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

Filing 68

ENDORSED LETTER addressed to Judge Harold Baer from Joseph Petersen dated 5/10/2012 re: Discovery dispute and to request direction from the Court on scheduling as it relates to the parties' filing of summary judgment motions. ENDORSEMENT: This problem should have been brought to my attention earlier and certainly not on the eve of the discovery cutoff and I trust it will not happen again. (1) l'd like a list of all depositions-name and role and schedule, (2) the three who are "too busy" will appear in NY wit hin the next ten (10) days at their convenience and I'd like a note from Mr. Salamanca's doctor as to his ability or lack thereof to participate at his bedside or wherever in an hour (1) of questions and answers. (Signed by Judge Harold Baer on 5/14/2012) (cd)

05/10/2012 15: 37 FAX

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hAROLD8A~R
u.s DISTRICT JUIDGE

ATTORNEVS AT LAW

S.D.N.Y.

The Grace Building
1114 Avenue of the Americas
New York, NY 10036
;212 77S 8700 f212 775 8800

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USDSSDNY

DOCUMENT

ELECTRONICALLY FILEDj

May 10,2012

DOC#: __--~+n~~r
DATE FILED:

VIA FACSIMILE

direct dial 212 775 8715
direct fax [phone]

[e-mail]

The Honorable Harold Baer, Jr.
United States District Judge
Daniel Patrick Moynihan United States C~urthouse
500 Pearl Street
'
New York, New York 10007
Re:

The Authors Guild, et al. v .• HathiTrust, et ai.,

Civil No. 11 CV 6351 (HB) (JLC)

Your Honor:
We represent the universities and university presidents on behalf of their libraries
("Libraries") in the above-referenced action. We write in advance of the May 17 hearing
scheduled in this matter to raise a discovery dispute with the court and to request direction
from the Court on scheduling as it relates to the parties' filing of summary judgment motions
(which, under the Court's current scheduling order, are due to be fully briefed by July 20).

Discovery Dispute - Scheduling of Plaintiffs' Depositions
For at least the past few weeks we have been in discussions with plaintiffs' counsel
concerning scheduling of depositions pursuant to our previously served deposition notices.
Our efforts to finalize a schedule for takiI).g the depositions have unfortunately been met with
resistance from plaintiffs. They have cla~ed that plaintiff J.R.~a~~:~~lt;!l)n ill health and
vWlllot be dcpo~cd rcgllrdlc33 of location (oyen in hio horne in 1\ s.ry and).

ey have also

claimed that other noticed plaintiffs residjng outside of New York (three witnesses in total)
are too busy to appear for a deposition infNew York notwithstanding the general and
longstanding rule that a plaintiff who brings suit in a particular forum may not avoid
appearing for examination in that forum. t
I See, e.g., A.I.A. Holdings, S.A. v. Lehman Bros., l~'C., 97 Civ. 4978,2002 WL 1041356, at *1 (S.D.N.Y. May 23,
2002) ("[I]t is well settled that a plaintiff is ordinar Iy required to make him or herself available for a deposition in
the jurisdiction in which the action is brought."); G otrian, HelJferich Schulz, Th. Steinweg Naclif v. Steinway and
Sons, 54 F.R.D. 280,281 (S.D.N.Y. 197J) ("Since plaintiff has chosen this forum, it cannot impose upon defendant
the extraordinary expense and burden of traveling tb a foreign country to conduct a deposition except on a showing
of burden and hardship to the plaintiff.").

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05/10/2012 15:38 FAX

212 775 8800

KILPATRICK STOCKTON

Ig] 003/004

The Honorable Harold Baer, Jr.
May 10,2012
Page 2

. i,

'.

We regret having to involve the C~urt in an issue that we would have hoped to have
resolved without Court intervention. HO\\fever, we believe we have no choice but to raise
this dispute with the Court in view of the fast approaching May 20 cutoff for fact discovery.
We therefore request that the Court order the noticed plaintiffs (with the exception of Mr.
Salamanca) to appear for deposition in N~ York no later than May 24.2
,
Scheduling Issue

On May 17, the Court will hear argument in connection with the Libraries' pending /
motion requesting that the Court dismiss 41aims: (1) by associational plaintiffs that lack
standing to represent unnamed and unkno~n authors; and (2) relating to non-justiciable I
"orphan works" issues. As Your Honor
recall, this past March the Court adjournJP6~
hearing on the Libraries' motion in order to consolidate the hearing on a motion file~
plaintiffs days before the then scheduled hearing on the Libraries' motion.
~

will

Plaintiffs have expressed agreement to producingiwitnesses outside of the M 20 cutoff for fact discovefiin t IS
Action. We assume that the Court has no objectioq to our taking such depositions because our doing so wQld have
0
no effect on any other deadlines set out in the Court's November 19, 2011 Pretrial Scheduling Order.

2

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05/10/2012 15:39 FAX

212 775 8800

KILP~ICK

STOCKTON

The Honorable Harold Baer, lr.

May 10,2012

Page 3

Robert J. Bernstein, Esq., Dan Gol~tein, Esq. (counsel for Intervenors)

~004/004

-

I

Endorsement:
This problem should have been brought to my attention
earl
and certainly not on the eve
the discovery cutoff and
I trust it will not happen agaip. (1) l'd like a list of all
depositions - name and role and! schedule, (2) the three who are
"too busy" will appear in NY wit:hin the next ten (10) days at
their convenience and I'd like a note from Mr. Salamanca's doctor
as to his ability or lack therebf to participate at his bedside
or wherever in an hour

(l)

of questions and answers.