Cambridge University Press et al v. Patton et al

Filing 304

REPLY BRIEF re 274 MOTION in Limine To Preclude the Admission of Recently Created Fair Use Checklists filed by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(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,
- vMARK P. BECKER, in his official
capacity as Georgia State University
President, et. al.
Defendants.

PLAINTIFFS’
REPLY MEMORANDUM IN SUPPORT OF MOTION
IN LIMINE TO PRECLUDE THE ADMISSION OF RECENTLY
CREATED FAIR USE CHECKLISTS
Plaintiffs have moved, under Rule 901 and 1002 of the Federal Rules of
Evidence, to preclude the admission of what Defendants have styled as “
recreated”
Fair Use Checklists on the grounds that they cannot be authenticated as “
lost”
checklists completed in 2009 or used to prove the contents of such original 2009
checklists, let alone used to prove the contents of checklist that assertedly would
have been, but were not, completed in 2009. The so-called “
recreated”
checklists
are apparently offered as evidence that professors completed a Fair Use Checklist –
878813.1
US_ACTIVE:\43705573\04\38985.0007

as GSU’ copyright policy requires –before the corresponding copyrighted work
s
listed on the parties March 15, 2011 Joint Filing, Docket No. 266, was posted to
ERes.
I.

A Number of Professors Never Filled Out Checklists Before Having
Plaintiffs’Works Posted to ERes, Such That There Was No Lost
Original to “
Recreate”
While Defendants concede that “
some professors had not complied with the

retention requirements of the [GSU copyright] policy.” Defendants’Brief in
Opposition to Plaintiffs’
Motion in Limine to Preclude the Admission of Recently
Created Fair Use Checklists (“
Defs.’
Opp’ ) Docket No. 290 at 4, they do not
n”
forthrightly address the fact that at least six instructors –Freeman, Orr, Ruprecht,
Davis, Murphy, and Hankla – have admitted they never actually filled out
checklists in 2009. See Plaintiffs’
Motion in Limine to Preclude the Admission of
Recently Created Fair Use Checklists (“
Pls.’
Mot.” Docket No. 274 at 4.1 As to
)

1

Defendants’
corrected opposition brief on this motion, continuing to evade
directly addressing this issue, modifies the prior assertion that certain GSU
professors had “
filled out” Fair Use Checklists in 2009 to state that they “
the
used”
them. Compare Defs.’
Opp’ at 1-2 with Defendants’
n
Corrected Brief in
Opposition to Plaintiffs’
Motion in Limine to Preclude the Admission of Recently
Created Fair Use Checklists (“
Defs.’
Corrected Opp’ ) Docket No. 295-1 at 5.
n”
But even this amended statement is not wholly accurate. In fact, some professors
admitted that they did not even use the checklists in making their course reading
selections or may have but could not specifically remember doing so. See, e.g.,
Deposition of Marni Davis at 26:17-29:21; Deposition of Carrie Freeman at 28:11878813.1

2

these professors and the associated “
recreated”checklists, Defendants’
assertion
that the “
recreated checklists can evidence the content of the original checklists
under Federal Rule of Evidence 1004(1),”(Defs.’
Opp’ at 8), is baseless, as no
n
originals ever existed. See 6 WEINSTEIN’FEDERAL EVIDENCE § 1004.10[1] (2011)
S
(secondary evidence of the contents of a lost original only comes into play under
Rule 1004 once a court is “
satisfied that . . . the original existed and had been
executed”
).
II.

The Recreated Checklists Are Not Admissible Under F.R.E. 1004 or 901
Defendants’effort to salvage the admissibility of recreated checklists

prepared by professors who claim to have actually completed checklists in 2009
fares no better. In relation to these documents, Defendants admit that they cannot
attest that the recreated checklists are identical to the supposedly lost originals.
See Defs.’Opp’ at 8 (“
n
Defendants have not represented to Plaintiffs that the
recreated checklists are the original checklists completed in 2009.” id. at 7
);
(acknowledging that the recreated checklists are not “
duplicate originals” Indeed,
).
in their corrected filing on this motion, Defendants have abandoned their initial
contention that professors were instructed to “
create the checklist as closely as

