CSI Litigation Psychology LLC v. DecisionQuest Inc

Filing 35

MEMORANDUM OPINION AND ORDER: CSI's 27 motion for partial summary judgment on the defendants' liability for copyright infringement is DENIED. (Ordered by Senior Judge A. Joe Fish on 1/19/2018) (sss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

CSI LITIGATION PSYCHOLOGY, LLC, )
)
Plaintiff,
)
)
VS.
)
)
DECISIONQUEST, INC., ET AL.,
)
)
Defendants.
)

CIVIL ACTION NO.
3:16-CV-3255-G

MEMORANDUM OPINION AND ORDER

Before the court is the motion for partial summary judgment filed by the
plaintiff CSI Litigation Psychology, LLC (“CSI”) (docket entry 27). For the reasons
stated below, the motion is denied.
I. BACKGROUND
CSI and the defendant DecisionQuest, Inc. (“DecisionQuest”) are competing
jury consulting companies. Plaintiff’s Brief in Support of Motion for Partial
Summary Judgment (“Motion”) at 2 (docket entry 28). The defendant Ann T.
Greeley (“Greeley”) serves as DecisionQuest vice president and as a jury consultant

for the company. Plaintiff’s First Amended Complaint (“Complaint”) ¶¶ 2, 20
(docket entry 21).
Dr. Bill Kanasky, Jr. (“Kanasky”), a jury consultant at CSI, published two
articles entitled Derailing the Reptile Safety Rule Attack: A Neurocognitive Analysis and
Solution (“Derailing”) and Debunking and Redefining the Plaintiff Reptile Theory
(“Debunking”). Id. ¶¶ 15, 17; see Appendix in Support of Plaintiff’s Motion for Partial
Summary Judgment (“CSI Appendix”) at APP004-019, 022-031 (docket entry 29).
CSI obtained federal copyrights to both works.1 CSI placed the works on its website,
and distributed them to current and potential clients. Complaint ¶ 18. Additionally,
Kanasky presented the papers to various seminars. Id. ¶ 19.
Greeley subsequently authored an article entitled A Brief Primer on the
ReptileTheory of Trial Strategy: Plaintiff Psychology and the Defense Response (“Primer”)
and distributed the paper at the American Bar Association annual conference in
2015. Id. ¶ 21; see CSI Appendix at 034-051. Greeley listed Derailing and Debunking
in the reference section of Primer. See CSI Appendix at APP051. CSI asserts that
Greeley plagiarized Dr. Kanasky’s work by copying portions of two sections of

1

The United States Copyright Office issued CSI Litigation Psychology,
LLC, a Certificate of Registration (Number TX 8-256-027) for Derailing with an
effective date of October 17, 2016 and first publication date of April 1, 2014 and a
Certificate of Registration (Number TX 8-256-024) for Debunking with an effective
date of October 17, 2016 and first publication date of April 30, 2014. See CSI
Appendix at APP020, 032.
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Debunking and one section of Derailing into Primer and subsequently presenting Primer
to the same type of clients hired by CSI. Complaint ¶ 22; Motion at 5-7.
On November 21, 2016, CSI commenced this action against DecisionQuest.
On April 25, 2017, CSI amended its complaint and added Greeley as a party. CSI
asserts claims of federal copyright infringement and unfair competition and also seeks
a permanent injunction. See generally Complaint.
CSI moves for summary judgment only on its copyright infringement claim
against DecisionQuest. Motion at 1. CSI asserts that “[a] partial summary judgment
as to liability at this juncture will narrow and streamline discovery and other issues
and conserve this Court’s and the Parties’ resources.” Id. at 2. Specifically, CSI
moves the court for a ruling that there are no fact issues regarding (1)” CSI’s
ownership of a valid copyright which DecisionQuest copied in its article: A Brief
Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response
(“Primer”)” and (2) “DecisionQuest, without authorization and in an especially
flagrant and obvious way, exactly copied word-for-word extensive portions of
Plaintiff’s works.” Id. (emphasis in the original).
II. ANALYSIS
A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show
that no genuine issue exists as to any material fact, and that the moving party is

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entitled to judgment as a matter of law. FED. R. CIV. P. 56.2 “[T]he substantive law
will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The movant makes such a showing by informing the court of the basis
of its motion and by identifying the portions of the record which reveal there are no
genuine material fact issues. See Celotex Corporation v. Catrett, 477 U.S. 317, 323
(1986). Once the movant makes this showing, the nonmovant must then direct the
court’s attention to evidence in the record sufficient to establish that there is a
genuine issue of material fact for trial. Id. at 323-24. To carry this burden, the
opponent must do more than simply show some metaphysical doubt as to the
material facts. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475
U.S. 574, 586 (1986). Instead, it must show that the evidence is sufficient to
support a resolution of the factual issue in its favor. Anderson, 477 U.S. at 249. All
of the evidence must be viewed, however, in a light most favorable to the motion’s
opponent. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
(1970)).

