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DWYER, CLERK\n U.S. COURT OF APPEALS\nMARIA SCHNEIDER; et al., No. 23-80049\n\n Plaintiffs-Petitioners, D.C. No. 3:20-cv-04423-JD\n Northern District of California,\n v. San Francisco\n\nYOUTUBE, LLC; GOOGLE LLC, ORDER\n\n Defendants-Respondents.\n\nBefore: SILVERMAN and BUMATAY, Circuit Judges.\n\n The court, in its discretion, denies the petition for permission to appeal the\n\ndistrict court\u2019s May 22, 2023 order denying class action certification. See Fed. R.\n\nCiv. P. 23(f); Chamberlan v. 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(dhm, COURT STAFF) (Filed on 6/12/2023) (Entered: 06/12/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346233626/","id":346233626,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/424863704/","id":424863704,"tags":[],"absolute_url":"","date_created":"2024-12-20T11:37:44.658016-08:00","date_modified":"2026-02-19T22:08:00.839143-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2023-06-11T12:38:31.540178-07:00","date_modified":"2026-02-19T22:08:00.816418-08:00","date_filed":"2023-06-11","time_filed":null,"entry_number":null,"recap_sequence_number":"2023-06-11.002","pacer_sequence_number":null,"description":"***Civil Case Terminated. ORDER. In light of the stipulation of dismissal of all claims with prejudice, Dkt. No. 366, the jury trial set for June 12, 2023, is vacated. The case is closed. Signed by Judge Donato on 06/11/2023. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Donato, James) (Filed on 6/11/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346232850/","id":346232850,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352601821/","id":352601821,"tags":[],"absolute_url":"","date_created":"2023-06-11T11:39:50.049677-07:00","date_modified":"2023-06-11T11:39:50.053131-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Terminate Civil Case","acms_document_guid":""}],"date_created":"2023-06-11T11:39:50.045159-07:00","date_modified":"2023-06-11T11:39:50.045169-07:00","date_filed":"2023-06-11","time_filed":"11:26:37","entry_number":null,"recap_sequence_number":"2023-06-11.001","pacer_sequence_number":null,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346232507/","id":346232507,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352601467/","id":352601467,"tags":[],"absolute_url":"/docket/17319653/366/schneider-v-youtube-llc/","date_created":"2023-06-11T10:38:53.172417-07:00","date_modified":"2026-02-19T22:08:00.800085-08:00","sha1":"0006884f9299d8eeed36fbbc4be56305458b6dcf","page_count":4,"file_size":154904,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.366.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.366.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.361906/352601467.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:20-cv-04423-JD Document 366 Filed 06/11/23 Page 1 of 4\n\n\n\n 1 George A. Zelcs* KEKER, VAN NEST & PETERS LLP\n gzelcs@koreintillery.com Robert A. Van Nest - # 84065\n 2 Randall P. Ewing, Jr.* rvannest@keker.com\n rewing@koreintillery.com Dan Jackson - # 216091\n 3 Ryan Z. Cortazar * djackson@keker.com\n rcortazar@koreintillery.com Julia L. Allen - # 286097\n 4 KOREIN TILLERY, LLC jallen@keker.com\n 205 North Michigan, Suite 1950 Travis Silva - # 295856\n 5 Chicago, IL 60601 tsilva@keker.com\n Telephone: (312) 641-9750 Anna Porto - # 319903\n 6 Facsimile: (312) 641-9751 aporto@keker.com\n Luke Apfeld - # 327029\n 7 Stephen M. Tillery* lapfeld@keker.com\n stillery@koreintillery.com Amos J. B. Espeland - # 332895\n 8 Steven M. Berezney, CA Bar #329923 aespeland@keker.com\n sberezney@koreintillery.com 633 Battery Street\n 9 Carol O\u2019Keefe* San Francisco, CA 94111-1809\n cokeefe@koreintillery.com Telephone: 415 391 5400\n10 KOREIN TILLERY, LLC Facsimile: 415 397 7188\n 505 North 7th Street, Suite 3600\n11 St. Louis, MO 63101 Attorneys for Defendants\n Telephone: (314) 241-4844\n12 Facsimile: (314) 241-3525\n13 *Admitted pro hac vice\n14 Attorneys for Plaintiffs\n15 UNITED STATES DISTRICT COURT\n\n16 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION\n\n17\n Case No. 3:20-cv-04423-JD\n18 MARIA SCHNEIDER, UNIGLOBE\n ENTERTAINMENT, LLC and AST STIPULATION OF DISMISSAL\n19 PUBLISHING, LTD, individually and on behalf\n of all others similarly situated,\n20\n Plaintiffs,\n21 v.\n22 YOUTUBE, LLC and GOOGLE LLC,\n23 Defendants.\n24\n25\n26\n27\n28\n30\n STIPULATION OF DISMISSAL\n31 CASE NO. 3:20-CV-04423-JD\n\n32\n\f Case 3:20-cv-04423-JD Document 366 Filed 06/11/23 Page 2 of 4\n\n\n\n 1 Additional Counsel\n\n 2 Joshua Irwin Schiller, CA Bar #330653 David H. Kramer, SBN 168452\n jischiller@bsfllp.com dkramer@wsgr.com\n 3 BOIES SCHILLER FLEXNER LLP Lauren Gallo White, SBN 309075\n 44 Montgomery Street, 41st Floor lwhite@wsgr.com\n 4 San Francisco, CA 94104 Qifan Huang, SBN 339672\n Telephone: (415) 293-6800\n 5 Facsimile: (415) 293-6899 qhuang@wsgr.com\n WILSON SONSINI GOODRICH & ROSATI\n 6 Philip C. Korologos* Professional Corporation\n pkorologos@bsfllp.com 650 Page Mill Road\n 7 Jeffrey Waldron* Palo Alto, CA 94304-1050\n jwaldron@bsfllp.com Telephone: (650) 493-9300\n 8 BOIES SCHILLER FLEXNER LLP Facsimile: (650) 565-5100\n 55 Hudson Yards, 20th Floor\n 9 New York, NY 10001\n Telephone: (212) 446-2300 Attorneys for Defendants\n10 Facsimile: (212) 446-2350\n11 *Admitted pro hac vice\n12 Attorneys for Plaintiffs\n13\n14\n15\n16\n17\n18\n19\n20\n21\n22\n23\n24\n25\n26\n27\n28\n30\n STIPULATION OF DISMISSAL\n31 CASE NO. 3:20-CV-04423-JD\n\n32\n\f Case 3:20-cv-04423-JD Document 366 Filed 06/11/23 Page 3 of 4\n\n\n\n 1 Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Plaintiffs Maria Schneider,\n\n 2 Uniglobe Entertainment, LLC, and AST Publishing, LTD, and Defendants YouTube, LLC and\n 3 Google LLC, hereby stipulate to the dismissal of the action. All claims that Plaintiffs raised or\n 4 could have raised in this action are dismissed WITH PREJUDICE. Each Party will bear its own\n 5 costs, expenses, and attorneys\u2019 fees.\n Respectfully submitted,\n 6\n 7 Dated: June 11, 2023 By: /s/ Philip C. Korologos\n Philip C. Korologos*\n 8 Jeffrey Waldron*\n BOIES SCHILLER FLEXNER LLP\n 9 55 Hudson Yards, 20th Floor\n New York, NY 10001\n10 Telephone: (212) 446-2300\n Facsimile: (212) 446-2350\n11\n Joshua Irwin Schiller, CA Bar #330653\n12 BOIES SCHILLER FLEXNER LLP\n13 44 Montgomery Street, 41st Floor\n San Francisco, CA 94104\n14 Telephone: (415) 293-6800\n Facsimile: (415) 293-6899\n15\n George A. Zelcs*\n16 Randall P. Ewing, Jr.*\n Ryan Z. Cortazar*\n17\n KOREIN TILLERY, LLC\n18 205 North Michigan, Suite 1950\n Chicago, IL 60601\n19 Telephone: (312) 641-9750\n Facsimile: (312) 641-9751\n20\n Stephen M. Tillery*\n21 Steven M. Berezney, CA Bar #329923\n22 Carol O\u2019Keefe*\n KOREIN TILLERY, LLC\n23 505 North 7th Street, Suite 3600\n St. Louis, MO 63101\n24 Telephone: (314) 241-4844\n Facsimile: (314) 241-3525\n25\n26 *Admitted pro hac vice\n\n27 Attorneys for Plaintiffs Schneider, Uniglobe\n and AST\n28\n30 1\n STIPULATION OF DISMISSAL\n31 CASE NO. 3:20-CV-04423-JD\n\n32\n\f Case 3:20-cv-04423-JD Document 366 Filed 06/11/23 Page 4 of 4\n\n\n\n 1 Dated: June 11, 2023 By: /s/ Lauren Gallo White\n Lauren Gallo White\n 2 David H. Kramer\n Qifan Huang\n 3\n WILSON SONSINI GOODRICH & ROSATI\n 4 Professional Corporation\n 650 Page Mill Road\n 5 Palo Alto, CA 94304-1050\n Telephone: (650) 493-9300\n 6\n Robert A. Van Nest\n 7 Dan Jackson\n Julia L. Allen\n 8 Travis Silva\n Anna Porto\n 9 Luke Apfeld\n Amos J. B. Espeland\n10 KEKER, VAN NEST & PETERS LLP\n 633 Battery Street\n11 San Francisco, CA 94111-1809\n Telephone: (415) 391 5400\n12 Facsimile: (415) 397 7188\n13 Attorneys for Defendants YouTube, LLC and\n Google LLC\n14\n15\n ATTORNEY ATTESTATION\n16\n I, Philip Korologos, am the ECF User whose ID and password are being used to file this\n17\n document. In compliance with N.D. Cal. Civil L.R. 5-1(h)(3), I hereby attest that the concurrence\n18\n in the filing of this document has been obtained from the signatory.\n19\n /s/ Philip Korologos\n20 Philip Korologos\n21\n22\n23\n24\n25\n26\n27\n28\n30 2\n STIPULATION OF DISMISSAL\n31 CASE NO. 3:20-CV-04423-JD\n\n32\n\f","ocr_status":2,"date_upload":"2023-06-11T12:40:23.079038-07:00","document_number":"366","attachment_number":null,"pacer_doc_id":"035023231423","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Stipulation","acms_document_guid":""}],"date_created":"2023-06-11T10:38:53.163431-07:00","date_modified":"2026-02-19T22:08:00.778247-08:00","date_filed":"2023-06-11","time_filed":"10:33:05","entry_number":366,"recap_sequence_number":"2023-06-11.001","pacer_sequence_number":1271,"description":"STIPULATION of Dismissal filed by AST Publishing LTD., Maria Schneider, Uniglobe Entertainment, LLC,. (Korologos, Philip) (Filed on 6/11/2023) (Entered: 06/11/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346217115/","id":346217115,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352585147/","id":352585147,"tags":[],"absolute_url":"/docket/17319653/365/schneider-v-youtube-llc/","date_created":"2023-06-10T12:54:24.477970-07:00","date_modified":"2026-02-19T22:08:00.755696-08:00","sha1":"4c2584d20a5cbb54f86bfec38679befeb804d3b3","page_count":8,"file_size":268499,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:20-cv-04423-JD Document 365 Filed 06/10/23 Page 1 of 8\n\n\n\n\n 1 George A. Zelcs* Joshua Irwin Schiller, CA Bar #330653\n gzelcs@koreintillery.com jischiller@bsfllp.com\n 2 Randall P. Ewing, Jr.* BOIES SCHILLER FLEXNER LLP\n rewing@koreintillery.com 44 Montgomery St., 41st Floor\n 3 Ryan Z. Cortazar* San Francisco, CA 94104\n rcortazar@koreintillery.com Telephone: (415) 293-6800\n 4 KOREIN TILLERY, LLC Facsimile: (415) 293-6899\n 205 North Michigan, Suite 1950\n 5 Chicago, IL 60601 Philip C. Korologos*\n Telephone: (312) 641-9750 pkorologos@bsfllp.com\n 6 Facsimile: (312) 641-9751 Jeffrey Waldron*\n jwaldron@bsfllp.com\n 7 Stephen M. Tillery* BOIES SCHILLER FLEXNER LLP\n stillery@koreintillery.com 55 Hudson Yards, 20th Floor\n 8 Steven M. Berezney, CA Bar #329923 New York, NY 10001\n sberezney@koreintillery.com Telephone: (212) 446-2300\n 9 Carol O\u2019Keefe* Facsimile: (212) 446-2350\n cokeefe@koreintillery.com\n10 KOREIN TILLERY, LLC\n 505 North 7th Street, Suite 3600\n11 St. Louis, MO 63101\n Telephone: (314) 241-4844\n12 Facsimile: (314) 241-3525\n\n13 *Admitted pro hac vice\n\n14 Attorneys for Plaintiffs\n\n15\n UNITED STATES DISTRICT COURT\n16 NORTHERN DISTRICT OF CALIFORNIA\n SAN FRANCISCO DIVISION\n17\n\n18 MARIA SCHNEIDER, UNIGLOBE CASE NO.: 3:20-cv-04423-JD\n ENTERTAINMENT, LLC, and AST\n19 PUBLISHING LTD. PLAINTIFFS\u2019 MOTION TO AMEND\n THE PLEADINGS PURSUANT TO\n20 Plaintiffs, RULE 15 AND FOR DISMISSAL\n v. PURSUANT TO RULE 41\n21\n YOUTUBE, LLC and GOOGLE LLC, Judge: Hon. James Donato\n22\n\n23 Defendants. Date: June 12, 2023\n Time: 9:00 AM\n24\n\n25\n\n26\n27\n\n28 _______________________________________________________________________________\n\n PLAINTIFFS\u2019 MOTION TO AMEND THE PLEADINGS PURSUANT TO RULE 15\n AND FOR DISMISSUAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365 Filed 06/10/23 Page 2 of 8\n\n\n\n\n 1 Pursuant to Federal Rules of Civil Procedure 15(a)(2) and 41(a)(2), Plaintiffs respectfully\n\n 2 move the Court for leave to dismiss without prejudice all of AST Publishing Ltd.\u2019s claims and its\n\n 3 action against Defendants YouTube, LLC and Google LLC (\u201cDefendants\u201d) and to dismiss without\n\n 4 prejudice Uniglobe Entertainment, LLC\u2019s claims based on foreign works and Maria Schneider\u2019s\n\n 5 claims under 17 U.S.C. \u00a7 1202 that relate to copyright management information located in the clip\n\n 6 filename metadata field (sometimes referred to in this litigation as \u201cCLFN claims\u201d and collectively\n\n 7 with the foreign unregistered works claims of AST and Uniglobe, the \u201cRelevant Claims\u201d).\n\n 8 INTRODUCTION\n\n 9 Plaintiffs make this motion for an order dismissing certain claims without prejudice, consistent\n\n10 with Defendants\u2019 prior agreement (withdrawn the Friday evening before the start of trial on Monday)\n\n11 and this Court\u2019s prior direction that no party should be penalized for streamlining trial by dropping\n\n12 claims.\n\n13 At the May 25, 2023, pretrial conference, Defendants were granted permission to withdraw\n\n14 their DMCA safe harbor affirmative defense. In so ruling, the Court, addressing counsel for Plaintiffs,\n\n15 stated: \u201cJust as if you decided to drop half your claims, you know, I would not force you to try them or\n\n16 face what is effectively a default judgment. That\u2019s just not right . . . I would not exercise my\n\n17 discretion to penalize either party for improving the efficiency of the trial by dropping claims that they\n\n18 no longer believe in. That is antithetical to the fair and just administration of cases not to mention the\n19 efficient use of jury, party and court resources.\u201d (Ex. 11\u20145/25/23 Hrg. Tr. at 20:15\u201320:24.)\n\n20 Consistent with this, Plaintiffs acted to drop claims to improve the efficiency of the trial.\n\n21 Originally, Plaintiffs pursued this litigation as a putative class action. But the Court\u2019s order\n\n22 denying class certification on May 22, 2023, [ECF 330], changed Plaintiffs\u2019 views about how best\n\n23 to prosecute this case, just as it changed Defendants\u2019 views about what defenses to present to the\n\n24 jury. Specifically, Plaintiffs concluded that the continued prosecution of the Relevant Claims on\n\n25 an individual basis would not be an efficient use of judicial and party resources. Thus, after the\n\n26\n References to \u201cEx. __\u201d are to the Exhibits attached to the June 10, 2023, Declaration of Philip\n 1\n\n27 Korologos in support of this motion.\n 1\n28 _______________________________________________________________________________\n PLAINTIFFS\u2019 MOTION TO AMEND THE PLEADINGS PURSUANT TO RULE 15\n AND FOR DISMISSUAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365 Filed 06/10/23 Page 3 of 8\n\n\n\n\n 1 May 25 pretrial conference, Plaintiffs proposed and negotiated with Defendants what became the\n\n 2 May 31, 2023, trial plan [ECF 341] to improve the efficiency of the trial for all involved, which\n\n 3 proposed plan included the withdrawal of the Relevant Claims.\n\n 4 The agreement between the parties that led to the trial plan was unequivocal that the dismissal\n\n 5 of the Relevant Claims would be without prejudice in light of the Court\u2019s ruling denying class\n\n 6 certification and Plaintiffs expressly noted that the dismissal would be \u201cwith the same prejudice as\n\n 7 YouTube\u2019s dismissal of its DMCA affirmative defense\u201d\u2014i.e., with the understanding that the\n\n 8 claims or defenses could be revived should the Court\u2019s order regarding class certification be\n\n 9 reversed or vacated upon appeal. (Ex. 3\u20145/31/2023 7:36 AM. Korologos email.) In negotiating\n\n10 the trial plan and consistent with Plaintiffs\u2019 proposal, Defendants recognized that \u201cPlaintiffs do not\n\n11 intend to pursue\u201d the Relevant Claims \u201cin this action or any future action absent a reversal by the\n\n12 9th Circuit of the court\u2019s denial of class certification.\u201d (Ex. 4\u20145/31/23 12:49 p.m. Allen email)\n\n13 (emphasis added). That is, Defendants acknowledged and accepted that a reversal of the Court\u2019s\n\n14 class certification order\u2014including through a post-trial appeal\u2014would change the landscape of\n\n15 this litigation, such that Defendants would want the option to reassert their affirmative defense\n\n16 under the DMCA and Plaintiffs would want to be able to prosecute all of the claims in the\n\n17 Complaint, even those that do not make sense to prosecute in a non-class context. See Korologos\n\n18 Declaration at \u00b6\u00b6 3\u20134.\n19 On May 31, Plaintiffs conveyed a revised draft of the joint trial plan to Defendants. (Ex.\n\n20 5\u20145/31/23 1:58 PM Korologos email). Paragraphs 1 and 5 of that draft addressed, respectively,\n\n21 the \u201cdismissal by Plaintiffs of foreign unregistered works infringement claims by AST and\n\n22 Uniglobe\u201d and, the fact that Ms. Schneider has \u201cdismissed her CMI Claims that relate to the\n\n23 CLFN metadata\u201d. (Ex. 5\u20145/31/23 1:58 PM Korologos email). In the transmittal email, Plaintiffs\n\n24 confirmed to Defendants, \u201cWith respect to paragraphs 1 and 5, to be clear, and as you know from\n\n25 our conversations and previous emails, we do not presently intend to pursue the CLFN or foreign\n\n26 works claims in any future action in the absence of a reversal by the 9th Circuit of the court\u2019s\n27\n 2\n28 _______________________________________________________________________________\n PLAINTIFFS\u2019 MOTION TO AMEND THE PLEADINGS PURSUANT TO RULE 15\n AND FOR DISMISSUAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365 Filed 06/10/23 Page 4 of 8\n\n\n\n\n 1 denial of class certification but similar to YouTube no longer pursuing the DMCA safe harbor\n\n 2 affirmative defense, the \u2018dismissal\u2019 of those claims (assuming the court adopts the parties\u2019 trial\n\n 3 plan\u2019) is without prejudice.\u201d (Ex. 5\u20145/31/23 1:58 PM Korologos email) (emphasis added).\n\n 4 Defendants\u2019 sole response to was: \u201cThis revised trial plan works for us for submission to the\n\n 5 court.\u201d (Ex. 6\u20145/31/23 3:47 PM Allen email.) On Friday evening, however, despite the joint\n\n 6 presentation to the Court, and the Court\u2019s adoption of, the trial plan, Defendants reversed course,\n\n 7 refusing to consent to a stipulated dismissal of the Relevant Claims without prejudice consistent\n\n 8 with the parties\u2019 prior agreement. [ECF 341.] This motion is a consequence.\n\n 9 ARGUMENT\n\n10 I. PLAINTIFFS MARIA SCHNEIDER AND UNIGLOBE SHOULD BE\n11 GRANTED LEAVE TO AMEND THE PLEADINGS PURSUANT TO RULE 15\n TO DISMISS CERTAIN CLAIMS WITHOUT PREJUDICE.\n12\n Plaintiffs Maria Schneider and Uniglobe request leave to amend the pleadings pursuant to\n13\n Rule 15 to dismiss without prejudice Ms. Schneider\u2019s CLFN claims and Uniglobe\u2019s foreign\n14\n unregistered works claims. The Ninth Circuit has held that Rule 15 is the proper vehicle for the\n15\n dismissal of some, but not all, of a plaintiff\u2019s claims. See Hells Canyon Pres. Council v. U.S.\n16\n Forest Serv., 403 F.3d 683, 687\u201388 (9th Cir. 2005); see also Gen. Signal Corp. v. MCI\n17\n Telecommunications Corp., 66 F.3d 1500, 1513 (9th Cir. 1995) (\u201cwe have held that Rule 15, not\n18\n Rule 41, governs the situation when a party dismisses some, but not all, of its claims.\u201d)\n19\n Rule 15 provides that, \u201cThe court should freely give leave\u201d to amend the pleadings \u201cwhen\n20\n justice so requires,\u201d and the Ninth Circuit has advised that the \u201cpolicy of favoring amendments is\n21\n therefore to be applied \u2018with extreme liberality.\u2019\u201d Sarkisov v. Stonemor Partners L.P., 2014 WL\n22\n 12644016, at *2 (N.D. Cal. June 25, 2014) (quoting United States v. Webb, 655 F.2d 977, 979-80\n23\n (9th Cir. 1981)) (Donato, J.) \u201cCourts typically consider four factors when determining whether to\n24\n grant leave to amend: (1) bad faith on the part of the movant; (2) undue delay; (3) prejudice to the\n25\n opposing party; and (4) futility of the proposed amendment.\u201d Moore v. Costco Wholesale Corp.,\n26\n27\n 3\n28 _______________________________________________________________________________\n PLAINTIFFS\u2019 MOTION TO AMEND THE PLEADINGS PURSUANT TO RULE 15\n AND FOR DISMISSUAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365 Filed 06/10/23 Page 5 of 8\n\n\n\n\n 1 2014 WL 1998050, at *2 (N.D. Cal. May 13, 2014)) (Donato, J.). These factors strongly favor\n\n 2 granting Ms. Schneider and Uniglobe leave to amend the pleadings.\n\n 3 First, Plaintiffs have not acted in bad faith. Ms. Schneider and Uniglobe agreed to\n\n 4 withdraw their claims without prejudice in light of the changed circumstances that arose from the\n\n 5 denial of class certification of classes expressly related to the Relevant Claims\u2014a foreign\n\n 6 unregistered works class and a CLFN class\u2014and in order to streamline the issues presented at\n\n 7 trial. In seeking to dismiss their claims without prejudice, Plaintiffs are acting consistent with the\n\n 8 Court\u2019s direction and consistent with the Joint Proposed Trial Presentation Plan. [See ECF 352 at\n\n 9 1; ECF 341.]\n\n10 Second, Ms. Schneider and Uniglobe have not delayed in seeking leave to amend.\n\n11 Plaintiffs only learned the evening of June 9, 2023, that Defendants refused to stipulate to the\n\n12 dismissal without prejudice as Plaintiffs had anticipated and had instead decided to renege on their\n\n13 prior agreement for such dismissals. (Ex. 8\u20145/31/23 Allen email.)\n\n14 Third, Defendants will not be prejudiced by the amendment as it simply effectuates the\n\n15 dismissals that they had previously agreed to and as embodied in the Joint Trial Plan they joined in\n\n16 presenting to the Court and that has been adopted by the Court. Plaintiffs and Defendants\n\n17 submitted their trial plan to the Court based on their agreement that the dismissal of the Relevant\n\n18 Claims would be without prejudice. The Court approved the trial plan on the record at the second\n19 pretrial conference on June 5, 2023. (Ex. 7\u20146/5/23 Hrg. Tr. at 3:24-25.) At no time before the\n\n20 evening of June 9 did Defendants question, let alone back out of, their agreement. See Butler v.\n\n21 Adoption Media, LLC, 2005 WL 8165888, at *3 (N.D. Cal. Nov. 2, 2005) (allowing plaintiffs to\n\n22 amend their complaint where defendants had previously stipulated to such an amendment).\n\n23 Finally, the futility of amendment is not at issue. Plaintiffs are seeking to withdraw certain\n\n24 claims to make the presentation of issues at trial more efficient. See Duong-Tran v. Kaiser Found.\n\n25 Health Plan of the Nw., 2008 WL 1909221, at *4 (D. Or. Apr. 28, 2008) (\u201cThe proposed\n\n26\n27\n 4\n28 _______________________________________________________________________________\n PLAINTIFFS\u2019 MOTION TO AMEND THE PLEADINGS PURSUANT TO RULE 15\n AND FOR DISMISSUAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365 Filed 06/10/23 Page 6 of 8\n\n\n\n\n 1 amendment would not be futile, because eliminating a claim from an action generally advances the\n\n 2 litigation by simplifying the case and permitting the parties and the court focus on fewer issues.\u201d).\n\n 3 Plaintiffs Maria Schneider and Uniglobe should be granted leave dismiss without prejudice\n\n 4 their aforementioned claims through amendment of their complaint pursuant to Rule 15(a)(2).\n\n 5 II. AST SHOULD BE GRANTED LEAVE TO VOLUNTARILY DISMISS ITS\n CLAIMS WITHOUT PREJUDICE PURSUANT TO RULE 15 OR RULE 41.\n 6\n Plaintiff AST seeks voluntarily to dismiss without prejudice all of its claims (which are all\n 7\n foreign unregistered works claims) against Defendants pursuant to Rule 15(a)(2) or Rule 41(a)(2).\n 8\n With respect to Rule 15(a)(2), the same reasoning as addressed above for the dismissal\n 9\n without prejudice of some but not all of Ms. Schneider\u2019s and Uniglobe\u2019s claims applies to AST\u2019s\n10\n claims, all of which are claims for infringement of foreign unregistered works. Plaintiffs should\n11\n be permitted pursuant to Rule 15 to amend the complaint to drop without prejudice AST\u2019s claims\n12\n which are not worth pursuing on an individual given the Court\u2019s denial of class certification and\n13\n given Defendants\u2019 withdrawal of their DMCA safe harbor affirmative defense; which claims\n14\n Defendants agreed Plaintiffs may pursue should the Ninth Circuit reverse this Court\u2019s denial of\n15\n class certification. See Korologos Declaration at \u00b6 4.\n16\n Alternatively, because all of AST\u2019s claims would be dropped, AST\u2019s claims may be\n17\n dismissed without prejudice pursuant to Rule 41(a)(2). \u201cA motion for voluntary dismissal under\n18\n Rule 41(a)(2) is addressed to the district court's sound discretion.\u201d Stevedoring Servs. of Am. v.\n19\n Armilla Int'l B.V., 889 F.2d 919, 921 (9th Cir. 1989); see also Ex. 1 (\u201cI would not force you to try\n20\n them or face what is effectively a default judgment. That\u2019s just not right.\u201d)\n21\n ***\n22\n Through the good-faith efforts of Plaintiffs, and guided by the advice of the Court, the\n23\n parties came to an agreement to significantly narrow the issues remaining to be tried before the\n24\n jury. Defendants should not now be allowed to renege on the agreement that they made with\n25\n Plaintiffs and that was the basis of the trial plan submitted to and adopted by the Court.\n26\n27\n 5\n28 _______________________________________________________________________________\n PLAINTIFFS\u2019 MOTION TO AMEND THE PLEADINGS PURSUANT TO RULE 15\n AND FOR DISMISSUAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365 Filed 06/10/23 Page 7 of 8\n\n\n\n\n 1 CONCLUSION\n\n 2 For the foregoing reasons, Plaintiffs respectfully request that the Court grant its motion to\n\n 3 dismiss the Relevant Claims described herein without prejudice.\n\n 4\n Respectfully submitted,\n 5\n\n 6\n Dated: June 10, 2023 /s/ Philip Korologos\n 7 Philip C. Korologos*\n Jeffrey Waldron*\n 8 BOIES SCHILLER FLEXNER LLP\n 55 Hudson Yards, 20th Floor\n 9\n New York, NY 10001\n10 Telephone: (212) 446-2300\n Facsimile: (212) 446-2350\n11\n Joshua Irwin Schiller, CA Bar #330653\n12 jischiller@bsfllp.com\n BOIES SCHILLER FLEXNER LLP\n13\n 44 Montgomery St., 41st Floor\n14 San Francisco, CA 94104\n Telephone: (415) 293-6800\n15 Facsimile: (415) 293-6899\n16 George A. Zelcs *\n Randall P. Ewing, Jr.*\n17\n Ryan Z. Cortazar*\n18 KOREIN TILLERY, LLC\n 205 North Michigan, Suite 1950\n19 Chicago, IL 60601\n Telephone: (312) 641-9750\n20 Facsimile: (312) 641-9751\n21\n Stephen M. Tillery*\n22 Steven M. Berezney, CA Bar #329923\n Carol O\u2019Keefe *\n23 KOREIN TILLERY, LLC\n 505 North 7th Street, Suite 3600\n24 St. Louis, MO 63101\n25 Telephone: (314) 241-4844\n Facsimile: (314) 241-3525\n26\n *Admitted pro hac vice\n27\n 6\n28 _______________________________________________________________________________\n PLAINTIFFS\u2019 MOTION TO AMEND THE PLEADINGS PURSUANT TO RULE 15\n AND FOR DISMISSUAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365 Filed 06/10/23 Page 8 of 8\n\n\n\n\n 1 Attorneys for Plaintiffs\n 2\n\n 3\n\n 4\n\n 5\n\n 6\n\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 7\n28 _______________________________________________________________________________\n PLAINTIFFS\u2019 MOTION TO AMEND THE PLEADINGS PURSUANT TO RULE 15\n AND FOR DISMISSUAL PURSUANT TO RULE 41\n\f","ocr_status":2,"date_upload":"2023-06-12T19:38:46.373654-07:00","document_number":"365","attachment_number":null,"pacer_doc_id":"035023231351","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Motion for Miscellaneous Relief","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352585151/","id":352585151,"tags":[],"absolute_url":"/docket/17319653/365/1/schneider-v-youtube-llc/","date_created":"2023-06-10T12:57:21.869564-07:00","date_modified":"2023-06-13T02:45:29.344008-07:00","sha1":"6fcf035b2d265f4a26ecda442fd679767d5dbfa4","page_count":5,"file_size":181466,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.1.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.1.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:20-cv-04423-JD Document 365-1 Filed 06/10/23 Page 1 of 5\n\n\n\n\n 1 George A. Zelcs* Joshua Irwin Schiller, CA Bar #330653\n gzelcs@koreintillery.com jischiller@bsfllp.com\n 2\n Randall P. Ewing, Jr.* BOIES SCHILLER FLEXNER LLP\n 3 rewing@koreintillery.com 44 Montgomery St., 41st Floor\n Ryan Z. Cortazar* San Francisco, CA 94104\n 4 rcortazar@koreintillery.com Telephone: (415) 293-6800\n KOREIN TILLERY, LLC Facsimile: (415) 293-6899\n 5 205 North Michigan, Suite 1950\n 6 Chicago, IL 60601 Philip C. Korologos*\n Telephone: (312) 641-9750 pkorologos@bsfllp.com\n 7 Facsimile: (312) 641-9751 Jeffrey Waldron*\n jwaldron@bsfllp.com\n 8 Stephen M. Tillery* BOIES SCHILLER FLEXNER LLP\n stillery@koreintillery.com 55 Hudson Yards, 20th Floor\n 9 Steven M. Berezney, CA Bar #329923 New York, NY 10001\n10 sberezney@koreintillery.com Phone: (212) 446-2300\n Carol O\u2019Keefe* Fax: (212) 446-2350\n11 cokeefe@koreintillery.com\n KOREIN TILLERY, LLC\n12 505 North 7th Street, Suite 3600 *Admitted pro hac vice\n St. Louis, MO 3101 Attorneys for Plaintiffs\n13 Telephone: (314) 241-4844\n14 Facsimile: (314) 241-3525\n\n15\n UNITED STATES DISTRICT COURT\n16\n NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION\n17\n MARIA SCHNEIDER, UNIGLOBE CASE NO.: 3:20-cv-04423-JD\n18\n ENTERTAINMENT, LLC, and AST\n19 PUBLISHING LTD. DECLARATION OF PHILIP\n KOROLOGOS IN SUPPORT OF\n20 Plaintiffs, PLAINTIFF\u2019S MOTION TO AMEND\n v. THE PLEADINGS PURSUANT TO\n21 RULE 15 AND FOR DISMISSAL\n YOUTUBE, LLC and GOOGLE LLC, PURSUANT TO RULE 41\n22\n Defendants. Judge: Hon. James Donato\n23\n\n24\n\n25\n\n26\n27\n\n28\n -1- Case No. 3:20-cv-04423-JD\n DECLARATION OF PHILIP KORLOGOS IN SUPPORT OF PLAINTIFFS\u2019 MOTION TO AMEND THE\n PLEADINGS PURSUANT TO RULE 15 AND FOR DISMISSAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365-1 Filed 06/10/23 Page 2 of 5\n\n\n\n\n 1 I, Philip Korologos, hereby declare as follows:\n\n 2 1. I am a partner at Boies Schiller Flexner LLP, co-counsel to Plaintiffs Maria Schneider,\n\n 3 Uniglobe Entertainment, LLC (\u201cUniglobe\u201d), and AST Publishing, Ltd. (\u201cAST\u201d). I am an attorney\n\n 4 duly licensed to practice before the courts of the state of New York and numerous federal courts\n\n 5 and admitted pro hac vice for this case. [ECF 39.] I make this declaration in support of\n\n 6 Plaintiffs\u2019 Motion for Voluntary Dismissal Pursuant to Rule 41(a)(2). I have knowledge of the\n\n 7 facts stated herein from my personal knowledge and, if called as a witness, I could and would\n\n 8 competently testify thereto.\n\n 9 2. Plaintiffs pursued this litigation as a putative class action from 2020 until the Court\u2019s\n\n10 order denying class certification on May 22, 2023 [ECF 330.] As part of this action, among other\n\n11 claims, plaintiffs AST and Uniglobe were named putative class representative plaintiffs asserting\n\n12 claims for infringement of foreign unregistered works and Ms. Schneider was a named putative\n\n13 class representative plaintiff asserting a claim under 17 U.S.C. \u00a7 1202 with respect to copyright\n\n14 management information known as a clip filename (\u201cCLFN\u201d). [ECF 99, \u00b6\u00b6 16\u201319, 99.]\n\n15 3. In the absence of an accompanying class and Defendants\u2019 withdrawal of their DMCA\n\n16 safe harbor affirmative defense, Plaintiffs determined that pursuing certain claims would not be an\n\n17 efficient use of judicial resources, specifically the infringement claims based on foreign works,\n\n18 which encompassed all of AST\u2019s claims and some of Uniglobe\u2019s claims, and Ms. Schneider\u2019s\n19 claims for violation of 17 U.S.C. \u00a7 1202 with respect to clip filename metadata (\u201cCLFN claims\u201d\n\n20 and collectively with the foreign works infringement claims, the \u201cRelevant Claims\u201d).\n\n21 4. Plaintiffs reached an agreement with Defendants to withdraw those claims without\n\n22 prejudice, with the understanding that the reversal or vacatur of the Court\u2019s class certification\n\n23 order on appeal would revive the claims. A dismissal with prejudice would prevent plaintiffs\n\n24 from reasserting the claims in the event that the Ninth Circuit reverses the decision of this Court,\n\n25 which plaintiffs were not willing to agree to in the absence of compensation. Given the pendency\n\n26 at the time of Plaintiffs\u2019 Rule 23(f) petition to the Ninth Circuit, I was express in discussing with\n27 counsel for Defendants that Plaintiffs would only dismiss the Relevant Claims without prejudice\n\n28\n -2- Case No. 3:20-cv-04423-JD\n DECLARATION OF PHILIP KORLOGOS IN SUPPORT OF PLAINTIFFS\u2019 MOTION TO AMEND THE\n PLEADINGS PURSUANT TO RULE 15 AND FOR DISMISSAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365-1 Filed 06/10/23 Page 3 of 5\n\n\n\n\n 1 including so they could pursue those claims on a class basis should the Ninth Circuit, either as a\n\n 2 result of a Rule 23(f) appeal or an appeal after trial, affirm an appeal of this Court\u2019s order denying\n\n 3 class certification.\n\n 4 5. This agreement was the basis on which the parties presented to the Court the Joint\n\n 5 Submission re Trial Presentation Plan [ECF 341] that referenced the dismissal of the Relevant\n\n 6 Claims. The Court approved the parties\u2019 Trial Presentation Plan at the second pretrial conference\n\n 7 held on June 5, 2023.\n\n 8 6. Attached hereto as Exhibit 1 is a true and correct copy of the transcript of the May 25,\n\n 9 2023, proceedings in this action. At the May 25 hearing, the following colloquy occurred\n\n10 between the Court and myself in relation to Defendants\u2019 withdrawal of their DMCA safe harbor\n\n11 affirmative defense:\n\n12 \u201cTHE COURT: . . . Just as if you decided to drop half your claims, you know, I would\n not force you to try them or face what is effectively a default judgment. That's just not\n13 right.\n14 \u201cMR. KOROLOGOS: Well \u2013\n15 \u201cTHE COURT: I would not exercise my discretion to penalize either party for improving\n the efficiency of the trial by dropping claims that they no longer believe in. That is\n16 antithetical to the fair and just administration of cases not to mention the efficient use of\n jury, party and court resources.\u201d\n17\n 7. During discussions that started the following day, on May 26, 2023, and continued\n18\n over the holiday weekend, I proposed to Defendants a trial plan in light of the Court\u2019s ruling on\n19\n class certification and in granting Defendants\u2019 request to withdraw their DMCA safe harbor\n20\n affirmative defense. Because of the relative complexity and limited damages associated with\n21\n certain claims when pursued on an individual basis as opposed to as representative claims on\n22\n behalf of a class and without the prospect of a ruling on Defendants\u2019 withdrawn DMCA safe\n23\n harbor affirmative defense, Plaintiffs proposed to Defendants that they would not try the Relevant\n24\n Claims and instead would withdraw those without prejudice.\n25\n 8. Consistent with those discussions, on May 30, I transmitted to Defendants a proposed\n26\n joint trial plan as shown in the attached Exhibit 2, which is a true and correct copy of an email\n27\n\n28\n -3- Case No. 3:20-cv-04423-JD\n DECLARATION OF PHILIP KORLOGOS IN SUPPORT OF PLAINTIFFS\u2019 MOTION TO AMEND THE\n PLEADINGS PURSUANT TO RULE 15 AND FOR DISMISSAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365-1 Filed 06/10/23 Page 4 of 5\n\n\n\n\n 1 and attachment that I sent to Defendants\u2019 counsel on May 30, 2023 at approximately 2:29 PM,\n\n 2 with an attached draft joint proposed trial plan. The draft to that email included in paragraph 1 the\n\n 3 language \u201cfollowing withdrawal without prejudice by Plaintiffs of foreign unregistered works\n\n 4 infringement claims by AST and by Uniglobe\u201d and in paragraph 5 the language, referring to Ms.\n\n 5 Schneider, \u201cShe has withdrawn without prejudice her CMI Claims that relate to CLFN metadata.\u201d\n\n 6 9. Attached hereto as Exhibit 3 is a true and correct copy of an email that I sent to\n\n 7 Defendants\u2019 counsel at approximately 7:36 AM on May 31, 2023. In reference to the claims that\n\n 8 are the subject of this motion, I wrote:\n\n 9 \u201cYou have changed \u2018withdrawal without prejudice\u2019 to \u2018dismissal\u2019. We\n understand that to be changing only what is conveyed to the Court about the\n10 claims that are impacted by that language, rather than the substance of how those\n claims are dismissed. In other words, as we have discussed, we agree to treat our\n11 \u2018dismissal\u2019 of foreign works claims and CLFN claims with the same prejudice as\n YouTube\u2019s dismissal of its DMCA affirmative defense.\n12\n ...\n13\n \u201cGiven the above described discussion, we are okay with the word \u2018dismissal\u2019\n14 instead of the phrase \u2018withdrawal without prejudice\u2019 with the understanding that\n the change does not alter the above positions.\u201d\n15\n 10. Attached hereto as Exhibit 4 is a true and correct copy of an email that I\n16\n received from Defendants\u2019 counsel at approximately 12:49 PM on May 31, 2023. In\n17\n response to the clarification noted above, Defendants\u2019 counsel wrote:\n18\n \u201cWe did not \u2018dismiss\u2019 the DMCA safe harbor defense, we withdrew it as a\n19 defense in this case following the court\u2019s denial of class certification. Regardless,\n we appreciate your agreement to use the term \u2018dismissal\u2019 to describe the status of\n20 the CLFN and foreign works claims, which appears to more accurately reflect the\n fact that Plaintiffs do not intend to pursue these claims in this action or any future\n21 action absent a reversal by the 9th Circuit of the court\u2019s denial of class\n certification.\u201d\n22\n 11. Attached hereto as Exhibit 5 is a true and correct copy of an email I sent to\n23\n Defendants\u2019 counsel at approximately 1:58 PM on May 31, 2023. In pertinent part I wrote:\n24\n \u201cWith respect to paragraphs 1 and 5, to be clear, and as you know from our\n25 conversations and previous emails, we do not presently intend to pursue the\n CLFN or foreign works claims in any future action in the absence of a reversal by\n26 the 9th Circuit of the court\u2019s denial of class certification but similar to YouTube\n no longer pursuing the DMCA safe harbor affirmative defense, the \u2018dismissal\u2019 of\n27\n\n28\n -4- Case No. 3:20-cv-04423-JD\n DECLARATION OF PHILIP KORLOGOS IN SUPPORT OF PLAINTIFFS\u2019 MOTION TO AMEND THE\n PLEADINGS PURSUANT TO RULE 15 AND FOR DISMISSAL PURSUANT TO RULE 41\n\f Case 3:20-cv-04423-JD Document 365-1 Filed 06/10/23 Page 5 of 5\n\n\n\n those claims (assuming the court adopts the parties\u2019 trial plan) is without\n 1 prejudice.