Cambridge University Press et al v. Patton et al

Filing 295

MOTION for Leave to File Defendants' Corrected Brief in Opposition to Plaintiffs' Motion In Limine to Preclude the Admission of Recently Created Fair Use Checklists with Brief In Support 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)(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’ CORRECTED 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 corrected 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 who had filled outused 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.
TheseAccordingly, 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.

2

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

3

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 professorprofessors who indicated he or she had

4

completed a 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,1had used the fair use checklists in 2009 prior to posting electronic
copies of the materials, but who did not keep or could not locate them, to
recreate such checklists1 and retain the recreated checklist in accordance with the
current Copyright Policy.2recreations (the Policy specifying the checklist should
be retained).2 Defendants timely notified Plaintiffs that some of the checklists
were recreations (some are dated 2010 or 2011), and segregated those known
to be recreations.
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
1

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.
2

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.

5

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
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 known) 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

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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
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
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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
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
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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
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

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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,
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). OnlyHowever, GSU only asked professors who said they had
completedused the fair use checklistchecklists in 2009 prior to posting electronic
copies of the materials were instructed by the university to recreate such checklists

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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, but who did
not keep or could not locate them, to recreate such checklists. Accordingly,
Plaintiffs’ claim that Defendants are manufacturing evidence after-the-fact is
misplaced. (See Dkt. 274 at 8).
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.

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Respectfully submitted, this 911th 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

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

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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’
CORRECTED 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
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 911th day of May, 2011, I have
electronically filed the foregoing DEFENDANTS’ CORRECTED 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]

R. Bruce Rich
Jonathan Bloom
Randi Singer
Todd D. Larson

Georgia Bar No. 357087
John H. Rains IV
[e-mail]
Georgia Bar No. 556052

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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EXHIBIT A

1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

CAMBRIDGE UNIVERSITY
PRESS, et al.,
Plaintiffs,

)
)
)
)
)
)
)
)
)
)
)
)
)

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

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

- - Videotaped deposition of JENNIFER ESPOSITO,
PH.D., taken on behalf of the plaintiffs, pursuant to
the stipulations contained herein, before Teresa Bishop,
RPR, RMR, CCR No. B-307, at 104 Marietta Street, SB-2
Conference Room, Atlanta, Georgia, on Thursday, February
3, 2011, commencing at the hour of 9:09 a.m.
_______________________________________________________

Shugart & Bishop
Certified Court Reporters
Suite 140
13 Corporate Square
Atlanta, Georgia 30329
[phone]

SHUGART & BISHOP

2
1

I N D E X

2
3

Examinations

Page

4
5
6

EXAMINATION BY MR. LARSON

6

7

EXAMINATION BY MR. ASKEW

113

8

FURTHER EXAMINATION BY MR. LARSON

116

9
10
11

E X H I B I T S

12
13

No.

Description

Page

14
15

1

16
17

2

3

27

syllabus for EPSF 8280 from

28

summer of 2009 semester
4

22
23

printout from the GoSolar system
showing summer 2009 and fall 2009 courses

20
21

9

web site

18
19

bio and CV from the Georgia State

syllabus for EPRS 8520 from fall of

36

2009 semester
5

photocopy of cover and table of

24

contents from the "Handbook Of

25

Qualitative Research" Second Edition

SHUGART & BISHOP

45

28
1

A.

Yes.

2

Q.

And this indicates that there were it looks

3

like 22 students in the class.

4

your recollection?

Is that accurate, to

5

A.

Yes.

6

Q.

Can you turn to the second page which is a

7

similar printout for the fall semester of 2009.

8

appears to indicate that you taught a class called EPRS

9

8520 in the fall semester.

10

This

Does that square with your

recollection?

11

A.

Yes.

12

Q.

And is it correct that you had 14 students in

13

the class?

14

A.

Yes.

15

Q.

Let me give you a document identified as

16

Esposito 3.

17

the EPSF 8280 class that we were just --

Do you recognize this as your syllabus from

18

A.

Yes.

19

Q.

-- discussing from the summer of 2009?

20

A.

Yes.

21

Q.

Is it a graduate course or an undergrad

22

course?

23

A.

Graduate.

24

Q.

And if you turn to page 2 there's -- you'll

25

see about four lines down a star, additional readings

SHUGART & BISHOP

36
1

Q.

Would you have reason to believe that the work

2

was not made available and hit 62 times during that

3

semester?

4

A.

I don't believe I said that with Gordon.

I

5

think I said that I thought the one that wasn't made

6

available was Tedlock.

7

Q.

Yeah, I'm not trying to suggest otherwise.

I

8

think, correct me if I'm wrong, you just couldn't recall

9

with the Gordon one way or the other, that is right?

10

A.

That's correct.

11

Q.

And do you have any reason to believe that the

12

work wasn't made available and hit 62 times during that

13

time range?

14

A.

No.

15

Q.

All right.

Let's turn to Esposito 4.

Do you

16

recognize this as the syllabus for EPRS 8520 from the

17

fall of 2009 semester?

18

A.

Yes.

19

Q.

Can you take a look at page 4 for me.

Is it

20

correct that the entries where you provide the full

21

title of the excerpt and book are EReserves entries, for

22

example, the Corrine Glesne and Denzin and Lincoln?

23

A.

Yes.

Some are full text articles that the

24

library owns a license to.

25

full text articles that the library owns a license to.

The majority of them are

SHUGART & BISHOP

93
1
2

Q.

Can you look back at Esposito 4 for me.

That's the syllabus for the fall 2009 course.

3

A.

Yes.

4

Q.

Do you know whether you completed -- I'm

5

sorry.

6

If you could turn to page 5.
Do you know whether you completed the

7

checklist for the Charmaz excerpts that are identified

8

here?

9

A.

I did.

10

Q.

You did.

11
12

And do you still -- is that still in

your possession?
A.

I don't believe it is.

I removed that from

13

the course reserves, so because I didn't require it I

14

may have discarded it.

15
16

Q.

You say you may have.

Do you know whether you

did or didn't discard it?

17

A.

I'm not sure.

18

Q.

So you did do a checklist, but you don't know

19
20
21
22

sitting here whether you have it or not?
A.

Yes.
MR. LARSON:

All right.

We'd request a

copy of that, Tony, if it does exist.

23

MR. ASKEW: You can include that in your

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letter to me about what you'd like to have.

25

BY MR. LARSON:

SHUGART & BISHOP

94
1

Q.

If you can flip to page 8.

There are entries

2

there we discussed for the 11/19 column or row for the

3

"Handbook Of Mixed Methods" and the Creswell and Clark

4

entries, do you see those?

5

A.

Yes.

6

Q.

Did you complete checklists for those works?

7

A.

Yes.

8

Q.

And do you know whether you have those in your

9
10

possession or not?
A.

Again, these were, as I said, removed from my

11

requirement, my required reading, so they were not put

12

on reserve so I don't think I have the checklists.

13

Most likely if I did not send my checklist to

14

legal affairs, then I don't have those checklists.

15

removed it from the syllabus, you know, there was no

16

point to continue holding on to it because they weren't

17

made available to students.

18
19

Q.

If I

Do you recall actually affirmatively deleting

your copy of those checklists?

20

A.

I don't recall.

21

Q.

Okay.

22

A.

Well, when you say delete, I don't do it

23
24
25

online.
Q.

So you may have and you may not?

I print them out and do hard copies.
So do you recall affirmatively throwing away

your hard copies of the checklists for those two works?

SHUGART & BISHOP

95
1

A.

I don't recall.

2

Q.

So you may have them or you may not, you just

3
4

don't know?
A.

Most likely I don't because when I was asked

5

to send my checklists to legal affairs, I looked through

6

my files.

7
8
9
10
11

Q.

And they -- these checklists had you retained

them would be in those files?
A.

Most likely.

I mean, my office is a mess,

they could be other places.
Q.

And if you could turn to page 9, Anfara,

12

Vincent and Mertz entry there.

13

checklist for those works?

Did you complete a

14

A.