32:21; Deposition of John M. Murphy at 39:15-19, 48:10-12, excerpts attached
hereto as Exhibits A, B and C, respectively.
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possible to the way it was completed at the time the work was posted,” at 5),
(id.
and now admit that professors simply were asked to recreate them, presumably
without any instructions. See Defs.’
Corrected Opp’ at 4-5. Insofar as much of
n
the trial will focus on the actual fair use determinations made by these professors at
the time the course materials were considered for use in 2009, the admission that
the recreated checklists do not purport to faithfully reflect those decisions renders
this group of documents equally lacking in probative value. Defendants’
resort to
Rule 1004 does not salvage their position.
Rule 1004 of the Federal Rules of Evidence permits “
other evidence of the
contents of a writing” lieu of an original in limited circumstances. But where, as
in
here, it is acknowledged that the recreated checklists are not evidence of the
contents of the original but, rather, mere “
attempts,”(Defs.’
Opp’ at 7), in late
n
2010 or early 2011 to recall how they may have filled the checklists out, Rule 1004
does not apply. To adopt Defendants’
position would be to entitle a litigant to
proffer any asserted recreation of evidence, however inexact or unprovable its
relationship to the original, on the premise that the original was “
lost.”We note in
this regard Defendants’
own advocacy to the effect that “ exception of Fed. R.
the
Evid. 1004(1) would not apply” a circumstance where “
in
lost”
documents are the
proponent’ “
s own fault”–plainly the circumstance presented here.
878813.1

4

Reply in

Support of Defendants’Motion in Limine to Exclude Evidence of Alleged
Infringement of Improperly-Asserted Copyrights, Docket No. 302 at 5 n.3.
Defendants further contend that the “
recreated” checklists can be
authenticated as just that –recreated checklists –and admitted as such under Rule
901. See Defs.’
Opp’ at 9 (contending that the checklists can be authenticated by
n
the relevant instructor under Rule 901 as “ documentation of her own 2009 fair
her
use analysis, as recalled in 2010 or 2011”
).

Given, however, Defendants’

concession that the checklists cannot reliably be authenticated as “
recreations of
the fair use analyses performed by the GSU professors in 2009 using the Fair Use
Checklist,”(id. at 2), admitting these instructors’
attempts to recreate what they
were thinking in 2009 is irrelevant and will serve only to confuse the trial record.
CONCLUSION
For the foregoing reasons and those set forth in Plaintiffs’
opening brief, the
Court should preclude the admission of all recreated checklists.

878813.1

5

Respectfully submitted this 12th day of May, 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
[phone]
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
Attorneys for Plaintiffs

878813.1

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CERTIFICATE OF COMPLIANCE
Pursuant to Local Rule 7.1(D), I hereby certify that this document complies
with the font and point selections set forth in Local Rule 5.1. This document was
prepared in Times New Roman 14 point font.
/s/ John H. Rains IV
John H. Rains IV

878813.1

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CERTIFICATE OF SERVICE
I hereby certify that I have this day filed the foregoing PLAINTIFFS’
REPLY MEMORANDUM IN SUPPORT OF 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 send e-mail notification of such filing to opposing counsel as follows:
Stephen M. Schaetzel, Esq.
Natasha H. Moffitt, Esq.
John W. Harbin, Esq.
Kristen A. Swift, Esq.
C. Suzanne Johnson, Esq.
Mary Katherine Bates, Esq.
KING & SPALDING
1180 Peachtree Street
Atlanta, Georgia 30309
Katrina M. Quicker, Esq.
BALLARD SPAHR, LLP
999 Peachtree Street, Suite 1000
Atlanta, Georgia 30309
Anthony B. Askew, Esq.
McKeon, Meunier, Carlin & Curfman, LLC
817 W. Peachtree Street, Suite 900
Atlanta, Georgia 30308

878813.1

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Mary Jo Volkert, Esq.
Assistant S. Attorney General
40 Capitol Square
Atlanta, Georgia 30334
This 12th day of May, 2011.
/s/ John H. Rains IV
John H. Rains IV

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