\u201d\n 2\n 12. Attached hereto as Exhibit 6 is a true and correct copy of an email that I received from\n 3\n Defendants\u2019 counsel at approximately 3:47 PM on May 31, 2023. Defendants\u2019 counsel wrote,\n 4\n \u201cThanks Phil. This revised trial plan works for us for submission to the court.\u201d\n 5\n 13. Attached hereto as Exhibit 7 is a true and correct copy of the transcript of the June 5,\n 6\n 2023, proceedings in this action.\n 7\n 14. Attached hereto as Exhibit 8 is a true and correct copy of an email sent by Defendants\u2019\n 8\n counsel to Plaintiffs\u2019 counsel, dated June 9, 2023, at approximately 5:07 PM. In response to\n 9\n Plaintiffs\u2019 proposed stipulation to dismiss without prejudice the claims that are the subject of this\n10\n motion, Defendants\u2019 counsel wrote:\n11\n \u201cDefendants do not agree to this stipulation and you do not have Defendants\u2019\n12 authorization to submit this notice under Rule 41(a)(1). Defendants do not agree\n that dismissal of these claims should be without prejudice, nor do Defendants\n13 agree to waive their costs, expenses, or fees attributable to these claims.\u201d\n14 I declare under penalty of perjury that the foregoing is true and correct.\n\n15 Executed this 10th day of June, 2023, at San Francisco, California.\n\n16\n\n17 /s/ Philip Korologos\n Philip C. Korologos\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n -5- Case No. 3:20-cv-04423-JD\n DECLARATION OF PHILIP KORLOGOS IN SUPPORT OF PLAINTIFFS\u2019 MOTION TO AMEND THE\n PLEADINGS PURSUANT TO RULE 15 AND FOR DISMISSAL PURSUANT TO RULE 41\n\f","ocr_status":2,"date_upload":"2023-06-12T19:38:47.219569-07:00","document_number":"365","attachment_number":1,"pacer_doc_id":"035023231352","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Declaration of Philip Korologos","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352585152/","id":352585152,"tags":[],"absolute_url":"/docket/17319653/365/2/schneider-v-youtube-llc/","date_created":"2023-06-10T12:57:21.952787-07:00","date_modified":"2023-06-13T02:45:30.206356-07:00","sha1":"9a6bc8cd129363b318532fc8ce045b07e60d4a9b","page_count":54,"file_size":351811,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.2.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.2.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 1 of 54\n\n\n\n\n EXHIBIT 1\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 2 of 54\n\n\n Pages 1 - 53\n\n UNITED STATES DISTRICT COURT\n\n NORTHERN DISTRICT OF CALIFORNIA\n\nBefore The Honorable James Donato, Judge\n\nMARIA SCHNEIDER, individually )\nand on behalf of all others )\nsimilarly situated, )\n )\n Plaintiffs, )\n )\n VS. ) NO. C 20-4423 JD\n )\nYOUTUBE, LLC, )\n )\n Defendant. )\n )\n\n San Francisco, California\n Thursday, May 25, 2023\n\n TRANSCRIPT OF PROCEEDINGS\n\nAPPEARANCES:\n\nFor Plaintiffs:\n BOIES, SCHILLER & FLEXNER LLP\n 55 Hudson Yards - 20th Floor\n New York, New York 10001\n BY: PHILIP C. KOROLOGOS, ATTORNEY AT LAW\n JEFFREY P. WALDRON, JR., ATTORNEY AT LAW\n\n KOREIN TILLERY LLC\n 505 North 7th Street - Suite 3600\n St. Louis, Missouri 63101\n BY: CAROL L. O'KEEFE, ATTORNEY AT LAW\n\n KOREIN TILLERY LLC\n 205 North Michigan Avenue - Suite 1950\n Chicago, Illinois 60601\n BY: RANDALL P. EWING, JR., ATTORNEY AT LAW\n\n (APPEARANCES CONTINUED ON THE FOLLOWING PAGE)\n\nREPORTED BY: Marla F. Knox, CSR No. 14421, RPR, CRR, RMR\n United States District Court - Official Reporter\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 3 of 54 2\n\n\n1 APPEARANCES: (CONT'D)\n\n2 For Defendant:\n KEKER & VAN NEST LLP\n3 633 Battery Street\n San Francisco, California 94111\n4 BY: ROBERT VAN NEST, ATTORNEY AT LAW\n JULIA L. ALLEN, ATTORNEY AT LAW\n5 LUKE P. APFELD, ATTORNEY AT LAW\n AMOS ESPELAND, ATTORNEY AT LAW\n6\n\n7 WILSON SONSINI GOODRICH & ROSATI\n 650 Page Mill Road\n8 Palo Alto, California 94304\n BY: DAVID H. KRAMER, ATTORNEY AT LAW\n9 LAUREN GALLO WHITE, ATTORNEY AT LAW\n QIFAN HUANG, ATTORNEY AT LAW\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 4 of 54 3\n\n\n1 Thursday - May 25, 2023 1:35 p.m.\n\n2 P R O C E E D I N G S\n\n3 ---000---\n\n4 THE CLERK: All rise. This court is now in session.\n\n5 The Honorable James Donato presiding.\n\n6 THE COURT: Good afternoon.\n\n7 THE CLERK: Please be seated.\n\n8 (Pause in proceedings.)\n\n9 THE CLERK: Calling civil 20-4423, Schneider, et al.\n\n10 versus YouTube, LLC.\n\n11 Counsel, please state your appearances for the record.\n\n12 MR. KOROLOGOS: Good afternoon, Your Honor, Phil\n\n13 Korologos with Boies Schiller Flexner on behalf of the\n\n14 Plaintiffs. With me from Boies Schiller is my colleague\n\n15 Jeffrey Waldron.\n\n16 MS. O'KEEFE: Good afternoon, Your Honor, Carol\n\n17 O'Keefe Korein Tillery on behalf of the Plaintiffs.\n\n18 MR. EWING: And, Your Honor, Randall Ewing from Korein\n\n19 Tillery on behalf of the Plaintiffs. I would like to introduce\n\n20 our clients to the court in the front row here. From your left\n\n21 to right, we have Maxim Lisowsky, who is the deputy general\n\n22 director of digital content for AST. We have Maria Schneider.\n\n23 We have Namrata Singh-Gujral Cooper, also known as Naomi\n\n24 Cooper, who is the owner of Uniglobe, and we have Gabor Csupo,\n\n25 here personally also as the owner of Pirate Monitor, Limited.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 5 of 54 4\n\n\n1 THE COURT: Oh, okay. All right.\n\n2 MR. VAN NEST: Good afternoon, Your Honor, Bob Van\n\n3 Nest, Keker Van Nest and Peters for YouTube. I'm here with\n\n4 Julia Allen, Luke Apfeld, and Amos Espeland. And Mr. Kramer is\n\n5 here as well with Ms. Gallo.\n\n6 MR. KRAMER: Gallo-White. And Qifan Huang from my\n\n7 firm is also joining us and is our client Google, Matt\n\n8 Gubiotti.\n\n9 THE COURT: Okay. We have a remote -- live but remote\n\n10 reporter, so just make sure you say your name when you get up;\n\n11 okay. She can see everything but we are experimenting. There\n\n12 is a court reporter crisis. We are experimenting with remote\n\n13 access to see if we can solve that.\n\n14 Well, we have a lot of work to do. Who is going to take\n\n15 the lead for the Plaintiffs?\n\n16 MR. KOROLOGOS: I am, Your Honor.\n\n17 THE COURT: And Defendants?\n\n18 MR. VAN NEST: I will, Your Honor.\n\n19 THE CLERK: And state who you are one more time.\n\n20 MR. KOROLOGOS: Bill Korologos, Your Honor, for the\n\n21 Plaintiff.\n\n22 MR. VAN NEST: Bob Van Nest for YouTube.\n\n23 THE COURT: All right. We are going to -- we are\n\n24 still set for June 12th. Now, since the volume of pretrial\n\n25 filings the world has changed.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 6 of 54 5\n\n\n1 So, what -- now, just -- we are just talking among friends\n\n2 here. I'm not tying anyone's hands. What are you planning --\n\n3 what's the plan for trial? What are you planning to do in\n\n4 terms of case?\n\n5 MR. KOROLOGOS: Well, Your Honor, I think the\n\n6 remaining issue, now that Your Honor has dealt with the class\n\n7 certification question, is Defendants' attempt to avoid their\n\n8 affirmative defense, the DMCA safe harbor, which, as Your Honor\n\n9 may recall from our administrative motion, they have expressed\n\n10 a desire to withdraw that.\n\n11 We do not believe that they have the ability to do that at\n\n12 this time certainly without --\n\n13 THE COURT: Well, if I might just jump -- okay,\n\n14 what's -- what claims -- what claims are you planning to\n\n15 present to the jury?\n\n16 MR. KOROLOGOS: Infringement claims and the CMI\n\n17 claims, Your Honor.\n\n18 THE COURT: Okay. So, now infringement for whom?\n\n19 MR. KOROLOGOS: For each of our Plaintiffs,\n\n20 Your Honor, Ms. Schneider, for UniGlobe, and for ASG.\n\n21 THE COURT: Now, so that's going to be a work-by-work\n\n22 series of claims for --\n\n23 MR. KOROLOGOS: I think in terms of the way we plan to\n\n24 present that, Your Honor, is a work-by-work for the\n\n25 infringement but to do so in a summary fashion through the\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 7 of 54 6\n\n\n1 Plaintiffs.\n\n2 THE COURT: In a summary fashion?\n\n3 MR. KOROLOGOS: In a summary fashion. We are not\n\n4 going to sit and watch an entire movie. It's an hour and 38\n\n5 minutes long. I think we can identify that.\n\n6 THE COURT: I can assure you we are not going to do\n\n7 that.\n\n8 MR. KOROLOGOS: Right. And so similarly, I don't\n\n9 think we need to listen to 25 or however many it is, musical\n\n10 works that Ms. Schneider composed, but we can put the Plaintiff\n\n11 on the stand and have them identify with a summary exhibit,\n\n12 that we will provide for the jury including with links to the\n\n13 actual musical recording or to the video that is infringing or\n\n14 to the video of the movie or to the screenplay and things like\n\n15 that, so that there is a pathway for the jury if they wish to\n\n16 look at every single thing. They will have that with them in\n\n17 the courtroom.\n\n18 THE COURT: How many works are you thinking we are\n\n19 going to see?\n\n20 MR. KOROLOGOS: Um, I believe the number of works,\n\n21 Your Honor, is in the neighborhood of -- of, um --\n\n22 THE COURT: I saw 300 and something. Is that --\n\n23 MR. KOROLOGOS: First of all, that's infringement.\n\n24 That's not works. So there is a --\n\n25 THE COURT: How many infringement items are you going\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 8 of 54 7\n\n\n1 to have, 317?\n\n2 MR. KOROLOGOS: I think the number of infringements is\n\n3 now in the neighborhood of 200, Your Honor.\n\n4 THE COURT: 200, okay. And --\n\n5 MR. KOROLOGOS: Covering about -- there are two works\n\n6 for UniGlobe, two versions of the same movie -- one in English\n\n7 one in Hindi -- I believe there are ten or 15 audiobooks by\n\n8 AST, and I believe there are about 25 works of -- musical works\n\n9 by Ms. Schneider.\n\n10 THE COURT: Well, here is what I was thinking: I will\n\n11 leave it up to you two, but it seems to me you two, Plaintiffs\n\n12 and Defendants, can work out something. You are not making any\n\n13 concessions but you can agree that maybe we can put together\n\n14 sets, some logical grouping of all of these works by Plaintiff,\n\n15 by genre, whatever.\n\n16 And Plaintiff you would say, \"Here is the work that we\n\n17 contend has been infringed; okay. And here is the infringing\n\n18 use.\"\n\n19 You two -- no one is agreeing that it is actually\n\n20 infringed or that the use is infringing. You are just\n\n21 packaging it in an agreed upon fashion. That way you can have,\n\n22 I don't know, 30 seconds of a music clip followed by 30 seconds\n\n23 of whatever somebody is doing with it.\n\n24 Does that sound all right? Can we do that? Just get that\n\n25 all done ahead of time by stipulation.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 9 of 54 8\n\n\n1 MR. KOROLOGOS: That's essentially how we planned to\n\n2 present it.\n\n3 THE COURT: You are already ahead of me. No?\n\n4 MR. VAN NEST: Well, here is the issue, Your Honor:\n\n5 This is -- this is highly irregular; and that is, in the time\n\n6 we are likely to be allotted, proving -- they have 317\n\n7 infringements, you are right, at our last count after the\n\n8 summary judgment --\n\n9 THE COURT: And that will be down to 200.\n\n10 MR. VAN NEST: He says. We don't know which of these\n\n11 works -- which of these infringing videos they intend to prove,\n\n12 and that's one of the problems. They are playing hide the ball\n\n13 in the sense that we have been asking them \"Are you going to\n\n14 narrow your case so that you can try it in a few days because\n\n15 Judge Donato has already said you can't just put in a takedown\n\n16 notice?\"\n\n17 And in Ms. Schneider's case she doesn't have any takedown\n\n18 notices on her infringements, how are you going to prove these\n\n19 and which ones?\n\n20 What I suggested, what I suggest today too is let the\n\n21 Plaintiffs choose some number -- ten or 15 or 20 -- infringing\n\n22 infringements. Tell us what those are tomorrow or Monday so\n\n23 that at least we are not in some chaotic situation where we are\n\n24 trying to deal with 200 claims of infringement.\n\n25 If this were a patent case, of course, we would have done\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 10 of 54 9\n\n\n1 that a long time ago; but our suggestion is since likely they\n\n2 are seeking mainly statutory damages.\n\n3 THE COURT: It's exclusively statutory damages; right?\n\n4 MR. KOROLOGOS: No, Your Honor.\n\n5 THE COURT: I thought you said in your pretrial\n\n6 statement you are renouncing any actual damages?\n\n7 MR. KOROLOGOS: For the CMI claims, that's accurate,\n\n8 I believe. But for the infringement claims, for instance,\n\n9 Your Honor, we have some Plaintiffs who have foreign works for\n\n10 which statutory damages are not allowed.\n\n11 THE COURT: All right.\n\n12 MR. KOROLOGOS: So we have always taken the position\n\n13 that for the infringements we have the right to select under\n\n14 the statute statutory or actual damage.\n\n15 Now, we are -- we are considering for the U.S. works going\n\n16 to statutory only, which might reduce the number of\n\n17 infringements. And I stand corrected, Your Honor, from my\n\n18 colleagues who -- I believe the number still is 317 but we have\n\n19 the ability to --\n\n20 THE COURT: It is 317.\n\n21 MR. KOROLOGOS: It is. But I believe we have the\n\n22 ability to reduce that if we were to go, for instance, for\n\n23 Ms. Schneider, whose works are U.S. works, to go to statutory\n\n24 damages only.\n\n25 THE COURT: Well, I hear your colleague saying they\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 11 of 54 10\n\n\n1 don't know what's on the table. So when are we going to get\n\n2 this all straightened out? They have got to get ready. You've\n\n3 got to get ready. I have to get ready.\n\n4 MR. KOROLOGOS: I think it's clear what's on the\n\n5 table, Your Honor. We have not hid the ball. They know what\n\n6 the works are. They know what the infringements are.\n\n7 THE COURT: How do they know that?\n\n8 MR. KOROLOGOS: From discovery and from what we\n\n9 provided them in our exhibits.\n\n10 THE COURT: This is a list -- is there a list of all\n\n11 317?\n\n12 MR. KOROLOGOS: We have provided summary exhibits to\n\n13 identify for them what the works are.\n\n14 THE COURT: That would be a list. Don't you have a\n\n15 list of all 317 claims?\n\n16 MR. KOROLOGOS: Yes, Your Honor.\n\n17 THE COURT: You do? Okay. Do you have that, Mr. Van\n\n18 Nest?\n\n19 MR. VAN NEST: We have that list, Your Honor. That's\n\n20 really not the problem. The problem is you can't try 317\n\n21 separate infringement claims.\n\n22 They don't have an expert that's going to discuss these.\n\n23 It's going to be claim-by-claim, as Your Honor mentioned and\n\n24 Counsel confirmed. We can't do 317.\n\n25 What I'm suggesting is, particularly since it doesn't\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 12 of 54 11\n\n\n1 matter so much if you are seeking statutory damages, let's\n\n2 choose a number; 10, 15, per Plaintiff and tell us what those\n\n3 are so we can meet this head on.\n\n4 THE COURT: But what about --\n\n5 MR. VAN NEST: There is no way --\n\n6 THE COURT: That's fine but I can't try this case\n\n7 every quarter for the next three years in tranches of 15\n\n8 claims.\n\n9 MR. VAN NEST: That's for sure.\n\n10 THE COURT: Can't do that.\n\n11 MR. VAN NEST: But typically in a case like this the\n\n12 Plaintiff would be required to narrow what they are going to\n\n13 present. They are going to have a limited time in your\n\n14 courtroom especially now their disgorgement damages total\n\n15 $7,500, not $750,000 or $7 million. $7,500, that's their\n\n16 disgorgement damages for all 317 videos if they were to prove\n\n17 them.\n\n18 My point is we need some reasonable way of our knowing\n\n19 which 15 are you going to present for Ms. Schneider and which\n\n20 15 or 20 are you going to present for Ms. Cooper. Otherwise,\n\n21 we will be here for six months because it's not realistic to\n\n22 think that in a one week or two-week trial you could do 317\n\n23 separate claims of infringement where the jury would have to\n\n24 find that it's a copy and it's not fair use and so on and so\n\n25 forth.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 13 of 54 12\n\n\n1 THE COURT: Let me suggest this: Now, okay for\n\n2 copyright ownership, you-all can agree on this or no? Is this\n\n3 going to be something we are going to have to have the jury do?\n\n4 MR. KOROLOGOS: Even with respect to registrations,\n\n5 Your Honor, they have not agreed with us until we went and got\n\n6 certified copies of the registrations. Even though you can go\n\n7 online and find these records, they have made us go get\n\n8 certified registration. So we have had great difficulty in\n\n9 getting them to agree, Your Honor.\n\n10 THE COURT: Are we done on that one now?\n\n11 MR. KOROLOGOS: I think they came in yesterday. We\n\n12 are going to -- if we haven't already, we are going to give\n\n13 those to them. They told us if we give them to them, they will\n\n14 drop the registration.\n\n15 THE COURT: How do you want to do this? Look, you are\n\n16 going to -- I just tried last week the verdict came in, okay,\n\n17 $270 million, so it was a serious case. It was the last opt\n\n18 out from my very first MDL that I got the day I walked in in\n\n19 2014, eight, nine years later, last opt -- well, second to last\n\n20 opt out. They tried it.\n\n21 Each side got 12 hours for a Japanese language price\n\n22 fixing case with a conspiracy period of 2001 to 2014. Massive\n\n23 in every respect. Large reward. They didn't even use the 12\n\n24 hours each. So you are going to get about 12 hours each. So\n\n25 how are you going to do this?\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 14 of 54 13\n\n\n1 MR. KOROLOGOS: Your Honor, I plan to put on -- I will\n\n2 give you an example, Ms. Schneider. I plan to put her on with\n\n3 a summary exhibit.\n\n4 THE COURT: Of how many works will she have?\n\n5 MR. KOROLOGOS: I believe it's about 20, maybe it is\n\n6 22.\n\n7 THE COURT: She will have 20 works.\n\n8 MR. KOROLOGOS: Twenty-two works, a -- I think that\n\n9 may be about 200 infringements, videos that infringe; but she\n\n10 will testify these are her works. She will testify that she\n\n11 has reviewed each of the alleged infringements and that they\n\n12 are copies of her works and what kind of a copy it is.\n\n13 THE COURT: She is going to say that?\n\n14 MR. KOROLOGOS: She will say that, Your Honor, and we\n\n15 will have a summary exhibit to provide to the jury that will\n\n16 link to the evidence that we will put in through her of each\n\n17 work and each infringement, but we don't need to play each one\n\n18 and take the time if we have Ms. Schneider on the stand to say\n\n19 \"this is what it is and this is summarized in this chart and\n\n20 yes, I have looked at each one and yes, it's a copy.\"\n\n21 They can -- they have these already. They can look at\n\n22 them and they can say \"that's not right,\" and they can tell the\n\n23 jury if they think they have the evidence for it, which they\n\n24 won't, that what Ms. Schneider said about the works as\n\n25 summarized in the chart is not accurate. And they can put that\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 15 of 54 14\n\n\n1 on if they want to, but they are not going to be able to do\n\n2 that. I think it will go quite quickly.\n\n3 MR. VAN NEST: Your Honor, this is highly irregular.\n\n4 They want to put up a chart with 217 claimed infringing videos\n\n5 without the requirement to prove them, without showing the\n\n6 jurors that it is indeed a copy.\n\n7 Now --\n\n8 THE COURT: And by the way, just to jump in on that, I\n\n9 mean, you are basically just asking the jury to burn its time\n\n10 in the deliberation room looking at all these individually.\n\n11 And that's not their job.\n\n12 I mean, in a sense they are going to have to weigh each\n\n13 one obviously; but you have got to put it on in court. I mean,\n\n14 there is no presumption that what any witness says is going to\n\n15 be dispositive of infringement without actually seeing the\n\n16 side-by-side clips or whatever you are going to do.\n\n17 MR. KOROLOGOS: We plan to put on enough to show that\n\n18 they are the same but like I said earlier --\n\n19 THE COURT: How can you do anything less than all 200?\n\n20 They are each going to be different; right? I mean, by\n\n21 definition they are each different infringing uses. So how are\n\n22 you going to do anything less than all 200?\n\n23 MR. KOROLOGOS: Well, I don't think we should have to;\n\n24 but if Your Honor is saying that we need to touch each one, we\n\n25 can play 30 seconds of each one to show what it is and the\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 16 of 54 15\n\n\n1 witness can testify as to --\n\n2 THE COURT: Thirty seconds?\n\n3 MR. KOROLOGOS: -- what the overlap is.\n\n4 MR. VAN NEST: Your Honor, can I make this\n\n5 suggestion -- I mean, this is completely impractical as I think\n\n6 you are appreciating -- if they are seeking in the case of\n\n7 Ms. Schneider, for example, statutory damages, they don't have\n\n8 to prove all 217. They have to prove some number so they can\n\n9 argue to the jury there is a lot.\n\n10 Let's pick a number that I'm not -- I'm not, you know,\n\n11 fixed on anything, 10, 15, and let's try those and they will\n\n12 either win them all or lose them all or there will be some mix;\n\n13 and then they can argue that there were infringements and\n\n14 YouTube is responsible and so on and so forth.\n\n15 They want to put up a big summary as they have already\n\n16 proved it. That's not --\n\n17 THE COURT: I understand that but I -- okay, so then\n\n18 what happens after that? You have knocked 15 of 200 down.\n\n19 What about the 185 that are left?\n\n20 MR. VAN NEST: They have to narrow their case,\n\n21 Your Honor, and they can argue from those that this is\n\n22 substantial and they are entitled to an award of statutory\n\n23 damages.\n\n24 The statutory damages are not awarded per video. They are\n\n25 awarded per work. So if they have 26 works, let's say, for\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 17 of 54 16\n\n\n1 Ms. Schneider, 26 different compositions, they can decide they\n\n2 want to prove ten of those or 15 or all 26; but they would have\n\n3 to prove infringement of each one and then they get a statutory\n\n4 damage award on any one they proved.\n\n5 So it is up to them to decide in the case of Ms. Schneider\n\n6 whether they want to put on three videos, four videos or five\n\n7 videos per work. That's still a ton because there's 26 works.\n\n8 If it were me, I would be saying, okay, take my best 10 and I\n\n9 will prove two or three videos for each one and I will argue\n\n10 for statutory damages based on that.\n\n11 The statutory damage calculation is based on things like\n\n12 willfulness, innocence, how serious is the conduct, stuff like\n\n13 that. And it doesn't -- you are not awarding damages per\n\n14 infringing video.\n\n15 THE COURT: All right. Here is what we are going to\n\n16 do: This is pretrial conference number 1, obviously. You are\n\n17 going to have to come back. So you two, Mr. Korologos and\n\n18 Mr. Van Nest, you need to work something out; okay. I want you\n\n19 two -- rather than triangulating with me, you two work out a\n\n20 plan.\n\n21 You are going to get about 12 hours. That's exclusive of\n\n22 opening and closing. That's 12 hours of trial time. So work\n\n23 it out. All right. If you can't do something, I will solve it\n\n24 and neither one of you will be happy. You know that. So, you\n\n25 two come up with a plan for that.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 18 of 54 17\n\n\n1 Now, that aside, I just -- just thematically or\n\n2 conceptually, however you want to put it, Mr. Korologos, I\n\n3 just -- now it is just a straight copyright case. What does\n\n4 this have to do with content ID at this point?\n\n5 I mean, the whole structure of the complaint is built\n\n6 around access to content ID. I just -- now we are talking\n\n7 about \"here are my 25 works; here are the 200 infringing uses;\"\n\n8 right? We are not content -- I imagine somebody might mention\n\n9 it, but it's not a big target in the case anymore; is that\n\n10 right?\n\n11 MR. KOROLOGOS: Well, I don't think that's quite\n\n12 right, Your Honor. This goes back to where I started with\n\n13 respect to -- in part at least with respect to the affirmative\n\n14 defense that they raised back in September of 2020 and that we\n\n15 have been litigating quite hard, the DMCA safe harbors, where\n\n16 they say they have no liability on --\n\n17 THE COURT: All right. They are abandoning ship on\n\n18 that, so --\n\n19 MR. KOROLOGOS: We don't think they should be\n\n20 permitted to, Your Honor.\n\n21 THE COURT: Why not? I mean, you can drop claims\n\n22 whenever you want.\n\n23 MR. KOROLOGOS: Not if they have been answered or a\n\n24 summary judgment motion has been filed against them.\n\n25 THE COURT: That's absolutely not right. You can walk\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 19 of 54 18\n\n\n1 in here -- you could've walked in here today and say \"We have\n\n2 decided not to pursue any Section 1202(b) claims,\" and I would\n\n3 have said great and Mr. Van Nest would have said great.\n\n4 MR. KOROLOGOS: If he agrees, yes. We don't agree.\n\n5 We don't consent to the withdrawal.\n\n6 THE COURT: I don't understand. You cannot force a\n\n7 Defendant to try an affirmative defense that they have\n\n8 abandoned just like a Defendant cannot force you to try a claim\n\n9 that you have abandoned.\n\n10 Let's say you had an unfair competition law claim and you\n\n11 decided you didn't want to do it anymore? I mean, there is no\n\n12 way in the world I would say, \"I'm sorry. You are absolutely\n\n13 required to try to me an unfair competition claim.\" That's\n\n14 just not going to happen.\n\n15 MR. KOROLOGOS: Right, to try it but then judgment\n\n16 should be entered on that. We have a pending summary judgment\n\n17 motion on their DMCA defense that's before the Court. We are\n\n18 entitled to a decision on that.\n\n19 The primary reason you heard Mr. Van Nest talk about the\n\n20 amount that's at stake for these particular individuals. We\n\n21 would have liked to have done it on behalf of a class but\n\n22 without a class --\n\n23 THE COURT: If I may just interrupt, so what? Why do\n\n24 you care? I mean, they are not going to assert the safe\n\n25 harbor. They are saying, \"you know what, we are going to spot\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 20 of 54 19\n\n\n1 you that. We are so confident of whatever else we have in the\n\n2 defense, we are not going to sail our ship into the safe\n\n3 harbor. We are done with that.\"\n\n4 So what is the -- what are you trying to accomplish by\n\n5 saying, no, you have to meet the safe harbor requirements?\n\n6 MR. KOROLOGOS: Because that's what goes to what\n\n7 protects -- even without a class, Your Honor, that's what\n\n8 protects copyright owners like these people. It's what\n\n9 protects them because our position is that the way they run\n\n10 their platform is not consistent with the DMCA. It is not\n\n11 consistent with the repeat infringer requirement. They do not\n\n12 permit and they interfere with standard technical measures.\n\n13 And look to Your Honor's question about content ID, which goes\n\n14 to willfulness --\n\n15 THE COURT: You know the DMCA is entirely -- the safe\n\n16 harbor is entirely optional. You understand that?\n\n17 MR. KOROLOGOS: I do understand that.\n\n18 THE COURT: An online service provider doesn't need to\n\n19 lift a finger if they don't want to avail themselves of it.\n\n20 MR. KOROLOGOS: I do understand.\n\n21 THE COURT: It is at their risk. It's at their peril.\n\n22 I mean, it's probably not good not to but they may choose not\n\n23 to. I don't -- I'm sorry but I just don't see -- what's the\n\n24 jury supposed to decide with respect to the verdict form? What\n\n25 would the question be about the DMCA? They are not even going\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 21 of 54 20\n\n\n1 to put a case on so what would the question be to the jury?\n\n2 MR. KOROLOGOS: The Carraher decision that we cite in\n\n3 our affirmative defense out of the Ninth Circuit where in their\n\n4 pretrial brief in the Carraher case, just like here, they said\n\n5 we are not going to pursue this affirmative defense. And the\n\n6 Court entered judgment against them on that affirmative\n\n7 defense, and the Ninth Circuit said that's exactly right\n\n8 because you can't abandon it that late after the date to amend\n\n9 pleadings. You can't abandon the affirmative --\n\n10 THE COURT: I'm sorry. I just don't agree with that.\n\n11 I think that's wrong. And even if you are saying that that's\n\n12 an accurate description of that case, which I will take a look\n\n13 at, that's just wrong. That's simply wrong under the Federal\n\n14 Rules of Civil Procedure.\n\n15 Just as if you decided to drop half your claims, you know,\n\n16 I would not force you to try them or face what is effectively a\n\n17 default judgment. That's just not right.\n\n18 MR. KOROLOGOS: Well --\n\n19 THE COURT: I would not exercise my discretion to\n\n20 penalize either party for improving the efficiency of the trial\n\n21 by dropping claims that they no longer believe in. That is\n\n22 antithetical to the fair and just administration of cases not\n\n23 to mention the efficient use of jury, party and court\n\n24 resources.\n\n25 MR. KOROLOGOS: Let me address that.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 22 of 54 21\n\n\n1 THE COURT: That is so ridiculously formalistic I\n\n2 can't imagine any right thinking judge would ever say, \"Well,\n\n3 I'm sorry. I'm going to shove it down your throat anyway.\"\n\n4 That just can't be right.\n\n5 MR. KOROLOGOS: Let me address a related issue then,\n\n6 Your Honor.\n\n7 THE COURT: No. I want you to answer my question\n\n8 about content ID. What does it have to do with this case?\n\n9 MR. KOROLOGOS: Your Honor, if I may, this relates to\n\n10 the bigger picture. If Your Honor, as I hear, is going to\n\n11 allow them to not put on a DMCA safe harbor defense, then we\n\n12 respectfully request from Your Honor a stay of the case to have\n\n13 our Rule 23(f) petition heard by the Ninth Circuit.\n\n14 THE COURT: I'm not going to do that. You got a trial\n\n15 set on June 12th. This is a 2020 case; okay. It's showtime.\n\n16 MR. KOROLOGOS: Okay. Then just to alert, Your Honor,\n\n17 we are going to seek a stay from the Ninth Circuit.\n\n18 THE COURT: That's perfectly fine. Mr. Korologos, you\n\n19 are not the first to say that.\n\n20 MR. KOROLOGOS: I know that. I'm just --\n\n21 THE COURT: Look, just do your thing; okay? Let's\n\n22 just focus on this trial. Please answer my question. What\n\n23 does content ID have to do with the trial? Third and last\n\n24 call. What's the answer?\n\n25 MR. KOROLOGOS: Even without DMCA, it goes to\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 23 of 54 22\n\n\n1 willfulness, Your Honor. The technology that's behind content\n\n2 ID, they use already every day. This is not asking them to run\n\n3 it.\n\n4 THE COURT: I understand that. They have it. They\n\n5 use it. A small number of people get -- I get all that.\n\n6 MR. KOROLOGOS: My point is, Your Honor, it's\n\n7 different than what Your Honor just said. They use it as part\n\n8 of their copyright match tool and what's called content age.\n\n9 Every time a video goes up on the platform, they use their\n\n10 matching technology to see where that content was first put\n\n11 onto the system. So they have the data of every video -- the\n\n12 many, many videos on their system and Your Honor has seen what\n\n13 those numbers are. They have the data each time a video goes\n\n14 up of what matches to that.\n\n15 So every time they take something down because of a\n\n16 complete and valid takedown notice, indicia of infringement,\n\n17 they know what matches that video. They already know.\n\n18 Let me give, Your Honor, an example.\n\n19 THE COURT: We've got to move on a little more\n\n20 briskly, Mr. Korologos. What is the question? You want the\n\n21 jury to find predicate facts about content ID for willfulness?\n\n22 Is that what you are saying?\n\n23 MR. KOROLOGOS: This data shows that they know the\n\n24 infringements exist, and they don't surface that to people that\n\n25 put in takedown notices for anything that's on the system in\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 24 of 54 23\n\n\n1 the past.\n\n2 THE COURT: You are going to put it in in connection\n\n3 with willfulness.\n\n4 MR. KOROLOGOS: Yes, Your Honor.\n\n5 THE COURT: Okay. All right. That's fine. Seems\n\n6 okay.\n\n7 MR. KOROLOGOS: And that's -- that's a side --\n\n8 THE COURT: I thought you were tying it to the\n\n9 copyright claims in a more direct infringement sense. For\n\n10 willfulness, it's fine.\n\n11 MR. KOROLOGOS: It's directly relevant to repeat\n\n12 infringer, but repeat infringer is only relevant to the DMCA\n\n13 safe harbor takedown -- sorry, the safe harbor defense under\n\n14 512.\n\n15 THE COURT: So you-all are going to talk about a plan,\n\n16 number of -- how we are going to get this done. I understand\n\n17 now about what you are going to do with the content ID. I\n\n18 mean, I will see how it goes. We will see how it does.\n\n19 The --\n\n20 MR. VAN NEST: Your Honor?\n\n21 THE COURT: Yes.\n\n22 MR. VAN NEST: I think you have resolved this but\n\n23 technically on this DMCA issue, since the time has passed we\n\n24 need your permission, which I think you have given, for us to\n\n25 withdraw that affirmative defense.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 25 of 54 24\n\n\n1 THE COURT: You know, there's an old doctrine which\n\n2 was conforming pleadings to proof of trial, okay, which means\n\n3 sometimes it doesn't even come up until the case gets submitted\n\n4 to a jury that a claim hasn't been pursued. And what you\n\n5 typically do is you in affect amend the pleadings to conform to\n\n6 the proof at trial. So, yes.\n\n7 MR. VAN NEST: Thank you. We will file an amended\n\n8 answer and that moots the summary judgment motion. You don't\n\n9 have to deal with it.\n\n10 THE COURT: I don't have to deal with it. Now, let me\n\n11 ask you this: These experts, now that we are not doing a\n\n12 class, who can we give up?\n\n13 MR. KOROLOGOS: We have withdrawn Mr. Cowan who was\n\n14 our class --\n\n15 THE COURT: Charles Cowan.\n\n16 MR. KOROLOGOS: And the flipside of Mr. Cowan was\n\n17 Mr. Halm.\n\n18 THE COURT: Greg Halm.\n\n19 MR. KOROLOGOS: Yes.\n\n20 THE COURT: Those two by agreement are out.\n\n21 MR. KOROLOGOS: Yes, Your Honor.\n\n22 THE COURT: So that leaves Winograd, Jessop, Singer.\n\n23 MR. KOROLOGOS: Yes, Your Honor.\n\n24 THE COURT: And Nuttall.\n\n25 MR. KOROLOGOS: Nuttall and Peterson on their side.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 26 of 54 25\n\n\n1 THE COURT: Is that right, Mr. Van Nest?\n\n2 MR. VAN NEST: It is, Your Honor, but I do want to\n\n3 talk about Mr. Singer when you have a moment because that's\n\n4 important.\n\n5 THE COURT: Yes, we will do that although it may not\n\n6 be until the next conference but just let's -- let's see how\n\n7 much of the -- right now we are pruning the canopy before we\n\n8 get to the smaller branches.\n\n9 MR. VAN NEST: I don't think that's a small one, by\n\n10 the way, but I'm certainly willing to --\n\n11 THE COURT: Well, more discrete branches.\n\n12 MR. KOROLOGOS: One more pruning, Your Honor.\n\n13 THE COURT: Yeah.\n\n14 MR. KOROLOGOS: With the class cert decision, we have\n\n15 removed Mr. Thing as a fact witness because he went to the\n\n16 issue of how they processed takedown notices.\n\n17 THE COURT: Oh, that's fine.\n\n18 MR. KOROLOGOS: He is still going to have a few\n\n19 designations that are outside of that scope, but we don't need\n\n20 to call him live anymore.\n\n21 THE COURT: That's probably more granular than I need\n\n22 right now. Okay. Let me check my notes here.\n\n23 (Pause in proceedings.)\n\n24 THE COURT: All right. What about the -- I mean, how\n\n25 many of these motions in limine can we take off now that\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 27 of 54 26\n\n\n1 it's -- can you help me with that?\n\n2 MR. KOROLOGOS: I will try to, Your Honor.\n\n3 THE COURT: Okay, so YouTube's are docket number 311.\n\n4 Mr. Van Nest, what can I -- what can I prune now that it's not\n\n5 a class?\n\n6 MR. VAN NEST: I think we need to know what the\n\n7 Plaintiffs are going to be withdrawing. We have had trouble\n\n8 getting that, but --\n\n9 THE COURT: All right. Let's start with the\n\n10 Plaintiffs. That's docket number --\n\n11 MR. KOROLOGOS: Your Honor, in terms of --\n\n12 THE COURT: 224.\n\n13 MR. KOROLOGOS: -- terms of the class decision, I\n\n14 don't believe that alters the motions in limine.\n\n15 THE COURT: None of these?\n\n16 MR. KOROLOGOS: I don't believe so, Your Honor. In\n\n17 terms of Your Honor permitting them to amend their answer on\n\n18 DMCA takedown, I believe that Plaintiff's Motion Number 1 only\n\n19 relates --\n\n20 THE COURT: We can't take off any of Plaintiffs\n\n21 motions in limine?\n\n22 MR. KOROLOGOS: I don't believe with respect to the\n\n23 class but with respect to DMCA number 1 and number 2 relate to\n\n24 those issues, Your Honor.\n\n25 MR. VAN NEST: So, 1 and 2 are out.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 28 of 54 27\n\n\n1 THE COURT: One and 2 are out for the Defendant?\n\n2 MR. VAN NEST: No, no, no. I thought I heard Counsel\n\n3 say 1 and 2 are out for the Plaintiffs.\n\n4 THE COURT: No. He is saying your 1 and 2 are out.\n\n5 MR. KOROLOGOS: I was talking about ours, Your Honor.\n\n6 THE COURT: Oh, you are?\n\n7 MR. KOROLOGOS: Yes.\n\n8 THE COURT: All right. I need to use docket numbers.\n\n9 MR. KOROLOGOS: I'm happy to throw all of his out.\n\n10 THE COURT: I'm looking at docket number 314-1. This\n\n11 is the sealed version of Plaintiff's motions in limine. So\n\n12 which ones, Plaintiffs, are you withdrawing? Number 1?\n\n13 MR. KOROLOGOS: May I have one moment, Your Honor?\n\n14 THE COURT: Yeah, number 1 is something about\n\n15 takedowns on private unlisted videos.\n\n16 MR. KOROLOGOS: Yes, and that related to evidence that\n\n17 was put in in counter to our summary judgment on the DMCA\n\n18 issues. So I believe that's gone.