The Authors Guild, Inc. et al v. Hathitrust et al

Filing 52

DECLARATION of Joseph Petersen in Support re: 37 MOTION for Judgment on the Pleadings.. Document filed by Hathitrust. (Attachments: # 1 Exhibit A - Objections and Responses to Requests for Admission, # 2 Exhibit B - Objections and Responses to Request for Production, # 3 Exhibit C - Objections and Responses to Requests for Admissions, # 4 Exhibit D - Objections and Responses of Plaintiff SFF, # 5 Exhibit E - Objections and Responses of Plaintiff NFFO, # 6 Exhibit F - Objections and Responses of Plaintiff Authors Licensing and Collecting)(Petersen, Joseph)

EXHIBIT C

Edward H. Rosenthal
Jeremy S. Goldman
FRANKFURT KURNIT KLEIN & SELZ, P.C.
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
:
THE AUTHORS GUILD, INC., et al,
:
:
Plaintiffs,
:
:
- against :
:
HATHITRUST, et al.
:
:
Defendants.
---------------------------------------------------------X

Index No. 11 Civ. 6351 (HB)

OBJECTIONS AND RESPONSES OF PLAINTIFF UNEQ
TO DEFENDANTS’ FIRST SET OF REQUESTS FOR ADMISSION
Plaintiff Union des Écrivaines et des Écrivains Québécois (Quebec Union of Writers)
(“Plaintiff”) hereby submits, pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure
and Rule 26.3 of the Local Rules for the Unites States District Courts for the Southern Districts
of New York (the “Local Rules”), by and through the undersigned attorneys, Plaintiff’s
objections and responses to Defendants’ First Set of Requests for Admission (“Requests”).
GENERAL STATEMENTS
A.

Plaintiff incorporates by reference each and every General Objection set forth

below into each and every specific response. From time to time a specific response may restate a
General Objection for emphasis or some other reason. The failure to include any General

Objection in any specific response shall not constitute a waiver of any General Objection with
respect to that request.
B.

No incidental or implied admissions are intended by the responses herein. That

Plaintiff has answered or objected to any request for admission should not be taken as an
admission that Plaintiff accepts or admits the existence of any fact set forth or assumed by such
request for admission. The fact that Plaintiff has answered part or all of any request for
admission is not intended to be, and shall not be construed to be, a waiver by Plaintiff of any part
of any objection to that request for admission.
C.

These responses are made solely for the purpose of this action. Each response is

subject to all objections as to competence, relevance, materiality, propriety, and admissibility,
and to any and all other objections on any grounds that would require the exclusion of any
documents produced or information provided by Plaintiff at time of trial. By responding to
Defendants’ requests for admission, Plaintiff does not waive any objection that may be
applicable to: (1) the use, for any purpose, by Defendant of any documents, things or information
provided in response to Defendants’ requests; or (2) the admissibility, privilege, relevancy,
authenticity, or materiality of any of such documents, things or information to any issue in the
case. Plaintiffs expressly reserves the right to object to the use of documents or things produced,
or information provided, in connection herewith during any subsequent proceeding, including the
trial of this or any other action.
D.

Plaintiff has not completed an investigation of all of the facts relating to this case,

has not completed discovery in this action, and has not completed preparation for trial. The
documents and things produced, or information provided, in response to Defendants’ requests for
admission are without prejudice to Plaintiff’s rights to produce additional documents and things,

2

or provide further information. Plaintiff’s responses to Defendants’ requests for admission are
made based on Plaintiff’s present information and belief predicated upon information and
writings presently available to and located by Plaintiff and Plaintiff’s attorneys. Accordingly,
these responses are subject to supplementation and amendment should future investigation
indicate that to be appropriate. Plaintiff also reserve the right to produce or use any documents
or information produced and/or discovered after service of this response in support of or in
opposition to any motion, in depositions, or at trial.
GENERAL OBJECTIONS
A.

Plaintiff objects to each of the requests seeking confidential, trade secret, or

proprietary business, technical, marketing, or financial information, or any other confidential
material. Plaintiff will disclose confidential information only pursuant to the terms of the
Stipulated Protective Order entered or to be entered in this case. These responses are designated
“CONFIDENTIAL” under the Protective Order entered or to be entered in this case.
B.

Plaintiff objects to each of the requests seeking information covered by the

attorney-client privilege, work product immunity, joint defense privilege, or otherwise covered
by any other applicable privilege, immunity, or other protection.
C.

Plaintiff objects to each of the requests to the extent it seeks documents or

information that are already in Defendants’ possession, are a matter of public record, or are
otherwise equally available to Defendants.
D.

Plaintiff objects to each of the requests with respect to which any benefit of the

production to Defendants is outweighed by the burden and expense to Plaintiff, taking into
account the needs of the case.