Yes.

15

Q.

And same question, do you have that in your

16

possession?

17

A.

Not with me, no.

18

Q.

I mean your possession at your office or home

19

or wherever.

20

A.

Again, I'm not sure.

21

Q.

Same, for the same reason you've described for

22
23
24
25

the others?
A.

Yes.

Those were not -- this was not required

by the students, so I removed it from course reserves.
Q.

And possibly then discarded the checklist you

SHUGART & BISHOP

96
1

had filled out?

2

A.

I might have.

3

Q.

Or you might still have it?

4

A.

(Nods head affirmatively.)

5

Q.

Okay.

6

Exhibit 18.

7

Let me give you what's been marked as

Strike that.

8
9

Do you recognize this as the -- sorry.

Do you recognize this as the declaration you
completed in this case last April?

10

A.

Yes.

11

Q.

Tell me how did it come about that you

12

submitted this declaration?

13

A.

I was asked to by someone from legal affairs.

14

Q.

Who was that?

15

A.

I don't remember.

16

Q.

And then what happened, did you sit down and

17

draft it or have a conversation or how did the process

18

work?

19

A.

I honestly don't remember.

20

Q.

Did you write this declaration or was it

21
22

drafted and then you signed off on it?
A.

I think it was -- I don't think I -- yeah, I

23

think I signed off on it after I was asked questions and

24

asked to make statements about my answers to the

25

questions.

So I think someone was, you know, like

SHUGART & BISHOP

EXHIBIT B

Ann C. Kruger, Ph.D.

April 22, 2011
1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY
PRESS, OXFORD UNIVERSITY
PRESS, INC., and SAGE
PUBLICATIONS, INC.,
Plaintiffs,

CIVIL ACTION FILE
NO. 1:08-CV-1425-ODE

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

VIDEOTAPE DEPOSITION OF
ANN CALE KRUGER, Ph.D.

April 22, 2011
2:56 p.m.

Conference Room 16-K
1180 Peachtree Street, N.E.
Atlanta, Georgia
S. Julie Friedman, CCR-B-1476

Ann C. Kruger, Ph.D.
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3
4
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7
8
9
10
11

APPEARANCES OF COUNSEL
On behalf of the Plaintiffs:
WEIL, GOTSHAL & MANGES
JONATHAN BLOOM, ESQ.
767 Fifth Avenue
New York, New York 10153
212.310.8775
212.310.8007 Fax
[e-mail]
On behalf of the Defendants:
KING & SPALDING LLP
NATASHA HORNE MOFFITT, ESQ.
1180 Peachtree Street, N.E.
Atlanta, Georgia 30309-3521
404.572.2783
404.572.5134 Fax
[e-mail]

12
13
14
15
16
17
18
19
20
21
22
23
24
25

April 22, 2011
2

Also Present:
Henry Stewart, Videographer

Ann C. Kruger, Ph.D.

April 22, 2011
23

1
2

Q.

The date on this particular checklist,

Kruger TX-2, is fall 2009.

Do you see that?

3

A.

I do.

4

Q.

Did you complete a version of this

5

checklist in the fall of 2009?

6

A.

I did.

7

Q.

With respect to the specific copy, Kruger

8

TX-2, dated fall 2009, is this a copy of your

9

original checklist?

10

A.

No.

11

Q.

Can you explain.

12

Is this a --

Is it a

re-creation of your original checklist?

13

A.

It is.

14

Q.

And why did you re-create your original

15

checklist?

16
17
18
19

A.

Excuse me.

I could not locate my printed

copy.
Q.

Did you believe you kept a printed copy of

the checklist?

20

A.

I did.

21

Q.

What --

22

belief?

23

A.

What is the basis for your

It's my practice to complete the checklist

24

on my computer.

25

have doesn't allow me to save it as a completed form.

However, the version of Adobe that I

Ann C. Kruger, Ph.D.

April 22, 2011
24

1

It, therefore, has to be printed out in order to

2

save.

There's no other way to save it.

3
4
5

So I printed it out and saved it, but I
could not put my hands on it.
Q.