\n\n19 THE COURT: All right. That's out.\n\n20 MR. VAN NEST: Was that 1 or 2?\n\n21 THE COURT: Number 1.\n\n22 MR. KOROLOGOS: The hundred thousand.\n\n23 THE COURT: Number 2 is Plaintiff's motion with\n\n24 respect to contesting facts described in Plaintiff's proffer of\n\n25 evidence concerning DMCA factual disputes. That's out?\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 29 of 54 28\n\n\n1 MR. KOROLOGOS: Let me have one moment, Your Honor.\n\n2 THE COURT: Sure. That's fine.\n\n3 (Pause in the proceedings.)\n\n4 MR. KOROLOGOS: I believe that one is narrowed but not\n\n5 completely out, Your Honor.\n\n6 THE COURT: Let's do this. You two add that to your\n\n7 meet-and-confer list; okay? So just go through the motions in\n\n8 limine both sides and tell me which ones I don't need to do.\n\n9 There has got to be a couple.\n\n10 Okay. Now on the jury instructions, let me share with you\n\n11 my approach and you are going to have to rework these sets;\n\n12 okay.\n\n13 So I give a preliminary set, every judge does, for right\n\n14 after opening statements right after the jury is seated and\n\n15 then we get the final instructions.\n\n16 Now, I want you to use as a template what I just did in\n\n17 this antitrust case that I just told you about. It is docket\n\n18 number 17-7046. Now this has two numbers. It has that number\n\n19 and an MDL number. Just use that number, 17-CV-7046 -- just\n\n20 one second.\n\n21 (Pause in proceedings.)\n\n22 THE COURT: Preliminary instructions are all the nuts\n\n23 and bolts things about what is evidence, what to believe. I\n\n24 want you to slavishly copy the text in those preliminary -- you\n\n25 shouldn't need to change anything. I have carefully -- our\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 30 of 54 29\n\n\n1 jury committee in the circuit does hard work but it is drafted\n\n2 by committee and it reads like it is written by people who\n\n3 don't -- aren't native speakers of English.\n\n4 So I have modified it in ways to make it intelligible and\n\n5 easy to understand. Use my version. I'm going to give you the\n\n6 docket number in just a second.\n\n7 So your first set is to redo a preliminary set that looks\n\n8 just like that. Make it, you know, a joint submission. I will\n\n9 give you the docket number in a second.\n\n10 Now, the final set -- the final set is docket number 375\n\n11 in that case number I just gave you. The case is called Avnet.\n\n12 That is the Plaintiff, A-V-E-N-T, [sic] so you know you have\n\n13 the right one.\n\n14 And then, of course, that's antitrust. It is totally\n\n15 different but you are going to conform the approach, the\n\n16 ordering and as much as possible, the carryover instructions to\n\n17 look exactly like the ones in Avnet; okay. So that's task\n\n18 number 1.\n\n19 Two sets, preliminary, final, as much as you can harvest\n\n20 out of my Avnet exemplars as you can use.\n\n21 Now, I do not under almost any circumstances -- okay, the\n\n22 opening -- the preliminary set is docket number 353, and the\n\n23 final set is docket number 375.\n\n24 Now, I don't under almost any circumstances accept\n\n25 tailored instructions. Use the form instructions. This case\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 31 of 54 30\n\n\n1 should be completely amenable to form instructions. There are\n\n2 copyright form instructions, there are damage form\n\n3 instructions, there is a form instruction for almost\n\n4 everything. Don't tailor it.\n\n5 Now, 10202(b), I don't know, maybe not. You might have to\n\n6 work with that. If you do work with that, I don't know if\n\n7 there's any equivalent but the ABA has a very useful set of its\n\n8 own antitrust instructions that I often look at, many judges\n\n9 do. I don't always use them. They are good. Sometimes if\n\n10 there is any copyright equivalent -- I doubt that there is. I\n\n11 can't think of one offhand -- you can try to find it.\n\n12 So you can freelance on 1202 but everything else, strictly\n\n13 by the book. No modifications. Please don't ask. I don't do\n\n14 it. It just invites -- invites trouble.\n\n15 All right. So do that. Make those two done. Why don't\n\n16 you give -- get the proposed jury instructions to me a week\n\n17 from today -- well, no, get them to me by this coming Tuesday\n\n18 5:00 p.m. this Tuesday; okay.\n\n19 File by -- you can tell me this is too brisk but 5:00 p.m.\n\n20 this Tuesday proposed jury instructions along the lines we just\n\n21 discussed by 5:00 p.m. -- wait, Monday is a holiday? All\n\n22 right. All this by 5:00 p.m. on Tuesday, the revised jury\n\n23 instructions, your plan for the method and presentation of\n\n24 evidence and all your works and claims and whatever\n\n25 negotiations you reach on that, a statement with respect to\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 32 of 54 31\n\n\n1 which motions in limine can be withdrawn in light of the class\n\n2 certification order.\n\n3 I'm not really hung up on exhibit lists and witness lists.\n\n4 Don't worry about that. You can always do that later.\n\n5 You may need to redo the verdict form as well. Please\n\n6 also look at the verdict form in Avnet. I like, as every judge\n\n7 does, a plain and simple verdict form.\n\n8 So look at that for inspiration. That was a massive price\n\n9 fixing conspiracy overseas case. There were four questions and\n\n10 that's all that was required to get the job done. So look at\n\n11 that and hue conceptually as tightly as you can to the\n\n12 efficiency of that model.\n\n13 Let me just cover a couple of other things and we can\n\n14 discuss whatever you'd like. Now, I do, we are still sending\n\n15 out -- this was a legacy of the COVID period but we are still\n\n16 doing it because it has turned out to be pretty good -- a\n\n17 written screening questionnaire. It's very basic. All right.\n\n18 It is not screening for much substantively although I will get\n\n19 back to that in a second.\n\n20 It's mainly screening about the -- screening for all the\n\n21 demographic questions we used to ask in court: Where do you\n\n22 live, what's your name, are you married, do you work, college,\n\n23 all that stuff. Have you seen them? You have seen them\n\n24 before, Mr. Van Nest?\n\n25 MR. VAN NEST: Yes.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 33 of 54 32\n\n\n1 THE COURT: Have you seen it, Mr. Korologos?\n\n2 MR. KOROLOGOS: I'm familiar with that.\n\n3 THE COURT: We are going to do that. I have got to\n\n4 get that out by June 1st or 2nd to the jury pool, and I will\n\n5 put in a couple of questions typically focused on the parties,\n\n6 you know, YouTube/Google in case anybody works there, has a\n\n7 sister-in-law who works there.\n\n8 And I also might do a little bit on \"have you ever had a\n\n9 copyright dispute; have you ever been involved in a copyright\n\n10 dispute; do you know anything about copyright law;\" that kind\n\n11 of a thing. That will be the main written questionnaire.\n\n12 The whole point of this, as I said, was to kind of screen\n\n13 for COVID issues. Here is where we are: COVID is officially\n\n14 over. So I still -- the U.S. Government said it's over.\n\n15 California State said it's over.\n\n16 So I'm not -- even so, there are questions in the\n\n17 questionnaire about vaccine status and general COVID concerns.\n\n18 I am still of the view that I have a strong preference for\n\n19 people who are fully vaccinated; okay. So I am not going to\n\n20 make anybody wear masks or anything else with one proviso, I\n\n21 will mention, but I am inclined not to seat anybody who either\n\n22 declines to state their vaccine status or affirmatively states\n\n23 that they are not fully vaccinated. Are you okay with that?\n\n24 MR. VAN NEST: That's fine with us, Your Honor.\n\n25 THE COURT: Mr. Korologos, are you okay with that?\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 34 of 54 33\n\n\n1 MR. KOROLOGOS: Yes, Your Honor.\n\n2 THE COURT: Okay, good. Now, in terms of actual COVID\n\n3 protocols here, I will put both of you in charge of your teams\n\n4 to make sure everybody in court who is unmasked is fully\n\n5 vaccinated. If there is a religious issue or something else,\n\n6 that's fine but they must be masked. I'm going to leave that\n\n7 up to you. I will not inquire.\n\n8 You must also check with your witnesses. If there is a\n\n9 witness who is not fully vaccinated, I will need to be told and\n\n10 that person will have to follow some protocols. They will not\n\n11 be masked. The jury must see the face of each testifying\n\n12 witness, but I may have them wear a plastic shield or put\n\n13 something around the jury box.\n\n14 In the first instance, I'm going to rely on you two as\n\n15 part of your trial teams to advise me of any witnesses who may\n\n16 have a less than full COVID vaccine record.\n\n17 MR. VAN NEST: That's fine, Your Honor.\n\n18 THE COURT: Now, I do allow the jury to wear masks.\n\n19 I've had two trials in the last two months. I would say about\n\n20 40 percent of the jurors elected to.\n\n21 One of them got sniffly. I actually asked him to. It is\n\n22 not a problem. It turned out it wasn't COVID. I did ask him\n\n23 too. I gave them the option of seating -- sitting in a\n\n24 staggered fashion. I can sit 14. I'm probably going to seat 8\n\n25 jurors. You will lose about one a week. This will be a two,\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 35 of 54 34\n\n\n1 two-and-a-half week trial. So I'm probably going to seat 8 and\n\n2 they will have a little space in between them. That's it for\n\n3 COVID. You okay with all of that, Mr. Van Nest.\n\n4 MR. VAN NEST: We are, Your Honor.\n\n5 THE COURT: Mr. Korologos?\n\n6 MR. KOROLOGOS: Yes, Your Honor.\n\n7 THE COURT: Now, for jury selection, here is what's\n\n8 going to happen: We will get the written responses back. Last\n\n9 time I think we sent the questionnaire -- I seated -- I\n\n10 sat 8 -- I seated 8 jurors last time and I think we had maybe\n\n11 45 responses and it was more than enough to seat the jury for\n\n12 my antitrust case.\n\n13 MR. VAN NEST: When do those come in, Your Honor?\n\n14 THE COURT: I'm going to get to that. So I will\n\n15 probably do about 45 again to get the questionnaire out of the\n\n16 jury pool. Then I will fill them out and we will send them\n\n17 back, and they will come back usually the Tuesday or Wednesday\n\n18 before trial starts and you and I will -- I don't mind doing\n\n19 this by phone, by video call. You don't have to come in. You\n\n20 might but you don't have to.\n\n21 We will just go through all 45 or however many we get. We\n\n22 will probably get 40. There are always five people that don't\n\n23 respond. And that's not a peremptory and that's not a\n\n24 challenge. Nobody is burning anything.\n\n25 We will just flip through it. If there is somebody we all\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 36 of 54 35\n\n\n1 agree collectively doesn't look like they are going to be\n\n2 suitable for whatever reason -- surgery the next day, COVID\n\n3 protections aren't comforting enough, doesn't speak English --\n\n4 that was a big one last time -- we will agree we won't call\n\n5 them in. All right. No one is using any -- you are not\n\n6 burning any right to excuse people once they get here.\n\n7 Then they will get here. I do what's called a modified\n\n8 six-pack. The reasons for that -- I have forgotten why it is\n\n9 called that -- but people use livestock with that. So it is a\n\n10 modified six-pack. So, I will seat 8. That will be our first\n\n11 tranche. Everybody else is going to be in the gallery on the\n\n12 right-hand side. The rest of the venire panel. We will go\n\n13 through our list of questions to follow up on the written\n\n14 questionnaire.\n\n15 There will be a hand-held mic and you will be able to hear\n\n16 most of the jurors say something. They will be passing the mic\n\n17 around, and we will deal with any responses to questions.\n\n18 Now, the reason I mention the people in the gallery is\n\n19 that as I ask the questions of the people in the box, the\n\n20 people in the gallery are going to be following along with a\n\n21 pad and paper to write down the question number and make a note\n\n22 to themselves about whether they have an answer. That way when\n\n23 we fill seats after people are removed or excused, I don't have\n\n24 to repeat all the questions. All right. It works like a\n\n25 charm.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 37 of 54 36\n\n\n1 Now, the reason it is called a modified six-pack is once\n\n2 we go through the first eight, we will come over here, have a\n\n3 sidebar and talk about your challenges, for cause, peremptory.\n\n4 You are going to get the statutory peremptories. That's it.\n\n5 No more than that and we will ask people to leave. But if you\n\n6 pass over anyone, they are seated. You cannot go back later.\n\n7 So, for example, if we have eight people in the box and\n\n8 Plaintiffs challenge juror number 6 and Defendants challenge\n\n9 juror number 8, everybody else is seated. You cannot go back\n\n10 later and challenge juror number 2. All right. So once here\n\n11 without a challenge, they are in.\n\n12 MR. VAN NEST: Your Honor, I assume each table will\n\n13 get three peremptories but three per table.\n\n14 THE COURT: Three per side.\n\n15 MR. VAN NEST: And when we get up at sidebar, you are\n\n16 wanting each side to tell you then which three or which two --\n\n17 THE COURT: You can do zero, 1, 2 --\n\n18 MR. VAN NEST: All the way up to 3. Just give you\n\n19 those at sidebar.\n\n20 THE COURT: And your challenges, you know, for cause.\n\n21 MR. VAN NEST: Sure. And then we will work with\n\n22 what's in the gallery if need be.\n\n23 THE COURT: That's right. And then -- but the key\n\n24 thing, they are seated if you both pass over someone, you can't\n\n25 go back the next round and say, \"Well, we thought about it; we\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 38 of 54 37\n\n\n1 don't like number 1.\" Can't do that.\n\n2 MR. VAN NEST: When these folks up come up from the\n\n3 gallery, then you will have them tell you which questions they\n\n4 have answers to.\n\n5 THE COURT: So they sit down. I say, \"All right, what\n\n6 questions do you have a response to?\" It works like a charm.\n\n7 I have done it 20 times, actually more than that. They are\n\n8 quite good about it and typically -- to be honest, it's\n\n9 typically more hardship kind of things, typically in a case\n\n10 like this. It might be -- somebody might know someone who\n\n11 works at Google or YouTube just because of where we are. For\n\n12 this size of a case it's typically, I have got a trip. I have\n\n13 got sick parents, you know, whatever it is.\n\n14 MR. VAN NEST: Will you allow us a question or two\n\n15 follow-up on those?\n\n16 THE COURT: Very rarely. I'm not closing the door\n\n17 completely but typically no, okay. I will do it. If you want\n\n18 to ask after my follow-up, I will look at you with a gimlet eye\n\n19 and then I will consider it.\n\n20 MR. VAN NEST: Okay, but --\n\n21 THE COURT: Having said that -- I drive. Let's put it\n\n22 that way. I drive.\n\n23 MR. VAN NEST: But we can ask you to drive in sparing\n\n24 circumstances.\n\n25 THE COURT: Maybe twice.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 39 of 54 38\n\n\n1 MR. VAN NEST: Okay.\n\n2 THE COURT: Okay. That's a guiding principle. All\n\n3 right. More likely than not -- what all this means for you is\n\n4 you will definitely open on Monday and you will definitely put\n\n5 witnesses on. My jury selection has never broken 90 to 120\n\n6 minutes. All right. So be ready to roll. All right.\n\n7 We will not break for the day after selection. Every\n\n8 minute -- I know you two are experienced and you appreciate it.\n\n9 Every minute of jury time is precious. So we are going to use\n\n10 it to the max. That also means you must have your next in line\n\n11 witness ready to go.\n\n12 I will not end early. If it's 1:00 o'clock and your\n\n13 witness isn't here, you will have rested. That's -- I will\n\n14 have deemed you to have rested unless you tell me in advance\n\n15 and I have approved it and there is some good reason for it.\n\n16 You can't stretch these things out for people. So I know you\n\n17 appreciate that.\n\n18 MR. VAN NEST: Are we still 8:30 to 2:30?\n\n19 THE COURT: No, no, 9:00 a.m. to 2:30. It's very\n\n20 important to me that people have a chance to -- there are other\n\n21 judges in the building who have different schedules, maybe even\n\n22 one right next to me, but it's very important that people have\n\n23 a chance to get their families out the door, get their lives in\n\n24 order, get in. To me that means 9:00 o'clock. It is also\n\n25 important to me that they be able to get home without sitting\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 40 of 54 39\n\n\n1 in traffic for an hour and a half.\n\n2 There is no lunch. There is two 20-minute breaks. I'm\n\n3 pretty religious about enforcing it. It's not 30 minutes.\n\n4 It's not 25. It's two 20-minute breaks. I do let people stand\n\n5 up and stretch every so often.\n\n6 As we get close to the end, I will increase the days if we\n\n7 need to. So if we are close to the end, we might be able to\n\n8 close on a Friday if we go all day with witnesses on a\n\n9 Thursday, we will do that. There will be some flexibility\n\n10 towards the end. And I do Monday through Thursday. Friday I\n\n11 have to attend to other cases unless, again, we are close to\n\n12 the end in which case we will just power through on Friday.\n\n13 Any questions so far? By the way, this is all going to be\n\n14 in the pretrial order so you don't have to kill yourself\n\n15 remembering it. It will all be there.\n\n16 MR. KOROLOGOS: Four days a week? Monday Tuesday\n\n17 Wednesday and Thursday?\n\n18 THE COURT: Yes, until we get close to the end, we\n\n19 might go all five.\n\n20 MR. KOROLOGOS: Okay.\n\n21 THE COURT: For example, this was -- this just came up\n\n22 in the antitrust trial I talked about. If we finish -- if the\n\n23 close of evidence is on Thursday at, say, 11:00 a.m., you will\n\n24 close on Thursday; okay. We are not going to break for the day\n\n25 and come back Friday morning. We are going to deliberate on\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 41 of 54 40\n\n\n1 Friday, but you will close on Thursday and we will just stay\n\n2 until 5:00 o'clock because that will be -- the jury's\n\n3 deliberation time will start after your one-hour closings.\n\n4 So, just, it's -- we are not going to have overnight\n\n5 breaks for things. That's the message. So just keep it going.\n\n6 And I typically do half an hour max for openings and an\n\n7 hour max for closings. Do you have any problem with that?\n\n8 MR. VAN NEST: I don't, Your Honor.\n\n9 MR. KOROLOGOS: No, Your Honor.\n\n10 THE COURT: That doesn't count against your time\n\n11 limit. Ms. Clark keeps the clock and will check in with\n\n12 everybody but she is the final arbiter and I do mean final.\n\n13 There is no appeal to me. She has the last word on who has\n\n14 what time left. Okay.\n\n15 MR. KOROLOGOS: We will respect that, Your Honor.\n\n16 MR. VAN NEST: Your Honor, can I ask two questions\n\n17 about --\n\n18 THE COURT: Yes.\n\n19 MR. VAN NEST: In terms of planning our witnesses, my\n\n20 understanding of our practice in this district is generally the\n\n21 witness comes and he or she comes once.\n\n22 THE COURT: Yes, it is one and done.\n\n23 MR. VAN NEST: Witnesses from YouTube that they wish\n\n24 to call in their case, I just want to make sure that if that\n\n25 happens, we would be allowed to examine them fully.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 42 of 54 41\n\n\n1 THE COURT: The rule is one and done. We are not\n\n2 standing on any formalities. So we get one witness here. That\n\n3 is the one occasion. Witnesses will not be coming back. All\n\n4 right. So there won't be any Plaintiff's case and then\n\n5 Defendant's case. Just get them all done at the same time.\n\n6 Now, let me ask you a question, we had, I think, two\n\n7 live -- three live witnesses in this two-week trial, three.\n\n8 Everything else was videotape and it was difficult. Are you\n\n9 planning to do that here? Are you going to have real people,\n\n10 live people or are you going to have video people?\n\n11 MR. KOROLOGOS: I think we are going to have a mix,\n\n12 Your Honor.\n\n13 THE COURT: How much of a mix?\n\n14 MR. KOROLOGOS: Well, certainly our four clients are\n\n15 going to testify live.\n\n16 THE COURT: I really strongly encourage you -- I felt\n\n17 like giving the medal of honor to those jurors who had to sit\n\n18 through maybe 70 or 80 percent of the testimony was bad depo\n\n19 video. It's excruciating. I know your hands are tied in some\n\n20 circumstances. If you need help, I can help you get people\n\n21 here. Okay. I have a long arm, as California likes to say.\n\n22 MR. VAN NEST: Your Honor --\n\n23 THE COURT: If you need help, I can do that. Get as\n\n24 much as you can, both sides, live people.\n\n25 MR. VAN NEST: That raises a very good question. I\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 43 of 54 42\n\n\n1 think I know the answer. I have always understood that if I'm\n\n2 going to present a witness live that's not a 30(b)(6), they\n\n3 should be cross-examining him or her live --\n\n4 THE COURT: Absolutely.\n\n5 MR. VAN NEST: -- rather than playing the video.\n\n6 THE COURT: Absolutely.\n\n7 MR. VAN NEST: They have designated lots of video\n\n8 people that we are going to bring live. And I said, well, wait\n\n9 a minute, if they are going to be here live --\n\n10 THE COURT: It is a live exam. You can use the video\n\n11 to impeach. That's fine. I don't have a problem with that if\n\n12 you want to impeach them that way. We are not going to have a\n\n13 live person here and somebody plays tape. Just ask them the\n\n14 questions. You have got their answers. You know what they are\n\n15 going to say. It is all live. We are not splitting that. So\n\n16 either you are here one hundred percent live or you are here\n\n17 one hundred percent video. There's nothing in between.\n\n18 Okay. Oh, I do like to have jurors ask questions. I had\n\n19 a phenomenal jury in that antitrust case, 20 questions, 20, and\n\n20 they were all excellent. I gave every one. I asked every\n\n21 question, I believe, except one subpart. They were really\n\n22 good.\n\n23 Here is how that works: They will have a little note\n\n24 paper. Before I discharge a witness, I will ask: \"Do you have\n\n25 any questions?\" And they will pass them up. They will leave.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 44 of 54 43\n\n\n1 I will share the questions with you. We will talk about what\n\n2 we want to do, and then I will call them back in and we will\n\n3 either have the witness answer the questions or I will say I'm\n\n4 not going to ask. Okay.\n\n5 MR. VAN NEST: That's great.\n\n6 MR. KOROLOGOS: And that's at the end of the\n\n7 examinations?\n\n8 THE COURT: What's that?\n\n9 MR. KOROLOGOS: That's at the end of the examinations?\n\n10 THE COURT: Yeah, when both of you are done with your\n\n11 exams, I will just turn to the jury and say \"are there any\n\n12 questions?\" I will have to say juries run hot and cold. That\n\n13 was a very hot questioning jury in a very complicated case.\n\n14 I have had other cases where there hasn't been a single\n\n15 question in three weeks. Okay. So you never know, but I do\n\n16 let them do that.\n\n17 Oh, the other thing is I like to have the jurors have a\n\n18 notebook. So, you know, one-half like -- just like maybe this\n\n19 size, reasonable size. I think this is one inch. You put in\n\n20 50 pages of lined paper. You put in some dividers and they are\n\n21 going to put their jury instructions in there.\n\n22 And each witness will get a headshot; okay. When they\n\n23 come in, you are going to hand the jury an 8-and-a-half by 11,\n\n24 standard paper size, headshot in color with the witness' name\n\n25 under it like 20 font, big letters, all right, and three hole\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 45 of 54 44\n\n\n1 punched. And before the witness testifies, Ms. Clark hands the\n\n2 photo out. Jurors love it. Helps them keep track of who they\n\n3 are and what they have seen.\n\n4 The headshot must look exactly how the witness is going to\n\n5 look on the stand. So, if they are wearing a blue suit and\n\n6 green tie on the stand, the headshot should have a blue suit\n\n7 and a green tie.\n\n8 Okay. What else? Oh, please, work everything out on the\n\n9 exhibits. I mean, I just -- just reach your agreements on\n\n10 admissibility. All right. I hate to keep going back to the\n\n11 antitrust trial. It worked so well. At the beginning of each\n\n12 exam they just read into the official list all of the exhibits\n\n13 that were admitted by agreement. And that way during the exam,\n\n14 you don't have to stop. You don't have to interrupt your\n\n15 questions. You just hand them to your witness and it worked\n\n16 like a charm; okay. So see if you can do that.\n\n17 I'm assuming we are past any of the first year law school\n\n18 things like authenticity and is this a business record and all\n\n19 that?\n\n20 MR. KOROLOGOS: Hopefully, Your Honor.\n\n21 THE COURT: Make it happen, okay. I don't want to\n\n22 waste time on custodians and all that kind of nonsense. For\n\n23 this level of play, I don't think that's -- I don't think\n\n24 that's necessary or productive. And you are going to burn your\n\n25 time so just -- just make it happen.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 46 of 54 45\n\n\n1 Doesn't matter who calls the witness. Time is just\n\n2 counted by whoever is speaking; okay. So you call -- it is\n\n3 your witness. You have them for an hour. You got an hour.\n\n4 Mr. Van Nest and his team cross-examines for 20 minutes. They\n\n5 get 20 minutes. Doesn't matter who called who. It is just a\n\n6 matter of talk.\n\n7 I don't do sidebars. Don't ask, please. If you want to\n\n8 ask me something, do it when the jury is not here. Don't stand\n\n9 up and say \"may we have a sidebar?\" The answer will be no\n\n10 across the board.\n\n11 MR. VAN NEST: Can we ask Your Honor to pass that\n\n12 testimony until the next break? If it is prejudicial and we\n\n13 have an objection and there is something more simple -- more\n\n14 than simple, could we ask simply that the witness pass to the\n\n15 next topic and we take it at the break? Something like that,\n\n16 you know, in extreme situations?\n\n17 THE COURT: So really saying \"I want a sidebar\" in\n\n18 more fancy language.\n\n19 MR. VAN NEST: No. At the break only.\n\n20 THE COURT: We will see. We will play it by ear. I'm\n\n21 not saying no but I'm not excited about it. What else? So\n\n22 next time we meet will be, I guess, a week from today. Well,\n\n23 let's see, next week is the 2nd, June 2nd?\n\n24 THE CLERK: First.\n\n25 THE COURT: Trial isn't until the 12th. So would you\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 47 of 54 46\n\n\n1 rather me -- what's that Monday after that, Lisa?\n\n2 THE CLERK: The 5th.\n\n3 THE COURT: Is that June 5th? Would you rather meet\n\n4 June 5th? You got a fair amount to do.\n\n5 MR. KOROLOGOS: Yes, Your Honor.\n\n6 THE COURT: I don't want to make it too hard on the\n\n7 back end for me.\n\n8 MR. VAN NEST: I think June 5th is okay.\n\n9 THE COURT: 1:30 on June 5th. It's a Monday at --\n\n10 June 5th at 1:30. You can get all your other stuff -- let me\n\n11 ask you this as a closing. It's a very different case now.\n\n12 What are you doing with respect to ADR, Mr. Korologos?\n\n13 MR. KOROLOGOS: There have been no discussions,\n\n14 Your Honor.\n\n15 THE COURT: Nothing?\n\n16 MR. KOROLOGOS: There have been none. The parties\n\n17 have agreed to if there are ever going to be any, to have\n\n18 retired Judge Vaughn Walker as a mediator.\n\n19 THE COURT: Judge Walker?\n\n20 MR. KOROLOGOS: Yes, that was --\n\n21 THE COURT: Have you met with him yet?\n\n22 MR. KOROLOGOS: That was a suggestion by Your Honor\n\n23 and the parties agreed to it.\n\n24 THE COURT: No wonder I like it. Have you seen him\n\n25 yet?\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 48 of 54 47\n\n\n1 MR. KOROLOGOS: Nothing has been scheduled. There\n\n2 have been no attempts to schedule, no.\n\n3 THE COURT: It's up to you. We are the United States\n\n4 trial court, so we are here to serve but --\n\n5 MR. KOROLOGOS: Thank you, Your Honor.\n\n6 THE COURT: -- judgment day is coming for everybody.\n\n7 So if you want to do it, this might be a time to think about\n\n8 it. Leave it up to you.\n\n9 MR. KOROLOGOS: We will talk about that too.\n\n10 THE COURT: Okay. Anything else for today,\n\n11 Mr. Korologos?\n\n12 MR. KOROLOGOS: Yes, Your Honor. If we are going to\n\n13 meet on June 5 --\n\n14 THE COURT: Yeah.\n\n15 MR. KOROLOGOS: -- given that this is a long weekend,\n\n16 is it possible to move the Tuesday 5:00 p.m. deadlines by a\n\n17 day?\n\n18 THE COURT: To Wednesday?\n\n19 MR. VAN NEST: That's fine with us, Your Honor.\n\n20 THE COURT: I'm worried more about me, to be honest.\n\n21 So that would be Wednesday, the 30th -- oh, yeah, Wednesday,\n\n22 the 31st?\n\n23 MR. KOROLOGOS: Yes, Your Honor.\n\n24 THE COURT: And then I will see you again the\n\n25 following Monday, that's pretty tight for us. Let's\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 49 of 54 48\n\n\n1 compromise. Wednesday by noon. Okay.\n\n2 MR. KOROLOGOS: Thank you, Your Honor.\n\n3 THE COURT: 12:00 p.m., Wednesday, the 31st.\n\n4 MR. KOROLOGOS: Also with respect to June 5.\n\n5 THE COURT: Make my life easy. Solve some problems.\n\n6 Okay. Work out the evidence, how you are going to present\n\n7 this.\n\n8 MR. KOROLOGOS: We are going to work on that,\n\n9 Your Honor.\n\n10 THE COURT: Okay.\n\n11 MR. KOROLOGOS: And, Your Honor, do we need to bring\n\n12 our clients here for June 5?\n\n13 THE COURT: That's up to you. Totally up to you. I\n\n14 don't -- I don't require for pretrial conferences. I don't\n\n15 require it. I will tell you the Defendant did not have a\n\n16 client representative at this trial that just finished, and I\n\n17 think the jury took that into account; but you both have been\n\n18 to the well many times. You can exercise your own discretion\n\n19 on that.\n\n20 MR. VAN NEST: Your Honor, can I raise two issues?\n\n21 THE COURT: Please. Is that it, Mr. Korologos?\n\n22 MR. KOROLOGOS: Yes, Your Honor.\n\n23 THE COURT: Okay. Go ahead.\n\n24 MR. VAN NEST: One of the things that Plaintiffs have\n\n25 advised us is that with respect to Plaintiff AST, they are\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 50 of 54 49\n\n\n1 planning to play Russian audiobooks as part of their case in\n\n2 Russian.\n\n3 They have given us some documents that were translated but\n\n4 none of the works have been translated; none of the audiobooks\n\n5 have been translated. And it just seems to me that we are\n\n6 going to be wasting a lot of jury time listening to Russian --\n\n7 these videos are nothing more than the cover of the book\n\n8 showing on the screen and someone reading a book in Russian.\n\n9 So, we can try to work that out but to my way of thinking\n\n10 that's simply going to waste jurors' time unless we have\n\n11 translations or something that will allow them to compare the\n\n12 work to the alleged infringing audiobook. I don't know how you\n\n13 would do that.\n\n14 THE COURT: Interesting question for copyright,\n\n15 whether a translation can prove infringement. Maybe when it is\n\n16 from Russian to English, which is a bit of a challenge. What\n\n17 are going to do about the Russian?\n\n18 MR. KOROLOGOS: Your Honor, I think we can play it in\n\n19 Russian and the jury can hear that they are the same.\n\n20 THE COURT: Oh, no, no, no. You are asking jurors to\n\n21 use some kind of ear test?\n\n22 MR. KOROLOGOS: They may not understand the language\n\n23 in order to understand that it's the same -- saying the same\n\n24 thing.\n\n25 THE COURT: That's calling way too much on an average\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 51 of 54 50\n\n\n1 juror. To hear a sentence in Russian and then compare it to\n\n2 someone else reading it and say these are the same sounds?\n\n3 Absolutely not. You must have official court translations.\n\n4 It's in the jury instructions; okay.\n\n5 And, by the way, it's the translation that is the\n\n6 evidence. So I don't know how you are going to make this\n\n7 happen; but under the jury instructions in our court, the\n\n8 translation is the evidence, not the original. So I don't know\n\n9 how you are going to do all of this. But asking people to\n\n10 listen to a completely foreign language that's not even\n\n11 romanced or German based -- so completely unfamiliar to the\n\n12 English ear -- and say \"does this sound alike?\" No, that's not\n\n13 enough to sustain a reasonable and informed copyright\n\n14 determination.\n\n15 You have got to work that out but they have to be court\n\n16 certified translations.\n\n17 MR. VAN NEST: My last question --\n\n18 THE COURT: I don't know how this works for copyright.\n\n19 When you start extracting out -- I haven't looked. Maybe there\n\n20 is case law on it. I don't know how you prove infringement on\n\n21 a translation.\n\n22 MR. VAN NEST: Your Honor, would you permit us to\n\n23 bring in some larger monitors and electronic equipment --\n\n24 THE COURT: Bigger than that?\n\n25 MR. VAN NEST: -- to the courtroom, yeah.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 52 of 54 51\n\n\n1 THE COURT: What are you going to use it for?\n\n2 MR. VAN NEST: We are just basically going to wire up\n\n3 our hot seats. Both sides are going to have courtroom\n\n4 operators putting exhibits up on the --\n\n5 THE COURT: Yeah, you each get your usual tech team\n\n6 but what do you want in terms of a monitor?\n\n7 MR. VAN NEST: I thought what we wanted was larger\n\n8 monitors. Does this go in front of the jurors or --\n\n9 THE COURT: That one sometimes goes over -- the jurors\n\n10 all have monitors.\n\n11 MR. VAN NEST: Okay.\n\n12 THE COURT: They all have their --\n\n13 MR. VAN NEST: We just find that a bigger one that\n\n14 they can all look at -- in a copyright case, we would like\n\n15 people to have --\n\n16 THE COURT: I can spin one of these bigger ones around\n\n17 if you want. I mean, I'm not opposed to if you want to move it\n\n18 on that little table right there and put one right there and\n\n19 you both share it, that's probably okay.\n\n20 MR. VAN NEST: We will work that out.\n\n21 THE COURT: Okay. There will be -- I forgot to\n\n22 mention this: You will work with Ms. Clark and come in and set\n\n23 up your rigs and test them a couple days before trial starts.\n\n24 MR. VAN NEST: Set up your?\n\n25 THE COURT: Your AV stuff; okay. You don't need to\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 53 of 54 52\n\n\n1 know this. I'm excited about this. I'm finally getting\n\n2 digitalized. Oh, it's going to be right before this trial.\n\n3 No?\n\n4 THE CLERK: No.\n\n5 THE COURT: Why not?\n\n6 MR. VAN NEST: The final arbiter just spoke.\n\n7 THE COURT: We will talk about it later, but it was\n\n8 supposed to be done June 1st. Well, you are going to miss it.\n\n9 The day is going to come very, very soon and this is going to\n\n10 be completely redone. Okay. Anything else?\n\n11 MR. VAN NEST: No, Your Honor.\n\n12 MR. KOROLOGOS: Your Honor, may I have one moment just\n\n13 to check one thing?\n\n14 (Pause in proceedings.)\n\n15 MR. KOROLOGOS: Your Honor, the one motion we did not\n\n16 discuss is the counterclaim Defendant's motion for summary\n\n17 judgment, the Pirate Monitor issues.\n\n18 THE COURT: I forget about that. I will take a look\n\n19 at it.\n\n20 MR. VAN NEST: Thank you, Your Honor.\n\n21 THE COURT: You are planning to -- if summary judgment\n\n22 is denied -- I don't know -- but if it is denied, you are going\n\n23 to put that on as part of your case; right?\n\n24 MR. VAN NEST: We would assume that, yes.\n\n25 THE COURT: Okay. I will see you next week.\n\f Case 3:20-cv-04423-JD Document 365-2 Filed 06/10/23 Page 54 of 54 53\n\n\n1 MR. KOROLOGOS: Thank you, Your Honor.\n\n2 THE CLERK: All rise. Court is in recess.\n\n3 (Proceedings adjourned at 2:37 p.m.)\n\n4 ---oOo---\n\n5\n\n6 CERTIFICATE OF REPORTER\n\n7 I certify that the foregoing is a correct transcript\n\n8 from the record of proceedings in the above-entitled matter.\n\n9\n\n10 DATE: Sunday, May 28, 2023\n\n11\n\n12\n\n13\n\n14 _________________________________________\n\n15 Marla F. Knox, CSR No. 14421, RPR, CRR, RMR\n United States District Court - Official Reporter\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\f","ocr_status":2,"date_upload":"2023-06-12T19:38:47.260709-07:00","document_number":"365","attachment_number":2,"pacer_doc_id":"035023231353","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 1","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352585153/","id":352585153,"tags":[],"absolute_url":"/docket/17319653/365/3/schneider-v-youtube-llc/","date_created":"2023-06-10T12:57:21.994038-07:00","date_modified":"2023-06-13T02:45:29.053721-07:00","sha1":"2e74c29056a1edcbbcbfdd388f40a5bf8c7177a7","page_count":6,"file_size":285303,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.3.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.3.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:20-cv-04423-JD Document 365-3 Filed 06/10/23 Page 1 of 6\n\n\n\n\n EXHIBIT 2\n\f Case 3:20-cv-04423-JD Document 365-3 Filed 06/10/23 Page 2 of 6\n\n\nSubject: RE: Dra( Trial Plan\nDate: Tuesday, May 30, 2023 at 2:29:00 PM Paci\ufb01c Daylight Time\nFrom: Philip Korologos\nTo: Julia L. Allen, Robert Van Nest\nCC: Carol O'Keefe\nA8achments: Dra( Joint Trial Plan.DOCX.docx\n\nMust have been a bad connec/on as I tried to send it out with the a4achment a while ago but must have\ngo4en stuck.\n\nLet me know if you get the a4achment this /me.\n\nThanks,\n\nPhil\n\nPhilip Korologos\nPartner\n\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\nFrom: Julia L. Allen \nSent: Tuesday, May 30, 2023 5:27 PM\nTo: Philip Korologos ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraY Trial Plan\n\n\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\nThanks Phil \u2013 missing the a4achment I think?