Cambridge University Press et al v. Patton et al

Filing 71

CERTIFICATE of Counsel re 58 MOTION for Protective Order Nunc Pro Tunc Certificate of Good Faith Negotiation by Kristen A. Swift on behalf of Ronald Henry, J. L. Albert, Kenneth R. Bernard, Jr, James A. Bishop, Hugh A. Carter, Jr, William H. Cleveland, Robert F. Hatcher, Felton Jenkins, W. Mansfield Jennings, Jr, James R. Jolly, Donald M. Leebern, Jr, Eldridge McMillan, William NeSmith, Jr, Doreen Stiles Poitevint, Willis J. Potts, Jr, Wanda Yancey Rodwell, Kessel Stelling, Jr, Benjamin J. Tarbutton, III, Richard L. Tucker, Allan Vigil, Mark P. Becker, Nancy Seamans (Swift, Kristen)

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. NUNC PRO TUNC CERTIFICATE OF GOOD FAITH NEGOTIATION Counsel for Defendants MARK P. BECKER, in his official capacity as Georgia State University President, et al. (collectively, "Defendants"), comes before the Court and, pursuant to Fed. R. Civ. P. 26(c), certifies that counsel made a good faith effort to resolve the dispute in Defendants' Motion for Protective Order (Dkt. 58) without Court action. In support of this certification, counsel shows: 1. Defendants first attempted to resolve this matter consensually via a Civil Action File No.1:08-CV-1425-ODE

letter dated February 20, 2009, in which Defendants informed Plaintiffs of the adoption of the new copyright policy and indicated that there was no longer a need

to conduct further discovery into Georgia State University's ("GSU") "practices and procedures" prior to adoption of the new policy. 2. In a February 23, 2009 teleconference, counsel for Defendants again

addressed the cessation of discovery into GSU practices and procedures prior to adoption of the new policy, and explained Defendants' position that an open discussion of the adequacy of the new policy could provide a basis for resolving the matter. In that teleconference, counsel for Plaintiffs indicated that discovery into past GSU practices remained necessary. 3. In a letter dated February 27, 2009, Plaintiffs refused Defendants'

offer of an open discussion and insisted that the parties move forward with broad discovery because Plaintiffs contend they are seeking relief beyond a satisfactory copyright policy. Plaintiffs did postpone certain depositions in light of the new Regents' policy, but proceeded to depose two senior members of the Copyright Committee, William Potter and Nancy Seamans. 4. During those depositions, counsel for Plaintiffs questioned the

witnesses regarding the former copyright guidelines over counsel's objection to the relevance of such questions. (Potter Depo. at 59:22-60:12). Counsel for Plaintiffs disagreed with Defendants' objection and proceeded to question the witnesses regarding practices and policies no longer in effect. (Id.)

5.

In a letter dated March 13, 2009, Defendants again set forth their

position that discovery should be limited to ongoing activity in accordance with the doctrine of sovereign immunity under the Eleventh Amendment. (Dkt. 61 at 9). As of March 17, 2009, Plaintiffs had not agreed to limit discovery accordingly, thereby necessitating the instant motion. 6. Because the parties were unable to resolve their dispute despite the

good faith efforts of counsel to do so, Defendants filed the pending Motion for Protective Order. This 10th day of April 2009. THURBERT E. BAKER Attorney General R. O. LERER Deputy Attorney General 033887 446962

DENISE E. WHITING-PACK 558559 Senior Assistant Attorney General MARY JO VOLKERT Georgia Bar No. 728755 Assistant Attorney General

/s/ Kristen A. Swift King & Spalding LLP Anthony B. Askew Georgia Bar No. 025300 Special Assistant Attorney General Stephen M. Schaetzel Georgia Bar No. 628653 Kristen A. Swift Georgia Bar No. 702536 Attorneys for Defendants

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CAMBRIDGE UNIVERSITY PRESS, et al, Plaintiffs, -vs.CARL V. PATTON, in his official capacity as Georgia State University President, et al, Defendants. CERTIFICATE OF SERVICE The undersigned hereby certifies that, on this 10th day of April 2009, I have electronically filed the foregoing NUNC PRO TUNC CERTIFICATE OF GOOD FAITH NEGOTIATION with the Clerk of the Court using the CM/ECF system, which will automatically send e-mail notification of such filing to the following attorney of record: Edward B. Krugman [e-mail] Georgia Bar No. 429927 Corey F. Hirokawa [e-mail] Georgia Bar No. 357087 BONDURANT, MIXSON & ELMORE, LLP 1201 West Peachtree Street NW R. Bruce Rich Randi Singer Todd D. Larson WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Telephone: [phone] Facsimile: [phone] Civil Action No. 1:08-CV-1425-ODE

Suite 3900 Atlanta, GA 30309 Telephone: [phone] Facsimile: [phone]

/s/ Kristen A. Swift Kristen A. Swift (Ga. Bar No. 702536)