17 (Exhibit I).

4

Courts have recognized that adherence to Rule 1002 also protects against fraud,
as, in the absence of the original, “ witness may lie with impunity about the
a
original’contents because the risk of detection is small.”31 WRIGHT & GOLD,
s
supra, § 7182 at 368. See United States v. Howard, 953 F.2d 610, 613 (11th Cir.
1992) (stating that the best evidence rule “ intended to prevent fraud in proving
is
the contents of documents”
).
874842.1

6

For the same reasons, the later-created checklists are also inadmissible under
Rule 901, which provides that authentication is “ condition precedent to
a
admissibility.” Fed. R. Evid. 901. This condition requires evidence “
sufficient to
support a finding that the matter in question is what its proponent claims.” Id. at
901(a).

The later-created checklists, however, are self-evidently not what

Defendants claim (the supposedly “
unlocated”originals) but, rather, litigationdriven attempts at reconstructing missing checklists that instructors were required,
but failed, to complete and retain.
Although Rule 901 can be satisfied by the testimony of a witness with firsthand knowledge, see id. 901(b)(1), GSU instructors cannot possibly authenticate
the “
recreated”
checklists as accurate copies of the originals (particularly where no
such original actually existed) even if they attempted in good faith to recreate the
original accurately. Deposition or trial testimony more than 18 months after the
original checklist should have been completed to the effect that a recently created
checklist accurately reflects how that checklist, with its forty-plus subfactors, was
completed back in 2009 is too unreliable to authenticate the checklists. See Ona
Corp. v. Nat’Labor Relations. Bd., 729 F.2d 713, 722 (11th Cir. 1984). As noted
l
above, the instructors admitted as much –including, in several cases, that the
recreations were not faithful efforts at recreating what the instructor did in 2009
874842.1

7

but, rather, a record of how, at the time of “
recreation,” instructor believed the
the
checklist should be filled out. See, e.g., Deposition of Patricia Dixon at 84:5-25
(Exhibit I); Deposition of John M. Murphy at 59:4-16 (Exhibit G); Deposition of
Carrie Freeman at 32:8-16 (Exhibit C).
Rules 1002 and 901 exist to prevent precisely this sort of after-the-fact
manufacturing of evidence.

This evidentiary bar is important given that

Defendants’
merits defense relies on a policy that places full responsibility for fair
use determinations on GSU instructors and requires them to fill out fair use
checklists prior to distributing materials to students. These checklists –which
were created specifically for this litigation –
simply have no probative value as to a
fundamental aspect of Defendants’ case:

how instructors made fair-use

determinations before they distributed Plaintiffs’works to students in 2009.
Admitting them would unavoidably compromise and muddy the trial record as to
what the instructors did during 2009, including how many contemporaneously
completed checklists actually exist and how often and how well the GSU
“
complete and retain” policy actually was followed.

The Federal Rules of

Evidence require the exclusion of all later-created checklists to promote accurate
fact-finding and avoid prejudicing Plaintiffs in these respects.

874842.1

8

CONCLUSION
For the foregoing reasons, the Court should preclude the admission of all
recreated checklists.
Respectfully submitted, this 29th day of April, 2011.
/s/ John H. Rains IV
Edward B. Krugman
Georgia Bar No. 429927
John H. Rains IV
Georgia Bar No. 556052
BONDURANT, MIXSON & ELMORE, LLP
1201 West Peachtree Street NW
Suite 3900
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
R. Bruce Rich (pro hac vice)
Randi Singer (pro hac vice)
Jonathan Bloom (pro hac vice)
Todd D. Larson (pro hac vice)
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
874842.1

9

CERTIFICATE OF SERVICE
I hereby certify that I have this day filed the foregoing PLAINTIFFS’
MOTION IN LIMINE TO PRECLUDE THE ADMISSION OF RECENTLY
CREATED FAIR USE CHECKLISTS with the Clerk of Court using the
CM/ECF filing system which will automatically send e-mail notification of such
filing to the following attorneys of record:
Stephen M. Schaetzel, Esq.
Kristen A. Swift, Esq.
C. Suzanne Johnson, Esq.
KING & SPALDING
1180 Peachtree Street
Atlanta, Georgia 30309
Kristina M. Quicker, Esq.
BALLARD SPAHR, LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309
Anthony B. Askew, Esq.
LAW OFFICE OF ANTHONY B. ASKEW
211 Townsend Place
Atlanta, GA 30327
Mary Jo Volkert, Esq.
Assistant S. Attorney General
40 Capitol Square
Atlanta, Georgia 30334
This 29th day of April, 2011.
/s/ John H. Rains IV
John H. Rains IV
874842.1

10