\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\n\n\n Page 1 of 2\n\f Case 3:20-cv-04423-JD Document 365-3 Filed 06/10/23 Page 3 of 6\n\n\nFrom: Philip Korologos \nSent: Tuesday, May 30, 2023 2:25 PM\nTo: Robert Van Nest ; Julia L. Allen \nCc: Carol O'Keefe \nSubject: DraY Trial Plan\n\n[EXTERNAL]\n\nPlease see a4ached.\n\nThanks,\n\nPhil\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\n\n\n\n Page 2 of 2\n\f Case 3:20-cv-04423-JD Document 365-3 Filed 06/10/23 Page 4 of 6\n\n Draft Joint Submission for Trial Presentation Plan\n\n\n The below assumes this is submitted on Wednesday, after selection of representative\n\nworks/violations.\n\n Infringement Claims\n\n1. There are [28] works at issue for Ms. Schneider\u2019s infringement claims and one work at issue\n\n for Uniglobe\u2019s infringement claims following withdrawal without prejudice by Plaintiffs of\n\n foreign unregistered works infringement claims by AST and by Uniglobe.\n\n2. Ms. Schneider and Uniglobe will pursue only statutory damages for their infringement claims\n\n for their U.S. registered works. The parties agree that statutory damages for infringement are\n\n awarded on a \u201cper work\u201d basis rather than on a \u201cper infringement\u201d basis.\n\n3. For Uniglobe\u2019s infringement claims for its sole U.S. registered work the statutory damages\n\n award, if any, for infringement of such work as determined by the jury will be the statutory\n\n damages awarded to Uniglobe.\n\n4. For Ms. Schneider\u2019s infringement claims, the parties will try six works as bellwether\n\n representative works pursuant to the following terms.\n\n 4.1. Each side has selected three works from among the [28] works that remain at issue for\n\n Ms. Schneider\u2019s infringement claims.\n\n 4.1.1. The works selected to be tried are: [list works]\n\n 4.2. Plaintiff Schneider has identified for Defendants each URL that she plans to use for the\n\n purpose of establishing infringement at trial and have agreed not to use for such purpose\n\n any other URLs.\n\n 4.3. The statutory damages awarded on a per infringement basis as determined by the jury for\n\n the six selected works to be tried for Ms. Schneider\u2019s infringement claims will be\n\n applied to all [28] of Ms. Schneider\u2019s works at issue on a pro rata basis. This will be\n\n\n\n\n Page 1 of 3\n\f Case 3:20-cv-04423-JD Document 365-3 Filed 06/10/23 Page 5 of 6\n\n Draft Joint Submission for Trial Presentation Plan\n\n\n accomplished by taking the statutory damages per work, if any, as determined by the\n\n jury and multiplying it by [28] (representing the total number of works at issue for Ms.\n\n Schneider\u2019s claims) times a fraction, the numerator of which is the number of works the\n\n jury determines are entitled to statutory damages and the denominator of which is six\n\n (the number of works that are tried).\n\n 4.3.1. For example, if the jury finds a statutory damage award of $100,000 per work and\n\n further finds that four of the six works that are tried are eligible for such an award,\n\n Ms. Schneider will receive a total statutory damages award of $100,000 times\n\n [28] times 4/6 or $1,866,666.67 as a statutory damages award for all of her alleged\n\n infringement claims.\n\n Copyright Management Information (\u201cCMI\u201d) Claims\n\n5. There are [ten] works that remain at issue for Ms. Schneider\u2019s claims for violation of\n\n 17 U.S.C. \u00a7 1202 (\u201cCMI Claims\u201d) for which she alleges a total of [22] violations relating to\n\n ISRC codes. She has withdrawn without prejudice her CMI Claims that relate to CLFN\n\n metadata.\n\n6. Ms. Schneider will pursue only statutory damages for her CMI Claims. The parties agree\n\n that statutory damages for violation of 17 U.S.C. \u00a7 1202 are awarded on a \u201cper violation\u201d\n\n basis, not on a \u201cper work\u201d basis.\n\n7. For Ms. Schneider\u2019s CMI Claims, the parties will try alleged violations of 17 U.S.C. \u00a7 1202\n\n related to ISRC codes for four works as bellwether representative claims pursuant to the\n\n following terms.\n\n 7.1. Each side has selected two works from among the [ten] works that remain at issue for\n\n Ms. Schneider\u2019s CMI Claims.\n\n\n\n\n Page 2 of 3\n\f Case 3:20-cv-04423-JD Document 365-3 Filed 06/10/23 Page 6 of 6\n\n Draft Joint Submission for Trial Presentation Plan\n\n\n 7.1.1. The works selected to be tried are: [list works]\n\n7.2. Plaintiff Schneider has identified for Defendants each URL that she plans to use for the\n\n purpose of establishing a violation of 17 U.S.C. \u00a7 1202 at trial and has agreed not to use\n\n for such purpose any other URLs.\n\n7.3. The statutory damages awarded on a per violation basis as determined by the jury for the\n\n four selected works to be tried for Ms. Schneider\u2019s CMI Claims will be applied to all\n\n [22] alleged violations on a pro rata basis. This will be accomplished by taking the\n\n statutory damages per violation, if any, as determined by the jury and multiplying it by\n\n [22] (representing the total number of violations alleged for Ms. Schneider\u2019s CMI\n\n Claims) times a fraction, the numerator of which is the number of violations the jury\n\n determines are entitled to a statutory damage award and the denominator of which is the\n\n number of alleged \u00a7 1202 violations that are presented to the jury for trial.\n\n 7.3.1. For example, if the jury finds a statutory damage award of $20,000 per violation\n\n and further finds that six of the eight alleged violations that are presented to the jury\n\n for trial are eligible for such an award, Ms. Schneider will receive a total statutory\n\n damages award of $20,000 times [22] times 6/8 or $330,000.00 as a statutory\n\n damages award for all of her alleged violations of \u00a7 1202.\n\n\n\n\n Page 3 of 3\n\f","ocr_status":2,"date_upload":"2023-06-12T19:38:46.592310-07:00","document_number":"365","attachment_number":3,"pacer_doc_id":"035023231354","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 2","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352585154/","id":352585154,"tags":[],"absolute_url":"/docket/17319653/365/4/schneider-v-youtube-llc/","date_created":"2023-06-10T12:57:22.033774-07:00","date_modified":"2023-06-13T02:45:26.759503-07:00","sha1":"f588e0503c0bda1b3cbbeaf3acf14fca97e405c4","page_count":5,"file_size":164568,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.4.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.4.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:20-cv-04423-JD Document 365-4 Filed 06/10/23 Page 1 of 5\n\n\n\n\n EXHIBIT 3\n\f Case 3:20-cv-04423-JD Document 365-4 Filed 06/10/23 Page 2 of 5\n\n\nSubject: Re: Dra( Trial Plan\nDate: Wednesday, May 31, 2023 at 7:36:48 AM Paci\ufb01c Daylight Time\nFrom: Philip Korologos\nTo: Julia L. Allen, Robert Van Nest\nCC: Carol O'Keefe\n\nBob and Julia:\n\nThis responds to your comments on the dra7 joint trial plan.\n\nYour adjustment to paragraphs 1 and 5: You have changed \u201cwithdrawal without prejudice\u201d to \u201cdismissal\u201d. We\nunderstand that to be changing only what is conveyed to the Court about the claims that are impacted by\nthat language, rather than the substance of how those claims are dismissed. In other words, as we have\ndiscussed, we agree to treat our \u201cdismissal\u201d of foreign works claims and CLFN claims with the same prejudice\nas YouTube\u2019s dismissal of its DMCA a\ufb03rmaPve defense.\n\nWe have also had discussions about having the dismissal of such claims be with prejudice in the event that\nthe 9th circuit does not some day revive claims on behalf of a class (which classes would be separate for those\ntwo categories of claims). As we\u2019ve previously stated, we would need some modest level of compensaPon in\norder to agree to that kind of dismissal for those claims, however. We also noted that given the size of those\nclaims, the pracPcal reality of pursuing them in the absence of a class should be apparent.\n\nGiven the above described discussion, we are okay with the word \u201cdismissal\u201d instead of the phrase\n\u201cwithdrawal without prejudice\u201d with the understanding that the change does not alter the above posiPons.\n\nNumber of infringement works: We agree the right number of total works is 27 for Ms. Schneider\u2019s claims\n(which will require an adjustment in the example calculaPons (i.e., the total statutory award number in\n4.3.1.).\n\nYour change in part 4.2. We cannot agree that other URLs for works will not be used for \u201cany\u201d purpose in the\ncase, parPcularly not before we see how the evidence on the chosen works goes in. We do plan to idenPfy\nfor you all of the URLs we plan to use to establish the infringement by those URLs of the works to be tried.\nThat does not mean that all URLs relaPng to such works are not relevant to the case for other purposes. We\ncan agree that URLs for works that are not chosen to be tried will not be presented as infringing URLs for\npurposes of establishing a claim of infringement. And we can agree that for the works that will be tried we\nwill not present unidenP\ufb01ed URLs as infringing URLs for purposes of establishing a claim of infringement.\nThus, e.g., if a single work has 15 URLs that we allege are infringing URLs within the relevant limitaPons\nperiod, and we tell you that 4 of those URLs are the ones we plan to use to show that the URLs infringe that\nwork permi`ng collecPon of a single statutory award for infringement of the work, we will not uPlize the\nother 11 URLs for the purpose of establishing that infringement, but those URLs may be relevant to other\nissues including YT\u2019s knowledge, how Content ID\u2019s matching technology works, or other issues. We thus\ncannot agree to your proposed change to secPon 4.2.\n\nYour changes in part 7 re 1202(b)(3): We are willing to agree that the alleged violaPon of SecPon 1202(b) in\nrelaPon to ISRC codes is a violaPon of SecPon 1202(b)(3), but only on condiPon that doing so does not\nforeclose us from arguing that if an ISRC code somehow made it through the upload process, YouTube\u2019s\ntranscoding process would remove it and as a result the distribuPon on YouTube would sPll be a violaPon of\n1202(b)(3). Otherwise, the language should go back to reference 1202(b).\n\n\n\n Page 1 of 4\n\f Case 3:20-cv-04423-JD Document 365-4 Filed 06/10/23 Page 3 of 5\n\n\nYour changes in part 7 re number of violaPons: We do not believe that picking a speci\ufb01c number of violaPons\n(as opposed to works\u2014four) make sense as that will arP\ufb01cially limit the selecPon of works and violaPons.\n There are (I believe) 10 works and 22 violaPons, but there are not 2 violaPons for each work\u2014some have\nmore, some have only 1. Se`ng the number of violaPons at 8 (or some other speci\ufb01c number) would\narP\ufb01cially require certain works to be included or excluded\u2014e.g., if plainP\ufb00s select two works with a total of\n5 violaPons to be presented, that would prevent a selecPon by defendants of two works with only 1 violaPon\neach.\n\nI think the point will become a non-issue if the parPes agree through selecPon on the number of violaPons\nthat will be presented to the jury (which can be done at least prior to the Pme it is discussed with the Court\non Monday). In the meanPme, we could say, e.g., that the number of violaPons to be tried will be \u201cno more\nthan 8\u201d.\n\nHappy to discuss any of the above at your convenience, recognizing we need to submit something to the\nCourt by noon PT.\n\nThanks,\n\nPhil\n\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nFrom: Julia L. Allen \nDate: Tuesday, May 30, 2023 at 11:55 PM\nTo: Philip Korologos , Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: Dra7 Trial Plan\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\nPhil \u2013 thanks for dra7ing. Our proposed redlines are aqached here. We do not have \ufb01nal client sign o\ufb00 on\nthis dra7 but wanted to send these clari\ufb01caPons in the interim given the noon deadline tomorrow.\n\nJulia\n\n\nJulia L. Allen\n\n Page 2 of 4\n\f Case 3:20-cv-04423-JD Document 365-4 Filed 06/10/23 Page 4 of 5\n\n\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Tuesday, May 30, 2023 2:29 PM\nTo: Julia L. Allen ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: Dra7 Trial Plan\n\n[EXTERNAL]\n\nMust have been a bad connecPon as I tried to send it out with the aqachment a while ago but must have\ngoqen stuck.\n\nLet me know if you get the aqachment this Pme.\n\nThanks,\n\nPhil\n\nPhilip Korologos\nPartner\n\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\nFrom: Julia L. Allen \nSent: Tuesday, May 30, 2023 5:27 PM\nTo: Philip Korologos ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: Dra7 Trial Plan\n\n\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\nThanks Phil \u2013 missing the aqachment I think?\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n\n Page 3 of 4\n\f Case 3:20-cv-04423-JD Document 365-4 Filed 06/10/23 Page 5 of 5\n\n\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Tuesday, May 30, 2023 2:25 PM\nTo: Robert Van Nest ; Julia L. Allen \nCc: Carol O'Keefe \nSubject: Dra7 Trial Plan\n\n[EXTERNAL]\n\nPlease see aqached.\n\nThanks,\n\nPhil\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\n\n\n\n Page 4 of 4\n\f","ocr_status":2,"date_upload":"2023-06-12T19:38:46.696130-07:00","document_number":"365","attachment_number":4,"pacer_doc_id":"035023231355","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 3","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352585155/","id":352585155,"tags":[],"absolute_url":"/docket/17319653/365/5/schneider-v-youtube-llc/","date_created":"2023-06-10T12:57:22.070529-07:00","date_modified":"2023-06-13T03:12:50.488068-07:00","sha1":"b6612ae47d770e15b5b533badc01af4b9976b753","page_count":6,"file_size":196396,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.5.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.5.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:20-cv-04423-JD Document 365-5 Filed 06/10/23 Page 1 of 6\n\n\n\n\n EXHIBIT 4\n\f Case 3:20-cv-04423-JD Document 365-5 Filed 06/10/23 Page 2 of 6\n\n\nSubject: RE: Dra( Trial Plan\nDate: Wednesday, May 31, 2023 at 12:49:04 PM Paci\ufb01c Daylight Time\nFrom: Julia L. Allen\nTo: Philip Korologos, Robert Van Nest\nCC: Carol O'Keefe\n\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\nPhil,\nParagraphs 1 and 5: We did not \u201cdismiss\u201d the DMCA safe harbor defense, we withdrew it as a defense\nin this case following the court\u2019s denial of class cerB\ufb01caBon. Regardless, we appreciate your\nagreement to use the term \u201cdismissal\u201d to describe the status of the CLFN and foreign works claims,\nwhich appears to more accurately re\ufb02ect the fact that PlainB\ufb00s do not intend to pursue these claims in\nthis acBon or any future acBon absent a reversal by the 9th Circuit of the court\u2019s denial of class\ncerB\ufb01caBon. We do not expect we will be able to agree to compensate PlainB\ufb00s for these claims.\nThank you for con\ufb01rming that Ms. Schneider is asserBng claims based on 27 total works.\nPart 4.2: While we do not agree that PlainB\ufb00s should be able to introduce allegedly infringing URLs for\npurposes other than proving infringement of the representaBve bellwether works, we can agree to\nreverse our proposed revisions to the draV trial plan but we will need to add a sentence to expressly\nreserve our right to object during trial to undisclosed URLs as irrelevant and prejudicial, depending on\nhow PlainB\ufb00s elect to try to admit them. Such URLs also remain the subject of Defendants\u2019 MIL 3.\nPart 7: We propose the following revisions to this paragraph to more accurately track the statutory text\nand the framework for statutory damages:\nFor Ms. Schneider\u2019s CMI Claims, the parties will try alleged violations of 17 U.S.C. \u00a7 1202(b)(3)\nfor distribution of videos from which removal of ISRC codes allegedly have been removed for four\nworks and 8 alleged violations as bellwether representative claims pursuant to the following terms.\nWe agree with your concern about tying bellwether representaBves to both works and violaBons,\nhowever given that statutory damages are Bed to violaBons rather than works, unlike infringement\nclaims, we think we\u2019re beZer o\ufb00 selecBng representaBve violaBons, with PlainB\ufb00s free to select\nviolaBons Bed to separate works or a smaller number of works.\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Wednesday, May 31, 2023 7:37 AM\nTo: Julia L. Allen ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: Re: DraV Trial Plan\n\n\n Page 1 of 5\n\f Case 3:20-cv-04423-JD Document 365-5 Filed 06/10/23 Page 3 of 6\n\n[EXTERNAL]\n\nBob and Julia:\n\nThis responds to your comments on the draV joint trial plan.\n\nYour adjustment to paragraphs 1 and 5: You have changed \u201cwithdrawal without prejudice\u201d to \u201cdismissal\u201d. We\nunderstand that to be changing only what is conveyed to the Court about the claims that are impacted by\nthat language, rather than the substance of how those claims are dismissed. In other words, as we have\ndiscussed, we agree to treat our \u201cdismissal\u201d of foreign works claims and CLFN claims with the same prejudice\nas YouTube\u2019s dismissal of its DMCA a\ufb03rmaBve defense.\n\nWe have also had discussions about having the dismissal of such claims be with prejudice in the event that\nthe 9th circuit does not some day revive claims on behalf of a class (which classes would be separate for those\ntwo categories of claims). As we\u2019ve previously stated, we would need some modest level of compensaBon in\norder to agree to that kind of dismissal for those claims, however. We also noted that given the size of those\nclaims, the pracBcal reality of pursuing them in the absence of a class should be apparent.\n\nGiven the above described discussion, we are okay with the word \u201cdismissal\u201d instead of the phrase\n\u201cwithdrawal without prejudice\u201d with the understanding that the change does not alter the above posiBons.\n\nNumber of infringement works: We agree the right number of total works is 27 for Ms. Schneider\u2019s claims\n(which will require an adjustment in the example calculaBons (i.e., the total statutory award number in\n4.3.1.).\n\nYour change in part 4.2. We cannot agree that other URLs for works will not be used for \u201cany\u201d purpose in the\ncase, parBcularly not before we see how the evidence on the chosen works goes in. We do plan to idenBfy\nfor you all of the URLs we plan to use to establish the infringement by those URLs of the works to be tried.\nThat does not mean that all URLs relaBng to such works are not relevant to the case for other purposes. We\ncan agree that URLs for works that are not chosen to be tried will not be presented as infringing URLs for\npurposes of establishing a claim of infringement. And we can agree that for the works that will be tried we\nwill not present unidenB\ufb01ed URLs as infringing URLs for purposes of establishing a claim of infringement.\nThus, e.g., if a single work has 15 URLs that we allege are infringing URLs within the relevant limitaBons\nperiod, and we tell you that 4 of those URLs are the ones we plan to use to show that the URLs infringe that\nwork permimng collecBon of a single statutory award for infringement of the work, we will not uBlize the\nother 11 URLs for the purpose of establishing that infringement, but those URLs may be relevant to other\nissues including YT\u2019s knowledge, how Content ID\u2019s matching technology works, or other issues. We thus\ncannot agree to your proposed change to secBon 4.2.\n\nYour changes in part 7 re 1202(b)(3): We are willing to agree that the alleged violaBon of SecBon 1202(b) in\nrelaBon to ISRC codes is a violaBon of SecBon 1202(b)(3), but only on condiBon that doing so does not\nforeclose us from arguing that if an ISRC code somehow made it through the upload process, YouTube\u2019s\n\n\n\n\n Page 2 of 5\n\f Case 3:20-cv-04423-JD Document 365-5 Filed 06/10/23 Page 4 of 6\n\nforeclose us from arguing that if an ISRC code somehow made it through the upload process, YouTube\u2019s\ntranscoding process would remove it and as a result the distribuBon on YouTube would sBll be a violaBon of\n1202(b)(3). Otherwise, the language should go back to reference 1202(b).\n\nYour changes in part 7 re number of violaBons: We do not believe that picking a speci\ufb01c number of violaBons\n(as opposed to works\u2014four) make sense as that will arB\ufb01cially limit the selecBon of works and violaBons.\n There are (I believe) 10 works and 22 violaBons, but there are not 2 violaBons for each work\u2014some have\nmore, some have only 1. Semng the number of violaBons at 8 (or some other speci\ufb01c number) would\narB\ufb01cially require certain works to be included or excluded\u2014e.g., if plainB\ufb00s select two works with a total of\n5 violaBons to be presented, that would prevent a selecBon by defendants of two works with only 1 violaBon\neach.\n\nI think the point will become a non-issue if the parBes agree through selecBon on the number of violaBons\nthat will be presented to the jury (which can be done at least prior to the Bme it is discussed with the Court\non Monday). In the meanBme, we could say, e.g., that the number of violaBons to be tried will be \u201cno more\nthan 8\u201d.\n\nHappy to discuss any of the above at your convenience, recognizing we need to submit something to the\nCourt by noon PT.\n\nThanks,\n\nPhil\n\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nFrom: Julia L. Allen \nDate: Tuesday, May 30, 2023 at 11:55 PM\nTo: Philip Korologos , Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraV Trial Plan\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\n Page 3 of 5\n\f Case 3:20-cv-04423-JD Document 365-5 Filed 06/10/23 Page 5 of 6\n\n\nPhil \u2013 thanks for draVing. Our proposed redlines are aZached here. We do not have \ufb01nal client sign o\ufb00 on\nthis draV but wanted to send these clari\ufb01caBons in the interim given the noon deadline tomorrow.\n\nJulia\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Tuesday, May 30, 2023 2:29 PM\nTo: Julia L. Allen ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraV Trial Plan\n\n[EXTERNAL]\n\nMust have been a bad connecBon as I tried to send it out with the aZachment a while ago but must have\ngoZen stuck.\n\nLet me know if you get the aZachment this Bme.\n\nThanks,\n\nPhil\n\nPhilip Korologos\nPartner\n\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\nFrom: Julia L. Allen \nSent: Tuesday, May 30, 2023 5:27 PM\nTo: Philip Korologos ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraV Trial Plan\n\n\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\n Page 4 of 5\n\f Case 3:20-cv-04423-JD Document 365-5 Filed 06/10/23 Page 6 of 6\n\n\nThanks Phil \u2013 missing the aZachment I think?\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Tuesday, May 30, 2023 2:25 PM\nTo: Robert Van Nest ; Julia L. Allen \nCc: Carol O'Keefe \nSubject: DraV Trial Plan\n\n[EXTERNAL]\n\nPlease see aZached.\n\nThanks,\n\nPhil\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\n\n\n\n Page 5 of 5\n\f","ocr_status":2,"date_upload":"2023-06-12T19:38:46.880388-07:00","document_number":"365","attachment_number":5,"pacer_doc_id":"035023231356","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 4","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352585156/","id":352585156,"tags":[],"absolute_url":"/docket/17319653/365/6/schneider-v-youtube-llc/","date_created":"2023-06-10T12:57:22.110234-07:00","date_modified":"2023-06-13T03:12:54.615026-07:00","sha1":"0166fe292d2ae95daeee0ac9e43a9b0bc6eb5871","page_count":24,"file_size":473306,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.6.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.6.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 1 of 24\n\n\n\n\n EXHIBIT 5\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 2 of 24\n\n\nSubject: Re: Dra( Trial Plan\nDate: Wednesday, May 31, 2023 at 1:58:10 PM Paci\ufb01c Daylight Time\nFrom: Philip Korologos\nTo: Julia L. Allen, Robert Van Nest\nCC: Carol O'Keefe\nA8achments: Revised Dra( Trial PresentaPon Plan 5.31.2023 v. 3[64].docx, Redline Dra( Trial Plan[93].docx\n\nJulia:\n\nThanks for your email.\n\nWith respect to paragraphs 1 and 5, to be clear, and as you know from our conversations and previous\nemails, we do not presently intend to pursue the CLFN or foreign works claims in any future action in\nthe absence of a reversal by the 9th Circuit of the court\u2019s denial of class certification but similar to\nYouTube no longer pursuing the DMCA safe harbor affirmative defense, the \u201cdismissal\u201d of those\nclaims (assuming the court adopts the parties\u2019 trial plan) is without prejudice.\n\nWith respect to part 4.2, we have adopted your proposed additional sentence in the attached.\n\nWith respect to part 7, rather than having a lengthy description of the nature of the claims, about which\nthere would be debate and likely lack of agreement (as was the case with the related language of the\nVerdict Form), we propose that we simply refer to alleged violations of section 1202(b)(3)\u2014rather than\ntry to describe or restate (or re-write) the statute. Thus, as you\u2019ll see in the attached, we propose that\nparagraph 7 read: \u201cFor Ms. Schneider\u2019s CMI Claims, the parties will try alleged violations of 17\nU.S.C. \u00a7 1202(b)(3) for six alleged violations as bellwether representative claims pursuant to the\nfollowing terms.\u201d You\u2019ll note we also reduced the number of alleged violations to be tried form 8 to 6\nwhich is about \u00bc of the alleged 22 violations and in line with picking 6 of the works for the\ninfringement claims. Paragraph 7.2.1 is adjusted in its numbers accordingly.\n\nWe also found a few minor adjustments to be consistent with the above approach.\n\nI have attached a clean version of the trial plan reflecting the above and also a redline of that version\ncompared to the version we last sent you (it was beyond me to also do one against your version sent\nafter the below email, but I trust you can figure out how to do that if you want).\n\nLet us know if there is anything further that you have or if we are cleared to file this version.\n\nThanks,\n\nPhil\n\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\n\n\n Page 1 of 7\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 3 of 24\n\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nFrom: Julia L. Allen \nDate: Wednesday, May 31, 2023 at 4:17 PM\nTo: Philip Korologos , Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraU Trial Plan\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\nPhil \u2013 this version incorporates the revisions noted below. Please let us know if this works. Thanks.\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Julia L. Allen\nSent: Wednesday, May 31, 2023 12:49 PM\nTo: Philip Korologos ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraU Trial Plan\n\nPhil,\nParagraphs 1 and 5: We did not \u201cdismiss\u201d the DMCA safe harbor defense, we withdrew it as a defense\nin this case following the court\u2019s denial of class cerR\ufb01caRon. Regardless, we appreciate your\nagreement to use the term \u201cdismissal\u201d to describe the status of the CLFN and foreign works claims,\nwhich appears to more accurately re\ufb02ect the fact that PlainR\ufb00s do not intend to pursue these claims in\nthis acRon or any future acRon absent a reversal by the 9th Circuit of the court\u2019s denial of class\n\n\n\n\n Page 2 of 7\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 4 of 24\n\nthis acRon or any future acRon absent a reversal by the 9th Circuit of the court\u2019s denial of class\ncerR\ufb01caRon. We do not expect we will be able to agree to compensate PlainR\ufb00s for these claims.\nThank you for con\ufb01rming that Ms. Schneider is asserRng claims based on 27 total works.\nPart 4.2: While we do not agree that PlainR\ufb00s should be able to introduce allegedly infringing URLs for\npurposes other than proving infringement of the representaRve bellwether works, we can agree to\nreverse our proposed revisions to the draU trial plan but we will need to add a sentence to expressly\nreserve our right to object during trial to undisclosed URLs as irrelevant and prejudicial, depending on\nhow PlainR\ufb00s elect to try to admit them. Such URLs also remain the subject of Defendants\u2019 MIL 3.\nPart 7: We propose the following revisions to this paragraph to more accurately track the statutory text\nand the framework for statutory damages:\nFor Ms. Schneider\u2019s CMI Claims, the parties will try alleged violations of 17 U.S.C. \u00a7 1202(b)(3)\nfor distribution of videos from which removal of ISRC codes allegedly have been removed for four\nworks and 8 alleged violations as bellwether representative claims pursuant to the following terms.\nWe agree with your concern about tying bellwether representaRves to both works and violaRons,\nhowever given that statutory damages are Red to violaRons rather than works, unlike infringement\nclaims, we think we\u2019re beger o\ufb00 selecRng representaRve violaRons, with PlainR\ufb00s free to select\nviolaRons Red to separate works or a smaller number of works.\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Wednesday, May 31, 2023 7:37 AM\nTo: Julia L. Allen ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: Re: DraU Trial Plan\n\n[EXTERNAL]\n\nBob and Julia:\n\nThis responds to your comments on the draU joint trial plan.\n\nYour adjustment to paragraphs 1 and 5: You have changed \u201cwithdrawal without prejudice\u201d to \u201cdismissal\u201d. We\nunderstand that to be changing only what is conveyed to the Court about the claims that are impacted by\n\n\n\n\n Page 3 of 7\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 5 of 24\n\n\nthat language, rather than the substance of how those claims are dismissed. In other words, as we have\ndiscussed, we agree to treat our \u201cdismissal\u201d of foreign works claims and CLFN claims with the same prejudice\nas YouTube\u2019s dismissal of its DMCA a\ufb03rmaRve defense.\n\nWe have also had discussions about having the dismissal of such claims be with prejudice in the event that\nthe 9th circuit does not some day revive claims on behalf of a class (which classes would be separate for those\ntwo categories of claims). As we\u2019ve previously stated, we would need some modest level of compensaRon in\norder to agree to that kind of dismissal for those claims, however. We also noted that given the size of those\nclaims, the pracRcal reality of pursuing them in the absence of a class should be apparent.\n\nGiven the above described discussion, we are okay with the word \u201cdismissal\u201d instead of the phrase\n\u201cwithdrawal without prejudice\u201d with the understanding that the change does not alter the above posiRons.\n\nNumber of infringement works: We agree the right number of total works is 27 for Ms. Schneider\u2019s claims\n(which will require an adjustment in the example calculaRons (i.e., the total statutory award number in\n4.3.1.).\n\nYour change in part 4.2. We cannot agree that other URLs for works will not be used for \u201cany\u201d purpose in the\ncase, parRcularly not before we see how the evidence on the chosen works goes in. We do plan to idenRfy\nfor you all of the URLs we plan to use to establish the infringement by those URLs of the works to be tried.\nThat does not mean that all URLs relaRng to such works are not relevant to the case for other purposes. We\ncan agree that URLs for works that are not chosen to be tried will not be presented as infringing URLs for\npurposes of establishing a claim of infringement. And we can agree that for the works that will be tried we\nwill not present unidenR\ufb01ed URLs as infringing URLs for purposes of establishing a claim of infringement.\nThus, e.g., if a single work has 15 URLs that we allege are infringing URLs within the relevant limitaRons\nperiod, and we tell you that 4 of those URLs are the ones we plan to use to show that the URLs infringe that\nwork permiong collecRon of a single statutory award for infringement of the work, we will not uRlize the\nother 11 URLs for the purpose of establishing that infringement, but those URLs may be relevant to other\nissues including YT\u2019s knowledge, how Content ID\u2019s matching technology works, or other issues. We thus\ncannot agree to your proposed change to secRon 4.2.\n\nYour changes in part 7 re 1202(b)(3): We are willing to agree that the alleged violaRon of SecRon 1202(b) in\nrelaRon to ISRC codes is a violaRon of SecRon 1202(b)(3), but only on condiRon that doing so does not\nforeclose us from arguing that if an ISRC code somehow made it through the upload process, YouTube\u2019s\ntranscoding process would remove it and as a result the distribuRon on YouTube would sRll be a violaRon of\n1202(b)(3). Otherwise, the language should go back to reference 1202(b).\n\nYour changes in part 7 re number of violaRons: We do not believe that picking a speci\ufb01c number of violaRons\n(as opposed to works\u2014four) make sense as that will arR\ufb01cially limit the selecRon of works and violaRons.\n There are (I believe) 10 works and 22 violaRons, but there are not 2 violaRons for each work\u2014some have\nmore, some have only 1. Seong the number of violaRons at 8 (or some other speci\ufb01c number) would\n\n\n\n\n Page 4 of 7\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 6 of 24\n\n\narR\ufb01cially require certain works to be included or excluded\u2014e.g., if plainR\ufb00s select two works with a total of\n5 violaRons to be presented, that would prevent a selecRon by defendants of two works with only 1 violaRon\neach.\n\nI think the point will become a non-issue if the parRes agree through selecRon on the number of violaRons\nthat will be presented to the jury (which can be done at least prior to the Rme it is discussed with the Court\non Monday). In the meanRme, we could say, e.g., that the number of violaRons to be tried will be \u201cno more\nthan 8\u201d.\n\nHappy to discuss any of the above at your convenience, recognizing we need to submit something to the\nCourt by noon PT.\n\nThanks,\n\nPhil\n\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nFrom: Julia L. Allen \nDate: Tuesday, May 30, 2023 at 11:55 PM\nTo: Philip Korologos , Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraU Trial Plan\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\nPhil \u2013 thanks for draUing. Our proposed redlines are agached here. We do not have \ufb01nal client sign o\ufb00 on\nthis draU but wanted to send these clari\ufb01caRons in the interim given the noon deadline tomorrow.\n\nJulia\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\n\n Page 5 of 7\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 7 of 24\n\n\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Tuesday, May 30, 2023 2:29 PM\nTo: Julia L. Allen ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraU Trial Plan\n\n[EXTERNAL]\n\nMust have been a bad connecRon as I tried to send it out with the agachment a while ago but must have\ngogen stuck.\n\nLet me know if you get the agachment this Rme.\n\nThanks,\n\nPhil\n\nPhilip Korologos\nPartner\n\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\nFrom: Julia L. Allen \nSent: Tuesday, May 30, 2023 5:27 PM\nTo: Philip Korologos ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraU Trial Plan\n\n\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\nThanks Phil \u2013 missing the agachment I think?\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\n Page 6 of 7\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 8 of 24\n\n\n\n\nFrom: Philip Korologos \nSent: Tuesday, May 30, 2023 2:25 PM\nTo: Robert Van Nest ; Julia L. Allen \nCc: Carol O'Keefe \nSubject: DraU Trial Plan\n\n[EXTERNAL]\n\nPlease see agached.\n\nThanks,\n\nPhil\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\n\n\n\n Page 7 of 7\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 9 of 24\n\n\n\n\n 1 George A. Zelcs* KEKER, VAN NEST & PETERS LLP\n gzelcs@koreintillery.com ROBERT A. VAN NEST - # 84065\n 2 Randall P. Ewing, Jr.* rvannest@keker.com\n rewing@koreintillery.com DAN JACKSON - # 216091\n 3 Ryan Z. Cortazar * djackson@keker.com\n rcortazar@koreintillery.com JULIA L. ALLEN - # 286097\n 4 KOREIN TILLERY, LLC jallen@keker.com\n 205 North Michigan, Suite 1950 TRAVIS SILVA - # 295856\n 5 Chicago, IL 60601 tsilva@keker.com\n Telephone: (312) 641-9750 ANNA PORTO - # 319903\n 6 Facsimile: (312) 641-9751 aporto@keker.com\n Stephen M. Tillery* LUKE APFELD - # 327029\n 7 stillery@koreintillery.com lapfeld@keker.com\n Steven M. Berezney, CA Bar #329923 AMOS J. B. ESPELAND - # 332895\n 8 sberezney@koreintillery.com aespeland@keker.com\n Carol O\u2019Keefe* 633 Battery Street\n 9 cokeefe@koreintillery.com San Francisco, CA 94111-1809\n KOREIN TILLERY, LLC Telephone: 415 391 5400\n10 505 North 7th Street, Suite 3600 Facsimile: 415 397 7188\n St. Louis, MO 63101 Attorneys for Defendants and Counterclaimants\n11 Telephone: (314) 241-4844 YouTube, LLC and Google LLC\n Facsimile: (314) 241-3525\n12\n *Admitted pro hac vice\n13\n Attorneys for Plaintiffs and Counterclaim\n14 Defendants\n\n15 UNITED STATES DISTRICT COURT\n\n16 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION\n\n17\n MARIA SCHNEIDER, UNIGLOBE Case No. 3:20-cv-04423-JD\n18 ENTERTAINMENT, LLC, and AST\n PUBLISHING, LTD., individually and on\n19 behalf of all others similarly situated, JOINT SUBMISSION RE TRIAL\n PRESENTATION PLAN\n20 Plaintiffs,\n v.\n21\n\n22 YOUTUBE, LLC and GOOGLE LLC,\n Defendants.\n23\n\n24 YOUTUBE, LLC and GOOGLE LLC, Judge: Hon. James Donato\n Trial Date: June 12, 2023\n25 Counterclaimants, Time: 9 a.m.\n Courtroom: 11\n26 v.\n27 PIRATE MONITOR LTD, et al.\n Counterclaim Defendants.