3

E.

Plaintiff objects to each of the requests seeking through definitions and

instructions to impose obligations beyond what is required in accordance with the Federal Rules
of Civil Procedure, the Local Rules, applicable court orders, or stipulations or agreements of the
parties (collectively, “the Rules”). Plaintiff will respond to Defendants’ requests only to the
extent required by the Rules.
F.

Plaintiff objects to each of the requests seeking material that Plaintiff is under an

obligation to any third-party not to disclose, including documents that would require breach of a
contract, protective order, settlement, or other duty to maintain confidentiality.
G.

Plaintiff objects to each of the requests seeking the same information requested by

one or more of Defendants’ requests for production or any interrogatory served by Defendants at
any time in this case. Plaintiff will provide information or documents only once, regardless of
the number of requests to which the same may be responsive.
H.

Plaintiff objects to each of the requests to the extent that it seeks information not

relevant to any claim or defense and/or not reasonably calculated to lead to the discovery of
admissible evidence, including but not limited to, information beyond the relevant temporal
and/or geographic scope of this matter.
I.

Plaintiff objects to each of the requests that purports to attribute any special or

unusual meaning to any technical terms or phrases.
J.

Plaintiff objects to each of the requests, and to the incorporated definitions and

instructions contained in such request, that purports to alter the plain meaning and/or scope of
any specific request for admission and thereby renders such request vague, ambiguous,
overbroad, or uncertain.

4

K.

Plaintiff objects to each of the requests as overbroad and unduly burdensome to

the extent that it can be interpreted in such a way as to require Plaintiff to search for documents
beyond Plaintiff’s possession, custody, or control.
L.

Plaintiffs object to each of the requests to the extent they seek legal opinions that

are not properly the subject of rule 36 requests for admission.
SPECIFIC OBJECTIONS AND RESPONSES TO REQUESTS FOR ADMISSION
1.
Admit that you are not the legal or beneficial owner of a copyright in a written
work or an exclusive right under a copyright in a written work that, to your knowledge, has been
infringed by any of the Defendants.
RESPONSE:
Subject to and without waiving the foregoing General Objections, this request is
admitted.

2.
Admit that you are not the legal or beneficial owner of a copyright in a written
work or an exclusive right under a copyright in a written work that, to your knowledge, has been
infringed by any of the Defendants by virtue of that work’s display while a candidate for
inclusion as an alleged “orphan work” in connection with the Orphan Works Project.
RESPONSE:
Subject to and without waiving the foregoing General Objections, this request is
admitted.

3.
Admit that you are not the legal or beneficial owner of a copyright in a written
work or an exclusive right under a copyright in a written work that, to your knowledge, has been
infringed by any of the Defendants by virtue of that work’s distribution while a candidate for
inclusion as an alleged “orphan work” in connection with the Orphan Works Project.

5

RESPONSE:
Subject to and without waiving the foregoing General Objections, this request is
admitted.

4.
Admit that you are not the legal or beneficial owner of a copyright in a written
work or an exclusive right under a copyright in a written work that has been registered with the
United States Copyright Office and has, to your knowledge, been infringed by any of the
Defendants by virtue of that work’s display while a candidate for inclusion as an alleged
“orphan work” in connection with the Orphan Works Project.
RESPONSE:
Subject to and without waiving the foregoing General Objections, this request is
admitted.

5.
Admit that you are not the legal or beneficial owner of a copyright in a written
work or an exclusive right under a copyright in a written work that has been registered with the
United States Copyright Office and has, to your knowledge, been infringed by any of the
Defendants by virtue of that work’s distribution while a candidate for inclusion as an alleged
“orphan work” in connection with the Orphan Works Project.
RESPONSE:
Subject to and without waiving the foregoing General Objections, this request is
admitted.

6.
For any works that serve as the basis for your denial of Requests for Admission
Nos. 1, 2, 3, 4, or 5, admit that for each such work there is no license or other agreement
allowing for the digitization of the work for any purpose—including without limitation for use in
digital distribution, in an electronic database, for archiving or preservation purposes, for nonconsumptive research, for full-text searching, and/or for use in formats accessible by the blind or
others with print disabilities.
RESPONSE:
N/A

6

7.
For any works that serve as the basis for your denial of Requests for Admission
Nos. 1, 2, 3, 4, or 5, admit that for each such work there has never been any license or other
agreement allowing for the digitization of the work for any purpose—including without
limitation for use in digital distribution, in an electronic database, for archiving or preservation
purposes, for non-consumptive research, for full-text searching, and/or for use in formats
accessible by the blind or others with print disabilities.
RESPONSE:
N/A