Why did you fill out this checklist back

6

in the fall of 2009 when you completed the original

7

version?

8
9

A.

It's part of the procedure that we

undertake when we are creating Ereserves to complete

10

a checklist for each item that we want to put on

11

Ereserves.

12
13

Q.

And is that pursuant to any kind of

directive or policy?

14

A.

It's a policy.

15

Q.

And when you re-created this checklist,

It's a requirement.

16

TX-2, Kruger TX-2, did you make an effort to fill it

17

out in the same way that you filled it out prior to

18

your fall 2009 --

19

A.

I did.

20

Q.

-- course?

21

A.

I did.

22

Q.

And when you originally filled out the

23

checklist in the fall of 2009 timeframe, did you make

24

a good-faith effort to conduct a fair use analysis in

25

accordance with the checklist?

EXHIBIT C

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA,
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY PRESS,
OXFORD UNIVERSITY PRESS, INC.,
and SAGE PUBLICATIONS, INC.,
Plaintiffs,

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

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

Videotaped deposition of
DENIS CHARLES GAINTY, Ph.D., taken on behalf of the
defendants, pursuant to the stipulations contained
herein, before Carole E. Poss, RDR, CRR, Certified
Court Reporter, at 1180 Peachtree Street, NE, Atlanta,
Georgia, on the 20th day of April, 2011, commencing at
the hour of 10:13 a.m.
_______________________________________________________
SHUGART & BISHOP
Certified Court Reporters
13 Corporate Square
Suite 140
Atlanta, Georgia 30329
[phone]

CAMBRIDGE vs. BECKER

1

DENIS GAINTY

APRIL 20, 2011

INDEX TO EXAMINATIONS

2
3
Examination

Page

4
5

Direct Examination by Ms. Moffitt
Cross-Examination by Mr. Bloom
Redirect Examination by Ms. Moffitt

5
41
60

6
7

INDEX TO EXHIBITS

8
9
10

Defendants' Exhibit
Gainty TX
1

Syllabus, Cross-Cultural Encounters in
World History

11

Fair use checklist

21

11
2
12
13
14

Plaintiffs' Exhibit
Gainty PX
1

Policy on the Use of Copyrighted Works in
Education and Research

44

Excerpt from The Cambridge History of China,
volume 8, part 2

56

Portion of e-reserve report relating to
Dr. Gainty's HIST 4820 course

58

15
2
16
17

3

18
19
20
21
22
23
24
25

SHUGART & BISHOP
Page 2

CAMBRIDGE vs. BECKER

DENIS GAINTY

1

APPEARANCES OF COUNSEL:

2

APRIL 20, 2011

On behalf of the Plaintiffs:

3
4

JONATHAN BLOOM, ESQ.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153-0119

5
On behalf of the Defendants:

6
7
8
9
10

NATASHA H. MOFFITT, ESQ.
King & Spalding LLP
1180 Peachtree Street, NE
Atlanta, Georgia 30309-3521
Also Present:
Elizabeth Kemp, Videographer

11
-

12

-

-

13
14

THE VIDEOGRAPHER:

We're now on the video

15

record.

16

This is the videotaped deposition of Denis Gainty

17

taken by the defendants in the matter of Cambridge

18

University Press, Oxford University Press,

19

Incorporated, and Sage Publications, Incorporated,

20

versus Mark P. Becker, in his official capacity as

21

Georgia State University president, et al.

22
23

This is the beginning of tape number 1.

Madam Court Reporter, would you please swear
in the witness.

24

(Witness sworn.)

25

MR. BLOOM:

I'd like to make an objection on

SHUGART & BISHOP
Page 3

CAMBRIDGE vs. BECKER

1

DENIS GAINTY

APRIL 20, 2011

that particular work?

2

A

Yes.

3

Q

What informs you on this checklist that this

4

checklist, in particular, relates to that particular

5

work?

6

A

I can read my name, the name of the course,

7

the author and publisher and portions to be used, the

8

page numbers.

9

Q

When -- did you fill out this checklist?

