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

Filing 107

DECLARATION of Faith C. Hensrud in Support re: 100 MOTION for Summary Judgment.. Document filed by Hathitrust. (Petersen, Joseph)

KILPATRICK TOWNSEND & STOCKTON LLP
Joseph Petersen (JP 9071)
Robert Potter (RP 5757)
1114 Avenue of the Americas
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Joseph M. Beck (admitted pro hac vice)
W. Andrew Pequignot (admitted pro hac vice)
Allison Scott Roach (admitted pro hac vice)
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309-4530
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., ET AL.,
Plaintiffs,

Case No. 11 Civ. 6351 (HB)

v.
HATHITRUST, ET AL.,
Defendants.

DECLARATION OF FAITH C. HENSRUD IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I, Faith C. Hensrud, pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1.

I am the Provost and Vice Chancellor for Academic Affairs at the University of

Wisconsin Superior, in Superior, Wisconsin. I submit this declaration in support of the
defendant libraries’ motion for summary judgment. Unless otherwise noted, I make this
declaration based upon my own personal knowledge.

US2008 3613921

2.

The University of Wisconsin Superior (“UW Superior”) is part of the University

of Wisconsin System. The University of Wisconsin System is comprised of 26 separate
campuses, with one or more libraries located on each campus.
3.

As Provost and Vice Chancellor for Academic Affairs, my responsibilities include

oversight of the academic mission of UW Superior, as well as serving as the Chief Operating
Officer of UW Superior. In my role as Provost, various faculty report to me, including the
Director of UW Superior’s campus library, known as the Jim Dan Hill Library (the “JDH
Library”).
4.

The JDH Library’s general collection contains approximately 200,000 volumes. I

have been advised by the JDH Library’s Director that this includes approximately 149,000 books
and 1,038 periodical titles (all of the periodicals include multiple volumes). As of June 19, 2012,
this entire collection, plus an undetermined number of other works, were housed in the basement
of the JDH Library on the UW-Superior Campus.
5.

As Provost of UW Superior, I am acutely aware of the fragility of the books in

our collection. Books naturally deteriorate over time or are vulnerable to sudden loss as a result
of fire, theft, vandalism and flood.
6.

In yet another reminder of the threats faced by libraries, the JDH Library very

recently suffered a significant loss – one that we are still attempting to quantify – as a result of
flooding.
7.

Just last week, on June 19 and 20, Superior, Wisconsin experienced

extraordinarily heavy rains. According to published reports, the Duluth-Superior area received
over nine inches of rain in less than 24 hours. Attached as Exhibit A is a true and correct copy

US2008 3613921

of a National Weather Service webpage reporting 8.15 inches of rain in Superior alone over this
time period.
8.

The heavy rains led to severe flooding throughout Superior and surrounding areas.

The Governor of Wisconsin declared a state of emergency in the region. Attached as Exhibit B
is a true and correct copy of a representative news article reporting this announcement.
9.

UW Superior experienced flooding in sixteen separate buildings on its campus,

and the total damage to UW Superior’s campus is estimated to exceed $15 million.
10.

This flooding took out electrical power and was so severe that building

transformers and even emergency backup generators were rendered inoperable. We were unable
to operate sump pumps in any of these buildings.
11.

Many of UW Superior’s buildings suffered some degree of water damage, but the

JDH Library was hit particularly hard. More than eight feet of water flooded the lower level of
the library, in which the library’s general collection is stored.
12.

Each and every work in the JDH Library’s entire general collection –

approximately 200,000 volumes of books and periodicals – was affected by the flood waters or
moisture from the flood. The floodwaters reached as high as the sixth shelf of each seven-shelf
bookcase. Attached as Exhibits C through E are true and correct copies of representative news
articles reporting on the flooding
13.
JDH Library:

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Below are some representative photographs of the damage to the works in the

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14.

To deal with the flooding, UW-Superior retained a disaster recovery firm, BMS

Cat, that specializes in water damage restoration due to floods, hurricanes and other disasters,
with a particular focus on document recovery (see http://www.bmscat.com). They acted quickly

US2008 3613921

to stabilize the JDH Library collections on the first and second floors through the use of portable
generators, dehumidification units, and air conditioners. They then began to pump the
floodwater from the library and work to save as many books as possible. Removing the library’s
floodwater took over four days with pumps operating constantly and at full speed.
15.