\n28\n 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 10 of 24\n\n\n\n\n 1 Additional Counsel\n DAVID H. KRAMER, SBN 168452\n 2 Joshua Irwin Schiller, CA Bar #330653 LAUREN GALLO WHITE, SBN 309075\n jischiller@bsfllp.com WILSON SONSINI GOODRICH & ROSATI\n 3\n BOIES SCHILLER FLEXNER LLP Professional Corporation\n 4 44 Montgomery Street, 41st Floor 650 Page Mill Road\n San Francisco, CA 94104 Palo Alto, CA 94304-1050\n 5 Telephone: (415) 293-6800 Telephone: (650) 493-9300\n Facsimile: (415) 293-6899 Facsimile: (650) 565-5100\n 6 Email: dkramer@wsgr.com\n 7 Philip C. Korologos* lwhite@wsgr.com\n pkorologos@bsfllp.com Attorneys for Defendants and Counterclaimants\n 8 Jeffrey Waldron*\n jwaldron@bsfllp.com\n 9 BOIES SCHILLER FLEXNER LLP\n 55 Hudson Yards, 20th Floor\n10 New York, NY 10001\n\n11 Telephone: (212) 446-2300\n Facsimile: (212) 446-2350\n12 *Admitted pro hac vice\n Attorneys for Plaintiffs and Counterclaim-\n13 Defendants\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n\n i 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 11 of 24\n\n\n\n\n 1 The parties respectfully submit the following proposed trial plan for the handling of claims\n\n 2 at the upcoming trial.\n\n 3 Infringement Claims\n\n 4 1. There are 27 works at issue for Ms. Schneider\u2019s infringement claims and one work at issue\n\n 5 for Uniglobe\u2019s infringement claims following dismissal by Plaintiffs of foreign unregistered works\n\n 6 infringement claims by AST and by Uniglobe.\n\n 7 2. Ms. Schneider and Uniglobe will pursue only statutory damages for their infringement\n\n 8 claims for their U.S. registered works. The parties agree that statutory damages for infringement\n\n 9 are awarded on a \u201cper work\u201d basis rather than on a \u201cper infringement\u201d basis.\n\n10 3. For Uniglobe\u2019s infringement claims for its sole U.S. registered work the statutory damages\n\n11 award, if any, for infringement of such work as determined by the jury will be the statutory\n\n12 damages awarded to Uniglobe.\n\n13 4. For Ms. Schneider\u2019s infringement claims, the parties will try six works as bellwether\n\n14 representative works pursuant to the following terms.\n\n15 4.1. Each side will select three works from among the 27 works that remain at issue for\n\n16 Ms. Schneider\u2019s infringement claims.\n\n17 4.1.1. The works selected to be tried are: [list of works to be supplied upon their\n\n18 selection by the parties]\n\n19 4.2. Plaintiff Schneider will identify for Defendants each URL that she plans to use for\n\n20 the purpose of establishing infringement at trial and has agreed not to use for such\n\n21 purpose any other URLs. Defendants reserve the right to object to the use of URLs\n\n22 for purposes other than establishing infringement.\n\n23 4.3. The statutory damages awarded on a per infringement basis as determined by the\n\n24 jury for the six selected works to be tried for Ms. Schneider\u2019s infringement claims\n\n25 will be applied to all 27 of Ms. Schneider\u2019s works at issue on a pro rata basis. This\n\n26 will be accomplished by taking the statutory damages per work, if any, as\n27 determined by the jury and multiplying it by 27 (representing the total number of\n\n28 works at issue for Ms. Schneider\u2019s claims) times a fraction, the numerator of which\n\n 1 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 12 of 24\n\n\n\n\n 1 is the number of works the jury determines are entitled to statutory damages and\n\n 2 the denominator of which is six (the number of works that are tried).\n\n 3 4.3.1. For example, if the jury finds a statutory damage award of $100,000 per work\n\n 4 and further finds that four of the six works that are tried are eligible for such an\n\n 5 award, Ms. Schneider will receive a total statutory damages award of $100,000\n\n 6 times 27 times 4/6 or $1,800,000 as a statutory damages award for all of her\n\n 7 alleged infringement claims.\n\n 8 Copyright Management Information (\u201cCMI\u201d) Claims\n\n 9 5. There are ten works that remain at issue for Ms. Schneider\u2019s claims for violation of\n\n10 17 U.S.C. \u00a7 1202 (\u201cCMI Claims\u201d) for which she alleges a total of 22 violations relating to ISRC\n\n11 codes. She has dismissed her CMI Claims that relate to CLFN metadata.\n\n12 6. Ms. Schneider will pursue only statutory damages for her CMI Claims. The parties agree\n\n13 that statutory damages for violation of 17 U.S.C. \u00a7 1202 are awarded on a \u201cper violation\u201d basis,\n\n14 not on a \u201cper work\u201d basis.\n\n15 7. For Ms. Schneider\u2019s CMI Claims, the parties will try alleged violations of 17 U.S.C.\n\n16 \u00a7 1202(b)(3) for removal of ISRC codes for four works and no more than eightsix alleged\n\n17 violations as bellwether representative claims pursuant to the following terms.\n\n18 7.1. Each side will select two worksthree alleged violations from among the ten\n\n19 works22 that remain at issue for Ms. Schneider\u2019s CMIISRC Claims.\n\n20 7.1.1. The works and alleged violations selected to be tried are: [list of works and\n\n21 alleged violations to be provided upon selection by the parties]\n\n22 7.2. Plaintiff Schneider will identify for Defendants each URL that she plans to use for\n\n23 the purpose of establishing a violation of 17 U.S.C. \u00a7 1202(b)(3) at trial and has\n\n24 agreed not to use for such purpose any other URLs.\n\n25 7.3.7.2. The statutory damages awarded on a per violation basis as determined by\n\n26 the jury or the Court for the selected alleged violations to be tried for Ms.\n27 Schneider\u2019s CMI Claims will be applied to all 22 alleged violations on a pro rata\n\n28 basis. This will be accomplished by taking the statutory damages per violation, if\n\n 2 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 13 of 24\n\n\n\n\n 1 any, as determined by the jury and multiplying it by 22 (representing the total\n\n 2 number of violations alleged for Ms. Schneider\u2019s CMI Claims) times a fraction, the\n\n 3 numerator of which is the number of violations the jury determines are entitled to a\n\n 4 statutory damage award and the denominator of which is the number of alleged \u00a7\n\n 5 1202 violations that are presented to the jury for trial.\n\n 6 7.3.1.7.2.1. For example, if the jury finds a statutory damage award of $20,000\n\n 7 per violation and further finds that sixfour of the eightsix alleged violations that\n\n 8 are presented to the jury for trial are eligible for such an award, Ms. Schneider\n\n 9 will receive a total statutory damages award of $20,000 times 22 times 4/6/8 or\n\n10 $330,000.00293,333.33 as a statutory damages award for all of her alleged\n\n11 violations of \u00a7 1202.\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n\n 3 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 14 of 24\n\n\n\n\n 1 Respectfully submitted,\n\n 2 Dated: May 31, 2023 /s/ DRAFT\n Philip C. Korologos*\n 3\n pkorologos@bsfllp.com\n 4 Jeffrey Waldron*\n jwaldron@bsfllp.com\n 5 BOIES SCHILLER FLEXNER LLP\n 55 Hudson Yards, 20th Floor\n 6 New York, NY 10001\n Telephone: (212) 446-2300\n 7\n Facsimile: (212) 446-2350\n 8\n Joshua Irwin Schiller, CA Bar #330653\n 9 jischiller@bsfllp.com\n BOIES SCHILLER FLEXNER LLP\n10 44 Montgomery St., 41st Floor\n11 San Francisco, CA 94104\n Telephone: (415) 293-6800\n12 Facsimile: (415) 293-6899\n\n13 George A. Zelcs*\n gzelcs@koreintillery.com\n14 Randall P. Ewing, Jr.*\n15 rewing@koreintillery.com\n Ryan Z. Cortazar*\n16 rcortazar@koreintillery.com\n KOREIN TILLERY, LLC\n17 205 North Michigan, Suite 1950\n Chicago, IL 60601\n18 Telephone: (312) 641-9750\n19 Facsimile: (312) 641-9751\n\n20 Stephen M. Tillery*\n stillery@koreintillery.com\n21 Steven M. Berezney, CA Bar #329923\n sberezney@koreintillery.com\n22\n Carol O\u2019Keefe*\n23 cokeefe@koreintillery.com\n KOREIN TILLERY, LLC\n24 505 North 7th Street, Suite 3600\n St. Louis, MO 63101\n25 Telephone: (314) 241-4844\n Facsimile: (314) 241-3525\n26\n27 *Admitted pro hac vice\n Attorneys for Plaintiffs\n28\n\n 4 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 15 of 24\n\n\n\n\n 1 Dated: May 31, 2023 KEKER, VAN NEST & PETERS LLP\n\n 2\n By: /s/ DRAFT\n 3\n ROBERT A. VAN NEST\n 4 DAN JACKSON\n JULIA L. ALLEN\n 5 TRAVIS SILVA\n ANNA PORTO\n 6 LUKE APFELD\n AMOS J. B. ESPELAND\n 7\n DAVID H. KRAMER\n 8 LAUREN GALLO WHITE\n WILSON SONSINI GOODRICH &\n 9 ROSATI\n Professional Corporation\n10 650 Page Mill Road\n Palo Alto, CA 94304-1050\n11\n Telephone: (650) 493-9300\n12 Email: dkramer@wsgr.com\n lwhite@wsgr.com\n13\n Attorneys for Defendants and\n14 Counterclaimants\n YOUTUBE, LLC and GOOGLE LLC\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n\n 5 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 16 of 24\n\n\n\n\n 1 ATTESTATION\n\n 2 My user ID and password are being used in the electronic filing of this document and, in\n\n 3 compliance with N.D. Cal. Civil L.R. 5-1(h)(3), I hereby attest that concurrence in the filing of the\n\n 4 document has been obtained from each of the other Signatories.\n\n 5\n\n 6 /s/ DRAFT\n Philip Korologos\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n\n 6 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 17 of 24\n\n\n\n\n 1 George A. Zelcs* KEKER, VAN NEST & PETERS LLP\n gzelcs@koreintillery.com ROBERT A. VAN NEST - # 84065\n 2 Randall P. Ewing, Jr.* rvannest@keker.com\n rewing@koreintillery.com DAN JACKSON - # 216091\n 3 Ryan Z. Cortazar * djackson@keker.com\n rcortazar@koreintillery.com JULIA L. ALLEN - # 286097\n 4 KOREIN TILLERY, LLC jallen@keker.com\n 205 North Michigan, Suite 1950 TRAVIS SILVA - # 295856\n 5 Chicago, IL 60601 tsilva@keker.com\n Telephone: (312) 641-9750 ANNA PORTO - # 319903\n 6 Facsimile: (312) 641-9751 aporto@keker.com\n Stephen M. Tillery* LUKE APFELD - # 327029\n 7 stillery@koreintillery.com lapfeld@keker.com\n Steven M. Berezney, CA Bar #329923 AMOS J. B. ESPELAND - # 332895\n 8 sberezney@koreintillery.com aespeland@keker.com\n Carol O\u2019Keefe* 633 Battery Street\n 9 cokeefe@koreintillery.com San Francisco, CA 94111-1809\n KOREIN TILLERY, LLC Telephone: 415 391 5400\n10 505 North 7th Street, Suite 3600 Facsimile: 415 397 7188\n St. Louis, MO 63101 Attorneys for Defendants and Counterclaimants\n11 Telephone: (314) 241-4844 YouTube, LLC and Google LLC\n Facsimile: (314) 241-3525\n12\n *Admitted pro hac vice\n13\n Attorneys for Plaintiffs and Counterclaim\n14 Defendants\n\n15 UNITED STATES DISTRICT COURT\n\n16 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION\n\n17\n MARIA SCHNEIDER, UNIGLOBE Case No. 3:20-cv-04423-JD\n18 ENTERTAINMENT, LLC, and AST\n PUBLISHING, LTD., individually and on\n19 behalf of all others similarly situated, JOINT SUBMISSION RE TRIAL\n PRESENTATION PLAN\n20 Plaintiffs,\n v.\n21\n\n22 YOUTUBE, LLC and GOOGLE LLC,\n Defendants.\n23\n\n24 YOUTUBE, LLC and GOOGLE LLC, Judge: Hon. James Donato\n Trial Date: June 12, 2023\n25 Counterclaimants, Time: 9 a.m.\n Courtroom: 11\n26 v.\n27 PIRATE MONITOR LTD, et al.\n Counterclaim Defendants.\n28\n 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 18 of 24\n\n\n\n\n 1 Additional Counsel\n DAVID H. KRAMER, SBN 168452\n 2 Joshua Irwin Schiller, CA Bar #330653 LAUREN GALLO WHITE, SBN 309075\n jischiller@bsfllp.com WILSON SONSINI GOODRICH & ROSATI\n 3\n BOIES SCHILLER FLEXNER LLP Professional Corporation\n 4 44 Montgomery Street, 41st Floor 650 Page Mill Road\n San Francisco, CA 94104 Palo Alto, CA 94304-1050\n 5 Telephone: (415) 293-6800 Telephone: (650) 493-9300\n Facsimile: (415) 293-6899 Facsimile: (650) 565-5100\n 6 Email: dkramer@wsgr.com\n 7 Philip C. Korologos* lwhite@wsgr.com\n pkorologos@bsfllp.com Attorneys for Defendants and Counterclaimants\n 8 Jeffrey Waldron*\n jwaldron@bsfllp.com\n 9 BOIES SCHILLER FLEXNER LLP\n 55 Hudson Yards, 20th Floor\n10 New York, NY 10001\n\n11 Telephone: (212) 446-2300\n Facsimile: (212) 446-2350\n12 *Admitted pro hac vice\n Attorneys for Plaintiffs and Counterclaim-\n13 Defendants\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n\n i 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 19 of 24\n\n\n\n\n 1 The parties respectfully submit the following proposed trial plan for the handling of claims\n\n 2 at the upcoming trial.\n\n 3 Infringement Claims\n\n 4 1. There are 27 works at issue for Ms. Schneider\u2019s infringement claims and one work at issue\n\n 5 for Uniglobe\u2019s infringement claims following dismissal by Plaintiffs of foreign unregistered works\n\n 6 infringement claims by AST and by Uniglobe.\n\n 7 2. Ms. Schneider and Uniglobe will pursue only statutory damages for their infringement\n\n 8 claims for their U.S. registered works. The parties agree that statutory damages for infringement\n\n 9 are awarded on a \u201cper work\u201d basis rather than on a \u201cper infringement\u201d basis.\n\n10 3. For Uniglobe\u2019s infringement claims for its sole U.S. registered work the statutory damages\n\n11 award, if any, for infringement of such work as determined by the jury will be the statutory\n\n12 damages awarded to Uniglobe.\n\n13 4. For Ms. Schneider\u2019s infringement claims, the parties will try six works as bellwether\n\n14 representative works pursuant to the following terms.\n\n15 4.1. Each side will select three works from among the 27 works that remain at issue for\n\n16 Ms. Schneider\u2019s infringement claims.\n\n17 4.1.1. The works selected to be tried are: [list of works to be supplied upon their\n\n18 selection by the parties]\n\n19 4.2. Plaintiff Schneider will identify for Defendants each URL that she plans to use for\n\n20 the purpose of establishing infringement at trial and has agreed not to use for such\n\n21 purpose any other URLs. Defendants reserve the right to object to the use of URLs\n\n22 for purposes other than establishing infringement.\n\n23 4.3. The statutory damages awarded on a per infringement basis as determined by the\n\n24 jury for the six selected works to be tried for Ms. Schneider\u2019s infringement claims\n\n25 will be applied to all 27 of Ms. Schneider\u2019s works at issue on a pro rata basis. This\n\n26 will be accomplished by taking the statutory damages per work, if any, as\n27 determined by the jury and multiplying it by 27 (representing the total number of\n\n28 works at issue for Ms. Schneider\u2019s claims) times a fraction, the numerator of which\n\n 1 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 20 of 24\n\n\n\n\n 1 is the number of works the jury determines are entitled to statutory damages and\n\n 2 the denominator of which is six (the number of works that are tried).\n\n 3 4.3.1. For example, if the jury finds a statutory damage award of $100,000 per work\n\n 4 and further finds that four of the six works that are tried are eligible for such an\n\n 5 award, Ms. Schneider will receive a total statutory damages award of $100,000\n\n 6 times 27 times 4/6 or $1,800,000 as a statutory damages award for all of her\n\n 7 alleged infringement claims.\n\n 8 Copyright Management Information (\u201cCMI\u201d) Claims\n\n 9 5. There are ten works that remain at issue for Ms. Schneider\u2019s claims for violation of\n\n10 17 U.S.C. \u00a7 1202 (\u201cCMI Claims\u201d) for which she alleges a total of 22 violations relating to ISRC\n\n11 codes. She has dismissed her CMI Claims that relate to CLFN metadata.\n\n12 6. Ms. Schneider will pursue only statutory damages for her CMI Claims. The parties agree\n\n13 that statutory damages for violation of 17 U.S.C. \u00a7 1202 are awarded on a \u201cper violation\u201d basis,\n\n14 not on a \u201cper work\u201d basis.\n\n15 7. For Ms. Schneider\u2019s CMI Claims, the parties will try alleged violations of 17 U.S.C.\n\n16 \u00a7 1202(b)(3) for six alleged violations as bellwether representative claims pursuant to the\n\n17 following terms.\n\n18 7.1. Each side will select three alleged violations from among the 22 that remain at\n\n19 issue for Ms. Schneider\u2019s ISRC Claims.\n\n20 7.1.1. The alleged violations selected to be tried are: [list of works and alleged\n\n21 violations to be provided upon selection by the parties]\n\n22 7.2. The statutory damages awarded on a per violation basis as determined by the jury\n\n23 or the Court for the selected alleged violations to be tried for Ms. Schneider\u2019s CMI\n\n24 Claims will be applied to all 22 alleged violations on a pro rata basis. This will be\n\n25 accomplished by taking the statutory damages per violation, if any, as determined\n\n26 by the jury and multiplying it by 22 (representing the total number of violations\n27 alleged for Ms. Schneider\u2019s CMI Claims) times a fraction, the numerator of which\n\n28 is the number of violations the jury determines are entitled to a statutory damage\n\n 2 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 21 of 24\n\n\n\n\n 1 award and the denominator of which is the number of alleged \u00a7 1202 violations that\n\n 2 are presented to the jury for trial.\n\n 3 7.2.1. For example, if the jury finds a statutory damage award of $20,000 per\n\n 4 violation and further finds that four of the six alleged violations that are\n\n 5 presented to the jury for trial are eligible for such an award, Ms. Schneider will\n\n 6 receive a total statutory damages award of $20,000 times 22 times 4/6 or\n\n 7 $293,333.33 as a statutory damages award for all of her alleged violations of\n\n 8 \u00a7 1202.\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n\n 3 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 22 of 24\n\n\n\n\n 1 Respectfully submitted,\n\n 2 Dated: May 31, 2023 /s/ DRAFT\n Philip C. Korologos*\n 3\n pkorologos@bsfllp.com\n 4 Jeffrey Waldron*\n jwaldron@bsfllp.com\n 5 BOIES SCHILLER FLEXNER LLP\n 55 Hudson Yards, 20th Floor\n 6 New York, NY 10001\n Telephone: (212) 446-2300\n 7\n Facsimile: (212) 446-2350\n 8\n Joshua Irwin Schiller, CA Bar #330653\n 9 jischiller@bsfllp.com\n BOIES SCHILLER FLEXNER LLP\n10 44 Montgomery St., 41st Floor\n11 San Francisco, CA 94104\n Telephone: (415) 293-6800\n12 Facsimile: (415) 293-6899\n\n13 George A. Zelcs*\n gzelcs@koreintillery.com\n14 Randall P. Ewing, Jr.*\n15 rewing@koreintillery.com\n Ryan Z. Cortazar*\n16 rcortazar@koreintillery.com\n KOREIN TILLERY, LLC\n17 205 North Michigan, Suite 1950\n Chicago, IL 60601\n18 Telephone: (312) 641-9750\n19 Facsimile: (312) 641-9751\n\n20 Stephen M. Tillery*\n stillery@koreintillery.com\n21 Steven M. Berezney, CA Bar #329923\n sberezney@koreintillery.com\n22\n Carol O\u2019Keefe*\n23 cokeefe@koreintillery.com\n KOREIN TILLERY, LLC\n24 505 North 7th Street, Suite 3600\n St. Louis, MO 63101\n25 Telephone: (314) 241-4844\n Facsimile: (314) 241-3525\n26\n27 *Admitted pro hac vice\n Attorneys for Plaintiffs\n28\n\n 4 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 23 of 24\n\n\n\n\n 1 Dated: May 31, 2023 KEKER, VAN NEST & PETERS LLP\n\n 2\n By: /s/ DRAFT\n 3\n ROBERT A. VAN NEST\n 4 DAN JACKSON\n JULIA L. ALLEN\n 5 TRAVIS SILVA\n ANNA PORTO\n 6 LUKE APFELD\n AMOS J. B. ESPELAND\n 7\n DAVID H. KRAMER\n 8 LAUREN GALLO WHITE\n WILSON SONSINI GOODRICH &\n 9 ROSATI\n Professional Corporation\n10 650 Page Mill Road\n Palo Alto, CA 94304-1050\n11\n Telephone: (650) 493-9300\n12 Email: dkramer@wsgr.com\n lwhite@wsgr.com\n13\n Attorneys for Defendants and\n14 Counterclaimants\n YOUTUBE, LLC and GOOGLE LLC\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n\n 5 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f Case 3:20-cv-04423-JD Document 365-6 Filed 06/10/23 Page 24 of 24\n\n\n\n\n 1 ATTESTATION\n\n 2 My user ID and password are being used in the electronic filing of this document and, in\n\n 3 compliance with N.D. Cal. Civil L.R. 5-1(h)(3), I hereby attest that concurrence in the filing of the\n\n 4 document has been obtained from each of the other Signatories.\n\n 5\n\n 6 /s/ DRAFT\n Philip Korologos\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n\n 6 3:20-cv-04423-JD\n JOINT SUBMISSION RE TRIAL PRESENTATION PLAN\n\f","ocr_status":2,"date_upload":"2023-06-12T19:38:47.087783-07:00","document_number":"365","attachment_number":6,"pacer_doc_id":"035023231357","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 5","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352585157/","id":352585157,"tags":[],"absolute_url":"/docket/17319653/365/7/schneider-v-youtube-llc/","date_created":"2023-06-10T12:57:22.147183-07:00","date_modified":"2023-06-13T03:12:53.530713-07:00","sha1":"a58417de1137dc72cf4e4f035c519222aa6fa8c2","page_count":8,"file_size":228696,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.7.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.7.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:20-cv-04423-JD Document 365-7 Filed 06/10/23 Page 1 of 8\n\n\n\n\n EXHIBIT 6\n\f Case 3:20-cv-04423-JD Document 365-7 Filed 06/10/23 Page 2 of 8\n\n\nSubject: RE: Dra( Trial Plan\nDate: Wednesday, May 31, 2023 at 3:47:15 PM Paci\ufb01c Daylight Time\nFrom: Julia L. Allen\nTo: Philip Korologos, Robert Van Nest\nCC: Carol O'Keefe\n\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\nThanks Phil. This revised trial plan works for us for submission to the court.\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Wednesday, May 31, 2023 1:58 PM\nTo: Julia L. Allen ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: Re: DraX Trial Plan\n\n[EXTERNAL]\n\nJulia:\n\nThanks for your email.\n\nWith respect to paragraphs 1 and 5, to be clear, and as you know from our conversations and previous\nemails, we do not presently intend to pursue the CLFN or foreign works claims in any future action in\nthe absence of a reversal by the 9th Circuit of the court\u2019s denial of class certification but similar to\nYouTube no longer pursuing the DMCA safe harbor affirmative defense, the \u201cdismissal\u201d of those\nclaims (assuming the court adopts the parties\u2019 trial plan) is without prejudice.\n\nWith respect to part 4.2, we have adopted your proposed additional sentence in the attached.\n\nWith respect to part 7, rather than having a lengthy description of the nature of the claims, about which\nthere would be debate and likely lack of agreement (as was the case with the related language of the\nVerdict Form), we propose that we simply refer to alleged violations of section 1202(b)(3)\u2014rather than\ntry to describe or restate (or re-write) the statute. Thus, as you\u2019ll see in the attached, we propose that\nparagraph 7 read: \u201cFor Ms. Schneider\u2019s CMI Claims, the parties will try alleged violations of 17\nU.S.C. \u00a7 1202(b)(3) for six alleged violations as bellwether representative claims pursuant to the\nfollowing terms.\u201d You\u2019ll note we also reduced the number of alleged violations to be tried form 8 to 6\nwhich is about \u00bc of the alleged 22 violations and in line with picking 6 of the works for the\n\n Page 1 of 7\n\f Case 3:20-cv-04423-JD Document 365-7 Filed 06/10/23 Page 3 of 8\n\n\ninfringement claims. Paragraph 7.2.1 is adjusted in its numbers accordingly.\n\nWe also found a few minor adjustments to be consistent with the above approach.\n\nI have attached a clean version of the trial plan reflecting the above and also a redline of that version\ncompared to the version we last sent you (it was beyond me to also do one against your version sent\nafter the below email, but I trust you can figure out how to do that if you want).\n\nLet us know if there is anything further that you have or if we are cleared to file this version.\n\nThanks,\n\nPhil\n\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nFrom: Julia L. Allen \nDate: Wednesday, May 31, 2023 at 4:17 PM\nTo: Philip Korologos , Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraX Trial Plan\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\nPhil \u2013 this version incorporates the revisions noted below. Please let us know if this works. Thanks.\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\n\n\n Page 2 of 7\n\f Case 3:20-cv-04423-JD Document 365-7 Filed 06/10/23 Page 4 of 8\n\n\nFrom: Julia L. Allen\nSent: Wednesday, May 31, 2023 12:49 PM\nTo: Philip Korologos ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraX Trial Plan\n\nPhil,\nParagraphs 1 and 5: We did not \u201cdismiss\u201d the DMCA safe harbor defense, we withdrew it as a defense\nin this case following the court\u2019s denial of class cerV\ufb01caVon. Regardless, we appreciate your\nagreement to use the term \u201cdismissal\u201d to describe the status of the CLFN and foreign works claims,\nwhich appears to more accurately re\ufb02ect the fact that PlainV\ufb00s do not intend to pursue these claims in\nthis acVon or any future acVon absent a reversal by the 9th Circuit of the court\u2019s denial of class\ncerV\ufb01caVon. We do not expect we will be able to agree to compensate PlainV\ufb00s for these claims.\nThank you for con\ufb01rming that Ms. Schneider is asserVng claims based on 27 total works.\nPart 4.2: While we do not agree that PlainV\ufb00s should be able to introduce allegedly infringing URLs for\npurposes other than proving infringement of the representaVve bellwether works, we can agree to\nreverse our proposed revisions to the draX trial plan but we will need to add a sentence to expressly\nreserve our right to object during trial to undisclosed URLs as irrelevant and prejudicial, depending on\nhow PlainV\ufb00s elect to try to admit them. Such URLs also remain the subject of Defendants\u2019 MIL 3.\nPart 7: We propose the following revisions to this paragraph to more accurately track the statutory text\nand the framework for statutory damages:\nFor Ms. Schneider\u2019s CMI Claims, the parties will try alleged violations of 17 U.S.C. \u00a7 1202(b)(3)\nfor distribution of videos from which removal of ISRC codes allegedly have been removed for four\nworks and 8 alleged violations as bellwether representative claims pursuant to the following terms.\nWe agree with your concern about tying bellwether representaVves to both works and violaVons,\nhowever given that statutory damages are Ved to violaVons rather than works, unlike infringement\nclaims, we think we\u2019re beher o\ufb00 selecVng representaVve violaVons, with PlainV\ufb00s free to select\nviolaVons Ved to separate works or a smaller number of works.\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Wednesday, May 31, 2023 7:37 AM\nTo: Julia L. Allen ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: Re: DraX Trial Plan\n\n[EXTERNAL]\n\n\n\n\n Page 3 of 7\n\f Case 3:20-cv-04423-JD Document 365-7 Filed 06/10/23 Page 5 of 8\n\n\nBob and Julia:\n\nThis responds to your comments on the draX joint trial plan.\n\nYour adjustment to paragraphs 1 and 5: You have changed \u201cwithdrawal without prejudice\u201d to \u201cdismissal\u201d. We\nunderstand that to be changing only what is conveyed to the Court about the claims that are impacted by\nthat language, rather than the substance of how those claims are dismissed. In other words, as we have\ndiscussed, we agree to treat our \u201cdismissal\u201d of foreign works claims and CLFN claims with the same prejudice\nas YouTube\u2019s dismissal of its DMCA a\ufb03rmaVve defense.\n\nWe have also had discussions about having the dismissal of such claims be with prejudice in the event that\nthe 9th circuit does not some day revive claims on behalf of a class (which classes would be separate for those\ntwo categories of claims). As we\u2019ve previously stated, we would need some modest level of compensaVon in\norder to agree to that kind of dismissal for those claims, however. We also noted that given the size of those\nclaims, the pracVcal reality of pursuing them in the absence of a class should be apparent.\n\nGiven the above described discussion, we are okay with the word \u201cdismissal\u201d instead of the phrase\n\u201cwithdrawal without prejudice\u201d with the understanding that the change does not alter the above posiVons.\n\nNumber of infringement works: We agree the right number of total works is 27 for Ms. Schneider\u2019s claims\n(which will require an adjustment in the example calculaVons (i.e., the total statutory award number in\n4.3.1.).\n\nYour change in part 4.2. We cannot agree that other URLs for works will not be used for \u201cany\u201d purpose in the\ncase, parVcularly not before we see how the evidence on the chosen works goes in. We do plan to idenVfy\nfor you all of the URLs we plan to use to establish the infringement by those URLs of the works to be tried.\nThat does not mean that all URLs relaVng to such works are not relevant to the case for other purposes. We\ncan agree that URLs for works that are not chosen to be tried will not be presented as infringing URLs for\npurposes of establishing a claim of infringement. And we can agree that for the works that will be tried we\nwill not present unidenV\ufb01ed URLs as infringing URLs for purposes of establishing a claim of infringement.\nThus, e.g., if a single work has 15 URLs that we allege are infringing URLs within the relevant limitaVons\nperiod, and we tell you that 4 of those URLs are the ones we plan to use to show that the URLs infringe that\nwork permipng collecVon of a single statutory award for infringement of the work, we will not uVlize the\nother 11 URLs for the purpose of establishing that infringement, but those URLs may be relevant to other\nissues including YT\u2019s knowledge, how Content ID\u2019s matching technology works, or other issues. We thus\ncannot agree to your proposed change to secVon 4.2.\n\nYour changes in part 7 re 1202(b)(3): We are willing to agree that the alleged violaVon of SecVon 1202(b) in\nrelaVon to ISRC codes is a violaVon of SecVon 1202(b)(3), but only on condiVon that doing so does not\nforeclose us from arguing that if an ISRC code somehow made it through the upload process, YouTube\u2019s\ntranscoding process would remove it and as a result the distribuVon on YouTube would sVll be a violaVon of\n\n\n\n\n Page 4 of 7\n\f Case 3:20-cv-04423-JD Document 365-7 Filed 06/10/23 Page 6 of 8\n\ntranscoding process would remove it and as a result the distribuVon on YouTube would sVll be a violaVon of\n1202(b)(3). Otherwise, the language should go back to reference 1202(b).\n\nYour changes in part 7 re number of violaVons: We do not believe that picking a speci\ufb01c number of violaVons\n(as opposed to works\u2014four) make sense as that will arV\ufb01cially limit the selecVon of works and violaVons.\n There are (I believe) 10 works and 22 violaVons, but there are not 2 violaVons for each work\u2014some have\nmore, some have only 1. Sepng the number of violaVons at 8 (or some other speci\ufb01c number) would\narV\ufb01cially require certain works to be included or excluded\u2014e.g., if plainV\ufb00s select two works with a total of\n5 violaVons to be presented, that would prevent a selecVon by defendants of two works with only 1 violaVon\neach.\n\nI think the point will become a non-issue if the parVes agree through selecVon on the number of violaVons\nthat will be presented to the jury (which can be done at least prior to the Vme it is discussed with the Court\non Monday). In the meanVme, we could say, e.g., that the number of violaVons to be tried will be \u201cno more\nthan 8\u201d.\n\nHappy to discuss any of the above at your convenience, recognizing we need to submit something to the\nCourt by noon PT.\n\nThanks,\n\nPhil\n\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nFrom: Julia L. Allen \nDate: Tuesday, May 30, 2023 at 11:55 PM\nTo: Philip Korologos , Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraX Trial Plan\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\nPhil \u2013 thanks for draXing. Our proposed redlines are ahached here. We do not have \ufb01nal client sign o\ufb00 on\nthis draX but wanted to send these clari\ufb01caVons in the interim given the noon deadline tomorrow.\n\nJulia\n\n\n Page 5 of 7\n\f Case 3:20-cv-04423-JD Document 365-7 Filed 06/10/23 Page 7 of 8\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Tuesday, May 30, 2023 2:29 PM\nTo: Julia L. Allen ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraX Trial Plan\n\n[EXTERNAL]\n\nMust have been a bad connecVon as I tried to send it out with the ahachment a while ago but must have\ngohen stuck.\n\nLet me know if you get the ahachment this Vme.\n\nThanks,\n\nPhil\n\nPhilip Korologos\nPartner\n\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\nFrom: Julia L. Allen \nSent: Tuesday, May 30, 2023 5:27 PM\nTo: Philip Korologos ; Robert Van Nest \nCc: Carol O'Keefe \nSubject: RE: DraX Trial Plan\n\n\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\n\nThanks Phil \u2013 missing the ahachment I think?\n\n\nJulia L. Allen\nKeker, Van Nest & Peters LLP\n\n\n Page 6 of 7\n\f Case 3:20-cv-04423-JD Document 365-7 Filed 06/10/23 Page 8 of 8\n\n\n633 Battery Street\nSan Francisco, CA 94111-1809\n415 676 2265 direct | 415 391 5400 main\njallen@keker.com | vcard | keker.com\nPronouns: she/her\n\n\nFrom: Philip Korologos \nSent: Tuesday, May 30, 2023 2:25 PM\nTo: Robert Van Nest ; Julia L. Allen \nCc: Carol O'Keefe \nSubject: DraX Trial Plan\n\n[EXTERNAL]\n\nPlease see ahached.\n\nThanks,\n\nPhil\n\n\n\nPhilip Korologos\nPartner\n\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2390\n(m) +1 917 331 8000\npkorologos@bsfllp.com\nwww.bsfllp.com\n\n\n\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\n\n\n\n Page 7 of 7\n\f","ocr_status":2,"date_upload":"2023-06-12T19:38:47.260545-07:00","document_number":"365","attachment_number":7,"pacer_doc_id":"035023231358","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 6","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352585158/","id":352585158,"tags":[],"absolute_url":"/docket/17319653/365/8/schneider-v-youtube-llc/","date_created":"2023-06-10T12:57:22.183170-07:00","date_modified":"2023-06-13T03:12:55.743586-07:00","sha1":"7a31e12fa6b972ce32beecc4419f88351974a040","page_count":39,"file_size":298906,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.8.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.8.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 1 of 39\n\n\n\n\n EXHIBIT 7\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 2 of 39\n\n\n\n\n Pages 1 - 37\n\n UNITED STATES DISTRICT COURT\n\n NORTHERN DISTRICT OF CALIFORNIA\n\nBefore The Honorable James Donato, Judge\n\nMARIA SCHNEIDER, individually )\nand on behalf of all others )\nsimilarly situated, )\n )\n Plaintiffs, )\n )\n VS. ) NO. C 20-4423 JD\n )\nYOUTUBE, LLC, )\n )\n Defendant. )\n )\n San Francisco, California\n Monday, June 5, 2023\n\n TRANSCRIPT OF PROCEEDINGS\n\nAPPEARANCES:\n\nFor Plaintiffs:\n BOIES, SCHILLER & FLEXNER LLP\n 55 Hudson Yards - 20th Floor\n New York, New York 10001\n BY: PHILIP C. KOROLOGOS, ATTORNEY AT LAW\n JEFFREY P. WALDRON, JR., ATTORNEY AT LAW\n JOSH SCHILLER, ATTORNEY AT LAW\n\n KOREIN TILLERY LLC\n 505 North 7th Street - Suite 3600\n St. Louis, Missouri 63101\n BY: CAROL L. O'KEEFE, ATTORNEY AT LAW\n ANDREW M. ELLIS, ATTORNEY AT LAW\n\n (APPEARANCES CONTINUED ON THE FOLLOWING PAGE)\n\nREPORTED BY: Marla F. Knox, CSR No. 14421, RPR, CRR, RMR\n United States District Court - Official Reporter\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 3 of 39 2\n\n\n1 APPEARANCES: (CONT'D)\n\n2 For Plaintiff:\n\n3 KOREIN TILLERY LLC\n 205 North Michigan Avenue - Suite 1950\n4 Chicago, Illinois 60601\n BY: GEORGE A. ZELCS, ATTORNEY AT LAW\n5\n For Defendant:\n6 KEKER & VAN NEST LLP\n 633 Battery Street\n7 San Francisco, California 94111\n BY: ROBERT VAN NEST, ATTORNEY AT LAW\n8 JULIA L. ALLEN, ATTORNEY AT LAW\n LUKE P. APFELD, ATTORNEY AT LAW\n9 AMOS ESPELAND, ATTORNEY AT LAW\n\n10\n WILSON SONSINI GOODRICH & ROSATI\n11 650 Page Mill Road\n Palo Alto, California 94304\n12 BY: DAVID H. KRAMER, ATTORNEY AT LAW\n LAUREN GALLO WHITE, ATTORNEY AT LAW\n13 QIFAN HUANG, ATTORNEY AT LAW\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 4 of 39 3\n\n\n1 Thursday - May 25, 2023 1:35 p.m.\n\n2 P R O C E E D I N G S\n\n3 ---000---\n\n4 THE CLERK: All rise. This court is now in session.\n\n5 The Honorable James Donato presiding. Please be seated.\n\n6 (Pause in the proceedings.)\n\n7 THE CLERK: Calling civil case number 20-4423, Maria\n\n8 Schneider, et al. versus YouTube, et al.\n\n9 Will Counsel please step forward and state your\n\n10 appearances for the record.\n\n11 MR. KOROLOGOS: Good afternoon, Your Honor, Phil\n\n12 Korologos with Boies Schiller Flexner for the Plaintiffs. With\n\n13 me, my colleagues from Boies Schiller, Josh Schiller and\n\n14 Jeffrey Waldron; and from the Korein Tillery firm, George\n\n15 Zelcs, Carol O'Keefe, and Andrew Ellis.\n\n16 MR. VAN NEST: Good afternoon, Your Honor, Bob Van\n\n17 Nest of Keker Van Nest & Peters for YouTube. I'm here with\n\n18 Julia Allen, Travis Silva, Luke Apfeld, Amos Espeland from our\n\n19 firm; and from the Wilson Sonsini firm David Kramer, Lauren\n\n20 White and Qifan Huang and our client is represented by Matt\n\n21 Gubiotti, who is here in the gallery. Good afternoon.\n\n22 THE COURT: Okay. Counting down to the big day, one\n\n23 week from today.\n\n24 Let's just roll through what we have left. So I received\n\n25 the proposal. It all looks fine to me.\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 5 of 39 4\n\n\n1 I will make reference to it in the next pretrial order.\n\n2 Oh, I did have one question. So, I'm looking at docket 341,\n\n3 the joint proposed trial plan. So, in paragraph 4.3, there was\n\n4 a reference to statutory damages awarded on a per infringement\n\n5 basis. Should that be per work basis?\n\n6 MR. VAN NEST: It should, Your Honor.\n\n7 THE COURT: All right. Okay. I will make sure that\n\n8 we clarify that.\n\n9 Not a big problem. I just wanted to make sure we are all\n\n10 on the same page.\n\n11 All right. Let's roll through a couple of things. Oh,\n\n12 the jury questionnaires, the written ones, will be back on\n\n13 June 7th, so we will meet -- let's do a Zoom -- well, you are\n\n14 all in town, aren't you?\n\n15 MR. KOROLOGOS: Yes, Your Honor.\n\n16 THE COURT: Why don't you come in at 2:00 o'clock on\n\n17 June 7th, and we will go through the questionnaires just for\n\n18 the screening, no challenges, no peremptories, just for the\n\n19 initial screening. And we will send them to you on the 7th,\n\n20 but you need to -- as you can see, Ms. Clark is not here today.\n\n21 You need to send her an e-mail with an address so she can send\n\n22 the responses to you. So, it is a big file. It is like a zip\n\n23 file of all the written responses.\n\n24 MR. VAN NEST: We can send that today?\n\n25 THE COURT: You can send that to Ms. Clark today,\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 6 of 39 5\n\n\n1 yeah, that will be great. And let's see --\n\n2 MR. KOROLOGOS: You said 2:00 o'clock on the 7th,\n\n3 Your Honor.\n\n4 THE COURT: 2:00 o'clock on the 7th.\n\n5 Okay. All right. Here are your dispositions for Dauberts\n\n6 and motions in limine: Okay. Mr. Winograd, I just -- I have\n\n7 doubts he is doing anything other than commenting on evidence.