10

A

I did.

11

Q

When did you fill out this fair use

12
13
14
15
16

All of those match the work in question.

checklist?
A

I filled out this fair use checklist in the

last few months.
Q

Now, in the upper right-hand corner it's

dated August 1, 2009.

Do you see that?

17

A

Yes.

18

Q

What does that date reflect?

19

A

I tried, as best I could, to the best of my

20

ability, to recreate the fair use checklist that I

21

would have filled out and I believe I did fill out for

22

the fall 2009 semester.

23
24
25

Q

You stated that you recreated the checklist.

Can you explain why you recreated the checklist?
A

I did not have any longer a copy of the fair

SHUGART & BISHOP
Page 22

CAMBRIDGE vs. BECKER

1
2
3

DENIS GAINTY

APRIL 20, 2011

use checklist that I completed for 2009.
Q

And why not?

Why did you no longer have a

copy of that checklist?

4

A

I discarded it.

5

Q

Why?

6

A

I believed that because the course was

7

canceled after one class meeting, it was not necessary

8

to retain the fair use checklist.

9
10
11

Q

And can you explain why you went about

recreating this checklist?
A

I was informed that there was a lawsuit and

12

asked by the Office of Legal Affairs at Georgia State

13

to recreate this checklist.

14

Q

And when you recreated the checklist, did you

15

make an effort to fill it out in the same way that you

16

filled it out in the office -- or in the 2009 time

17

frame before the course started?

18

A

Yes.

19

Q

When you originally filled this particular

20

checklist out in the 2009 time frame, did you make a

21

good faith effort to conduct a fair use analysis in

22

accordance with the checklist?

23

A

Yes.

24

Q

And this particular checklist, Gainty TX 2,

25

relates to which pages of the "Sino-Korean Tributary

SHUGART & BISHOP
Page 23

EXHIBIT D

1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

CAMBRIDGE UNIVERSITY
PRESS, et al.,
Plaintiffs,

)
)
)
)
)
)
)
)
)
)
)
)
)

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

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

- - Videotaped deposition of N. LEE ORR, Ph.D.,
taken on behalf of the plaintiffs, pursuant to the
stipulations contained herein, before Teresa Bishop,
RPR, RMR, CCR No. B-307, at 104 Marietta Street, SB-2
Conference Room, Atlanta, Georgia, on Friday, February
4, 2011, commencing at the hour of 12:66 p.m.
_______________________________________________________

Shugart & Bishop
Certified Court Reporters
Suite 140
13 Corporate Square
Atlanta, Georgia 30329
[phone]

SHUGART & BISHOP

2
1

I N D E X

2
3

Examinations

Page

4
5
6

EXAMINATION BY MR. LARSON

5

7

EXAMINATION BY MR. ASKEW

93

8

FURTHER EXAMINATION BY MR. LARSON

98

9
10

E X H I B I T S

11

No.

Description

Page

12
13

1

14
15

CV and bio from Georgia State web
site for

2

12

Dr. Orr

printout from the GoSolar system

16

for courses from the summer and

17

77

fall semesters of 2009.

18

3

19
20

4

25

cover page and table of contents

60

from "Cambridge Companion To Beethoven"
5

23
24

26

music 8860

21
22

syllabus for summer 2009 class

cover page and table of contents

60

From "Cambridge Companion To Schubert"
6

cover and table of contents
From "Liszt Sonata In B Minor"

SHUGART & BISHOP

27

3
1

7

2
3

60

From "Cambridge Companion To Berlioz"
8

4
5

cover page and table of contents

cover page and table of contents

60

From "The Music Of Berlioz"
9

cover page and table of contents

6

From "Cambridge Companion To

7

60

Mendelssohn"

8

10

9

Schumann"
11

12
13

60

From "Cambridge Companion To

10
11

cover page and table of contents

syllabus from music 8840 for

69

fall of 2009 semester
12

cover page and table of contents

14

from "North German Church Music

15

71

In The Age Of Buxtehude"

16

13

cover page and table of contents

17

from "The Organ Is A Mirror Of

18

71

Its Time"

