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Frerck v. John Wiley & Sons

January 6, 2012

FRERCK
v.
JOHN WILEY & SONS, INC.



Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Plaintiff Robert Frerck has filed objections [69] to Magistrate Judge Brown's October 18, 2011 order [66, 67] granting Defendant John Wiley & Sons' motion for protective order and denying Plaintiff's motion for expedited discovery and an evidentiary hearing. For the reasons stated, below Plaintiff's objections [69] are overruled and Judge Brown's October 18, 2011 order [66, 67] is affirmed.

O[ For further details see text below.] Docketing to mail notices.

*Copy to judge/magistrate judge.

STATEMENT

In this action, Plaintiff alleges that Defendant has engaged in infringement of Plaintiff's copyrights of stock photographs that Defendant has used in its textbooks. In particular, Plaintiff contends that Defendant has exceeded the scope of its licenses to use Plaintiff's photographs.

In its early stages, this Court referred the case to Magistrate Judge Brown for discovery supervision and a settlement conference. The case in fact is set for a settlement conference on February 2, 2012. The Court remains hopeful that the parties will be able to focus on what appear to be fairly straightforward issues in dispute -- namely, did Defendant exceed the scope of its license and, if so, what is fair compensation for having done so? In the meantime, the Court has before it Plaintiff's objections to Judge Brown's October 18 ruling on Defendant's motion for a protective order.

Where, as here, a district court considers objections to a magistrate judge's rulings on nondispositive matters, the magistrate judge's disposition will be set aside only if it is "clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a); see also Hall v. Norfolk Southern Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006); Bobkoski v. Board of Educ. of Cary Consol. School Dist., 141 F.R.D. 88, 90 (N.D. Ill. 1992). Under the clear error standard of review, "the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made." Weeks v. Samsung Heavy Industries Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997).

Plaintiff specifically argues objects to three aspects of Judge Brown's ruling:

1. Defendant's print run quantities and distribution information are not categorically excluded from the universe of proprietary, confidential information entitled to protection from automatic disclosure to the public;

2. A party seeking to file a document designated "Confidential" must first file it provisionally under seal as a precursor to the Court's determining whether sealing is justified; and

3. Documents marked as "Confidential" in this case may not be used in "collateral litigation" without permission.

As to the first issue, this Court sees no error, much less clear error, in Judge Brown's ruling. Plaintiff's reliance on an order entered by an Arizona district court is not persuasive. To begin with, it appears that the motion before the Arizona court involved the sealing of a single document, not a general provision in an umbrella protective order. In any event, Defendant cites numerous cases in which courts have found good cause for deeming print run numbers to be confidential. Judge Brown's ruling does not even go that far, for it does not definitively rule on any particular document, including one pertaining to print run quantities. [FN ...


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