\n\n8 I don't see any electrical engineering. His field of expertise\n\n9 being engaged by any of his proposed opinions and a lot of it\n\n10 is just publishing comments about YouTube.\n\n11 So I'm excluding now the request -- I'm granting now the\n\n12 request to exclude paragraph 95 of Mr. Winograd's report with\n\n13 respect to his lack of an analysis on the scope and effort\n\n14 required to reconfigure the capabilities of Copyright Match\n\n15 Tool.\n\n16 When you start from that premise -- oh, there has been a\n\n17 switch of personnel, okay -- when you start from that premise,\n\n18 you can't really go on to say \"but in any event, take it from\n\n19 me. They could have done all of this with Copyright Match\n\n20 Tool.\" So that's definitely out.\n\n21 The rest just really looks like it's not within the\n\n22 provisions of Rule 702, not particularly subject to anything\n\n23 that the jury will need to have spoonfed to them. I don't see\n\n24 any particular expertise in any of his opinions, and I'm sure\n\n25 there will be a lot of percipient witnesses who will answer a\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 7 of 39 6\n\n\n1 lot of questions about these Copyright Match Tools.\n\n2 So, 95 is out and I'm leaning strongly to just having them\n\n3 out completely. Do you have a comment?\n\n4 MS. O'KEEFE: I do, Your Honor. Mr. Winograd has\n\n5 created a number of patents and developed software that is\n\n6 intended to identify content on digital platforms and also in\n\n7 consumer electronics.\n\n8 He has extensive experience with precisely the type of\n\n9 identification and copyright management tools that are embodied\n\n10 in Content ID and in Copyright Match.\n\n11 His watermark technology is very similar to the digital\n\n12 fingerprinting technology that Copyright Match uses, and I do\n\n13 believe that the jury would be aided by his testimony regarding\n\n14 the functioning of Copyright Match and its ability to\n\n15 identify --\n\n16 THE COURT: You are going to get that all from\n\n17 witnesses. Just, you can ask -- you can go to the fountain\n\n18 itself, Google or YouTube. YouTube will tell you everything\n\n19 you want to know; okay. All right. So he is out.\n\n20 MS. O'KEEFE: All right.\n\n21 THE COURT: Let's move on to Paul Jessop. Now, the\n\n22 CLFN portion of Mr. Jessop's testimony is out by agreement;\n\n23 right?\n\n24 MS. O'KEEFE: Correct, Your Honor.\n\n25 THE COURT: Okay. So it's just the ISRC portion and\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 8 of 39 7\n\n\n1 the Mary Doe hypothetical?\n\n2 MS. O'KEEFE: We will not offer the Mary Doe\n\n3 hypothetical during the --\n\n4 THE COURT: You will what?\n\n5 MS. O'KEEFE: We will not offer the Mary Doe\n\n6 hypothetical during trial, Your Honor.\n\n7 THE COURT: You are not going to offer it?\n\n8 MS. O'KEEFE: No.\n\n9 THE COURT: Oh, I was going to tell you it's okay.\n\n10 That's fine. Too late now. I don't see any problem with\n\n11 Mr. Jessop. What's the issue, Defendant? As long as it's just\n\n12 ISRC.\n\n13 MR. SILVA: Thank you, Your Honor, Travis Silva for\n\n14 the Defendant. I think he suffers from some of the same flaws\n\n15 that the other expert suffers from and in particular when he\n\n16 opines on YouTube's state of mind, that is an issue that's not\n\n17 for an expert to --\n\n18 THE COURT: Okay. I'm perfectly fine. Mr. Jessop\n\n19 can't say that he knows YouTube knew.\n\n20 MS. O'KEEFE: Understood.\n\n21 THE COURT: But it is perfectly okay for him to say\n\n22 \"here is why I think they should have known,\" that's fine.\n\n23 Okay, but nothing past that. Okay.\n\n24 MS. O'KEEFE: Understood, Your Honor.\n\n25 THE COURT: Do you want to use the Mary Doe thing?\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 9 of 39 8\n\n\n1 You actually want to use that?\n\n2 MS. O'KEEFE: We may re-visit it if Your Honor is so\n\n3 inclined.\n\n4 THE COURT: I will let you think about it. I'm not\n\n5 going to categorically rule that out but you did decide to\n\n6 withdraw. That's fine if you want to take that up. All right.\n\n7 So he will not testify about CLFN but in other respects, motion\n\n8 to exclude Jessop is denied.\n\n9 MR. SILVA: Your Honor, may I clarify one question\n\n10 about the CLFN issue?\n\n11 THE COURT: Yes.\n\n12 MR. SILVA: I take it then that the matching process\n\n13 that Mr. Jessop did would also fall out of the case?\n\n14 THE COURT: I don't know. Will it?\n\n15 MS. O'KEEFE: Excuse me, Your Honor.\n\n16 THE COURT: The matching process --\n\n17 MR. SILVA: The expert engaged in a matching process\n\n18 about the CLFN, and I'm just seeking confirmation that that\n\n19 also falls out with --\n\n20 MS. O'KEEFE: Yes.\n\n21 MR. SILVA: Seems like this is not the appropriate\n\n22 time but at the appropriate time we would like to challenge the\n\n23 Mary Doe hypothetical.\n\n24 THE COURT: You did and I overruled it. You already\n\n25 said it in your exclusion papers.\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 10 of 39 9\n\n\n1 MR. SILVA: We would like to be heard.\n\n2 THE COURT: If they want to use it, they can. Let's\n\n3 see. I mean, that's subject to adequate foundation and\n\n4 everything else, just as -- look, this is just the gate; okay.\n\n5 You can have other things you can object about. As a gate\n\n6 matter, Mary Doe can walk through the gate. Now, whether she\n\n7 walks farther than that will depend what you do at trial.\n\n8 MS. O'KEEFE: Understood, Your Honor.\n\n9 THE COURT: Okay. Mr. Nuttal, let's see. Well, I\n\n10 mean, Nuttal is out, right, because he was only CLFN?\n\n11 MR. WALDRON: Well, Jeffrey Waldron for Plaintiffs,\n\n12 not necessarily, Your Honor. I think the issue is most potent\n\n13 to CLFN, but he repeatedly offered an incorrect definition\n\n14 that -- of CMI that contradicts the statutory definition; and\n\n15 Plaintiffs believe that he should not be able to opine on what\n\n16 does or does not constitute CMI based on that as it would be\n\n17 confusing to the jury because the only definition that's\n\n18 relevant is the one that's in Section 1202.\n\n19 THE COURT: I mean, we don't need him anymore; right?\n\n20 MR. ESPELAND: Your Honor, I disagree. Amos Espeland\n\n21 for the Defendants. Plaintiff's motion in limine only attacks\n\n22 portions of Mr. Nuttal's testimony that purports to address\n\n23 CLFN.\n\n24 I want to make two points. First, as an initial matter,\n\n25 let's be clear that Nuttal did not offer an opinion about what\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 11 of 39 10\n\n\n1 constitutes CMI under Section 1202. His testimony concerns\n\n2 whether the industry custom and practice of using CMI, but\n\n3 Plaintiff's motion attacks more than just --\n\n4 THE COURT: What do you want him to say?\n\n5 MR. ESPELAND: Well, if you look at --\n\n6 THE COURT: He can't say anything about CLFN. That's\n\n7 out of the case. What do you want him to say?\n\n8 MR. ESPELAND: Before he testifies about CLFN, he has\n\n9 got testimony on ISRC and that's --\n\n10 THE COURT: What is he going to say?\n\n11 MR. ESPELAND: Sorry, Your Honor.\n\n12 THE COURT: What is he going to say about ISRC?\n\n13 MR. ESPELAND: He is going to testify about in the\n\n14 industry that the types of files that typically do and do not\n\n15 have ISRC and customary practices concerning ISRC. I would\n\n16 also like to point you to --\n\n17 THE COURT: What's wrong with that?\n\n18 MR. WALDRON: Your Honor, because there is a\n\n19 definition of CMI in the statute that we think that any\n\n20 testimony that is infected by his incorrect definition is\n\n21 irrelevant, and the industry standard here is not relevant\n\n22 because a jury just needs to make a decision based off of the\n\n23 statutory text of the --\n\n24 THE COURT: ISRC is not something the average person\n\n25 is going to know anything about. He is just going to -- as I\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 12 of 39 11\n\n\n1 understand it, Mr. Nuttal is going to set the table a little\n\n2 bit and say, \"Here is what it is. Here is how it works. Here\n\n3 is why artists like that.\" What's wrong with that?\n\n4 MR. WALDRON: Sure. I agree that the average juror\n\n5 does not know what an ISRC is, and that's precisely why he\n\n6 should be excluded because this is kind of a foreign topic that\n\n7 even if jurors have some fluency in what copyright is, what it\n\n8 is not, copyright management information is definitely not, you\n\n9 know, within the kin of the average juror.\n\n10 THE COURT: He should be excluded because the jurors\n\n11 don't know what it is and he might shed light on it. I don't\n\n12 understand what that means. Why should that precisely why he\n\n13 should be excluded?\n\n14 MR. WALDRON: Because his incorrect definition will\n\n15 simply infect their --\n\n16 THE COURT: You can cross-examine him; okay. All\n\n17 right. He can talk about ISRC. Look, I'm going to be here.\n\n18 These are just macro-rulings. All right. So I'm not going to\n\n19 kick him out on that but that's fine. And that's basically all\n\n20 he is going to do; right?\n\n21 MR. WALDRON: Thank you.\n\n22 THE COURT: That's basically all he is going to do?\n\n23 MR. WALDRON: Yes.\n\n24 THE COURT: Okay. Good. Okay. That will be that for\n\n25 that one. And that's it; right? The other two are out, Singer\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 13 of 39 12\n\n\n1 and --\n\n2 MR. KOROLOGOS: That's it for the Dauberts,\n\n3 Your Honor.\n\n4 THE COURT: Who is the other fellow?\n\n5 MR. KOROLOGOS: Singer, Peterson.\n\n6 THE COURT: They are both out?\n\n7 MR. VAN NEST: They are both out. That's right.\n\n8 THE COURT: All right. Motions in limine.\n\n9 Plaintiff's motion in limine number 1, docket number 339, has\n\n10 been withdrawn by agreement.\n\n11 Plaintiff's motion in limine number 2, they are not\n\n12 judicially estopped. That's a misapplication. YouTube is not\n\n13 judicially estopped by the three-page little proffers they\n\n14 made. That's a misunderstanding of how judicial estoppel\n\n15 works. So that is denied.\n\n16 The only question I have -- I mean, how much -- now that\n\n17 the DMCA defense is out, how much of all this is going to be\n\n18 relevant?\n\n19 MR. VAN NEST: Well, I think that depends on what the\n\n20 Plaintiffs present, Your Honor, but the safe harbor is out,\n\n21 that's for sure. They purport to want to say something about\n\n22 Content ID.\n\n23 I understood that with respect to who gets Content ID and\n\n24 what the qualifications requirements are, that's all out now\n\n25 with the class denied.\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 14 of 39 13\n\n\n1 They made some comment about willfulness which is subject\n\n2 to our motion 6; but regardless of the result on that, there\n\n3 shouldn't be testimony from multiple witnesses that they have\n\n4 lined up on who gets it and why and who doesn't get it and what\n\n5 the requirements are, what the qualifications are. That's all\n\n6 out of the case.\n\n7 If they have some angle that they are going to articulate\n\n8 today on willfulness, we should listen to it; but I don't think\n\n9 that works either. Certainly, the bulk of what they have\n\n10 designated in the depositions and with witnesses about Content\n\n11 ID is now out.\n\n12 THE COURT: Well, we will see how it goes. This is --\n\n13 they are not estopped. So that motion is denied.\n\n14 Plaintiff's motion in limine number 3 with respect to\n\n15 YouTube contracts and uploading, I just -- I don't see any\n\n16 basis for excluding that. What is it that's bothering you?\n\n17 MS. O'KEEFE: So we want to exclude evidence that\n\n18 YouTube uploaders whose works are caught by Content ID have a\n\n19 license or some other permission from the Content ID partner to\n\n20 keep those works online.\n\n21 That partner retains the right to always file a DMCA\n\n22 notice and take that work down at any time there is no license.\n\n23 THE COURT: What's the point of keeping it out?\n\n24 What's the problem? First of all, this should have come up on\n\n25 summary judgment arguably. It didn't, but why should the jury\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 15 of 39 14\n\n\n1 not hear this?\n\n2 MS. O'KEEFE: The jury needs to hear this because it\n\n3 bears on our infringement claims. One of our allegations of\n\n4 infringement is an inducement of infringement.\n\n5 We intend to show that Content ID catches copyright\n\n6 infringement. YouTube does not disclose on its platform that\n\n7 videos that are monetized by Content ID have been claimed by\n\n8 the copyright owner or that they are infringing. As a result,\n\n9 fully 25 to 35 percent of the videos on YouTube --\n\n10 THE COURT: All right. These are all fine things for\n\n11 you to try. Motion in limine number 3 is denied.\n\n12 Plaintiff's motion in limine number 4, to exclude evidence\n\n13 about unsuccessful takedown notices presented by Uniglobe.\n\n14 Well, I mean Uniglobe is one of the Plaintiffs. Why would this\n\n15 not be something the jury should hear?\n\n16 MR. WALDRON: Sure, Your Honor, because, as --\n\n17 Plaintiffs are asking to exclude any evidence related to the\n\n18 Work America's Forgotten, which was a work not at issue in this\n\n19 case. It is not presented in the first amended complaint and\n\n20 it was not on the list of infringements that Plaintiffs\n\n21 submitted to the Court and specifically excluding evidence of a\n\n22 takedown directed at a video that had links to America's\n\n23 Forgotten on the landing page but was not the video itself.\n\n24 So we think this is just a straightforward issue of\n\n25 relevancy. It is not relevant because it is not a work at\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 16 of 39 15\n\n\n1 issue. And to the extent that there's any relevance, it's\n\n2 outweighed by the fact that it would just divert the jury to\n\n3 issues that are not really at stake here.\n\n4 MR. ESPELAND: Your Honor, Amos Espeland for the\n\n5 Defendants. Let's be clear, Plaintiff's Counsel represented\n\n6 for over a year that the video at issue, which was a 20-second\n\n7 sequence of the familiar Fox Fanfare sequence infringed their\n\n8 works Five Weddings, which is a work in suit which remains a\n\n9 work in suit.\n\n10 Digital copyright management is complicated and mistakes\n\n11 do happen. In this case a mistake happened. Now, this is\n\n12 directly relevant for expected testimony about damages,\n\n13 Your Honor.\n\n14 In Plaintiff's response to Defendant's first MIL,\n\n15 Plaintiffs said -- and I'm quoting -- (as read:) \"They plan to\n\n16 explain to the jury how rampant infringement on the YouTube\n\n17 platform affects their livelihood.\"\n\n18 Well, if Plaintiffs get to get up and testify about\n\n19 infringements that they have not proven in court today, I think\n\n20 Defendants should be able to confront Plaintiffs with testimony\n\n21 and with evidence that they have sometimes been mistaken about\n\n22 whether their work was or was not infringed.\n\n23 THE COURT: Well, you know what? Trial is coming up.\n\n24 Exclusion on evidence is a thin read. So that one is denied.\n\n25 Motion in limine number 5 by the Plaintiffs is withdrawn\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 17 of 39 16\n\n\n1 by agreement.\n\n2 Motion in limine number 6, Plaintiff's motion in limine\n\n3 number 6, exclude evidence that Plaintiff transferred an\n\n4 exclusive right in a work. I just -- I really can't see why we\n\n5 would exclude that.\n\n6 MR. ELLIS: Good afternoon, Your Honor, Andrew Ellis\n\n7 on behalf of the Plaintiffs.\n\n8 The issue here is that Defendants may attempt to use\n\n9 license agreements from Uniglobe to argue that we have -- that\n\n10 Uniglobe has granted an exclusive license to a third party and\n\n11 then that could imply that Uniglobe is not actually an owner\n\n12 because it is granted exclusive license.\n\n13 Now, just to be clear, we are not trying to wholly exclude\n\n14 such licenses if they are used for a different purpose such as\n\n15 if the licensee uploaded something to YouTube.\n\n16 THE COURT: Look, here is the thing, this is one of\n\n17 the problems with motions in limine that sometimes gets\n\n18 overlooked by the parties, who knows what will happen.\n\n19 You can object at trial, okay, but I can't -- I can't make\n\n20 conditional exclusions or grants because we don't know what's\n\n21 going to happen. So you can reserve that for trial but -- the\n\n22 motion is denied pending developments at trial.\n\n23 Okay. Motion -- Plaintiff's motion in limine number 7\n\n24 with respect to marginal cost of Content ID database. I have\n\n25 to say, YouTube, your proffer of a quarter page, maybe a fifth\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 18 of 39 17\n\n\n1 of a page -- I would say a quarter page -- I'm holding in my\n\n2 hands. It is docket 314-6 -- is awfully skimpy.\n\n3 It looks like you didn't produce anything else during\n\n4 discovery.\n\n5 MR. APFELD: Good afternoon, Your Honor, Luke Apfeld\n\n6 representing Defendants. The issue here is more so with the\n\n7 scope and breadth of Plaintiffs.\n\n8 THE COURT: Let's talk about my issue first. You want\n\n9 to get all this marginal cost information in, and you are only\n\n10 support for it was this one document, which is, one, skimpy, as\n\n11 I just said; and two, doesn't even mention marginal cost. Did\n\n12 you produce anything during discovery? This is all you showed\n\n13 me.\n\n14 MR. APFELD: There is a rog response as well answering\n\n15 this question.\n\n16 THE COURT: You have got to have data. I mean, you\n\n17 wrote the interrogatory. Somebody signed it, I know. Where is\n\n18 the about big box of data showing \"here is our marginal cost\"?\n\n19 MR. APFELD: Your Honor, this is the data that\n\n20 directly replies to Plaintiff's request. Plaintiff's request\n\n21 was broad in scope, sought evidence and --\n\n22 THE COURT: That's it? This is it? This little\n\n23 25 percent page thing?\n\n24 MR. APFELD: They asked for operational costs.\n\n25 THE COURT: It's not going to be enough. So, why\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 19 of 39 18\n\n\n1 didn't you produce it during discovery?\n\n2 MR. APFELD: Your Honor, we produced what they asked\n\n3 for. They asked for the cost -- the operational cost by year\n\n4 of operating Content ID from an engineering perspective and\n\n5 from a managing product perspective. And that's -- excuse me,\n\n6 that's what this -- that's what this chart shows.\n\n7 THE COURT: Let me ask you this: I mean, how do you\n\n8 get marginal cost off of this 314-6? I don't even see it on\n\n9 there.\n\n10 MR. APFELD: Your Honor, nowhere in the discovery\n\n11 correspondence, nowhere in the RFPs, nowhere in the rogs did\n\n12 Plaintiffs request the marginal cost of adding specific\n\n13 reference files. That's not a -- that's not a request that\n\n14 they offered. They offered overarching and broad requests.\n\n15 THE COURT: In this entire case not once did the\n\n16 Plaintiffs ever say, \"How much more would it cost to do this\"?\n\n17 MR. APFELD: That's in the rog, Your Honor. In the\n\n18 rog, they asked what would it cost if Content ID was given to\n\n19 individual Plaintiffs and YouTube offered a rog response on\n\n20 that.\n\n21 THE COURT: But no data?\n\n22 MR. APFELD: It was not asked -- they did not ask --\n\n23 THE COURT: The interrogatory asked you and you didn't\n\n24 provide any data in response to it.\n\n25 MR. APFELD: We explained in the interrogatory\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 20 of 39 19\n\n\n1 response how unless we had more specific requests about what\n\n2 the data files were, what files were being uploaded by these\n\n3 Plaintiffs, we wouldn't be able to determine with specificity\n\n4 what the cost of unknown and unidentified reference files were.\n\n5 Plaintiffs never followed up with specificity as to these\n\n6 reference files or specificity as to the information that they\n\n7 wanted Content ID and YouTube to consider. Instead, it was a\n\n8 broad, overarching sentiment which YouTube answered to the best\n\n9 of its ability.\n\n10 THE COURT: Well, broad and overarching are apt\n\n11 descriptions for your interrogatory response as well.\n\n12 Plaintiff?\n\n13 MR. WALDRON: Thank you, Your Honor, Jeffrey Waldron\n\n14 for Plaintiffs. Your Honor, we agree that the Defendants'\n\n15 proffer here was very lacking and not really responsive.\n\n16 THE COURT: Your colleague here says you never asked.\n\n17 How about that point?\n\n18 MR. WALDRON: Well, we did ask. We asked for the\n\n19 administrative cost of Content ID, which is presumably included\n\n20 in the administrative cost of Content ID is how much it costs\n\n21 to add files to Content ID, how the day-to-day function works.\n\n22 Instead, we got a single page -- not even a page of financial\n\n23 information that has to do with employee entertainment --\n\n24 THE COURT: That's the exhibit I have, Exhibit 314-6.\n\n25 MR. WALDRON: Yes, correct.\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 21 of 39 20\n\n\n1 THE COURT: Docket number, yeah.\n\n2 MR. WALDRON: And there are essentially no broken down\n\n3 costs from this very broad document.\n\n4 THE COURT: You can't get marginal cost off of this\n\n5 sheet; right?\n\n6 MR. WALDRON: You cannot, no. That's true,\n\n7 Your Honor.\n\n8 THE COURT: So you asked for the administrative costs\n\n9 for Content ID?\n\n10 MR. WALDRON: Yes, and then in our rog we asked for\n\n11 more specificity.\n\n12 THE COURT: How about at depositions, did you ask any\n\n13 YouTube witnesses?\n\n14 MR. WALDRON: Yes, we did. Their 30(b)(6) designee\n\n15 Fabio Magagna was asked specifically about this, and he, first\n\n16 of all, said that that spreadsheet contained inaccuracies and\n\n17 then didn't offer any other response.\n\n18 THE COURT: YouTube, you are a day late and a dollar\n\n19 short. That motion is granted.\n\n20 Motion in limine number 8 by the Plaintiffs to exclude\n\n21 YouTube admissions and imposing -- oh, yeah, you know, all of\n\n22 these, I think, have been -- I think there are nine points here\n\n23 that have all been more or less taken care of by fact\n\n24 stipulations.\n\n25 I think the only three things -- you-all tell me if you\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 22 of 39 21\n\n\n1 disagree -- the only three things I see left are, let's see,\n\n2 number 3, Mega Film authorized IP LLC to delegate authority and\n\n3 IP LLC did, in fact, delegate authority to Coleman, Kahn\n\n4 (phonetic) and others. I didn't -- that's not in summary\n\n5 judgment. So...\n\n6 MR. ELLIS: That's right, Your Honor. Andrew Ellis\n\n7 again for the Plaintiffs. We are seeking here to hold these as\n\n8 judicial admissions which the Court can do under the Ninth\n\n9 Circuit's precedent in Lacelaw.\n\n10 We also mention --\n\n11 THE COURT: This is not -- here is how estoppel\n\n12 works -- I happen to know this doctrine quite well -- estoppel\n\n13 is: In case A, okay, you say the stoplight is green and you\n\n14 win a verdict. In case B, the next case, you say the stoplight\n\n15 was red and you win another verdict.\n\n16 Judicial estoppel is when you have succeeded in one case\n\n17 on a fact that you then contradict to succeed a second time in\n\n18 a subsequent case.\n\n19 The fact that somebody stood up in front of me and said,\n\n20 \"It's 1982,\" does not mean later in the case they can say, \"No,\n\n21 it was actually 1986.\" They are not judicially estopped.\n\n22 That's not how to works; okay.\n\n23 So these facts I didn't touch. I have made -- I don't\n\n24 even know what Mega Film and IP LLC are other than I see them\n\n25 in the briefs because I have had no occasion to get into them.\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 23 of 39 22\n\n\n1 So I don't know. What's the problem?\n\n2 MR. ELLIS: Your Honor, we present two bases.\n\n3 THE COURT: I know. Judicial estoppel is out. Don't\n\n4 argue that one.\n\n5 MR. ELLIS: The other one is an admission in a summary\n\n6 judgment briefing which this is. They made certain admissions\n\n7 in a summary judgment briefing, excuse me, Your Honor, and\n\n8 under the Ninth Circuit's precedent in Lacelaw the Court said\n\n9 courts will hold parties to their admissions in summary\n\n10 judgment briefing. And that's what these are.\n\n11 So, what we want to hold Defendants to are the statements\n\n12 they made in their summary judgment briefing that they will not\n\n13 then just really, a couple of months later, contradict those\n\n14 same statements.\n\n15 THE COURT: I'm not -- let me ask the Defendants. So\n\n16 did you make an admission about Mega Film to the effect that it\n\n17 authorized IP LLC to delegate authority to people; Coleman,\n\n18 Kahn and others?\n\n19 MR. HUANG: Your Honor, Qifan Huang representing\n\n20 Defendants here. The answer is no. YouTube did not say that\n\n21 what Plaintiffs wanted YouTube to admit here. As a matter of\n\n22 fact, our opposition lists side-by-side what we actually said\n\n23 in the opposition and what Plaintiffs allege that we admitted\n\n24 as a fact.\n\n25 As you can see, Your Honor, the admissions that they\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 24 of 39 23\n\n\n1 quoted selectively are very incomplete and are missing crucial\n\n2 facts. For example, the fact number 3 that you just mentioned,\n\n3 just talks about Mega Film authorizing IP LLC to delegate\n\n4 authority. It doesn't tell what authority that is being\n\n5 delegated is. It doesn't tell the other stories we present in\n\n6 the opposition.\n\n7 And most importantly for the matter Your Honor just said,\n\n8 what parties say presume for the fact -- for the purpose of\n\n9 summary judgment is not an admission. It's not binding. It's\n\n10 not stipulated. It can be used and can be disputed by a party\n\n11 at trial.\n\n12 THE COURT: All right. Look, you can fight about\n\n13 these things at trial; but I'm going to deny that one. Okay.\n\n14 YouTube's motions in limine, docket number 331. Motion in\n\n15 limine number 1, actual damages are relevant to statutory\n\n16 damages. So that one is denied.\n\n17 Motion in limine number 2, you know, I don't -- I'm not\n\n18 going to bar Plaintiff Schneider from stating strong opinions\n\n19 about Google. That's totally up to her. You know, you can\n\n20 cross-examine her on whether she knows anything about Content\n\n21 ID or not. So that's denied.\n\n22 Motion in limine number 3, with respect to improperly\n\n23 alleged infringements, you know, anything you didn't identify,\n\n24 Plaintiffs, after February -- by February 25th, 2022, I have\n\n25 already said you can't use.\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 25 of 39 24\n\n\n1 So you can't -- you can't keep opening the door. I set\n\n2 you a deadline and I told you in summary judgment that any\n\n3 infringements after identified after February 25, 2022, would\n\n4 not be considered; and I'm not going to make an exception for\n\n5 that.\n\n6 MR. KOROLOGOS: Your Honor, these are not being\n\n7 offered as claims or instances of infringement, but that\n\n8 doesn't make them irrelevant to the case for other purposes.\n\n9 So the issue is -- we agree with Your Honor ruling to follow,\n\n10 that the only claims in this case will be for infringements\n\n11 that are on that list; but other events that we believe are\n\n12 infringements --\n\n13 THE COURT: What are you -- what are you going to use\n\n14 them for in a way that is not going to hopelessly befuddle the\n\n15 jury about what the infringement claims are?\n\n16 MR. KOROLOGOS: It goes to willfulness, for instance,\n\n17 Your Honor. If as the Content ID running that they did as part\n\n18 of this discovery, where we gave them reference files and they\n\n19 ran it through their system, that identified a number of other\n\n20 instances.\n\n21 First of all, that happened after February 25; but more\n\n22 importantly, what those show is that despite their knowledge\n\n23 through other takedowns that they agreed to take down and were\n\n24 not challenged with counter-notifications, that they took those\n\n25 videos down, and that's what our claims are about, those works\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 26 of 39 25\n\n\n1 are still on the system infringed. The existence of those\n\n2 works still on the system infringe despite their knowledge, not\n\n3 just that they could find it out.\n\n4 THE COURT: How many are there?\n\n5 MR. KOROLOGOS: They acknowledge that they are in\n\n6 there. It goes to willfulness that they haven't taken those\n\n7 down.\n\n8 THE COURT: How many are there that you are going to\n\n9 use?\n\n10 MR. KOROLOGOS: Not very many, Your Honor.\n\n11 THE COURT: Just put a number on that.\n\n12 MS. ALLEN: Your Honor, I can answer that question.\n\n13 MR. KOROLOGOS: Well, for the post I'm not sure you\n\n14 can. I mean, in terms of --\n\n15 THE COURT: Just give me a ballpark.\n\n16 MR. KOROLOGOS: There are 54 instances --\n\n17 THE COURT: Fifty-four?\n\n18 MR. KOROLOGOS: -- from which, Your Honor, we would\n\n19 select five.\n\n20 THE COURT: Five?\n\n21 MR. KOROLOGOS: Yes.\n\n22 THE COURT: It doesn't seem unreasonable. Willfulness\n\n23 is an issue in the case.\n\n24 MS. ALLEN: Good morning -- good afternoon, Julia\n\n25 Allen for the Defendants. The problem with this position is as\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 27 of 39 26\n\n\n1 Your Honor pointed out, the Plaintiffs have elected to pursue\n\n2 certain works in suit, allow -- and I think this is\n\n3 particularly relevant given the agreement that the parties have\n\n4 reached as to how to proceed on representative works for the\n\n5 infringement claims and then certain URLs for the 1202 claims.\n\n6 And in the context of that agreement, the parties have now\n\n7 exchanged lists of works and lists of URLs.\n\n8 THE COURT: Okay. They are for infringement claims.\n\n9 There is no doubt about that, but your colleague here is saying\n\n10 it provides evidence of scienter, so to speak, knowledge,\n\n11 awareness; that there is a problem --\n\n12 MS. ALLEN: So --\n\n13 THE COURT: It seems perfectly fine to do that, and I\n\n14 don't think that's going to be particularly problematic for the\n\n15 jury to understand.\n\n16 MS. ALLEN: It is problematic because the assumption\n\n17 underlying that argument is that the Content ID system is\n\n18 identifying infringements, which is not accurate. It is\n\n19 identifying matches. And so allowing them to present evidence\n\n20 to --\n\n21 THE COURT: That's for you to do at trial. I mean, we\n\n22 are just talking about whether they should categorically not be\n\n23 allowed to mention them, not whether you can effectively cross,\n\n24 which would be perfectly fine. You can cross your witnesses --\n\n25 you can examine your witnesses until the cows come home about\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 28 of 39 27\n\n\n1 what Content ID does and doesn't do. Why should these five\n\n2 examples not come in before we even hear the evidence?\n\n3 MS. ALLEN: Because these examples will also then lead\n\n4 to confusion and mini trials about whether these particular\n\n5 URLs, that are not the subject of the infringement claims, are,\n\n6 in fact, infringement.\n\n7 So, the parties have endeavored to identify the works and\n\n8 the alleged violations that are the subject of the infringement\n\n9 and the 1202 claims. And so having these other videos that are\n\n10 not actually the subject of the claim is going to create mini\n\n11 trials on videos that are not actually the subject of either\n\n12 the infringement or the 1202 claims.\n\n13 THE COURT: Well, I can manage that. Okay. I'm going\n\n14 to do it provisionally. You get five; okay. You are going to\n\n15 have to lay an adequate foundation and this will be subject to\n\n16 what I hear at trial about what Content ID does and everything\n\n17 else; okay.\n\n18 So, I'm not going to exclude them now but consider them\n\n19 yellow flags, so to speak. Okay.\n\n20 Defendant's motion in limine number 4 is withdrawn by\n\n21 agreement.\n\n22 Defendant's motion in limine number 5, exclude evidence of\n\n23 videos from which ISRCs were removed.\n\n24 I mean, now that we are down to, is it, 22 works? What\n\n25 are we doing?\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 29 of 39 28\n\n\n1 MR. KOROLOGOS: Six works, Your Honor.\n\n2 THE COURT: No. For the ISRC, it is six works?\n\n3 MR. KOROLOGOS: Well, we will try in ISRC six works --\n\n4 THE COURT: Okay.\n\n5 MR. KOROLOGOS: -- on a bellwether basis representing.\n\n6 THE COURT: Oh, that's right.\n\n7 MR. KOROLOGOS: -- representing 20 -- I'm sorry -- six\n\n8 violations, alleged violations, representing 22 alleged\n\n9 violations over all that cover ten works.\n\n10 THE COURT: Okay. And YouTube is going to select\n\n11 three works; right?\n\n12 MR. KOROLOGOS: They have selected and we have\n\n13 selected.\n\n14 THE COURT: Okay. So is this all moot now, this\n\n15 motion in limine?\n\n16 MS. ALLEN: No it's not, Your Honor.\n\n17 THE COURT: Why is that?\n\n18 MS. ALLEN: So the issue here is Plaintiffs never\n\n19 identified any ISRC violations, any URLs from which an ISRC was\n\n20 removed. So this motion seeks to exclude them from introducing\n\n21 such evidence at trial. They never produced it.\n\n22 THE COURT: That's going to be subject -- you are\n\n23 going to have to do that at trial. I'm not granting summary\n\n24 judgments now; okay. I'm just not. You had your chance for\n\n25 that. I'm just not doing. That my standing order is crystal\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 30 of 39 29\n\n\n1 clear. This is not a time to say they have no proof of X.\n\n2 This is just: Can this evidence come in because it's okay\n\n3 under the Federal Rules of Evidence or is this hearsay? Is\n\n4 this some other acceptable form of -- that's all. That's\n\n5 denied.\n\n6 Defendant's motion in limine number 6, exclude Content\n\n7 ID -- look, you had an agreement with YouTube that you wouldn't\n\n8 use it at trial.\n\n9 MR. KOROLOGOS: It wasn't an agreement not to use it\n\n10 at trial, Your Honor. It was an agreement not to use it for a\n\n11 specific purpose at trial. The specific purpose being their\n\n12 knowledge that those were on the system, and we don't intend to\n\n13 offer for that purpose, Your Honor.\n\n14 THE COURT: What do you intend to use them for?\n\n15 MR. KOROLOGOS: Again, the willfulness point we talked\n\n16 about earlier, Your Honor.\n\n17 THE COURT: Okay.\n\n18 MR. KOROLOGOS: And as the agreement --\n\n19 THE COURT: I'm not sure that's honoring the spirit of\n\n20 your agreement.\n\n21 MR. KOROLOGOS: The agreement in paragraph 6 is\n\n22 express to -- and this is Exhibit 311-2 in the docket --\n\n23 neither Google's operation of the system at Plaintiff's request\n\n24 nor the fact of any video matches for the works shall be\n\n25 offered as evidence in the litigation to show that Google in\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 31 of 39 30\n\n\n1 any way had actual knowledge of alleged infringement of any\n\n2 work.\n\n3 THE COURT: Well, that goes to willfulness.\n\n4 MR. KOROLOGOS: And goes on --\n\n5 THE COURT: It goes to willfulness. You have to know\n\n6 that there has been ongoing infringement to be willful. I\n\n7 don't think you are honoring the commitment you made.\n\n8 Anyway, Google -- I'm sorry, YouTube.\n\n9 MR. HUANG: Your Honor, Qifan Huang here. We\n\n10 completely agree. In fact, if Your Honor looks at paragraph\n\n11 number 7 of the agreement, the agreement specifically says (as\n\n12 read:) \"Google will not know whether Plaintiffs allege that any\n\n13 video matches identified through Content ID are infringements\n\n14 of a Plaintiff's copyrights.\"\n\n15 So, yes, we completely agree, willfulness goes to show\n\n16 knowledge. And if Plaintiffs are trying to offer these results\n\n17 for willfulness, that is precisely forbidden by this agreement.\n\n18 THE COURT: Well, I also remember, I think I may have\n\n19 brokered this deal or helped broker this deal in the discovery\n\n20 thing. And my recollection was it was to solve a discovery\n\n21 issue with the understanding that it wouldn't be a Judo move\n\n22 against YouTube. So motion -- that one is granted.\n\n23 Defendant's motion in limine number 7, to exclude\n\n24 YouTube's financial condition. You know, a little bit is fine.\n\n25 You know, I don't mind. It is perfectly fine to say they are\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 32 of 39 31\n\n\n1 an X billion-dollar a year corporation or something like that.\n\n2 How much farther were you planning to go past that?\n\n3 MR. WALDRON: Your Honor, I don't think that we can\n\n4 make a definitive representation right now; but that is exactly\n\n5 the sort of evidence that we would be likely to introduce.\n\n6 THE COURT: Yeah. I mean, you don't have to talk\n\n7 about how they -- they have more money than 99 percent of the\n\n8 countries in the world or anything like that, but just one or\n\n9 two numbers is perfectly fine.\n\n10 MR. WALDRON: Sure. Thank you, Your Honor.\n\n11 THE COURT: That's -- so that's denied. With that\n\n12 understanding, motion in limine number 7 is denied.\n\n13 You know, number 8, preclude litigation. Okay. As a\n\n14 principle, sure. But, you know, they are interlocutory orders.\n\n15 So to the extent I said there are fact disputes, so those would\n\n16 go to trial. I don't -- I don't have any trouble with\n\n17 re-visiting, you know, we had an image in the summary judgment\n\n18 in the AA and the A&P and all these agreements and now we have\n\n19 live witnesses who are going to testify about it, I'm not going\n\n20 to stop them.\n\n21 MR. VAN NEST: That's right, Your Honor. And I just\n\n22 want to make sure that we don't re-litigate the one key point\n\n23 that's already been established by your order, and that was\n\n24 that this paragraph 7 on creative control is a condition -- is\n\n25 not a condition --\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 33 of 39 32\n\n\n1 THE COURT: A covenant.\n\n2 MR. VAN NEST: Right.\n\n3 THE COURT: No. That's my ruling. That's not an\n\n4 evidentiary -- that interpretation is up to me and that has\n\n5 been my ruling. So -- and that's based on New York State law.