We are in the process of removing all books and other materials from the

basement level of the library. With the assistance of the disaster recovery team, we have the
ability to freeze and then freeze-dry a portion of the books that were not too damaged to be
restored. Below is an image of just some of the works that have been boxed for shipping to the
freeze-drying facility in Fort Worth, Texas, and which have already been frozen and are
currently maintained in cold-storage facility in Superior, Wisconsin:

16.

Many works have been damaged so severely that they cannot be saved through

the freeze-drying process. The number of such works increases each day as we remove more of
the flooded collection from the JDH Library.

US2008 3613921

17.

It is currently unclear as to whether the damaged books can be preserved, and

what condition they will be in even if they can be saved. Estimates as to the percentage of books
that are damaged change every day as more books are removed from the Library. As of June 28,
a very rough estimate is that at least 25-30% of the books in the collection, and approximately
70% of the periodicals, are unrecoverable, and this number is only likely to increase as we
continue to assess the damage.
18.

I have been advised by the Director of the JDH Library that the flooded collection

included books on Native American and Wisconsin history and, although we do not yet know for
certain, some of these may have been unique to UW Superior and not owned by other University
of Wisconsin libraries. It is also possible that some percentage of the JDH Library’s out-of-print
works may also have been lost, but we have not yet been able to confirm this.
19.

The inventory of total damage will not be complete for some time, until we can

understand for certain what is recoverable and what has been permanently destroyed. For those
works that cannot be preserved (and, as necessary, adequately restored), the JDH Library may
have lost its print copy forever.
20.

As I sign this declaration, the JDH Library building remains temporarily closed,

and the fate of the flooded books remains uncertain. We have shipped 10 boxes of books to the
freeze-drying facility in Texas as a “test pallet,” which is expected to return to the UW Superior
campus in approximately three weeks. At that time we will examine the books to determine the
effectiveness of the restoration process, and determine whether or not to send the remainder of
the frozen books to Texas for the same process.

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EXHIBIT A

June 2012 Flood in Duluth and the Northland Rain Reports

Page 1 of 2

National Weather Service Weather Forecast Office

Duluth, MN

Home

Navigation
Flood Products
Photos

Rain Reports

This map is a graphical representation of the precipitation reports that we received from off duty weather service
employees, cooperative observers, and trained spotters. Both the map and the table of values below are preliminary
values as of 3:30 pm Friday afternoon, and will be updated as needed.

The following graphic was created by Daryl Herzmann at Iowa State University/Iowa Environmental Mesonet.

http://www.crh.noaa.gov/dlh/?n=june2012_duluth_flood_reports

6/28/2012

June 2012 Flood in Duluth and the Northland Rain Reports

Rain (in)
10.10
9.93
9.49
9.00
8.87
8.52
8.15
7.95
7.84
7.58
7.41
7.31
7.24
6.11
6.00
5.95
5.75
5.30
5.15
5.05
5.03
4.82
4.78
4.70
4.68
4.68

Location
4 NE Duluth
Two Harbors
5 NE Duluth
2 SW Duluth
Alborn
2 WSW Duluth
Superior
5 NW Two Harbors
1 SE Floodwood
Kettle River
4 E Island Lake
Hermantown
Duluth International Airport
3 E Wright
9 WSW Port Wing
14 SSW Brimson
Winter
6 S Grand Rapids
Castle Danger
Proctor
5 S Pequot Lakes
5 NW Two Harbors
Grand Rapids
7 SE Grand Rapids
Brainerd
3 E Floodwood

National Weather Service
Duluth, MN Weather Forecast Office
5027 Miller Trunk Highway
Duluth, MN 55811-1442
218-729-6697 - Duluth; 218-283-4615 - Intl Falls
Page Author: DLH Webmaster
Web Master's E-mail: [e-mail]
Page last modified: June 26th 2012 12:20 PM

Page 2 of 2

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6/28/2012

EXHIBIT B

Northland's NewsCenter: News, Weather, Sports | Gov. Walker Declares State Emergenc...