19

15

20
21

syllabus for music 8840 from the

79

summer of 2008
16

22

article from dailyreportonline.com

87

dated April 18, 2008 by Janet L. Conley

23
24
25

Dixon Exhibits
2

current copyright policy for GSU

SHUGART & BISHOP

14

4
1

APPEARANCES OF COUNSEL:

2
3

FOR THE PLAINTIFFS:

4
5
6
7
8

TODD D. LARSON
ATTORNEY AT LAW
WEIL GOTSHAL & MANGES
767 FIFTH AVENUE
NEW YORK, NY 10153-0119
212.310.8238
[e-mail]

9
10

FOR THE DEFENDANTS:
11
12
13
14
15

ANTHONY B. ASKEW
KATIE BATES
ATTORNEYS AT LAW
KING & SPALDING
1180 PEACHTREE STREET, N.E.
ATLANTA, GA 30309-3521
404.572.2530
[e-mail]

16
17
18
19

MARY JO VOLKERT
GWEN SPRATT
ATTORNEYS AT LAW
GEORGIA STATE UNIVERSITY
OFFICE OF LEGAL AFFAIRS
P.O. BOX 3987
ATLANTA, GA. 30302-3987

20
21

ALSO PRESENT:

22

KENNITH DRAKE, VIDEOGRAPHER
23
24
25

SHUGART & BISHOP

8
1

Q.

When was that?

2

A.

Wednesday.

3

Q.

Okay.

At any point in the course of this

4

litigation, were you asked to preserve documents related

5

to the litigation?

6

A.

No.

7

Q.

And copies of what you had done meaning what?

8

A.

For the semesters in question.

9
10
11
12

Just send copies of what I had done.

Because I keep

everything.
Q.

And by done, you mean the checklist that you

filled out?
A.

13

recently.

14

I didn't start filling them out until

Okay.

15

Q.

I didn't know I needed to actually do that.

I see.

I was going to ask.

You're aware that

16

the suit as it's currently constituted is focusing on

17

semesters from 2009, is that your understanding?

18

A.

Yes.

19

Q.

And for the -- and I believe you taught in the

20

summer and fall of 2009, is that right?

21

A.

Yes.

22

Q.

And did you complete checklists for the works

23

that you provided to students on the EReserve system

24

during those two semesters?

25

A.

I didn't write on the actual paper.

SHUGART & BISHOP

I used

9
1

the checklist as my guideline for each reading because

2

I'm not -- they don't require us to turn them in.

3

that point about the literal writing I didn't, but I

4

adhered to it and kept it there in mind when I selected

5

the reading.

6
7

Q.

And

So you -- this was at the beginning of those

semesters that you did this?

8

A.

Sir?

9

Q.

This, the process you just described took

10

place at the beginning of each of those two semesters,

11

summer and fall of 2009?

12
13
14
15

A.

No.

I look at it with each books I'm

considering specifically.
Q.

Right.

And is that something that takes place

as the semester goes along or --

16

A.

Yes.

17

Q.

Just let me finish the question.

18

A.

Right, sorry.

19

Q.

And so in those semesters for the readings

20

that you put -- for each of the readings that you put on

21

the EReserve system, you walked through, you had a

22

checklist in front of you and you walked through it to

23

see whether or not the work was a fair use according to

24

the checklist?

25

A.

Yes.

SHUGART & BISHOP

EXHIBIT E

Moffitt, Natasha
From:

Quicker, Katrina M. (Atlanta) [[e-mail]]

Sent:

Friday, December 10, 2010 8:15 PM

To:

'John H. Rains IV'; 'Singer, Randi'; 'Larson, Todd'; 'Mayer, Stacey'; 'Edward B. Krugman'

Cc:

Askew, Tony; Schaetzel, Steve; Bates, Katie; Swift, Kristen; '[e-mail]'

Subject:

Cambridge v. GSU: GSU Document Prodution (3 of 5)

Follow Up Flag: Follow up
Flag Status:

Orange

Attachments:

Recreated Checklists.PDF

5/9/2011