\n\n6 It's based on the words in the contract, and I don't think\n\n7 there's anything that -- I mean, if you want to have -- what do\n\n8 you -- I mean, let me just speak -- speak off the top of my\n\n9 head -- it's been a long day for me -- speak off the top of my\n\n10 head.\n\n11 I don't want Schneider coming in and saying, \"This is not\n\n12 a condition precedent. This is a covenant.\" She is not in the\n\n13 position to do that, okay, or vice versa.\n\n14 MR. KOROLOGOS: She is not going to say that.\n\n15 THE COURT: Okay. That's good. I don't want her to\n\n16 say, \"I never understood this to be just an agreement. I\n\n17 thought it was\" -- you can't do any of that. All right. But\n\n18 the rest of it is fine. I let them have this. I didn't let\n\n19 them have it. I didn't know they did X. They hoodwinked me.\n\n20 I had bad managers. Whatever you want to do is fine.\n\n21 MR. KOROLOGOS: It has gotten a little broader in the\n\n22 past few days, Your Honor. There was a supplemental --\n\n23 THE COURT: Broader? Yeah, I saw that.\n\n24 MR. KOROLOGOS: -- motion put in and we put a response\n\n25 in on Saturday or Sunday. I lose track of the days.\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 34 of 39 33\n\n\n1 THE COURT: Well, that's all for trial.\n\n2 MR. KOROLOGOS: Well, it is but I think, Your Honor,\n\n3 that it --\n\n4 THE COURT: Before you move on, let me just interrupt\n\n5 for one second. I just want to be clear about that, the\n\n6 covenant versus condition precedent, A, not a jury issue. It's\n\n7 a legal issue for the Court. I have ruled on it and I don't\n\n8 want any testimony about that.\n\n9 MR. KOROLOGOS: There will not be, Your Honor.\n\n10 THE COURT: No.\n\n11 MR. KOROLOGOS: But their motion goes a lot broader\n\n12 than that.\n\n13 THE COURT: Well, I'm denying the rest of it. If you\n\n14 want to have her come in and say, \"I never signed this\" or\n\n15 whatever -- I mean, I'm just hypothesizing -- that's perfectly\n\n16 fine.\n\n17 MR. KOROLOGOS: It's even better than that.\n\n18 THE COURT: It's even better?\n\n19 MR. KOROLOGOS: Yes. Because last week they produced\n\n20 new evidence. There is one page that shows up at docket 343-6,\n\n21 which they say is the missing assignment that Your Honor was\n\n22 looking for in the summary judgment opinion.\n\n23 You may recall Mr. Coleman said that he had assigned the\n\n24 administration agreement from artist share to Modern Works\n\n25 which is a necessary predicate for them to have the license\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 35 of 39 34\n\n\n1 defense because Modern Works is the entity that entered into\n\n2 the PLA with Google. They say they produced this and they show\n\n3 it to us. They call it \"the assignment\" and they call it the\n\n4 assignment that Your Honor said was missing.\n\n5 Turns out that that assignment could not have been the\n\n6 assignment of the administration agreement. It predates the\n\n7 administration agreement. It's before it. And they are trying\n\n8 to exclude Ms. Schneider from saying she didn't know anything\n\n9 about any assignment.\n\n10 THE COURT: She can. That's fine. She can say\n\n11 whatever she wants about this web of contracts. I mean, that's\n\n12 perfectly fine.\n\n13 MR. KOROLOGOS: Okay, but in light of the new\n\n14 evidence, we don't believe there is any basis to argue that\n\n15 there is a license at all.\n\n16 THE COURT: I haven't heard any new evidence. We have\n\n17 got to hear the testimony first; okay. You can make a motion.\n\n18 You know, you can do something at the end of evidence, at the\n\n19 close of their case, before it goes to the jury, whatever you\n\n20 want to do; but I haven't heard -- I have got one piece of\n\n21 paper over the transit. I'm not going to start making any\n\n22 calls about the evidence. You have to do that at trial. All\n\n23 right.\n\n24 Okay. I think that takes care of all of the motions in\n\n25 limine and the Dauberts. And I think that's it. Anything else\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 36 of 39 35\n\n\n1 for today?\n\n2 MR. VAN NEST: I think we would use -- could use some\n\n3 guidance, Your Honor.\n\n4 THE COURT: Sure.\n\n5 MR. VAN NEST: What we see coming over the -- and\n\n6 maybe your ruling on our motion in limine 7 or 6 deals with it,\n\n7 but they have designated a ton of testimony, as I mentioned a\n\n8 few minutes ago, about who gets Content ID and who doesn't.\n\n9 Seems to me that should clearly be out under what we have\n\n10 been talking about because we are not trying a safe harbor\n\n11 anymore. We are not trying a case about who gets or doesn't\n\n12 get Content ID.\n\n13 And so I think this has now been established that that is\n\n14 not going to be part of the evidence, but we keep getting\n\n15 designations from depositions and all this sort of stuff from\n\n16 multiple witnesses about who gets or doesn't get Content ID and\n\n17 what are the requirements for getting it.\n\n18 It seems to me based on what you have said and the rulings\n\n19 so far and the comments we have made about cutting this case\n\n20 down, that's clearly out; and we shouldn't have to worry\n\n21 about --\n\n22 THE COURT: I'm not going to say that. Look, they\n\n23 have got their 12 hours. They can use their time however they\n\n24 choose. If they want to talk about Content ID for 11 of the\n\n25 12, I don't see how they are going to win their infringement\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 37 of 39 36\n\n\n1 claims, but it's up to them. Okay.\n\n2 MR. KOROLOGOS: Thank you, Your Honor.\n\n3 MR. VAN NEST: Very well. We will see you Wednesday.\n\n4 THE COURT: Thursday.\n\n5 MR. KOROLOGOS: Your Honor, said the 7th.\n\n6 THE COURT: Oh, no, no. You are getting the responses\n\n7 on the 7th. You are coming in on the 8th, June 8th.\n\n8 MR. VAN NEST: Thank you. I'm glad I asked.\n\n9 THE COURT: Yeah, I'm glad you did. You are going to\n\n10 get the responses on the 7th. Then you are going to come in on\n\n11 Thursday, the 8th, at 2 p.m. Just come back here at 2 p.m.\n\n12 Oh, and by the way, I put this in the first pretrial\n\n13 order. I'm not sure I mentioned it. So, you are going to have\n\n14 a chance to give a little mini opening. All right. And have\n\n15 you done one of those before for jury selection?\n\n16 MR. KOROLOGOS: Yes, Your Honor.\n\n17 THE COURT: Mr. Van Nest?\n\n18 MR. VAN NEST: Sure.\n\n19 THE COURT: Okay. So non-argumentative, just very\n\n20 factual; three minutes tops, okay, which is actually a long\n\n21 time. Introduce yourself. Say whatever you want to say. But\n\n22 it's good to just kind of let each other know ahead of time so\n\n23 that we don't have a problem. You are both okay, more or less,\n\n24 with what the other side is saying.\n\n25 MR. KOROLOGOS: We will do that, Your Honor.\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 38 of 39 37\n\n\n1 THE COURT: You don't have to do a verbatim script or\n\n2 anything like that. Just say \"here are the points I'm going to\n\n3 hit;\" okay. Just do that before Monday, this coming Monday.\n\n4 MR. VAN NEST: We shall.\n\n5 THE COURT: This coming Monday. All right. Good.\n\n6 Thanks a lot. We will see you on Thursday.\n\n7 THE CLERK: Court is in recess.\n\n8 (Proceedings adjourned at 2:18 p.m.)\n\n9 ---oOo---\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\f Case 3:20-cv-04423-JD Document 365-8 Filed 06/10/23 Page 39 of 39\n\n\n1\n\n2\n\n3 CERTIFICATE OF REPORTER\n\n4 I certify that the foregoing is a correct transcript\n\n5 from the record of proceedings in the above-entitled matter.\n\n6\n\n7 DATE: June 6, 2023\n\n8\n\n9\n\n10\n\n11 _________________________________________\n\n12 Marla F. Knox, CSR No. 14421, RPR, CRR, RMR\n United States District Court - Official Reporter\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\f","ocr_status":2,"date_upload":"2023-06-12T19:38:47.830514-07:00","document_number":"365","attachment_number":8,"pacer_doc_id":"035023231359","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 7","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352585159/","id":352585159,"tags":[],"absolute_url":"/docket/17319653/365/9/schneider-v-youtube-llc/","date_created":"2023-06-10T12:57:22.220664-07:00","date_modified":"2023-06-13T02:44:42.810832-07:00","sha1":"e90ea2c76d5deafa7bb3908169cafd6b7c1fd57f","page_count":3,"file_size":129256,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.9.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.365.9.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:20-cv-04423-JD Document 365-9 Filed 06/10/23 Page 1 of 3\n\n\n\n\n EXHIBIT 8\n\f Case 3:20-cv-04423-JD Document 365-9 Filed 06/10/23 Page 2 of 3\n\n\nSubject: Re: Schneider, et al. v. YouTube, LLC, et al. - S:pula:on of Dismissal\nDate: Friday, June 9, 2023 at 5:07:45 PM Paci\ufb01c Daylight Time\nFrom: Julia L. Allen\nTo: Je\ufb00rey Waldron, Jazz, WSGR - schneidervyoutube\nCC: BSFYouTube, KTYouTube\n\nCAUTION: External email. Please do not respond to or click on links/attachments unless you recognize the sender.\n\n\n\nCounsel,\n\nDefendants do not agree to this s3pula3on and you do not have Defendants\u2019 authoriza3on to submit this\nno3ce under Rule 41(a)(1). Defendants do not agree that dismissal of these claims should be without\nprejudice, nor do Defendants agree to waive their costs, expenses, or fees aEributable to these claims.\n\nGet Outlook for iOS\n\nFrom: Je\ufb00rey Waldron \nSent: Friday, June 9, 2023 3:52:04 PM\nTo: Jazz ; WSGR - schneidervyoutube \nCc: BSFYouTube ; KTYouTube \nSubject: Schneider, et al. v. YouTube, LLC, et al. - S3pula3on of Dismissal\n\n[EXTERNAL]\n\nCounsel,\n\nAEached is a s3pula3on of dismissal that would dismiss the following claims from this ac3on without\nprejudice:\n\n 1. All of AST\u2019s claims against Defendants.\n 2. All of Ms. Schneiders claims arising under 17 U.S.C. \u00a7 1202 and related to the removal of copyright\n management informa3on located in the clip \ufb01lename metadata \ufb01eld, which the par3es have referred\n to as the \u201cCLFN claims.\u201d\n 3. All of Uniglobe\u2019s claims of copyright infringement related to works that do not meet the de\ufb01ni3on of a\n \u201cUnited States work\u201d as that term is de\ufb01ned in 17 U.S.C. \u00a7 101.\n\nPlease let us know if Defendants approve of this version for \ufb01ling and if we have authoriza3on to sign on\nbehalf of Defendants. Judge Donato\u2019s Pretrial Order No. 2 requires that this s3pula3on be \ufb01led today.\n\n\nJeffrey Waldron (he/him/his)\nAssociate\nBOIES SCHILLER FLEXNER LLP\n55 Hudson Yards\nNew York, NY 10001\n(t) +1 212 446 2300\n(c) +1 610 256 3521\njwaldron@bs\ufb02lp.com\nwww.bs\ufb02lp.com\n\n\n\n Page 1 of 2\n\f Case 3:20-cv-04423-JD Document 365-9 Filed 06/10/23 Page 3 of 3\n\n\nThe information contained in this electronic message is confidential information intended only for the use of the named recipient(s) and may contain information that,\namong other protections, is the subject of attorney-client privilege, attorney work product or exempt from disclosure under applicable law. If the reader of this electronic\nmessage is not the named recipient, or the employee or agent responsible to deliver it to the named recipient, you are hereby notified that any dissemination,\ndistribution, copying or other use of this communication is strictly prohibited and no privilege is waived. If you have received this communication in error, please\nimmediately notify the sender by replying to this electronic message and then deleting this electronic message from your computer. [v.1 08201831BSF]\n\n\n\n\n Page 2 of 2\n\f","ocr_status":2,"date_upload":"2023-06-12T19:38:47.361363-07:00","document_number":"365","attachment_number":9,"pacer_doc_id":"035023231360","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 8","acms_document_guid":""}],"date_created":"2023-06-10T12:54:24.464759-07:00","date_modified":"2026-02-19T22:08:00.732905-08:00","date_filed":"2023-06-10","time_filed":"12:50:54","entry_number":365,"recap_sequence_number":"2023-06-10.001","pacer_sequence_number":1269,"description":"MOTION to Amend the Pleadings Pursuant to Rule 15 and for Dismissal Pursuant to Rule 41 filed by AST Publishing LTD., Maria Schneider, Uniglobe Entertainment, LLC,. Responses due by 6/26/2023. (Attachments: # 1 Declaration of Philip Korologos, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8)(Korologos, Philip) (Filed on 6/10/2023) (Entered: 06/10/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346193805/","id":346193805,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352557700/","id":352557700,"tags":[],"absolute_url":"/docket/17319653/364/schneider-v-youtube-llc/","date_created":"2023-06-09T18:04:57.733491-07:00","date_modified":"2026-02-19T22:08:00.712205-08:00","sha1":"39b9c51a3c59c494619282fd773a84faa3cc0d44","page_count":4,"file_size":29800,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.364.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.364.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:20-cv-04423-JD Document 364 Filed 06/09/23 Page 1 of 4\n\n\n\n 1 George A. Zelcs* KEKER, VAN NEST & PETERS LLP\n gzelcs@koreintillery.com Robert A. Van Nest - # 84065\n 2 Randall P. Ewing, Jr.* rvannest@keker.com\n rewing@koreintillery.com Dan Jackson - # 216091\n 3 Ryan Z. Cortazar * djackson@keker.com\n rcortazar@koreintillery.com Julia L. Allen - # 286097\n 4 KOREIN TILLERY, LLC jallen@keker.com\n 205 North Michigan, Suite 1950 Travis Silva - # 295856\n 5 Chicago, IL 60601 tsilva@keker.com\n Telephone: (312) 641-9750 Anna Porto - # 319903\n 6 Facsimile: (312) 641-9751 aporto@keker.com\n Luke Apfeld - # 327029\n 7 Stephen M. Tillery* lapfeld@keker.com\n stillery@koreintillery.com Amos J. B. Espeland - # 332895\n 8 Steven M. Berezney, CA Bar #329923 aespeland@keker.com\n sberezney@koreintillery.com 633 Battery Street\n 9 Carol O\u2019Keefe* San Francisco, CA 94111-1809\n cokeefe@koreintillery.com Telephone: 415 391 5400\n10 KOREIN TILLERY, LLC Facsimile: 415 397 7188\n 505 North 7th Street, Suite 3600\n11 St. Louis, MO 63101 Attorneys for Defendants and Counterclaimants\n Telephone: (314) 241-4844\n12 Facsimile: (314) 241-3525\n\n13 *Admitted pro hac vice\n\n14 Attorneys for Plaintiffs and Counterclaim\n Defendants\n15\n UNITED STATES DISTRICT COURT\n16\n NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION\n17\n\n18 YOUTUBE, LLC and GOOGLE LLC, Case No. 3:20-cv-04423-JD\n\n19 Counterclaimants, STIPULATION OF DISMISSAL\n20 v.\n PIRATE MONITOR LTD., PIRATE\n21 MONITOR LLC, and G\u00c1BOR CSUP\u00d3,\n22 Counterclaim Defendants.\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n\n STIPULATION OF DISMISSAL\n CASE NO. 3:20-CV-04423-JD\n\f Case 3:20-cv-04423-JD Document 364 Filed 06/09/23 Page 2 of 4\n\n\n\n 1 Additional Counsel\n\n 2 Joshua Irwin Schiller, CA Bar #330653 David H. Kramer, SBN 168452\n jischiller@bsfllp.com dkramer@wsgr.com\n 3 BOIES SCHILLER FLEXNER LLP Lauren Gallo White, SBN 309075\n 44 Montgomery Street, 41st Floor lwhite@wsgr.com\n 4 San Francisco, CA 94104 Qifan Huang, SBN 339672\n Telephone: (415) 293-6800\n 5 Facsimile: (415) 293-6899 qhuang@wsgr.com\n WILSON SONSINI GOODRICH & ROSATI\n 6 Philip C. Korologos* Professional Corporation\n pkorologos@bsfllp.com 650 Page Mill Road\n 7 Jeffrey Waldron* Palo Alto, CA 94304-1050\n jwaldron@bsfllp.com Telephone: (650) 493-9300\n 8 BOIES SCHILLER FLEXNER LLP Facsimile: (650) 565-5100\n 55 Hudson Yards, 20th Floor\n 9 New York, NY 10001\n Telephone: (212) 446-2300 Attorneys for Defendants and\n10 Facsimile: (212) 446-2350 Counterclaimants\n\n11 *Admitted pro hac vice\n\n12 Attorneys for Plaintiffs and\n Counterclaim-Defendants\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n\n STIPULATION OF DISMISSAL\n CASE NO. 3:20-CV-04423-JD\n\f Case 3:20-cv-04423-JD Document 364 Filed 06/09/23 Page 3 of 4\n\n\n\n 1 Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), Counterclaimants YouTube,\n\n 2 LLC and Google LLC, and Counterclaim Defendants, Pirate Monitor LTD and G\u00e1bor Csup\u00f3,\n\n 3 hereby stipulate to the dismissal of the counterclaims in this action. All claims that\n\n 4 Counterclaimants raised or could have raised in this action are dismissed WITH PREJUDICE.\n\n 5 Each Party will bear its own costs, expenses, and attorneys\u2019 fees.\n\n 6 Respectfully submitted,\n 7\n\n 8 Dated: June 9, 2023 By: /s/ Philip C. Korologos\n Philip C. Korologos*\n 9 Jeffrey Waldron*\n BOIES SCHILLER FLEXNER LLP\n10 55 Hudson Yards, 20th Floor\n New York, NY 10001\n11 Telephone: (212) 446-2300\n Facsimile: (212) 446-2350\n12\n Joshua Irwin Schiller, CA Bar #330653\n13 BOIES SCHILLER FLEXNER LLP\n14 44 Montgomery Street, 41st Floor\n San Francisco, CA 94104\n15 Telephone: (415) 293-6800\n Facsimile: (415) 293-6899\n16\n George A. Zelcs*\n17 Randall P. Ewing, Jr.*\n Ryan Z. Cortazar*\n18\n KOREIN TILLERY, LLC\n19 205 North Michigan, Suite 1950\n Chicago, IL 60601\n20 Telephone: (312) 641-9750\n Facsimile: (312) 641-9751\n21\n Stephen M. Tillery*\n22 Steven M. Berezney, CA Bar #329923\n23 Carol O\u2019Keefe*\n KOREIN TILLERY, LLC\n24 505 North 7th Street, Suite 3600\n St. Louis, MO 63101\n25 Telephone: (314) 241-4844\n Facsimile: (314) 241-3525\n26\n\n27 *Admitted pro hac vice\n\n28\n\n 1\n STIPULATION OF DISMISSAL\n CASE NO. 3:20-CV-04423-JD\n\f Case 3:20-cv-04423-JD Document 364 Filed 06/09/23 Page 4 of 4\n\n\n\n 1 Attorneys for Plaintiffs Schneider, Uniglobe\n and AST and for Counterclaim Defendants\n 2 Pirate Monitor Ltd. and Csupo\n\n 3 Dated: June 9, 2023 By: /s/ Lauren Gallo White\n Lauren Gallo White\n 4 David H. Kramer\n Qifan Huang\n 5\n WILSON SONSINI GOODRICH & ROSATI\n 6 Professional Corporation\n 650 Page Mill Road\n 7 Palo Alto, CA 94304-1050\n Telephone: (650) 493-9300\n 8\n Robert A. Van Nest\n 9 Dan Jackson\n Julia L. Allen\n10 Travis Silva\n Anna Porto\n11 Luke Apfeld\n Amos J. B. Espeland\n12 KEKER, VAN NEST & PETERS LLP\n 633 Battery Street\n13 San Francisco, CA 94111-1809\n Telephone: (415) 391 5400\n14 Facsimile: (415) 397 7188\n15 Attorneys for Defendants and\n Counterclaimants\n16 YouTube, LLC and Google LLC\n17\n\n18 ATTORNEY ATTESTATION\n\n19 I, Lauren Gallo White, am the ECF User whose ID and password are being used to file\n20 this document. In compliance with N.D. Cal. Civil L.R. 5-1(h)(3), I hereby attest that the\n\n21 concurrence in the filing of this document has been obtained from the signatory.\n\n22 /s/ Lauren Gallo White\n Lauren Gallo White\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n 2\n STIPULATION OF DISMISSAL\n CASE NO. 3:20-CV-04423-JD\n\f","ocr_status":2,"date_upload":"2023-06-12T19:41:55.965729-07:00","document_number":"364","attachment_number":null,"pacer_doc_id":"035023230650","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Stipulation","acms_document_guid":""}],"date_created":"2023-06-09T18:04:57.723697-07:00","date_modified":"2026-02-19T22:08:00.692516-08:00","date_filed":"2023-06-09","time_filed":"17:42:18","entry_number":364,"recap_sequence_number":"2023-06-09.002","pacer_sequence_number":1267,"description":"STIPULATION of Dismissal filed by Google LLC, YouTube, LLC. (White, Lauren) (Filed on 6/9/2023) (Entered: 06/09/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346192213/","id":346192213,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352555826/","id":352555826,"tags":[],"absolute_url":"/docket/17319653/363/schneider-v-youtube-llc/","date_created":"2023-06-09T17:04:13.118099-07:00","date_modified":"2026-02-19T22:08:00.669377-08:00","sha1":"625201a50b36e30b1743d83cfafd761ea5064b88","page_count":6,"file_size":148377,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.363.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.363.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:20-cv-04423-JD Document 363 Filed 06/09/23 Page 1 of 6\n\n\n\n\n 1 George A. Zelcs* KEKER, VAN NEST & PETERS LLP\n gzelcs@koreintillery.com ROBERT A. VAN NEST - # 84065\n 2 Randall P. Ewing, Jr.* rvannest@keker.com\n rewing@koreintillery.com DAN JACKSON - # 216091\n 3 Ryan Z. Cortazar * djackson@keker.com\n rcortazar@koreintillery.com JULIA L. ALLEN - # 286097\n 4 KOREIN TILLERY, LLC jallen@keker.com\n 205 North Michigan, Suite 1950 TRAVIS SILVA - # 295856\n 5 Chicago, IL 60601 tsilva@keker.com\n Telephone: (312) 641-9750 ANNA PORTO - # 319903\n 6 Facsimile: (312) 641-9751 aporto@keker.com\n Stephen M. Tillery* LUKE APFELD - # 327029\n 7 stillery@koreintillery.com lapfeld@keker.com\n Steven M. Berezney, CA Bar #329923 AMOS J. B. ESPELAND - # 332895\n 8 sberezney@koreintillery.com aespeland@keker.com\n Carol O\u2019Keefe* 633 Battery Street\n 9 cokeefe@koreintillery.com San Francisco, CA 94111-1809\n KOREIN TILLERY, LLC Telephone: 415 391 5400\n10 505 North 7th Street, Suite 3600 Facsimile: 415 397 7188\n St. Louis, MO 63101 Attorneys for Defendants and Counterclaimants\n11 Telephone: (314) 241-4844 YouTube, LLC and Google LLC\n Facsimile: (314) 241-3525\n12\n *Admitted pro hac vice\n13\n Attorneys for Plaintiffs\n14\n UNITED STATES DISTRICT COURT\n15\n NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION\n16\n\n17 MARIA SCHNEIDER and UNIGLOBE Case No. 3:20-cv-04423-JD\n ENTERTAINMENT, LLC,\n18 SECOND REVISED JOINT PROPOSED\n Plaintiffs, PRELIMINARY JURY INSTRUCTIONS\n19 v.\n Judge: Hon. James Donato\n20 YOUTUBE, LLC and GOOGLE LLC,\n Trial Date: June 12, 2023\n21 Time: 9 a.m.\n Defendants. Courtroom: 11\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n 3:20-cv-04423-JD\n SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363 Filed 06/09/23 Page 2 of 6\n\n\n 1 Additional Counsel\n DAVID H. KRAMER, SBN 168452\n 2 Joshua Irwin Schiller, CA Bar #330653 LAUREN GALLO WHITE, SBN 309075\n jischiller@bsfllp.com WILSON SONSINI GOODRICH & ROSATI\n 3\n BOIES SCHILLER FLEXNER LLP Professional Corporation\n 4 44 Montgomery Street, 41st Floor 650 Page Mill Road\n San Francisco, CA 94104 Palo Alto, CA 94304-1050\n 5 Telephone: (415) 293-6800 Telephone: (650) 493-9300\n Facsimile: (415) 293-6899 Facsimile: (650) 565-5100\n 6 Email: dkramer@wsgr.com\n Philip C. Korologos* lwhite@wsgr.com\n 7\n pkorologos@bsfllp.com\n 8 Jeffrey Waldron* Attorneys for Defendants\n jwaldron@bsfllp.com\n 9 BOIES SCHILLER FLEXNER LLP\n 55 Hudson Yards, 20th Floor\n10 New York, NY 10001\n\n11 Telephone: (212) 446-2300\n Facsimile: (212) 446-2350\n12\n *Admitted pro hac vice\n13\n Attorneys for Plaintiffs\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n 1 Case No. 3:20-cv-04423-JD\n SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363 Filed 06/09/23 Page 3 of 6\n\n\n 1 Plaintiffs and Defendants respectfully submit the following Second Revised Joint Proposed\n\n 2 Preliminary Jury Instructions, attached hereto as Exhibit 1.\n\n 3\n\n 4\n\n 5\n\n 6\n\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n 2 Case No. 3:20-cv-04423-JD\n SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363 Filed 06/09/23 Page 4 of 6\n\n\n 1 Respectfully submitted,\n\n 2\n\n 3 Dated: June 9, 2023 /s/ Philip Korologos\n Philip C. Korologos*\n 4 Jeffrey Waldron*\n BOIES SCHILLER FLEXNER LLP\n 5 55 Hudson Yards, 20th Floor\n New York, NY 10001\n 6 Phone: (212) 446-2300\n 7 Fax: (212) 446-2350\n\n 8 Joshua Irwin Schiller, CA Bar #330653\n BOIES SCHILLER FLEXNER LLP\n 9 44 Montgomery St., 41st Floor\n San Francisco, CA 94104\n10 Phone: (415) 293-6800\n11 Fax: (415) 293-6899\n\n12 George A. Zelcs*\n Randall P. Ewing, Jr.*\n13 Ryan Z. Cortazar*\n KOREIN TILLERY, LLC\n14\n 205 North Michigan, Suite 1950\n15 Chicago, IL 60601\n Telephone: (312) 641-9750\n16 Facsimile: (312) 641-9751\n\n17 Stephen M. Tillery*\n Steven M. Berezney, CA Bar #329923\n18\n Carol O\u2019Keefe*\n19 KOREIN TILLERY, LLC\n 505 North 7th Street, Suite 3600\n20 St. Louis, MO 63101\n Telephone: (314) 241-4844\n21 Facsimile: (314) 241-3525\n22\n *Admitted pro hac vice\n23\n Attorneys for Plaintiffs\n24\n\n25\n\n26\n27\n\n28\n 3 Case No. 3:20-cv-04423-JD\n SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363 Filed 06/09/23 Page 5 of 6\n\n\n 1 KEKER, VAN NEST & PETERS LLP\n\n 2\n By: /s/ Robert A. Van Nest\n 3\n ROBERT A. VAN NEST\n 4 DAN JACKSON\n JULIA L. ALLEN\n 5 TRAVIS SILVA\n ANNA PORTO\n 6 LUKE APFELD\n AMOS J. B. ESPELAND\n 7\n DAVID H. KRAMER\n 8 LAUREN GALLO WHITE\n WILSON SONSINI GOODRICH &\n 9 ROSATI\n Professional Corporation\n10 650 Page Mill Road\n Palo Alto, CA 94304-1050\n11\n Telephone: (650) 493-9300\n12 Email: dkramer@wsgr.com\n lwhite@wsgr.com\n13\n Attorneys for Defendants\n14 YOUTUBE, LLC and GOOGLE LLC\n15\n\n16\n\n17\n\n18\n\n19\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n 4 Case No. 3:20-cv-04423-JD\n SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363 Filed 06/09/23 Page 6 of 6\n\n\n 1 ATTESTATION\n\n 2 My user ID and password are being used in the electronic filing of this document and, in\n\n 3 compliance with N.D. Cal. Civil L.R. 5-1(h)(3), I hereby attest that concurrence in the filing of the\n\n 4 document has been obtained from each of the other Signatories.\n\n 5 /s/ Philip Korologos\n\n 6 Philip C. Korologos\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n 1 Case No. 3:20-cv-04423-JD\n SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f","ocr_status":2,"date_upload":"2023-06-12T19:42:15.932196-07:00","document_number":"363","attachment_number":null,"pacer_doc_id":"035023230405","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Proposed Jury Instructions","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352736233/","id":352736233,"tags":[],"absolute_url":"/docket/17319653/363/1/schneider-v-youtube-llc/","date_created":"2023-06-12T19:41:46.247304-07:00","date_modified":"2023-06-13T02:51:57.884448-07:00","sha1":"1b3194ac9e1500119a7b953d15c2cffa3f409074","page_count":26,"file_size":193369,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.363.1.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.363.1.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 1 of 26\n\n\n\n\n EXHIBIT 1\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 2 of 26\n\n\n\n\n 1 UNITED STATES DISTRICT COURT\n 2 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION\n\n 3\n\n 4\n MARIA SCHNEIDER, and UNIGLOBE\n 5 ENTERTAINMENT, LLC Case No. 3:20-cv-04423-JD\n\n 6 Plaintiffs, SECOND REVISED JOINT PROPOSED\n PRELIMINARY JURY INSTRUCTIONS\n v.\n 7\n YOUTUBE, LLC and GOOGLE LLC,\n 8\n Defendants.\n 9\n\n10\n\n11 The Court will give these preliminary jury instructions to the seated jury on June 12, 2023.\n\n12 IT IS SO ORDERED.\n\n13 Dated: June 12, 2023\n\n14\n JAMES DONATO\n15 United States District Judge\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n\n28\n 3:20-cv-04423-JD\n SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 3 of 26\n\n\n\n\n 1 INSTRUCTION NO. 1\n\n 2 DUTY OF JURY\n\n 3 You now are the jury in this case, and I want to take a few minutes to tell you about your\n\n 4 duties as jurors and to give you some preliminary instructions before the testimony starts. At the\n\n 5 end of the trial I will give you the detailed written instructions that will control your\n\n 6 deliberations. These are the introductory instructions to help you understand the principles that\n\n 7 apply to civil trials and to help you understand the evidence as you listen to it. These instructions\n\n 8 are preliminary instructions to help you understand the principles that apply to civil trials and to\n\n 9 help you understand the evidence as you listen to it. You will be allowed to keep this set of\n\n10 instructions to refer to throughout the trial. These instructions are not to be taken home and must\n\n11 remain in the jury room when you leave in the evenings. At the end of the trial, these instructions\n\n12 will be collected, and I will give you a final set of instructions. It is the final set of instructions\n\n13 that will govern your deliberations.\n\n14 It is your duty to find the facts from all the evidence in the case. To those facts you will\n\n15 apply the law as I give it to you. You must follow the law as I give it to you whether you agree\n\n16 with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices\n\n17 or sympathy. You should also not be influenced by any person\u2019s race, color, religion, national\n\n18 ancestry, or gender.\n19 All of this means that you must decide the case solely on the evidence before you. Please\n\n20 keep in mind that you took an oath to do so.\n\n21 Do not read into these instructions or anything I may say or do that I have an opinion\n\n22 regarding the evidence or what your verdict should be. That is for you to decide.\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 4 of 26\n\n\n\n\n 1 INSTRUCTION NO. 2\n\n 2 CLAIMS AND DEFENSES\n\n 3 To help you follow the evidence, I will give you a brief summary of the positions of the\n\n 4 parties:\n\n 5 The Plaintiffs are Maria Schneider and Uniglobe Entertainment. They bring claims of\n\n 6 copyright infringement against YouTube and Google. Plaintiff Maria Schneider separately claims\n\n 7 that Defendants YouTube and Google violated the Digital Millennium Copyright Act, or the\n\n 8 \u201cDMCA.\u201d Plaintiffs have the burden of proving their claims by the preponderance of the evidence.\n\n 9 The Defendants Google and YouTube deny that they have infringed the plaintiffs\u2019\n\n10 copyrights, and deny Ms. Schneider\u2019s claim that they violated the DMCA. The defendants assert\n\n11 affirmative defenses, such as license, implied license, fair use, and the contractual limitations\n\n12 period. The defendants have the burden of proving their affirmative defenses by the preponderance\n\n13 of the evidence.\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 5 of 26\n\n\n\n\n 1 INSTRUCTION NO. 3\n\n 2 BURDEN OF PROOF \u2013 PREPONDERANCE OF THE EVIDENCE\n\n 3 When a party has the burden of proving any claim or affirmative defense by a\n\n 4 preponderance of the evidence, it means you must be persuaded by the evidence that the claim or\n\n 5 affirmative defense is more probably true than not true.\n\n 6 You should base your decision on all of the evidence, regardless of which party presented\n\n 7 it.\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 6 of 26\n\n\n\n\n 1 INSTRUCTION NO. 4\n\n 2 CORPORATIONS -- FAIR TREATMENT\n\n 3 Some of the parties in this case are corporations. All parties are equal before the law and\n\n 4 a corporation is entitled to the same fair and conscientious consideration by you as any party.\n\n 5 Under the law, a corporation is considered to be a person. It can only act through its\n\n 6 employees, agents, directors, or officers. Therefore, a corporation is responsible for the acts of its\n\n 7 employees, agents, directors, and officers, performed within the scope of authority. An act is\n\n 8 within the scope of a person\u2019s authority if it is within the range of reasonable and foreseeable\n\n 9 activities that an employee, agent, director, or officer engages in while carrying out that person\u2019s\n\n10 business.\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 7 of 26\n\n\n\n\n 1 INSTRUCTION NO. 5\n\n 2 AGENT AND PRINCIPAL\n\n 3 An agent is a person who performs services for another person under an express or implied\n\n 4 agreement and who is subject to the other\u2019s control or right to control the manner and means of\n\n 5 performing the services. The other person is called a principal. One may be an agent without\n\n 6 receiving compensation for services. The agency agreement may be oral or written.\n\n 7\n\n 8 Authority: Ninth Circuit Manual of Model Civil Jury Instructions, Instr. 4.4 (2017).\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 8 of 26\n\n\n\n\n 1 INSTRUCTION NO. 6\n\n 2 WHAT IS EVIDENCE\n\n 3 The evidence you are to consider in deciding what the facts are consists of:\n\n 4 1. the sworn testimony of any witness;\n\n 5 2. the exhibits that are admitted into evidence;\n\n 6 3. any facts to which the lawyers have agreed; and\n\n 7 4. any facts that I may instruct you to accept as proved.\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 9 of 26\n\n\n\n\n 1 INSTRUCTION NO. 7\n 2 WHAT IS NOT EVIDENCE\n 3 In reaching your verdict, you may consider only the testimony and exhibits received into\n 4 evidence. Certain things are not evidence, and you may not consider them in deciding what the\n\n 5 facts are. I will list them for you:\n\n 6 1. Arguments and statements by lawyers are not evidence. The lawyers are not\n 7 witnesses. What they may say in their opening statements, closing arguments and at other times\n\n 8 is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember\n\n 9 them differ from the way the lawyers have stated them, your memory of them controls.\n\n10 2. Questions and objections by lawyers are not evidence. Attorneys have a duty to\n11 their clients to object when they believe a question is improper under the rules of evidence. You\n\n12 should not be influenced by the objection or by the Court\u2019s ruling on it.\n\n13 3. Testimony that is excluded or stricken, or that you are instructed to disregard, is\n14 not evidence and must not be considered. In addition, some evidence may be received only for a\n\n15 limited purpose; when I instruct you to consider certain evidence only for a limited purpose, you\n\n16 must do so and you may not consider that evidence for any other purpose.\n\n17 4. Anything you may see or hear when the court was not in session is not evidence.\n18 You are to decide the case solely on the evidence received at the trial.\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 10 of 26\n\n\n\n\n 1 INSTRUCTION NO. 8\n\n 2 DIRECT AND CIRCUMSTANTIAL EVIDENCE\n\n 3 Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as\n\n 4 testimony by a witness about what that witness personally saw or heard or did. Circumstantial\n\n 5 evidence is proof of one or more facts from which you could find another fact. You should consider\n\n 6 both kinds of evidence. The law makes no distinction between the weight to be given to either\n\n 7 direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 11 of 26\n\n\n\n\n 1 INSTRUCTION NO. 9\n\n 2 STIPULATIONS OF FACT\n\n 3 The parties have agreed to certain facts that I will now read to you. You must treat these\n\n 4 facts as having been proved.\n\n 5 1. Plaintiff Maria Schneider is a citizen of the State of New York.\n\n 6 2. Plaintiff Uniglobe Entertainment, LLC is a Wyoming limited liability company\n\n 7 with its principal place of business in Los Angeles County, California.\n\n 8 3. Defendant YouTube, LLC is a Delaware limited liability company with its\n\n 9 principal place of business in San Bruno, California.\n\n10 4. Defendant Google LLC is a Delaware limited liability company with its principal\n\n11 place of business in Mountain View, California.\n\n12 5. Defendant YouTube is a wholly owned and controlled subsidiary of Defendant\n\n13 Google.\n\n14 6. Plaintiff Schneider filed her complaint on July 2, 2020.\n\n15 7. Plaintiff Schneider and Plaintiff Uniglobe Entertainment, LLC, filed an amended\n\n16 complaint on November 17, 2021.\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 12 of 26\n\n\n\n\n 1 INSTRUCTION NO. 10\n\n 2 RULING ON OBJECTIONS\n\n 3 There are rules of evidence that control what can be received into evidence. When a lawyer\n\n 4 asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not\n\n 5 permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question\n\n 6 may be answered, or the exhibit received. If I sustain the objection, the question cannot be\n\n 7 answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you\n\n 8 must ignore the question and must not guess what the answer would have been.\n\n 9 Sometimes I may have ordered that evidence be stricken from the record and that you\n\n10 disregard or ignore that evidence. That means when you are deciding the case, you must not\n\n11 consider the evidence that I told you to disregard.\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 13 of 26\n\n\n\n\n 1 INSTRUCTION NO. 11\n\n 2 CREDIBILITY OF WITNESSES\n\n 3 In deciding the facts in this case, you may have to decide which testimony to believe and\n\n 4 which testimony not to believe. You may believe everything a witness says, or part of it, or none\n\n 5 of it.\n\n 6 In considering the testimony of any witness, you may take into account:\n\n 7 (1) the opportunity and ability of the witness to see or hear or know the things testified\n\n 8 to;\n\n 9 (2) the witness\u2019s memory;\n\n10 (3) the witness\u2019s manner while testifying;\n\n11 (4) the witness\u2019s interest in the outcome of the case, if any;\n\n12 (5) the witness\u2019s bias or prejudice, if any;\n\n13 (6) whether other evidence contradicted the witness\u2019s testimony;\n\n14 (7) the reasonableness of the witness\u2019s testimony in light of all the evidence; and\n\n15 (8) any other factors that bear on believability.\n\n16 Sometimes a witness may say something that is not consistent with something else he or\n\n17 she said. Sometimes different witnesses will give different versions of what happened. People\n\n18 often forget things or make mistakes in what they remember. Also, two people may see the same\n19 event but remember it differently. You may consider these differences, but do not decide that\n\n20 testimony is untrue just because it differs from other testimony.\n\n21 However, if you decide that a witness has deliberately testified untruthfully about\n\n22 something important, you may choose not to believe anything that witness said. On the other hand,\n\n23 if you think the witness testified untruthfully about some things but told the truth about others, you\n\n24 may accept the part you think is true and ignore the rest.\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 14 of 26\n\n\n\n\n 1 The weight of the evidence as to a fact does not necessarily depend on the number of\n\n 2 witnesses who testify about it. What is important is how believable the witnesses were, and how\n\n 3 much weight you think their testimony deserves.\n\n 4\n\n 5\n\n 6\n\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 15 of 26\n\n\n\n\n 1 INSTRUCTION NO. 12\n\n 2 DEPOSITION IN LIEU OF LIVE TESTIMONY\n\n 3 At times during the trial, you may hear testimony by a witness in the form of previously\n\n 4 recorded deposition rather than live here in court. A deposition is the sworn testimony of a\n\n 5 witness taken before trial. The witness was placed under oath to tell the truth, and lawyers for\n\n 6 each side asked questions. The questions and answers were recorded.\n\n 7 Insofar as possible, you should consider deposition testimony presented to you in court in\n\n 8 lieu of live testimony, in the same way as if the witness had been present to testify.