Blackwell Publishing, Incorporated et al v. Miller

Filing 50

DECLARATION by William S. Strong re 48 Reply to Response to Motion, 44 MOTION for Summary Judgment and accompanying Brief and Statement of Undiputed Facts filed by John Wiley and Sons, Incorporated, Blackwell Publishing, Incorporated, Elsevier, Incorporated, Oxford University Press, Incorporated, Sage Publications, Incorporated (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Mainelli Burke, Amy)

Blackwell Publishing, Incorporated et al v. Miller

Doc. 50

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BLACKWELL PUBLISHING, INC., ELSEVIER, INC., OXFORD UNIVERSITY PRESS, INC., SAGE PUBLICATIONS, INC., and JOHN WILEY & SONS, INC., Plaintiffs, vs. Mag. Morgan EXCEL RESEARCH GROUP, LLC d/b/a EXCEL TEST PREPARATION, COURSEPACKS, & COPIES and NORMAN MILLER, individually, Defendants. ___________________________________/ SECOND DECLARATION OF WILLIAM S. STRONG IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Civil Action No. 07-CV-12731 Hon. Avern Cohn

I, William S. Strong, counsel for plaintiffs in this action, hereby under oath declare as follows: 1. On February 23, 2009, I sent the e-mail attached hereto as Exhibit A to defendants' counsel, David Nacht, Esq., stating that the license between the University of Michigan (the "University") and SAGE became effective after the reproductions alleged in the Amended Complaint. Its effective date, December 31, 2006, is at the top of the first page. 2. On March 12, 2009, I sent Mr. Nacht the e-mail attached hereto as Exhibit B, advising him that the Oxford University Press ("OUP") books identified in the Amended Complaint as being infringed have at no time been subject to the license between OUP

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and the University, that they are no other license agreements in effect between OUP and the University regarding these books, and that although OUP has licensed two of the books at issue to ebook vendors such as netLibrary, none of those ebook vendors is permitted to authorize its sublicensees to download and reproduce content of the licensed books. 3. Some of this same information was set forth in OUP's written discovery

responses served on defendants on March 16, 2009, a copy of which is attached hereto as Exhibit C. 4. respect to it. 5. On January 29, 2009, defendants served 30(b)(6) deposition notices on Mr. Nacht never challenged this information or sought discovery with

each of the five plaintiffs. Defendants re-noticed the depositions of John Wiley & Sons, Inc. and Elsevier, Inc. on April 3 and 9, 2009, respectively. See deposition notices attached collectively hereto as Exhibit D. 6. As may be seen, these deposition notices did not include topics concerning what uses could be made of hard copies of journals and books in the holdings of the University of Michigan library.

SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA. __August 3, 2009_____ Date /s/ William S. Strong____________ William S. Strong, Esq.

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