American Society of Media Photographers, Inc. et al v. Google, Inc.

Filing 1

MISCELLANEOUS CASE by Tribune Media Services, LLC Motion to Quash Subpoena Filing fee $ 46, receipt number 0752-7952720. (Bradford, David)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THE AMERICAN SOCIETY OF MEDIA
PHOTOGRAPHERS, INC., GRAPHIC ARTISTS,
GUILD, PICTURE ARCHIVE COUNCIL OF
AMERICA, INC., NORTH AMERICAN
NATURE PHOTOGRAPHY ASSOCIATION,
PROFESSIONAL PHOTOGRAPHERS OF
AMERICA, LEIF SKOOGFORS, AL
SATTERWHITE, MORTON BEEBE, ED KASHI,
JOHN SCHMELZER, SIMMS TABACK,
LELAND BOBBE, JOHN FRANCIS FICARA,
and DAVID W. MOSER, on behalf of themselves
and all others similarly situated,
Plaintiffs,
v.
GOOGLE, INC.,
Defendant.

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Case No. ____________________

Principal case pending in the
United States District Court for the
Southern District of New York,
Case No. 10-CV-02977 (DC)

MOTION TO QUASH SUBPOENA
Tribune Media Services, LLC (“TMS”), a non-party, by its attorneys, respectfully moves
this Court pursuant to Federal Rules of Civil Procedure 26(c) and 45(c)(3) for an Order quashing
the subpoena for documents and deposition served on it by Plaintiffs (“Photographers”) in
connection with a New York lawsuit (“Photographers’ Case”). In support of its Motion, TMS
submits and incorporates its Memorandum in Support of Motion to Quash Subpoena and states
as follows:
1. Photographers issued a subpoena to TMS (“Photographers’ Subpoena”) in connection
with the action captioned The American Society of Media Photographers et al. v. Google, Inc.,
No. 10-CV-02977 (DC), pending in the United States District Court for the Southern District of
New York.

2. The underlying, principal case is a class action lawsuit, in which Photographers seek
injunctive relief against and statutory damages from Google for alleged copyright infringement
based on Google’s reproduction of photographs from certain books that Google has imaged in
connection with its “Library Project.”
3.

TMS’s business involves the provision of TMS’s proprietary compilation of

information about television content, including schedule and programming information, movie
showtimes and information, and other related content to various print, online, and on-screen
television or “entertainment” guides and publications. TMS has no role in, interest in, or
relationship to Google’s Library Project.
4. Photographers’ Subpoena violates both Rule 26 and Rule 45 because it improperly
seeks irrelevant information, seeks TMS’s confidential business information without a showing
of substantial need, and subjects TMS to undue burden. TMS is not a party and has no interest in
the Photographers’ Case. In short, Photographers’ Subpoena seeks information from TMS that
has no reasonable nexus to the issues in Photographers’ Case.
5.

Moreover, Photographers’ purported justification for their Subpoena that TMS’s

confidential business information is relevant to a fair-use analysis is groundless. TMS’s product
involves wholly different content from different sources that is provided to its customers for
different uses through totally distinct trade channels than the Google Library Project.
Photographers’ unsupportable speculation or theory about a fictitious market in which
photographs scanned from books compete with information about television programs is not an
appropriate foundation for their Subpoena. See Trading Techs. Int’l, Inc. v. eSpeed, Inc., 2006
U.S. Dist. LEXIS 89202, at *6 (N.D. Ill. Dec. 5, 2006).

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6. Photographers’ Subpoena imposes an undue burden on non-party TMS. Courts in this
district routinely quash subpoenas issued to non-parties where responding to the subpoenas
would subject the non-party to undue burden, even where the non-party may have some relevant
discovery. See, e.g., Nw. Mem. Hosp. v. Ashcroft, 362 F.3d 923, 927 (7th Cir. 2004); Patterson
v. Burge, No. 03 C 4433, 2005 U.S. Dist. LEXIS 1331, at *14 (N.D. Ill. Jan. 6, 2005); In re
Heartland Inst., No. 11 C 2240, 2011 U.S. Dist. LEXIS 51304, * at 9-11 (N.D. Ill. May 13,
2011).
7. Accordingly, Photographers’ Subpoena should be quashed because Photographers’
cannot make a substantial showing in order to enforce a subpoena against a non-party that is
disinterested in the underlying litigation, and the Subpoena is unduly burdensome. Automated
Solutions Corp. v. Paragon Data Sys., 231 F. App’x 495 (7th Cir. 2007); see also Patterson, at
*5; In re Heartland Inst., at *9; Builders Ass’n of Greater Chi. v. City of Chi., No. 96 C 1122,
2002 U.S. Dist. LEXIS 5493 (N.D. Ill. Mar. 26, 2002); Cohn v. Taco Bell Corp., No. 92 C 5852,
1993 U.S. Dist. LEXIS 15346, at *14 (N.D. Ill. Oct. 28, 1993). TMS requests that this Court
enter an Order quashing Photographers’ Subpoena calling for TMS to produce documents and a
representative witness for deposition in this matter.
8. Pursuant to Federal Rule of Civil Procedure 26(c) and 37(a)(4), TMS also requests
that this Court award it reasonable attorneys’ fees and expenses incurred in connection with this
motion.

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Dated: January 17, 2013

Respectfully submitted,
TRIBUNE MEDIA SERVICES, LLC
By:

/s/ David J. Bradford
One of Its Attorneys

David J. Bradford
Andrew W. Vail
JENNER & BLOCK LLP
353 North Clark Street
Chicago, Illinois 60654
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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