\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 16 of 26\n\n\n\n\n 1 INSTRUCTION NO. 13\n\n 2 EXPERT OPINION\n\n 3 You will hear testimony from expert witnesses who testify to opinions and the reasons for\n\n 4 their opinions. This opinion testimony is allowed because of the education or experience of this\n\n 5 witness.\n\n 6 Such opinion testimony should be judged like any other testimony. You may accept it,\n\n 7 reject it, or give it as much weight as you think it deserves, considering the witness\u2019s education\n\n 8 and experience, the reasons given for the opinion, and all the other evidence in the case.\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 17 of 26\n\n\n\n\n 1 INSTRUCTION NO. 14\n\n 2 USE OF INTERROGATORIES\n\n 3 Evidence was presented to you in the form of answers of one of the parties to written\n\n 4 interrogatories submitted by the other side. These answers were given in writing and under oath\n\n 5 before the trial in response to questions that were submitted under established court procedures.\n\n 6 You should consider the answers, insofar as possible, in the same way as if they were made from\n\n 7 the witness stand.\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 18 of 26\n\n\n\n\n 1 INSTRUCTION NO. 15\n\n 2 USE OF REQUESTS FOR ADMISSION\n\n 3 Evidence was presented to you in the form of admissions to the truth of certain facts. These\n\n 4 admissions were given in writing before the trial, in response to requests that were submitted under\n\n 5 established court procedures. You must treat these facts as having been proved.\n\n 6\n\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 19 of 26\n\n\n\n\n 1 INSTRUCTION NO. 16\n\n 2 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE\n\n 3 Certain charts and summaries not admitted into evidence may be shown to you in order to\n\n 4 help explain the contents of books, records, documents, or other evidence in the case. Charts and\n\n 5 summaries are only as good as the underlying evidence that supports them. You should, therefore,\n\n 6 give them only such weight as you think the underlying evidence deserves.\n\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 20 of 26\n\n\n\n\n 1 INSTRUCTION NO. 17\n\n 2 CHARTS AND SUMMARIES RECEIVED IN EVIDENCE\n\n 3 Certain charts and summaries have been admitted into evidence to illustrate information\n\n 4 brought out in the trial. Charts and summaries are only as good as the testimony or other admitted\n\n 5 evidence that supports them. You should, therefore, give them only such weight as you think the\n\n 6 underlying evidence deserves.\n\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 21 of 26\n\n\n\n\n 1 INSTRUCTION NO. 18\n\n 2 NO TRIAL TRANSCRIPT\n\n 3 I urge you to pay close attention to the trial testimony as it is given. During deliberations\n\n 4 you will not have a transcript of the trial testimony.\n\n 5\n\n 6\n\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 22 of 26\n\n\n\n\n 1 INSTRUCTION NO. 19\n\n 2 TAKING NOTES\n\n 3 If you would like, you may take notes during trial to help you remember the evidence. Your\n\n 4 binder has notepaper in it. If you do take notes, please keep them to yourself until you go to the\n\n 5 jury room to decide the case. Do not let notetaking distract you. When you leave, your notes should\n\n 6 be left in the jury room. No one will read your notes. Whether or not you take notes, you should\n\n 7 rely on your own memory of the evidence. Notes are only to assist your memory. You should not\n\n 8 be overly influenced by your notes or those of other jurors.\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 23 of 26\n\n\n\n\n 1 INSTRUCTION NO. 20\n\n 2 QUESTIONS TO WITNESSES BY JURORS DURING TRIAL\n\n 3 When the attorneys have finished examining a witness, you may propose a question to\n\n 4 the witness to help clarify the testimony. A question may not be used to express any opinion\n\n 5 about the testimony or argue with a witness. If you propose a question, remember that your role\n\n 6 is that of a neutral fact finder, not an advocate.\n\n 7 Before I excuse each witness, I will offer you the opportunity to write out a question\n\n 8 using the form that has been put into your binders. Do not sign the question.\n\n 9 There are some proposed questions that I will not permit, or will rephrase from the\n\n10 wording submitted. This might happen either due to the rules of evidence or other legal reasons,\n\n11 or because the question is expected to be answered later in the case. If I do not ask a proposed\n\n12 question, or if I rephrase it, do not speculate as to the reasons. Do not give undue weight to\n\n13 questions you or other jurors propose. You should evaluate the answers to those questions in the\n\n14 same manner you evaluate all of the other evidence.\n\n15 By giving you the opportunity to propose questions, I am not requesting or suggesting that\n\n16 you do so. It will often be the case that a lawyer has not asked a question because it is legally\n\n17 objectionable or because a later witness may be addressing that subject.\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 24 of 26\n\n\n\n\n 1 INSTRUCTION NO. 21\n\n 2 CONDUCT OF THE JURY\n\n 3 Let\u2019s talk about your conduct as jurors. It is vitally important that you keep an open mind\n\n 4 throughout the trial. The testimony and evidence will unfold over several weeks, and you should\n\n 5 not reach any conclusions before you have heard everything that will be presented. In addition,\n\n 6 do not decide what the verdict should be until you and your fellow jurors have completed your\n\n 7 deliberations at the end of the case.\n\n 8 When it comes time for you to decide the verdict, your decision must be based on the\n\n 9 evidence received in the case and on my instructions on the law that applies. You must not be\n\n10 exposed to any other information about the case or to the issues it involves during the course of\n\n11 your jury duty.\n\n12 For these reasons, do not communicate with anyone in any way and do not let anyone else\n\n13 communicate with you in any way about the merits of the case or anything to do with it. This\n\n14 covers every possible form of communication: in person, in writing, by phone, tablet, or computer,\n\n15 or any other electronic means, via email, text messaging, chat room, blog, website or any social\n\n16 media applications including but not limited to Facebook, YouTube, Twitter, Instagram, LinkedIn,\n\n17 Snapchat, or TikTok. The prohibition on communication applies to everyone, including your\n\n18 family members, your employer, the media or press, and the people involved in the trial. It also\n19 applies to communicating with your fellow jurors until I give you the case for deliberation. You\n\n20 are free to tell your family and your employer that you have been seated as a juror in the case, and\n\n21 how long you expect the trial to last. But you cannot share with them or anyone else any other\n\n22 information about your jury service or about the case. If anyone asks you about your jury service\n\n23 or the case, you must say that you have been ordered not to discuss the matter. You must also\n\n24 promptly report the contact to me through Ms. Clark.\n\n25 In addition, you must not, for any reason, do research or investigation on your own. You\n\n26 will get all the evidence and legal instruction you may properly consider for the verdict right here\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 25 of 26\n\n\n\n\n 1 in the courtroom. Do not look up anything on the Internet, or in a book, or do any sleuthing or\n\n 2 investigating of any sort. Do not visit or view any place or location that might be described\n\n 3 during the case. Do not do any research about the law or the people involved in this case --\n\n 4 including the parties, the witnesses, the lawyers, or me. Also, while I have no information that\n\n 5 there will be media coverage of this case, please make sure you do not read, watch, or listen to\n\n 6 any news or media accounts or commentary about the case or anything to do with it. If you\n\n 7 happen to read or hear anything touching on this case in the media, turn away and let me know\n\n 8 what happened by telling Ms. Clark.\n\n 9 That is a long list of \u201cdon\u2019ts\u201d but it is vitally important for you to follow these rules. They\n\n10 protect each party\u2019s right to have this case decided only on evidence that has been presented here\n\n11 in court. Witnesses in court take an oath to tell the truth, and the accuracy of their testimony is\n\n12 tested through the trial process. If you do any research or investigation outside the courtroom, or\n\n13 gain any information through improper communications, then your verdict may be influenced by\n\n14 inaccurate, incomplete or misleading information that has not been tested by the trial process.\n\n15 Each of the parties is entitled to a fair trial by an impartial jury, and if you decide the case based\n\n16 on information not presented in court, you will have denied the parties a fair trial. Remember,\n\n17 you have taken an oath to follow the rules, and it is crucial that you follow these rules.\n\n18 A juror who violates these restrictions jeopardizes the fairness of these proceedings and a\n19 mistrial could result that would require the entire trial process to start over. If any juror is exposed\n\n20 to any outside information, please notify the Court immediately.\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f Case 3:20-cv-04423-JD Document 363-1 Filed 06/09/23 Page 26 of 26\n\n\n\n\n 1 INSTRUCTION NO. 22\n\n 2 OUTLINE OF TRIAL\n\n 3 We are just about ready to start the trial. Each side may make an opening statement. An\n\n 4 opening statement is not evidence. It is simply an outline to help you understand what that party\n\n 5 expects the evidence will show. A party is not required to make an opening statement, and if a\n\n 6 party chooses not to do one, you should not hold it against that party for any reason.\n\n 7 Plaintiffs will then present evidence and counsel for the Defendants may cross-examine.\n\n 8 Then, the Defendants may present evidence, and counsel for the Plaintiffs may cross-examine.\n\n 9 After the evidence has been presented, I will instruct you on the law that applies to the case, and\n\n10 the attorneys will make closing arguments.\n\n11 After that, you will go to the jury room to deliberate on your verdict.\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n27\n 3:20-cv-04423-JD\n28 SECOND REVISED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS\n\f","ocr_status":2,"date_upload":"2023-06-12T19:42:16.135723-07:00","document_number":"363","attachment_number":1,"pacer_doc_id":"035023230406","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit 1 - Second Revised Joint Proposed Preliminary Jury Instructions","acms_document_guid":""}],"date_created":"2023-06-09T17:04:13.107934-07:00","date_modified":"2026-02-19T22:08:00.649072-08:00","date_filed":"2023-06-09","time_filed":"16:55:24","entry_number":363,"recap_sequence_number":"2023-06-09.001","pacer_sequence_number":1265,"description":"Proposed Jury Instructions by Maria Schneider, Uniglobe Entertainment, LLC, . (Attachments: # 1 Exhibit 1 - Second Revised Joint Proposed Preliminary Jury Instructions)(Korologos, Philip) (Filed on 6/9/2023) (Entered: 06/09/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346144703/","id":346144703,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352505388/","id":352505388,"tags":[],"absolute_url":"/docket/17319653/362/schneider-v-youtube-llc/","date_created":"2023-06-09T10:33:19.196129-07:00","date_modified":"2026-02-19T22:08:00.628887-08:00","sha1":"fb130b7d9ebb1cc9db70053b13017897716e685e","page_count":1,"file_size":76880,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.362.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.362.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:20-cv-04423-JD Document 362 Filed 06/08/23 Page 1 of 1\n\n\n\n\n UNITED STATES DISTRICT COURT\n NORTHERN DISTRICT OF CALIFORNIA\n Civil Minutes\n\n\n Date: June 8, 2023 Judge: Hon. James Donato\n\n Time: 22 Minutes\n\n Case No. 3:20-cv-04423-JD\n Case Name Schneider et al v. YouTube, LLC et al\n\n Attorney(s) for Plaintiff(s): Philip Korologos /Josh Schiller\n Attorney(s) for Defendant(s): Julia Allen/Lauren Gallo White/Robert Van Nest\n\n Court Reporter: Marla Knox\n\n Deputy Clerk: Lisa Clark\n\n PROCEEDINGS\n\nPretrial conference -- Held.\n\n NOTES AND ORDERS\n\nThe Court and parties review the jury written questionnaire responses.\n\nYouTube is directed to file by June 12, 2023, a dismissal of the counterclaim against Pirate\nMonitor Ltd. and Gabor Csupo.\n\nThe parties are directed to file jointly by 5 p.m. on June 9, 2023, a second revised set of proposed\npreliminary jury instructions. A Word version should be sent by the same deadline to\nJDPO@cand.uscourts.gov.\n\n\n\n\n 1\n\f","ocr_status":2,"date_upload":"2023-06-12T19:42:00.238240-07:00","document_number":"362","attachment_number":null,"pacer_doc_id":"035023227497","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Pretrial Conference","acms_document_guid":""}],"date_created":"2023-06-09T10:33:19.186335-07:00","date_modified":"2026-02-19T22:08:00.609083-08:00","date_filed":"2023-06-08","time_filed":null,"entry_number":362,"recap_sequence_number":"2023-06-08.005","pacer_sequence_number":1263,"description":"Minute Entry for proceedings held before Judge James Donato: Pretrial Conference held on 6/8/2023. Total Time in Court: 22 minutes. Court Reporter: Marla Knox. (jdlc1, COURT STAFF) (Date Filed: 6/8/2023) (Entered: 06/09/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346084584/","id":346084584,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352437919/","id":352437919,"tags":[],"absolute_url":"/docket/17319653/361/schneider-v-youtube-llc/","date_created":"2023-06-08T17:32:14.146180-07:00","date_modified":"2026-02-19T22:08:00.581722-08:00","sha1":"0a754d2b220db99b437f2eda83666d1327542f93","page_count":3,"file_size":87418,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.361.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.361.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:20-cv-04423-JD Document 361 Filed 06/08/23 Page 1 of 3\n\n\n\n\n 1\n\n 2\n\n 3\n\n 4 UNITED STATES DISTRICT COURT\n\n 5 NORTHERN DISTRICT OF CALIFORNIA\n\n 6\n\n 7 MARIA SCHNEIDER, et al., Case No. 20-cv-04423-JD\n Plaintiffs,\n 8\n VOIR DIRE\n v.\n 9\n\n 10 YOUTUBE, LLC, et al.,\n Defendants.\n 11\n\n 12\nNorthern District of California\n United States District Court\n\n\n\n\n 13 The Court will ask these questions at the in-court voir dire. Neither side has objected to\n\n 14 the questions.\n\n 15 IT IS SO ORDERED.\n\n 16 Dated: June 8, 2023\n\n 17\n\n 18\n JAMES DONATO\n 19 United States District Judge\n 20\n\n 21\n\n 22\n\n 23\n\n 24\n\n 25\n\n 26\n 27\n\n 28\n\f Case 3:20-cv-04423-JD Document 361 Filed 06/08/23 Page 2 of 3\n\n\n\n\n 1 VOIR DIRE QUESTIONS\n\n 2 1. Counsel for the plaintiffs will introduce themselves and their clients.\n\n 3 a. Do you know any of the attorneys?\n\n 4 b. Do you know Maria Schneider or Nayomi Cooper (also known as Namrata Singh\n\n 5 Gurjal)?\n\n 6 c. Are you personally acquainted with an officer, director, or employee of Uniglobe\n\n 7 Entertainment?\n\n 8 d. Have you or anyone close to you had any financial or business dealings with\n\n 9 Uniglobe Entertainment, including stock ownership, or the individual plaintiffs?\n\n 10 2. Counsel for YouTube will introduce themselves and their clients.\n\n 11 a. Do you know any of the attorneys?\n\n 12 b. Are you personally acquainted with an officer, director, or employee of Google or\nNorthern District of California\n United States District Court\n\n\n\n\n 13 YouTube?\n\n 14 c. Have you or anyone close to you had any financial or business dealings with\n\n 15 Google or YouTube, including stock ownership?\n\n 16 3. Here is a list of potential witnesses who may testify at trial. Do you know any of these\n\n 17 people?\n\n 18 4. Are you or anyone close to you an internet content creator, such as a podcaster, social\n\n 19 media influencer, musician, or video producer?\n\n 20 5. Do you or anyone close to you have education, training, or experience, with licensing\n\n 21 content or products to others?\n\n 22 6. Do you or anyone close to you regularly upload music, videos, or other content, to\n\n 23 YouTube?\n\n 24 7. Do you have any strong positive or negative feelings about copyright or intellectual\n\n 25 property laws?\n\n 26 8. Have you or anyone close to you registered a copyright?\n\n 27 9. Have you or anyone close to you been involved in a dispute over ownership of an idea or\n\n 28 creative work?\n 2\n\f Case 3:20-cv-04423-JD Document 361 Filed 06/08/23 Page 3 of 3\n\n\n\n\n 1 10. Do you or anyone close to you have education, training, or experience, with copyright\n\n 2 management information?\n\n 3 11. Do you have any strong positive or negative feelings about large technology companies?\n\n 4 12. Have you read or heard anything about this case other than what you\u2019ve heard here today?\n\n 5 13. Do you have any difficulty understanding English, or reading documents in English?\n\n 6 14. Is there anything I have not asked you about that you believe could affect your ability to\n\n 7 serve as a fair and impartial juror for this trial?\n\n 8\n\n 9\n\n 10\n\n 11\n\n 12\nNorthern District of California\n United States District Court\n\n\n\n\n 13\n\n 14\n\n 15\n\n 16\n\n 17\n\n 18\n 19\n\n 20\n\n 21\n\n 22\n\n 23\n\n 24\n\n 25\n\n 26\n 27\n\n 28\n 3\n\f","ocr_status":2,"date_upload":"2023-06-08T17:42:17.331694-07:00","document_number":"361","attachment_number":null,"pacer_doc_id":"035023225725","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Order","acms_document_guid":""}],"date_created":"2023-06-08T17:32:14.137111-07:00","date_modified":"2026-02-19T22:08:00.561784-08:00","date_filed":"2023-06-08","time_filed":"17:27:27","entry_number":361,"recap_sequence_number":"2023-06-08.004","pacer_sequence_number":1259,"description":"VOIR DIRE. Signed by Judge James Donato on 6/8/2023. (jdlc1, COURT STAFF) (Filed on 6/8/2023) (Entered: 06/08/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346081722/","id":346081722,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352434780/","id":352434780,"tags":[],"absolute_url":"/docket/17319653/359/schneider-v-youtube-llc/","date_created":"2023-06-08T16:31:19.801704-07:00","date_modified":"2026-02-19T22:08:00.497860-08:00","sha1":"ca6f5af6e3b6553eb744089200f2a6d5af76da87","page_count":2,"file_size":134251,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.359.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.359.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:20-cv-04423-JD Document 359 Filed 06/08/23 Page 1 of 2\n\n\n UNITED STATES DISTRICT COURT TRANSCRIPT ORDER COURT USE ONLY\n NORTHERN DISTRICT OF CALIFORNIA Please use one form per court reporter. DUE DATE:\n CAND 435 CJA counsel please use Form CJA24\n (CAND Rev. 08/2018) Please read instructions on next page.\n1a. CONTACT PERSON FOR THIS ORDER 2a. CONTACT PHONE NUMBER 3. CONTACT EMAIL ADDRESS\nJeffrey Waldron (610) 256-3521 jwaldron@bsfllp.com\n1b. ATTORNEY NAME (if different) 2b. ATTORNEY PHONE NUMBER 3. ATTORNEY EMAIL ADDRESS\nPhilip Korologos (212) 446-2390 pkorologos@bsfllp.com\n4. MAILING ADDRESS (INCLUDE LAW FIRM NAME, IF APPLICABLE) 5. CASE NAME 6. CASE NUMBER\nBoies Schiller Flexner LLP\n55 Hudson Yards, 20th Floor Schneider, et al. v. YouTube, LLC, et al. 20-cv-004423\nNew York, New York 10001\n 8. THIS TRANSCRIPT ORDER IS FOR:\n7. COURT REPORTER NAME ( FOR FTR, LEAVE BLANK AND &+(&.\u0003%2; \u0239\u0003\u07ab FTR \u07ab APPEAL \u07ab CRIMINAL \u07ab In forma pauperis (NOTE: Court order for transcripts must be attached)\nMarla Knox \u07ab NON-APPEAL \u2714 CIVIL\n \u07ab CJA: Do not use this form; use Form CJA24.\n\n\n9. TRANSCRIPT(S) REQUESTED (Specify portion(s) and date(s) of proceeding(s) for which transcript is requested), format(s) & quantity and delivery type:\n\n b. SELECT FORMAT(S) (NOTE: ECF access is included\n a. HEARING(S) (OR PORTIONS OF HEARINGS) c. DELIVERY TYPE ( Choose one per line)\n with purchase of PDF, text, paper or condensed.)\n\n DATE JUDGE TYPE PORTION PDF TEXT/ASCII PAPER CONDENSED ECF ACCESS ORDINARY 14-Day EXPEDITED 3-DAY DAILY HOURLY REALTIME\n If requesting less than full hearing, (email) (email) (email) (web) (30-day) (7-day) (Next day) (2 hrs)\n (initials) (e.g. CMC) specify portion (e.g. witness or time)\n\n06/08/2023 JD PTC { { { { { { { { { { { {\n \u25cf\n\n\n\n\n \u25cf\n { { { { { { { { { { { {\n { { { { { { { { { { { {\n { { { { { { { { { { { {\n { { { { { { { { { { { {\n { { { { { { { { { { { {\n10. ADDITIONAL COMMENTS, INSTRUCTIONS, QUESTIONS, ETC:\n\n\n\n\nORDER & CERTIFICATION (11. & 12.) By signing below, I certify that I will pay all charges (deposit plus additional). 12. DATE\n11. SIGNATURE\n /s/ Philip Korologos 06/08/2023\n\n\n Clear Form Save as new PDF\n\f Case 3:20-cv-04423-JD Document 359 Filed 06/08/23 Page 2 of 2\n\n\nCAND 435\n(Rev. 08/2018) INSTRUCTIONS\nUse this form to order the transcription of a record of proceedings. CJA counsel should use Form CJA24. Before completing this form, please visit cand.uscourts.gov/transcripts\nfor complete transcript ordering information. THESE INSTRUCTIONS SUPPLEMENT THE WEBSITE INFORMATION.\n 1. Complete a separate order form for each case number for which transcripts are ordered.\n 2. Complete a separate order form for each court reporter who reported proceedings in the case.\n 3. Complete Items 1-12. Keep a copy of your completed order form for your records.\n 4. E-file this form in the U.S. District Court CM/ECF system. Exceptions to e-filing: (a) sealed cases/proceedings; (b) non-parties; (c) pro se parties who are not e-filers.\n In such cases, mail or hand-deliver a hard copy addressed to the court reporter supervisor (email list available at cand.uscourts.gov/transcripts/contact) at the\n Court division where the proceeding was held.\n 5. Next, the court reporter/transcriber will contact you to confirm estimated costs and delivery options. Deliver payment to the court reporter/transcriber promptly.\n Upon receipt of the deposit, the court reporter/transcriber will begin work on the transcript.\n 6. Unless prepayment is waived, delivery time is computed from the date the court reporter/transcriber receives the deposit, authorized CJA 24 Form, authorization\n from Federal Public Defender\u2019s Office or, for transcripts ordered by the U.S. government, from the date of receipt of the DCN number.\n 7. The deposit fee is an estimate. Any overage will be refunded; any shortage will be due from you.\n ITEM-BY-ITEM INSTRUCTIONS (ITEMS 1-12):\nItems 1-3 In fields 1a, 2a & 3a, please provide the contact name and information for the person responsible for ordering the transcript. In a law office, this is usually a\n paralegal or administrative assistant, not the attorney. In fields 1b, 2b & 3b, provide the attorney name and contact info, if the attorney is not the contact person.\nItems 5-6. Only one case number may be listed per order.\nItem 7. Visit cand.uscourts.gov/transcripts for instructions for determining the name of the court reporter who reported the proceeding or if the proceeding was audio-\n recorded. If minutes have not been filed, contact the court reporter supervisor at the division where the hearing was held.\nItem 8. Check appeal OR non-appeal AND criminal OR civil. In forma pauperis: a court order specifically authorizing transcripts is required before transcripts may be\n ordered in forma pauperis.\nItem 9a. List specific date(s) of the proceedings for which transcript is requested. A transcript of only a portion of a proceeding may be ordered, if the description is clearly\n written to facilitate processing. Under \u201ctype,\u201d indicate briefly what type of proceeding it was, such as \u201cmotion,\u201d \u201csentencing,\u201d or \u201cCMC.\u201d\nItem 9b. Select desired FORMAT(S) for transcript. There is an additional charge for each format ordered. Visit cand.uscourts.gov/transcripts/rates for details. Unlock\n ECF/web access is included at no extra charge with each of the other formats.\nItem 9c. There are 7 DELIVERY TYPES to choose from (times are computed from date of receipt of the deposit fee or DCN number). NOTE: Full price may be charged only if\n the transcript is delivered within the required time frame. For example, if an order for expedited transcript is not completed and delivered within 7 calendar days,\n the 14-day delivery rate would be charged.\n TRANSCRIPT DELIVERY TIMES:\n \u0083 ORDINARY \u0245 30 calendar days.\n \u0083 14-DAY \u0245 14 calendar days.\n \u0083 EXPEDITED \u0245 7 calendar days.\n \u0083 3-DAY \u0245 3 calendar days\n \u0083 DAILY (NEXT DAY) \u0245\u0003)ROORZLQJ\u0003DGMRXUQPHQW\u0003DQG\u0003SULRU\u0003WR\u0003WKH\u0003QRUPDO\u0003RSHQLQJ\u0003KRXU\u0003RI\u0003WKH\u0003FRXUW\u0003RQ\u0003WKH\u0003IROORZLQJ\u0003PRUQLQJ\u0003ZKHWKHU\u0003RU\u0003QRW\u0003LW\u0003DFWXDOO\\ is a court day.\n \u0083 HOURLY (SAME DAY) \u0245\u0003ZLWhin two (2) hours.\n \u0083 REALTIME \u0245 A draft unedited, uncertified transcript produced by a certified realtime reporter as a byproduct of realtime to be delivered electronically during\n SURFHHGLQJV\u0003RU\u0003LPPHGLDWHO\\\u0003IROORZLQJ\u0003DGMRXUQPHQW\u0011\nItem 11. Sign in this space to certify that you will pay all charges (the deposit plus any additional charges.) An electronic or conformed (/s/) signature is acceptable.\nItem 12. Enter the date of signing the order and certification.\n\f","ocr_status":2,"date_upload":"2023-06-08T22:49:49.404626-07:00","document_number":"359","attachment_number":null,"pacer_doc_id":"035023225168","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Transcript Order","acms_document_guid":""}],"date_created":"2023-06-08T16:31:19.793304-07:00","date_modified":"2026-02-19T22:08:00.478076-08:00","date_filed":"2023-06-08","time_filed":"16:08:52","entry_number":359,"recap_sequence_number":"2023-06-08.002","pacer_sequence_number":1255,"description":"TRANSCRIPT ORDER for proceedings held on June 8, 2023 before Judge James Donato by Maria Schneider, Uniglobe Entertainment, LLC,, for Court Reporter Marla Knox. (Korologos, Philip) (Filed on 6/8/2023) (Entered: 06/08/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346081676/","id":346081676,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352434734/","id":352434734,"tags":[],"absolute_url":"/docket/17319653/360/schneider-v-youtube-llc/","date_created":"2023-06-08T16:31:16.519082-07:00","date_modified":"2026-02-19T22:08:00.543242-08:00","sha1":"d9a2f3c68a2aa312ed73009c45ba237319cce0e2","page_count":1,"file_size":190133,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.360.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.360.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 3:20-cv-04423-JD Document 360 Filed 06/08/23 Page 1of1\n\n \n\nUNITED STATES DISTRICT COURT\nNORTHERN DISTRICT OF CALIFORNIA\n\nCAND 435\n(CAND Rev. 08/2018)\n\n \n\nCJA counsel please use Form CJA24\nPlease read instructions on next page.\n\nTRANSCRIPT ORDER\nPlease use one form per court reporter.\n\n \n\nCOURT USE ONLY\nDUE DATE:\n\n \n\nta. CONTACT PERSON FOR THIS ORDER\n\nRAINA ABAYA\n\n2a. CONTACT PHONE NUMBER\n\n(415) 773-6692\n\n3. CONTACT EMAIL ADDRESS\nrabaya@keker.com\n\n \n\n1b. ATTORNEY NAME (if different)\n\nAMOS ESPELAND\n\n \n\n2b. ATTORNEY PHONE NUMBER\n\n(415) 773-6669\n\n \n\n3. ATTORNEY EMAIL ADDRESS\naespeland@keker.com\n\n \n\n4. MAILING ADDRESS (INCLUDE LAW FIRM NAME, IF APPLICABLE)\nKeker, Van Nest & Peters LLP\n\n633 Battery Street\nSan Francisco, CA 94111\n\n5. CASE NAME\n\nSchneider et al v. YouTube, LLC et al\n\n6. CASE NUMBER\n\n3:20-cv-04423\n\n \n\n \n\n \n\n7. COURT REPORTER NAME ( FOR FTR, LEAVE BLANK AND CHECK BOX)\u2014> (1 FTR\n\nMarla Knox\n\n\u00a9 APPEAL\nO NON-APPEAL\n\n \n\nO CRIMINAL\n\nCIVIL\n\n8. THIS TRANSCRIPT ORDER IS FOR:\n\n(1 In forma pauperis (NOTE: Court order for transcripts must be attached)\n\nCJA: Do not use this form: use Form CJA24.\n\n \n\n \n\n9. TRANSCRIPT(S) REQUESTED (Specify portion(s) and date(s) of proceeding(s) for which transcript is requested), format(s) & quantity and delivery type:\n\n \n\na. | HEARING(S) (OR PORTIONS OF HEARINGS)\n\nb.\n\nSELECT FORMAT(S) (NOTE: ECF access is included\n\nwith purchase of PDF, text, paper or condensed.)\n\nc. DELIVERY TYPE (Choose one per line)\n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\nDATE JUDGE TYPE _ PORTION / PDF TEXT/ASCII PAPER | CONDENSED | ECFACCESS | ORDINARY | 14-Day | EXPEDITED | 3-DAY DAILY HOURLY | REALTIME\nints) [eg CMO] eeeheenvenatmaetring | nay | oman ena) | wet) | ae (sey netcen | ens\n\n06/08/2023 JD PTC ) \u00bb O O O O O O O \u00a9 O O\nO O O O O O O O O O O O\nO O O O O O O O O O O O\nO O O O O O O O O O O O\nO O O O O O O O O O O O\nO O O O O O O O O O O O\n\n10. ADDITIONAL COMMENTS, INSTRUCTIONS, QUESTIONS, ETC:\n\nORDER & CERTIFICATION (11. & 12.) By signing below, | certify that | will pay all charges (deposit plus additional). 12. DATE\n\nHE SIGNATURE Js/ Amos Espeland 06/08/2023\n\n \n\n \n\n \n\f","ocr_status":1,"date_upload":"2023-06-08T22:49:59.764908-07:00","document_number":"360","attachment_number":null,"pacer_doc_id":"035023225307","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Transcript Order","acms_document_guid":""}],"date_created":"2023-06-08T16:31:16.507800-07:00","date_modified":"2026-02-19T22:08:00.525095-08:00","date_filed":"2023-06-08","time_filed":"16:27:50","entry_number":360,"recap_sequence_number":"2023-06-08.003","pacer_sequence_number":1257,"description":"TRANSCRIPT ORDER for proceedings held on June 8, 2023 before Judge James Donato by Google LLC, YouTube, LLC, for Court Reporter Marla Knox. (Espeland, Amos) (Filed on 6/8/2023) (Entered: 06/08/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346012607/","id":346012607,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/424863703/","id":424863703,"tags":[],"absolute_url":"","date_created":"2024-12-20T11:37:44.328289-08:00","date_modified":"2026-02-19T22:08:00.455508-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2023-06-08T09:20:22.916319-07:00","date_modified":"2026-02-19T22:08:00.433699-08:00","date_filed":"2023-06-08","time_filed":null,"entry_number":null,"recap_sequence_number":"2023-06-08.001","pacer_sequence_number":null,"description":"Set Deadlines/Hearings: Jury Trial set for 6/13/2023 09:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Jury Trial set for 6/14/2023 09:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Jury Trial set for 6/15/2023 09:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Jury Trial set for 6/19/2023 09:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Jury Trial set for 6/20/2023 09:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Jury Trial set for 6/21/2023 09:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Jury Trial set for 6/22/2023 09:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Jury Trial set for 6/23/2023 09:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Jury Trial set for 6/26/2023 09:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. Jury Trial set for 6/27/2023 09:00 AM in San Francisco, Courtroom 11, 19th Floor before Judge James Donato. (lrc, COURT STAFF) (Filed on 6/8/2023)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/346010071/","id":346010071,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352361170/","id":352361170,"tags":[],"absolute_url":"","date_created":"2023-06-08T09:04:32.114132-07:00","date_modified":"2023-06-13T04:41:52.825350-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Set Deadlines/Hearings","acms_document_guid":""}],"date_created":"2023-06-08T09:04:32.109014-07:00","date_modified":"2023-06-13T04:41:52.812508-07:00","date_filed":"2023-06-08","time_filed":"08:54:58","entry_number":null,"recap_sequence_number":"2023-06-08.005","pacer_sequence_number":null,"description":"","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/345982524/","id":345982524,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/17319653/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/352332345/","id":352332345,"tags":[],"absolute_url":"/docket/17319653/357/schneider-v-youtube-llc/","date_created":"2023-06-07T23:32:38.114086-07:00","date_modified":"2026-02-19T22:08:00.368461-08:00","sha1":"ce76fa4c29d855b2cb17552587aa25a270b522e9","page_count":3,"file_size":99511,"filepath_local":"recap/gov.uscourts.cand.361906/gov.uscourts.cand.361906.357.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.361906/gov.uscourts.cand.361906.357.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:20-cv-04423-JD Document 357 Filed 06/07/23 Page 1 of 3\n\n\n\n\n 1 George A. Zelcs* Joshua Irwin Schiller, CA Bar #330653\n gzelcs@koreintillery.com jischiller@bsfllp.com\n 2 Randall P. Ewing, Jr.* BOIES SCHILLER FLEXNER LLP\n rewing@koreintillery.com 44 Montgomery St., 41st Floor\n 3 Ryan Z. Cortazar* San Francisco, CA 94104\n rcortazar@koreintillery.com Telephone: (415) 293-6800\n 4 KOREIN TILLERY, LLC Facsimile: (415) 293-6899\n 205 North Michigan, Suite 1950\n 5 Chicago, IL 60601 Philip C. Korologos*\n Telephone: (312) 641-9750 pkorologos@bsfllp.com\n 6 Facsimile: (312) 641-9751 Jeffrey Waldron*\n jwaldron@bsfllp.com\n 7 Stephen M. Tillery* BOIES SCHILLER FLEXNER LLP\n stillery@koreintillery.com 55 Hudson Yards, 20th Floor\n 8 Steven M. Berezney, CA Bar #329923 New York, NY 10001\n sberezney@koreintillery.com Telephone: (212) 446-2300\n 9 Carol O\u2019Keefe* Facsimile: (212) 446-2350\n cokeefe@koreintillery.com\n10 KOREIN TILLERY, LLC\n 505 North 7th Street, Suite 3600\n11 St. Louis, MO 63101\n Telephone: (314) 241-4844\n12 Facsimile: (314) 241-3525\n\n13 *Admitted pro hac vice\n\n14 Attorneys for Plaintiffs\n\n15 UNITED STATES DISTRICT COURT\n16 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION\n17\n MARIA SCHNEIDER, UNIGLOBE CASE NO.: 3:20-cv-04423-JD\n18 ENTERTAINMENT, LLC, and AST\n PUBLISHING LTD., individually and on behalf\n19 of all others similarly situated, PLAINTIFFS\u2019 ADMINISTRATIVE\n MOTION TO CONSIDER\n20\n Plaintiffs, WHETHER ANOTHER PARTY\u2019S\n21 v. MATERIAL SHOULD BE SEALED\n\n22 YOUTUBE, LLC and GOOGLE LLC, Judge: Hon. James Donato\n\n23 Defendants. DATE: June 12, 2023\n TIME: 9:00 a.m.\n24\n\n25\n\n26\n\n27\n\n28\n _______________________________________________________________________________\n\n Plaintiffs\u2019 Administrative Motion 3:20-cv-4423-JD\n\f Case 3:20-cv-04423-JD Document 357 Filed 06/07/23 Page 2 of 3\n\n\n\n\n 1 Pursuant to Civil Local Rules 7-11 and 79-5(f), and this Court\u2019s Standing Order for Civil\n\n 2 Cases before Honorable Judge James Donato \u00b6\u00b6 25-31, Plaintiffs respectfully submit this\n\n 3 administrative motion to consider whether certain of Defendants\u2019 materials attached to the parties\u2019\n\n 4 Joint Notice of Discovery Designations should be filed under seal. Plaintiffs do not seek to file any of\n\n 5 their own materials under seal.\n\n 6 Pursuant to the Stipulated Protective Order entered in this case (ECF No. 45), Defendants\n\n 7 designated as \u201cConfidential\u201d or \u201cHighly Confidential - Attorney\u2019s Eyes Only\u201d portions of the\n\n 8 following that are attached to the Joint Notice of Discovery Designations: (1) the transcript of the\n\n 9 deposition of Fabio Magagna, attached as Exhibit A-3, (2) the transcript of the deposition of Pierce\n\n10 Stacy, attached as Exhibit A-4, and (3) discovery identified in Plaintiffs\u2019 Discovery Designations,\n\n11 attached as Exhibit B.\n\n12 For the foregoing reasons, Plaintiffs respectfully request that the Court grant their\n\n13 Administrative Motion to Consider Whether Another Party\u2019s Material Should Be Sealed.\n\n14 Respectfully submitted,\n\n15 Dated: June 7, 2023 /s/ Andrew M. Ellis\n Andrew M. Ellis (pro hac vice)\n16 Carol O\u2019Keefe (pro hac vice)\n Stephen M. Tillery (pro hac vice)\n17 Steven M. Berezney, CA Bar #329923\n KOREIN TILLERY, LLC\n18 505 North 7th Street, Suite 3600\n St. Louis, MO 63101\n19 Telephone: (314) 241-4844\n Facsimile: (314) 241-3525\n20\n George A. Zelcs (pro hac vice)\n21 Randall P. Ewing, Jr. (pro hac vice)\n Ryan Z. Cortazar (pro hac vice)\n22 KOREIN TILLERY, LLC\n 205 North Michigan, Suite 1950\n23 Chicago, IL 60601\n Telephone: (312) 641-9750\n24 Facsimile: (312) 641-9751\n25 Philip C. Korologos (pro hac vice)\n Jeffrey Waldron (pro hac vice)\n26 BOIES SCHILLER FLEXNER LLP\n 55 Hudson Yards, 20th Floor\n27 New York, NY 10001\n28 2\n _______________________________________________________________________________\n Plaintiffs\u2019 Administrative Motion 3:20-cv-4423-JD\n\f Case 3:20-cv-04423-JD Document 357 Filed 06/07/23 Page 3 of 3\n\n\n\n Telephone: (212) 446-2300\n 1 Facsimile: (212) 446-2350\n 2 Joshua Irwin Schiller, CA Bar #330653\n BOIES SCHILLER FLEXNER LLP\n 3 44 Montgomery St., 41st Floor\n San Francisco, CA 94104\n 4 Telephone: (415) 293-6800\n Facsimile: (415) 293-6899\n 5\n\n 6\n Attorneys for Plaintiffs\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28 3\n _______________________________________________________________________________\n Plaintiffs\u2019 Administrative Motion 3:20-cv-4423-JD\n\f","ocr_status":2,"date_upload":"2023-06-08T22:49:44.170370-07:00","document_number":"357","attachment_number":null,"pacer_doc_id":"035023221723","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Administrative Motion to Consider Whether Another Partys Material Should Be Sealed","acms_document_guid":""}],"date_created":"2023-06-07T23:32:38.107230-07:00","date_modified":"2026-02-19T22:08:00.345030-08:00","date_filed":"2023-06-07","time_filed":"23:06:33","entry_number":357,"recap_sequence_number":"2023-06-07.006","pacer_sequence_number":1249,"description":"Administrative Motion to Consider Whether Another Party's Material Should Be Sealed filed by AST Publishing LTD., Maria Schneider, Uniglobe Entertainment, LLC,. (Attachments: # 1 Unredacted version of Ex. A-3 (Magagna Deposition), # 2 Unredacted version of Ex. A-4 (Stacy Deposition), # 3 Unredacted version of Ex. B (Plaintiffs' Discovery Designations))(Ellis, Andrew) (Filed on 6/7/2023) (Entered: 06/07/2023)","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=17319653&page_size=40"}