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The disposition of a case through summary judgment “reinforces the
purpose of the Rules, to achieve the just, speedy, and inexpensive determination of
actions, and, when appropriate, affords a merciful end to litigation that would
otherwise be lengthy and expensive.” Fontenot v. Upjohn Company, 780 F.2d 1190,
1197 (5th Cir. 1986).
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B. Copyright Infringement
To prevail on a claim for copyright infringement, a plaintiff must demonstrate
”(1) ownership of a valid copyright, and (2) copying of constituent elements of the
work that are original.” Feist Publications, Inc. v. Rural Telephone Service Company, 499
U.S. 340, 361 (1991)). “In any judicial proceedings the certificate of a registration
made before or within five years after first publication of the work shall constitute
prima facie evidence of the validity of the copyright and of the facts stated in the
certificate. . . .” 17 U.S.C. § 410(c); see also General Universal Systems, Inc. v. Lee, 379
F.3d 131, 141 (5th Cir. 2004) (“A certificate of registration, if timely obtained, is
prima facie evidence both that a copyright is valid and that the registrant owns the
copyright.”). CSI has established valid ownership in Derailing and Debunking.
To establish copying, a plaintiff must prove factual copying and substantial
similarity. General Universal Systems, 379 F.3d at 141. CSI may show factual copying
“either with proof of direct evidence of copying or through circumstantial evidence
demonstrating both (1) that the defendant had access to the copyrighted work and
(2) that the two works are ‘probatively’ similar.” Id. (citation omitted).
DecisionQuest has conceded access “[s]ince Greeley gave attribution to Dr. Kasansky
in Primer. . . .” See Defendants’ Brief in Opposition to Plaintiff’s Motion for Partial
Summary Judgment (“Response”) at 8 (docket entry 31); Motion at 4. Probative
similarity requires a plaintiff to demonstrate that the works “when compared as a

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whole, are adequately similar.” Peel & Company v. The Rug Market, 238 F.3d 391, 397
(5th Cir. 2001). Reasonable minds could differ on the issue of probative similarity.
Id.
Next, a “side-by-side comparison must be made between the original and the
copy to determine whether a layman would view the two works as ‘substantially
similar’” to protectable elements of the infringed work. Id. at 395 (citation omitted);
see also General Universal Systems, 379 F.3d at 142. The Fifth Circuit has advised:
Although this question typically should be left to the
factfinder, summary judgment may be appropriate if the
court can conclude, after viewing the evidence and drawing
inferences in a manner most favorable to the nonmoving
party, that no reasonable juror could find substantial
similarity of ideas and expression. If, after the plaintiff has
established its prima facie case, the defendant offers
evidence of independent creation, the plaintiff has the
burden of proving that the defendant in fact copied the
protected material.

Peel & Co., 238 F.3d at 395 (citations omitted); Flowserve Corporation v. Hallmark
Pump Company, No. 4:09-CV-0675, 2011 WL 1527951, at *4 (S.D. Tex. Apr. 20,
2011) (“[T]here are few instances in which courts in the Fifth Circuit have granted
summary judgment in favor of a plaintiff on a copyright infringement claim.”).
CSI contends that Greeley copied substantial portions of its protectable
elements. For example, CSI claims that Greeley copied 90 out of 110 words from a
section of Debunking in mostly the same order and maintains that the original

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ordering of any unoriginal sentences demonstrates similarity. Motion at 5. On the
other hand, DecisionQuest claims that CSI took most of the language from common
sources. Response at 8; see also id. at 1 (“The portions of Plaintiff’s work found in
the Debunking article that Defendants allegedly copied are not protectable for lack of
originality as the terminology used in Debunking is identical to Wikipedia citations
regarding, priming, direct priming and repetition priming.”).
Here, after viewing the evidence in a manner most favorable to DecisionQuest
as the nonmoving party, it is possible that reasonable minds might differ as to
probative similarity or substantial similarity. Thus, CSI’s motion for partial summary
judgment is denied.
III. CONCLUSION
For the reasons stated above, CSI’s motion for partial summary judgment on
the defendants’ liability for copyright infringement is DENIED.
SO ORDERED.
January 19, 2018.

___________________________________
A. JOE FISH
Senior United States District Judge

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