American Society of Media Photographers, Inc. et al v. Google, Inc.
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 9/12/2013: Plaintiffs' Motion for Reconsideration is denied.Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
THE AMERICAN SOCIETY OF MEDIA
PHOTOGRAPHERS, INC., GRAPHIC
ARTISTS, GUILD, PICTURE ARCHIVE
COUNCIL OF AMERICA, INC., NORTH
AMERICAN NATURE PHOTOGRAPHY
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 Others Similarly
Case No. 13 C 408
Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Motion for Reconsideration.
For the reasons below, the Motion is denied.
The Court presumes familiarity with its May 6, 2013 Opinion
and accordingly provides only a brief summary of the factual
See, ECF No. 27.
On May 6, 2013, this Court granted non-party Tribune Media
District of Illinois.
The subpoena sought information that was
allegedly relevant to a case pending in the Southern District of
See, American Soc. of Media Photographers et al. v.
Google, Inc., No. 10-CV-02977 (DC), (S.D.N.Y. 2010).
involves a group of book photographers, artists, and associations
that represent book photographers (“Plaintiffs”) who filed a class
action suit against Google, Inc. (“Google”) claiming copyright
Specifically, Plaintiffs allege Google infringed
upon their copyrighted works when Google copied books and other
writings to develop a comprehensive online library.
In December 2012, Plaintiffs issued a subpoena to Tribune
regarding television programs and schedules, movie show times, and
other related material.
TMS provides this information to various
print, online, and on-screen television guides and publications.
Immediately after receiving the subpoena, TMS objected to
Procedure 37(a)(1), the parties conferred to attempt to resolve
this issue without the Court’s intervention.
however, were unsuccessful.
See, ECF No. 1.
As a result, TMS filed a Motion to
In their Motion, TMS argued that the Court
should quash the subpoena because it sought irrelevant information
and imposed an undue burden.
Additionally, TMS sought reasonable
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attorneys’ fees and expenses pursuant to Federal Rules of Civil
Procedure 26(c), 37(a)(4), and 45(c)(1).
On May 6, 2013, the Court granted TMS’ Motion.
In connection with that ruling, the Court also ordered
Plaintiffs to pay TMS any reasonable costs and fees associated with
the Motion to Quash.
In response to this Court’s Order, Plaintiffs filed a Motion
for Reconsideration on June 4, 2013.
See, ECF No. 30.
Motion, Plaintiffs ask the Court to reconsider its Order with
respect to fees and expenses.
They contend that the Court erred in
granting this award because Plaintiffs were unaware TMS was not a
February 12, 2013.
They also argue that the Court erred in
determining that Plaintiffs failed to take reasonable steps to
minimize the burden imposed on TMS.
Federal Rule of Civil Procedure 59(e) gives the Court the
power to reconsider and “rectify its own mistakes in the period
immediately following the entry of judgment,” thereby avoiding
U.S. E.E.O.C. v. Custom Companies, Inc., 02 C 3768, 2007
WL 1810495 (N.D. Ill. June 21, 2007) (citing White v. New Hampshire
Dept. of Employment Sec., 455 U.S. 445, 450 (1982)).
motions under Rule 59(e) “serve a limited function: to correct
manifest errors of law or fact or to present newly discovered
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Caisse Nationale de Credit Agricole v. CBI Indus.,
Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
A “manifest error” is
defined as the “wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224
F.3d 601, 606 (7th Cir. 2000).
Therefore, reconsideration is only
warranted if the Court (1) patently misunderstood a party; (2) made
a decision outside the adversarial issues presented; or (3) made an
error not of reasoning but of apprehension.
Citadel Group Ltd. V.
Wash. Reg’l Med. Ctr., No 07-1394, 2011 U.S. Dist. LEXIS 50894, at
*5 (N.D. Ill. May 12, 2011).
The other limited circumstance in
which reconsideration may be appropriate is if there has been a
significant change in the law or facts.
Plaintiffs claim reconsideration is appropriate here because
the Court erred in concluding that Plaintiffs failed to take
reasonable steps to prevent an undue burden.
They claim this is
because TMS failed to inform Plaintiffs that it did not have
relevant information until TMS filed its reply brief in support of
its Motion to Quash.
The Court disagrees.
