A letter was sent yesterday (August 7, 2021) to Judge John G. Koeltl requesting additional time for the discovery process in Hachette Book Group, Inc. v. Internet Archive lawsuit.
From the Letter:
Pursuant to Individual Rule 1.E. of this Court, we respectfully submit this letter motion on behalf of all parties in the above-captioned action to request an extension of certain dates set forth in the Revised Scheduling Order dated April 5, 2021. Good cause exists for a limited three-month extension of current deadlines.
There has been extensive progress on discovery. The parties completed party document productions and exchanged privilege logs within the deadlines set by the Revised Scheduling Order, i.e., June 18 and June 30, 2021, respectively. The parties have also begun scheduling depositions. But looking ahead, it has become clear that more time is required to process the voluminous documentary evidence produced in this case. It inevitably takes a lot of time to review and synthesize such large volumes of documents and more time is required to prepare for the substantial number of fact witness depositions that will be required, particularly given additional persons identified in each party’s amended initial disclosures. Given those burdens, it is no longer possible to compete fact discovery by the current September 24, 2021 deadline.
An extension of the discovery deadlines is also warranted to give the parties an opportunity to resolve discovery disputes. Internet Archive filed a letter motion on August 9, 2021 seeking to compel Plaintiffs to produce additional commercial performance data. Plaintiffs have opposed this motion. But, if the Court orders the data to be produced, Plaintiffs contend they would need months to do so given the technical complexities involved. The parties respectfully submit that an extension is necessary in order to resolve this discovery dispute – and any others that will likely require the Court’s attention.
The parties also believe that the requested extension will make it more likely that major witnesses can be deposed in person. As the parties noted in their previous letter to the Court dated April 5, 2021, there was optimism that COVID-19 vaccines would make it possible for Plaintiffs’ New York-based counsel to depose Internet Archive witnesses in California (and vice versa). Unfortunately, the rapid emergence of the Delta variant has created new safety concerns and a climate of uncertainty. While the parties still hope to be able to conduct depositions in person, the proposed extension will provide additional time needed to work out COVID-19 ground rules to ensure the safety of the parties and their witnesses. It is also hoped that the COVID-19 situation will improve in the fall – or at least stabilize to a point where responsible decisions can be made about travel and in-person depositions.
For these reasons, the parties respectfully request an extension of the deadlines set forth above and an order imposing the following schedule, which is reproduced in the Second Revised Scheduling Order annexed hereto: