Cambridge University Press et al v. Patton et al

Filing 290

RESPONSE in Opposition re 274 MOTION in Limine To Preclude the Admission of Recently Created Fair Use Checklists filed by J. L. Albert, Mark P. Becker, Kenneth R. Bernard, Jr, Larry R. Ellis, Rutledge A. Griffin, Jr, Robert F. Hatcher, C. Thomas Hopkins, Jr, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, William NeSmith, Jr, Risa Palm, Doreen Stiles Poitevint, Willis J. Potts, Jr, Neil L. Pruitt, Jr, Wanda Yancey Rodwell, Nancy Seamans, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Larry Walker, Philip A. Wilheit, Sr. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Bates, Mary)

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

CAMBRIDGE UNIVERSITY PRESS,
et al.,
Civil Action No.
Plaintiffs,
1:08-CV-1425-ODE
-vMARK P. BECKER, in his official
capacity as President of Georgia State
University, et al.,
Defendants.

DEFENDANTS’ BRIEF IN OPPOSITION TO
PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE THE
ADMISSION OF RECENTLY CREATED FAIR USE CHECKLISTS

In accordance with this Court’s May 3, 2011 Order, Defendants in the
above-captioned matter hereby file this brief in opposition to “Plaintiffs Motion In
Limine to Preclude the Admission of Recently Created Fair Use Checklists” (the
“Motion,” Dkt. 274).
During the course of discovery, Defendants’ counsel learned that certain
GSU professors had filled out the Fair Use Checklists in the 2009 timeframe for

works they intended to load to GSU’s electronic reserve system, but in some cases
they were unable to find the 2009 checklists (despite having kept a copy of them),
or in other cases, they did not keep a copy of their 2009 checklists. These
professors were asked to “recreate” the checklists as they originally completed
them in the 2009 timeframe to reflect the fair use analysis they performed in 2009.
Plaintiffs now seek to preclude the admission of these recreated checklists,
claiming that the recreated checklists cannot be authenticated under Federal Rule
of Evidence 901 or admitted under Federal Rule of Evidence 1002 to prove the
contents of the original 2009 checklists.
Plaintiffs’ request, however, is based on a misapplication of these Federal
Rules of Evidence. The GSU professors who recreated the checklists can
seemingly authenticate them for what they are -- recreations of the fair use
analyses performed by the GSU professors in 2009 using the Fair Use Checklist.
In addition, these recreated checklists are admissible at least under Federal Rule of
Evidence 1004, which provides that other evidence of the contents of a writing is
admissible if the originals are lost or have been destroyed and there is no evidence
of bad faith, as is the case here. Accordingly, Plaintiffs’ Motion should be denied.

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BACKGROUND
On November 5, 2010, this Court ordered that Defendants produce available
Fair Use Checklists relevant to Plaintiffs’ copyright infringement allegations. (See
Dkt. 240). As directed, GSU personnel sought to collect from its professors all
relevant checklists.
GSU collected numerous original checklists as part of this collection effort.
GSU also determined that a number of professors had used the Fair Use Checklist
in 2009 to determine if their proposed use of a given excerpt was a fair use before
posting the materials electronically, but either had not retained a copy of the
analysis or indicated they had retained a copy, but could not locate it when
requested to produce it for this litigation.
Professors who used the checklist in 2009 but did not have the checklist(s)
available for production in November 2010 could not provide them to counsel for a
variety of reasons. Dr. Jennifer Esposito, for example, could not locate her 2009
fair use checklists for one of three courses at issue in this case: EPRS8520
Qualitative Research in Education III, taught in Fall 2009. (See Dep. Tr. of
Jennifer Esposito at 28:6-11, 36:15-18, 93:1-96:4 (Exhibit A)). Dr. Esposito did
provide original checklists for eight other alleged uses related to two other courses.
Dr. Esposito testified that she believes she may not have retained the EPRS8520

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checklists because she did not, in the end, use the excerpts in her course. (See id.).
In fact, when the library was unable to locate the works in its collection, she did
not deliver her copy of the works to the library to be used after she submitted the
initial request for the library to post the excerpts on EReserves.
By way of further example, Dr. Kruger indicated that she filled out the
checklist electronically in pdf form and printed a copy of the checklist because she
was unable to save the completed form, but then was unable to find her printed
copies. (See Kruger Dep. Tr. at 23:11-24:4 (Exhibit B)). And, Dr. Gainty testified
that he discarded the checklist after the course was cancelled. (See Gainty Dep. Tr.
at 22:23-23:8 (Exhibit C)).
Dr. Lee Orr, by contrast, stated that he did not physically mark the checklist,
but rather, used the checklist to analyze whether his proposed uses were fair uses
without physically marking a copy. (See Orr Dep. Tr. at 8:22-9:25 (Exhibit D)).
Thus, he did not have a physical copy to retain. (Dr. Orr noted during his
deposition that he now understands he is to mark a physical copy of the checklist
and retain it.
Upon discovering that some professors had not complied with the retention
requirements of the policy (such as the retention of a copy of the completed
checklist), GSU asked that each professor who indicated he or she had completed a

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checklist prior to posting the subject excerpt, recreate the checklist as closely as
possible to the way it was completed at the time the work was posted,1 and retain
the recreated checklist in accordance with the current Copyright Policy.2
Because the recreated checklists met the definition of available checklists
under the Court’s November 5, 2010 Order, those checklists were produced to
Plaintiffs.
The recreated checklists, as Plaintiffs note, are not uniform. Some bear the
date of recreation, and others bear the date the professor initially conducted the fair
use analysis for the work, prior to placing the material on electronic reserve (i.e.,
some bear a 2009 date and others bear a 2010 or 2011 date). Plaintiffs suggests
that this is a misrepresentation. (See Dkt. 274 at 4-5). That is untrue. As the
deposition testimony shows, some professors appropriately denominated a
recreated checklist with the date they first conducted the fair use analysis for the
excerpt at issue. (See, e.g., Pls.’ Mot. at Ex. G (Dkt. 274-7) at 45:24-46:16). That
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Plaintiffs imply that the recreated checklists indicate that the professors did
not conduct a fair use analysis in 2009. (See Dkt. 274 at 4). To the contrary, GSU
only instructed professors to recreate checklists in instances where, to its
knowledge, a fair use analysis was actually conducted using the checklist in 2009.
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The recreated checklists were solicited to impress upon professors the
requirements of the 2009 Copyright Policy and ensure that, as best as possible, the
documentation dictated by the 2009 Copyright Policy is maintained.

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date was accurate because the analysis was first conducted at that time and that
was the term in which the excerpt was to be used. In other cases, professors
thought it appropriate to mark the recreated checklist with the date of re-creation.
This, too, was accurate in that it designated the date on which the professor’s
recollection of the 2009 analysis was recorded. Plaintiffs’ counsel was informed
that a checklist had been recreated, whether it bore a 2009 or 2010 or 2011 date,
because it was designated as recreated when produced to Plaintiffs. (See, e.g.,
12/10/2010 email from K. Quicker to Plaintiffs’ counsel attaching recreated
checklists (Exhibit E)).
Whichever date they bear, the recreated checklists are what they purport to
be: recreations of the analyses conducted at the time the professors decided to
post the subject materials to ERes. Defendants have not represented the recreated
checklists to Plaintiffs, nor would they represent them to the Court, as the original
checklists from 2009.
ARGUMENT AND CITATION OF AUTHORITIES
I.

PLAINTIFFS’ ATTEMPT TO CAST PROFESSORS’ RECREATED
CHECKLISTS AS INADMISSIBLE UNDER THE BEST EVIDENCE
RULE MISCONSTRUES THE NATURE OF THE RECREATED
CHECKLISTS AND THEIR POTENTIAL USE AT TRIAL.
Plaintiffs have incorrectly characterized the recreated checklists as

duplicates (within the meaning of Rule 1002) of the original checklists completed
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in 2009. (See Dkt. 274 at 2, 5-6). They are not. Although the recreated checklists
document, as best as possible, the fair use analyses conducted by professors in
2009, Defendants have not, as Plaintiffs claim, represented that the recreated
checklists are “exact duplicates” of the original checklists that “reflect the original .
. . in every respect,” or are themselves “originals.” (See Dkt. 273 at 2, 5-6).
Rather, the recreated checklists are the professors’ good faith attempts to
document the analyses they completed in 2009 prior to posting excerpts of the
works at issue on GSU’s electronic reserves systems. The checklists were
recreated under instruction from GSU when the university discovered that
professors had used the Fair Use Checklist to complete their fair use analyses for
excerpts relevant to this litigation, but did not retain or could not in November
2010 locate copies of those checklists. Once re-created, those checklists met the
parameters of this Court’s November 5, 2010 Order (Dkt. 240) and were properly
produced. As mentioned, where Defendants’ counsel was aware that a checklist
had been recreated, it was identified to Plaintiffs as a recreation, separate and apart
from photocopies of original checklists completed in 2009. (See Exhibit E).
A.

Defendants have not represented the recreated checklists as
originals and do not intend to do so.

Plaintiffs’ argument that the recreated checklists are duplicate originals that
fall within Federal Rule of Evidence 1002 misconstrues the nature of the recreated
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checklists. Defendants have not represented to Plaintiffs that the recreated
checklists are the original checklists completed in 2009. Accordingly, Plaintiffs’
arguments for exclusion on this ground are unfounded.
B.

Even where Federal Rule of Evidence 1002 applies, another
writing can evidence an original’s content if the original is lost or
destroyed.

Federal Rule of Evidence 1002 provides that “[t]o prove the content of a
writing . . . the original writing . . . is required, except as otherwise provided in
these rules or by Act of Congress.” Federal Rule of Evidence 1004 then provides
that “[t]he original is not required, and other evidence of the contents of a writing .
. . is admissible if . . . [a]ll originals are lost or have been destroyed,” so long as the
proponent did not lose or destroy the originals in bad faith. Fed. R. Evid. 1004(1).
Plaintiffs have not asserted that original checklists were lost or destroyed in bad
faith, and they were not. Accordingly, in the absence of the original 2009
checklists, professors’ recreated checklists can evidence the content of the original
checklists under Federal Rule of Evidence 1004(1).
C.

Federal Rule of Evidence 1002 also does not dictate exclusion of
the recreated checklists as evidence of other matters.

Plaintiffs ignore other purposes for which the recreated checklists may be
introduced. For example, a recreated checklist could evidence a professor’s
familiarity with the Fair Use Checklist. Even if the Court were to determine that
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the recreated checklists should be excluded for some limited uses, it should not
exclude them from all uses.
II.

FEDERAL RULE OF EVIDENCE 901 IS, AT THIS JUNCTURE,
IRRELEVANT.
Federal Rule of Evidence 901(a) provides that “[t]he requirement of

authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” By way of example, Federal Rule of Evidence 901(b)(1) states
that authentication or identification can be provided by testimony of a witness with
knowledge “that a matter is what it is claimed to be.” Fed. R. Evid. 901(b)(1).
Plaintiffs proclaim that the recreated checklists “are self-evidently not what
Defendants claim” (Dkt. 274 at 7), and argue that professors therefore cannot
authenticate them as such. But Plaintiffs wrongly characterize what Defendants
supposedly claim the recreated checklists to be, creating an oddly circular and
incorrect argument. In fact, each authoring professor could seemingly authenticate
at trial her own recreated checklist as her documentation of her own 2009 fair use
analysis, as recalled in 2010 or 2011, and created at the direction of GSU.
Plaintiffs also argue about the weight that this Court should give to
professors’ recreated checklists. This argument as to the weight of the evidence,

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presented under the guise of a Rule 901 authentication argument, is best considered
at trial, upon a showing of all the evidence.
For the reasons set forth above, Plaintiffs’ Federal Rule of Evidence 901
argument, like their Federal Rule of Evidence 1002 argument, fails.
III.

PLAINTIFFS INCORRECTLY CLAIM THAT PROFESSORS
“RECREATED” CHECKLISTS FOR FAIR USE ANALYSES THAT
THEY NEVER PERFORMED IN 2009.
Plaintiffs contend that professors who provided recreated checklists did not

complete a fair use analysis in accordance with the 2009 Copyright Policy prior to
selecting the posted excerpts or distributing them to students. (See Dkt. 274 at 3
n.1, 4, 8). Only professors who said they had completed the fair use checklist in
2009 prior to posting electronic copies of the materials were instructed by the
university to recreate such checklists and retain the recreations in accordance with
the Policy. In fact, even professors who indicated that they used the Fair Use
Checklist to conduct their fair use analysis were not asked to recreate their analysis
on paper, if they did not physically mark a checklist in 2009. Dr. Orr is one such
example. Accordingly, Plaintiffs’ claim that Defendants are manufacturing
evidence after-the-fact is misplaced. (See Dkt. 274 at 8).

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CONCLUSION
Plaintiffs’ Motion misconstrues the nature and purpose of the recreated
checklists, and then applies an incorrect evidentiary analysis. Neither Federal Rule
of Evidence 1002, nor Federal Rule of Evidence 901, is negatively implicated by
the admission of the recreated fair use checklists. Nor does it seem plausible that
this Court would be confused by the admission of these checklists, or that the trial
record would be “unavoidably compromise[d] and mudd[ied]” such that exclusion
is required “to promote accurate fact-finding and avoid prejudicing Plaintiffs.”
(See Dkt. 274 at 8). For the reasons stated herein, Defendants respectfully submit
that Plaintiffs’ Motion should be denied.

Respectfully submitted, this 9th day of May, 2011.
SAMUEL S. OLENS
Georgia Bar No. 551540
Attorney General
R. O. LERER
Georgia Bar No. 446962
Deputy Attorney General
DENISE E. WHITING-PACK
Georgia Bar No. 558559
Senior Assistant Attorney General
MARY JO VOLKERT
Georgia Bar No. 728755
Assistant Attorney General
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s/ Mary Katherine Bates
Stephen M. Schaetzel
Georgia Bar No. 628653
Mary Katherine Bates
Georgia Bar No. 384250
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]
Anthony B. Askew
Special Assistant Attorney General
Georgia Bar No. 025300
211 Townsend Place
Atlanta, GA 30327
Telephone: [phone]
Katrina M. Quicker
Georgia Bar No. 590859
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants

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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 7.1D of the Local Rules of the Northern District of
Georgia, counsel for Defendants certifies that the foregoing DEFENDANTS’
BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE TO
PRECLUDE THE ADMISSION OF RECENTLY CREATED FAIR USE
CHECKLISTS was prepared in a font and point selection approved by this Court
and authorized in Local Rule 5.1C.

s/ Mary Katherine Bates

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

CAMBRIDGE UNIVERSITY PRESS,
et al,
Plaintiffs,

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

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

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 9th day of May, 2011, I have
electronically filed the foregoing DEFENDANTS’ BRIEF IN OPPOSITION TO
PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE THE ADMISSION
OF RECENTLY CREATED FAIR USE CHECKLISTS with the Clerk of the
Court using the CM/ECF system, which will automatically send e-mail notification
of such filing to the following attorneys of record:

Edward B. Krugman
[e-mail]
Georgia Bar No. 429927
Corey F. Hirokawa
[e-mail]
Georgia Bar No. 357087
John H. Rains IV
[e-mail]
Georgia Bar No. 556052

R. Bruce Rich
Jonathan Bloom
Randi Singer
Todd D. Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Telephone: [phone]
Facsimile: [phone]

BONDURANT, MIXSON &
ELMORE, LLP
1201 West Peachtree Street N.W.
Suite 3900
Atlanta, GA 30309
Telephone: [phone]
Facsimile: [phone]
s/ Mary Katherine Bates
Mary Katherine Bates

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