8.
For any works that serve as the basis for your denial of Requests for Admission
Nos. 1, 2, 3, 4, or 5, admit that for each such work you have not sought any license or other
agreement allowing for the digitization of the work for any purpose—including without
limitation for use in digital distribution, in an electronic database, for archiving or preservation
purposes, for non-consumptive research, for full-text searching, and/or for use in formats
accessible by the blind or others with print disabilities.
RESPONSE:
N/A

9.
For any works that serve as the basis for your denial of Requests for Admission
Nos. 1, 2, 3, 4, or 5, admit that you cannot identify any specific lost market or potential market
for that work by virtue of Defendants’ alleged conduct described in the First Amended
Complaint.
RESPONSE:
N/A

10.
For any works that serve as the basis for your denial of Requests for Admission
Nos. 1, 2, 3, 4, or 5, admit that you cannot identify the amount of any money lost as a result of
harm to any market or potential market for that work by virtue of Defendants’ alleged conduct
described in the First Amended Complaint.
RESPONSE:

7

N/A

11.
For any works that serve as the basis for your denial of Requests for Admission
Nos. 1, 2, 3, 4, or 5, admit that you cannot identify any specific monetary reduction to the value
or potential value of that work by virtue of Defendants’ alleged conduct described in the First
Amended Complaint.
RESPONSE:
N/A

12.
Admit that, as to each member of [Plaintiff], you cannot specifically identify each
and every copyright in a written work, or exclusive right under a copyright in a written work, for
which that member is a legal or beneficial owner.
RESPONSE:
Plaintiff objects to this request on the ground that it seeks information beyond the scope
of discovery in this action, including without limitation, in that the identity of each and every
copyright in a written work, or exclusive right under a copyright in a written work, for which
each and every member of Plaintiff’s organization is a legal or beneficial owner (any such
copyright or exclusive right, a “Member Copyright”), is not necessary to establish Plaintiff’s
associational standing to bring a claim against Defendants for copyright infringement.
Furthermore, to the extent this request seeks to require Plaintiff to identify each and every one of
its Member Copyrights, Plaintiff objects to the request on the grounds that it is overbroad and
unduly burdensome.
Subject to and without waiving the foregoing objection or the General Objections,
Plaintiff admits that, in the ordinary course of business, it neither collects nor maintains a record
of each and every Member Copyright for each and every one of its approximately 1,400
members. However, in response to Defendants’ discovery requests, Plaintiff is willing to

8

identify Member Copyrights for a mutually-agreeable number of randomly selected members, in
addition to the Member Copyrights that have already been identified in response to Defendants’
discovery requests separately issued to Plaintiffs Daniele Simpson and Andre Roy.

13.
Admit that, as to each member of [Plaintiff], you cannot specifically identify each
and every legal or beneficial co-owner of a copyright in a written work, or exclusive right under
a copyright in a written work, for which that member is also a legal or beneficial owner.
RESPONSE:
Plaintiff objects to this request on the ground that it seeks information beyond the scope
of discovery in this action, including without limitation, in that the identity of each and every
legal or beneficial co-owner of a copyright in a written work, or exclusive right under a
copyright in a written work, for which each and every member of Plaintiff’s organization is also
a legal or beneficial owner (any such co-owner, a “Member Work Co-Owner”), is not necessary
to establish Plaintiff’s associational standing to bring a claim against Defendants for copyright
infringement. Furthermore, to the extent this request seeks to require Plaintiff to identify each
and every one of its Member Work Co-Owners, Plaintiff objects to the request on the grounds
that it is overbroad and unduly burdensome.
Subject to and without waiving the foregoing objection or the General Objections,
Plaintiff admits that, in the ordinary course of business, it neither collects nor maintains a record
of each and every Member Work Co-Owner for each and every one of its approximately 1,400
members. However, in response to Defendants’ discovery requests, Plaintiff is willing to
identify Member Work Co-Owners for a mutually-agreeable number of randomly selected
members, in addition to any Member Work Co-Owners that have already been identified in
response to Defendants’ discovery requests separately issued to Plaintiffs Daniele Simpson and
Andre Roy.

9

14.
Admit that, as to each member of [Plaintiff], you cannot specifically identify each
and every licensee of a copyright in a written work, or exclusive right under a copyright in a
written work, for which that member is a legal or beneficial owner.
RESPONSE:
Plaintiff objects to this request on the ground that it seeks information beyond the scope
of discovery in this action, including without limitation, in that the identity of each and every
licensee of a copyright in a written work, or exclusive right under a copyright in a written work,
for which each and every member of Plaintiff’s organization is a legal or beneficial owner (any
such licensee, a “Member Work Licensee”), is not necessary to establish Plaintiff’s associational
standing to bring a claim against Defendants for copyright infringement. Furthermore, to the
extent this request seeks to require Plaintiff to identify each and every one of its Member Work
Licensees, Plaintiff objects to the request on the grounds that it is overbroad and unduly
burdensome.
Subject to and without waiving the foregoing objection or the General Objections,
Plaintiff admits that, in the ordinary course of business, it neither collects nor maintains a record
of each and every Member Work Licensee for each and every one of its approximately 1,400
members.

15.
Admit that, as to each member of [Plaintiff], you cannot specifically identify each
and every copyright in a written work, or exclusive right under a copyright in a written work, for
which that member was a legal or beneficial owner but has since licensed, transferred, assigned
or otherwise conveyed to any person.
RESPONSE:
Plaintiff objects to this request on the ground that it seeks information beyond the scope
of discovery in this action, including without limitation, in that the identity of each and every
copyright in a written work, or exclusive right under a copyright in a written work, for which

10

each and every member of Plaintiff’s organization was a legal or beneficial owner but has since
licenses, transferred or otherwise conveyed to any person (any such copyright or exclusive right,
a “Licensed Member Copyright”), is not necessary to establish Plaintiff’s associational standing
to bring a claim against Defendants for copyright infringement. Furthermore, to the extent this
request seeks to require Plaintiff to identify each and every one of its Licensed Member
Copyrights, Plaintiff objects to the request on the grounds that it is overbroad and unduly
burdensome.
Subject to and without waiving the foregoing objection or the General Objections,
Plaintiff admits that, in the ordinary course of business, it neither collects nor maintains a record
of each and every Licensed Member Copyright for each and every one of its approximately
1,400 members.

16.
Admit that, as to each member of [Plaintiff], you cannot specifically identify each
and every copyright in a written work, or exclusive right under a copyright in a written work, for
which that member has become a legal or beneficial owner by virtue of a license, transfer,
assignment or other conveyance from another person.
RESPONSE:
Plaintiff objects to this request on the ground that it seeks information beyond the scope
of discovery in this action, including without limitation, in that the identity of each and every
copyright in a written work, or exclusive right under a copyright in a written work, for which
each and every member of Plaintiff’s organization has become a legal or beneficial owner by
virtue of a license, transfer, assignment or other conveyance from another person (any such
copyright or exclusive right, a “Member Copyright By Conveyance”), is not necessary to
establish Plaintiff’s associational standing to bring a claim against Defendants for copyright
infringement. Furthermore, to the extent this request seeks to require Plaintiff to identify each

11

and every one of its Member Copyrights By Conveyance, Plaintiff objects to the request on the
grounds that it is overbroad and unduly burdensome.
Subject to and without waiving the foregoing objection or the General Objections,
Plaintiff admits that, in the ordinary course of business, it neither collects nor maintains a record
of each and every Member Copyright By Conveyance for each and every one of its
approximately 1,400 members.

17.
Admit that, as to each member of [Plaintiff], you cannot specifically identify each
and every copyright in a written work, or exclusive right under a copyright in a written work, for
which that member was a legal or beneficial owner by virtue of a license, transfer, assignment or
other conveyance from another person, but for which the copyright or exclusive right has since
reverted to the current legal or beneficial owner.
RESPONSE:
Plaintiff objects to this request on the ground that it seeks information beyond the scope
of discovery in this action, including without limitation, in that the identity of each and every
copyright in a written work, or exclusive right under a copyright in a written work, for which
each and every member of Plaintiff’s organization was a legal or beneficial owner by virtue of a
license, transfer, assignment or other conveyance from another person, but for which the
copyright or exclusive right has since reverted to the current legal or beneficial owner (any such
copyright or exclusive right, a “Reverted Member Copyright”), is not necessary to establish
Plaintiff’s associational standing to bring a claim against Defendants for copyright infringement.
Furthermore, to the extent this request seeks to require Plaintiff to identify each and every one of
its Reverted Member Copyrights, Plaintiff objects to the request on the grounds that it is
overbroad and unduly burdensome.
Subject to and without waiving the foregoing objection or the General Objections,
Plaintiff admits that, in the ordinary course of business, it neither collects nor maintains a record

12

of each and every Reverted Member Copyright for each and every one of its approximately
1,400 members.
Dated: New York, New York
January 26, 2012
FRANKFURT KURNIT KLEIN & SELZ, P.C.

By: /s/ Jeremy S. Goldman
Edward H. Rosenthal
Jeremy S. Goldman
488 Madison Avenue, 10th Floor
New York, New York 10022
Tel. [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

13

TO:

Joseph M. Beck (admitted pro hac vice)
Kilpatrick Stockton, LLP (GA)
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Joseph E. Petersen
Kilpatrick, Stockton
31 West 52nd. Street
New York, NY 10019
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Defendants
Nelson E. Roth
Cornell University
Office of University Counsel
300 CCC Building, Garden Avenue
Ithaca, NY 14853
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Cornell University

14