Page 1 of 2

Northland's NewsCenter: News, Weather,
Sports | NBC, CBS, MyNetworkTV, and The CW for Duluth
MN / Superior WI
Print this article

Gov. Walker Declares State
Emergency in Northwest
Wisconsin
Originally printed at http://www.northlandsnewscenter.com/news/nw-wisconsin/Walker-DuffyKick-Off-Visit-to-Superior-160378945.html

By KBJR News 1
June 26, 2012

Superior, WI (Northlands NewsCenter)
-- Wisconsin Governor Scott Governor Walker has declared an emergency for most
areas in Northwest Wisconsin. This includes the City of Superior, Douglas, Bayfield,
and Ashland Counties.
Walker and U-S Congressman Sean Duffy were led by representatives from northwest
Wisconsin through saw of the hardest hit homes, soaked and wrecked in last week's
flood.
The governor saw only a fraction of the devastation but says it was enough to move
him to declare a state of emergency.
Some basements in Superior saw feet of flood water after creeks, rivers, and streams
overflowed their banks following Wednesday's torrential rains.
Tuesday, City and County officials outlined the extent of damages, and ultimately,
what they believe they need from the federal government. They said they hoped to get
federal assistance for the extensive damage suffered in the area, and they were hoping
for help from the leaders.
"Seeing it is devastating. Most of the things in their basement are totally destroyed and
a good chunk of their living room and add-on among others were destroyed. That's a
huge disaster no matter what the declaration," said Wisconsin Governor Scott Walker
Tuesday in Superior, after seeing the damage.

http://www.northlandsnewscenter.com/internal?st=print&id=160378945&path=/news/nw-... 6/28/2012

Northland's NewsCenter: News, Weather, Sports | Gov. Walker Declares State Emergenc...

Page 2 of 2

"It's catastrophic for all the families in the community that are experiencing water
damage. You have memorabilia lost, plus this massive finical loss," said Wisconsin
Congressman Sean Duffy.
Despite the extent of damage Governor Walker says federal funding is not a sure thing.
"There is a distinction at the federal level in terms of a presidential declaration, we
don't appear to have that level in Wisconsin that they do in Minnesota with Duluth's,"
said Walker.
Wisconsin residents can improve the odds however, by documenting every inch of
damage.
"There is an analysis that's done in regard to the dollar amount and the number of
homes and they can commute whether the state or the feds can come in and help," said
Duffy shortly after touring a flood damaged home.
"Pass that information on because the more the cities, the counties, and the state get
that information, the more options we'll have available to us," said Walker to a group
at the Salvation Army in Superior.
With some 540 basements sustaining significant damage every dollar will help.
"I encourage everyone that has experienced damage in this storm to make sure that
officials know about that damage can be commuted in regard to FEMA," said
Congressman Duffy.
Lawmakers are working with city and county officials in an attempt to get every
possible type of disaster assistance. Both the Superior and Douglas County's website's
have forms to document flooding damage.
People are also strongly encourages to take pictures to go with the documentation.
Zach Vavricka
Bio - Facebook - Twitter - E-Mail

http://www.northlandsnewscenter.com/internal?st=print&id=160378945&path=/news/nw-... 6/28/2012

EXHIBIT C

UWS Flood Damage Estimated at $15 Million | News | Superior News

Page 1 of 8

wdio.com

UWS Flood Damage Estimated at $15 Million | News
Title (Max 100 Charaters)
UWS Flood Damage Estimated at $15 Million
Submitted by Jon Ellis (/profile/46665/jon-ellis) , WDIO Assistant News Director
Friday, June 22nd, 2012, 9:21pm

Topics: News (/news/news) , Schools (/news/schools) , Weather (/news/weather)
Topics: News (/news/news) , Schools (/news/schools) , Weather (/news/weather)

Top Superior Stories
Health

People

News

(/news/new
(/news/health/51025-walker-wis-wont-act-health- (/news/people/51023-new-vice-president-student -uws-flood-damage-estimated-15-million
care-ruling)

-affairs-northland-college)

Walker: Wis. Won't Act on Health Care New Vice President of Student Affairs
Ruling (/news/health/51025-walker-wis-wont- at ... (/news/people/51023-new-vice-presidentact-health-care-ruling)

UWS Flood Damage Estimated
Million (/news/news/50956-uws-flood-d
estimated-15-million)

student-affairs-northland-college)

Upcoming Events near Superior
(/h/events?ct=d&evid=249560879)

Ladies of the Canyon: Songs
of Joni Mitchell, Carole King,

http://superior.wdio.com/news/news/50956-uws-flood-damage-estimated-15-million

6/28/2012

UWS Flood Damage Estimated at $15 Million | News | Superior News

Page 2 of 8

Floodwaters rose eight feet in the basement of UW-Superior's Jim Dan Hill Library, destroying
thousands of books. (Photo supplied by UWS)

Officials say the UWS campus was the hardest hit flooding area in Douglas County.
The University estimates damage at $15 million campus-wide, $3 to 5 million at the University Library alone. T
other buildings there was severe infrastructure damage, especially to the heating system.
"It was like watching a river coming in and you knew that there was nothing you could do," said Chancellor Re
Most of the buildings are now open but the basements are closed off. The university says they plan to repair

http://superior.wdio.com/news/news/50956-uws-flood-damage-estimated-15-million

6/28/2012

UWS Flood Damage Estimated at $15 Million | News | Superior News

Page 3 of 8

Photos supplied by Sen. Bob Jauch

http://superior.wdio.com/news/news/50956-uws-flood-damage-estimated-15-million

6/28/2012

UWS Flood Damage Estimated at $15 Million | News | Superior News

Page 4 of 8

Mama Cass... (/h/events?
ct=d&evid=249511206)
Jun 29, 7:30PM
Lake Superior Big Top Chautauqua
(/h/events?ct=d&vid=244579343)

http://superior.wdio.com/news/news/50956-uws-flood-damage-estimated-15-million

6/28/2012

EXHIBIT D

Northland's NewsCenter: News, Weather, Sports | $15 Million in Flood Damages at UWS... Page 1 of 1

Northland's NewsCenter: News, Weather,
Sports | NBC, CBS, MyNetworkTV, and The CW for Duluth
MN / Superior WI
Print this article

$15 Million in Flood Damages at
UWS
Originally printed at http://www.northlandsnewscenter.com/news/local/15-million-in-Flood-Damagesat-UWS-160266365.html

By KBJR News 1
June 25, 2012

Superior, WI (Northland's NewsCenter) --- Officials at the University of WisconsinSuperior say the damage estimates from last weeks storms may top $15,000,000.
campus wide.
University employees and contractors continue to clean and repair campus buildings
damaged by flooding. The Jim Dan Hill Library, Old Main and the heating plant
sustained the worst damage, according to Chancellor Renee Wachter.
Some administrative and faculty offices have been moved to temporary locations.
Anyone needing to reach campus administrators or faculty is encouraged to check the
University website and use e-mial when possible.
Al Miller, the UWS media relations spokesperson, said most university buildings
suffered some sort of water damage, mostly from water accumulating on lower levels.
BMS Cat, a catastrophe recovery company out of Illinios, has been working since
Thursday to recover as many damaged books and documents as possible in the Library.
Wachter says campus officials are still assessing what must be done and prioritizing
tasks, but hope to have repairs completed before fall semester begins.
In an e-mial sent to students today, Wachter said the residence halls are operational
with summer camps underway and students living in the halls, and The Yellowjacket
Union and Marcovich Wellness Center are both open for business.
Summer classes are running as scheduled

http://www.northlandsnewscenter.com/internal?st=print&id=160266365&path=/news/local

6/28/2012

EXHIBIT E

UWS recovers slowly from flooding | Superior Telegram | Superior, Wisconsin

Page 1 of 1

Published June 27, 2012, 07:00 AM

UWS recovers slowly from flooding
On the University of Wisconsin-Superior campus, books damaged by flooding at the Jim Dan Hill Library will get a cool make
By: Superior Telegram, Superior Telegram

On the University of Wisconsin-Superior campus, books damaged by flooding at the Jim Dan Hill Library w
They will be freeze-dried in freezer trucks and come back as good as new, according to UWS spokeswoma
Early estimates indicate that about 75 percent of the collection — 150,000 books and an unknown number
drying process. The company contracted for the procedure is on retainer with the Library of Congress, Willi
The collection of books cannot be moved to a different section of the library. Due to the structure of the buil
but the basement, Williams said.
Barstow Hall is up and running, although it is currently using a generator to deliver electricity. A new transfo
back to that over the weekend, Williams said.
Old Main has been reopened but there is no access to the flood-damaged basement. Passers-by can expe
out of Old Main and the library over the next few days, Williams said.
The UWS power plant remains shut down. The full extent of damage to the building is not known. The heat
campus buildings. Flood water is still being cleaned out from the power plant, Williams said. But the bigges
possible damage to the pipes that run from the plant to other campus buildings.
The current shut-down is not affecting the campus because hot water is being provided by backup boilers,
Tags: news, uws, education

http://www.superiortelegram.com/event/article/id/67588/

6/28/2012