In response to the Motion for Reconsideration, TMS recounts
the history of communication between the parties. It explains that
the parties’ first conferred in December 2012 when Plaintiffs’
counsel informed counsel for TMS that they sought information for
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the purpose of providing the court in New York an example of how
company utilizes and licenses images and photographs “the right
way” (allegedly in contrast to Google’s infringing conduct). TMS’s
conversation, counsel for TMS informed Plaintiffs that TMS did not
have information relevant to Plaintiffs’ case because TMS is in the
See, TMS’ Resp. to Pl.’s Mot. for Reconsideration
at 4 (citing Andrew W. Vail Decl. ¶ 2, ECF No. 24-1.).
TMS points out, Plaintiffs could have learned this information by
reviewing TMS’s website.
The parties’ discussions continued on January 11, 2013.
that time, TMS sent Plaintiffs an email with Seventh Circuit
authority regarding the standard for third-party discovery.
response, Plaintiffs provided one case that purported to establish
Plaintiffs, notifying them of its belief that the case Plaintiffs’
relied upon was inapplicable.
See, TMS’ Resp. to Pl.’s Mot. for
Reconsideration at 4-5.
On January 17, 2013, TMS contacted Plaintiffs to confirm that
their position had not changed.
At that time, TMS again stated
that its business did not involve the sale or licensing of excerpts
or photographs from books.
Despite this, Plaintiffs refused to
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withdraw their subpoena.
Because of this, TMS filed a Motion to
Quash on the same day.
TMS attached various supporting exhibits to its Motion to
Quash. One of those exhibits was a declaration from TMS President,
John B. Kelleher.
ECF No. 5-4.
See, Mem. in Supp. of Mot. to Quash, Ex. D,
In the declaration, Kelleher stated:
TMS’s business does not involve the sale or
licensing of excerpts from books nor does it
involve sourcing photographs from library
Rather, TMS provides television
programming information and other content
relating to television programs and movies to
its customers. None of that content is scanned
from any library books.
Decl. of TMS’s J. Kelleher ¶ 9; ECF No. 5-4, Page ID# 106.
Apparently, this assertion was not sufficient, as Plaintiffs
still refused to withdraw their subpoena. The parties continued to
communicate in late January 2013.
In an email dated January 28,
2013, counsel for TMS again reiterated to Plaintiffs’ counsel that,
“TMS does not acquire, sell, or license images in a manner that is
remotely comparable to the Google Library Project.”
Response to Pl.’s Mot. for Reconsideration, Ex. A, ECF No. 34-1,
Page ID# 339.
All of this communication occurred weeks before the
parties first appeared in Court on February 19, 2013.
regarding the fact that Plaintiffs failed to take reasonable steps
to avoid the imposition of an undue burden.
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Federal Rule of Civil Procedure 45(c)(1) provides:
A party or attorney responsible for issuing
and serving a subpoena must take reasonable
steps to avoid imposing undue burden or
expense on a person subject to the subpoena.
The issuing court must enforce this duty and
impose an appropriate sanction--which may
attorney's fees--on a party or attorney who
fails to comply.
FED. R. CIV. P. 45(c)(1) (emphasis added).
Even if the Court gives Plaintiffs the benefit of the doubt
and assumes that prior to issuing the subpoena they acted with due
diligence in researching TMS’s business, it is undeniable that they
were on notice as early as January 17, 2013, that “TMS’s business
does not involve the sale or licensing of excerpts from books nor
does it involve sourcing photographs from library books . . .”
Decl. of TMS’s J. Kelleher ¶ 9, ECF No. 5-4.
Plaintiffs refused to withdraw their subpoena and instead forced
the parties to appear in Court and brief the issue.
This cannot be
construed as taking “reasonable steps to avoid imposing undue
burden or expense
. . . [.]”
FED. R. CIV. P. 45(c)(1).
Plaintiff’s Motion is denied.
Among other things, it sought confidential
business information and information regarding TMS’s revenues and
This, combined with the fact that the TMS does not
possess relevant information and notified Plaintiffs of this early
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in this dispute cause the Court to affirm its award of costs and
fees. See, Rodriguez v. Parsons Infrastructure & Technology Group,
Inc., 271 F.R.D. 620, 623 (S.D. Ind. 2010) (awarding fees and costs
associated with a motion to quash and a protective order).
In sum, Plaintiffs fail to meet the high burden of proving the
Reconsideration is denied.
The Court notes Plaintiffs’ contentions surrounding TMS’s
unreasonably high fee request.
The Court will only award those
fees which are reasonable and encourages the parties’ to resolve
this issue without the Court’s intervention.
Reconsideration is denied.
In connection with this ruling, the
Court’s Order awarding reasonable attorneys’ costs and fees is
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
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