Chin Approves Schedule for Discovery and Motions Moving to Google Books Trial

PublishersLunch

At today's court hearing to update Judge Denny Chin, the parties to the Google Books case brought no dramatic reports of progress on a settlement (as widely expected), despite the judge's warning the last time around to work out a deal or prepare to litigate. So Judge Chin followed through on his promise and scheduled a pathway to trial.

Attorney Michael Boni, speaking for the Authors Guild only this time, said the authors organization remains in "active discussions" with Google about a settlement as part of a "parallel track" of preparing for litigation. Representatives of the AAP thought they had "made enough progress with Google" to believe a new settlement could still be a possibility, but they agreed to adopt the proposed order moving to litigation. In a brief statement afterwards, the AAP said "today, we informed the court that the Association of American Publishers, the five publisher plaintiffs and Google have made good progress toward a settlement that would resolve the pending litigation regarding the Google Library Project. We are working to resolve the differences that remain between the parties and reach terms that are mutually agreeable.

The judge called for discovery to begin now and run through March 30. By our reporter Sarah Weinman's count, the weary Judge Chin held his head in his hands three times during the relatively short hearing. The process has already taken so long that the original magistrate who might have helped with the settlement has retired. (And Chin is supposed to have a full caseload on the Court of Appeals; he doesn't even know where a trial would be held, since he is losing his courtroom). But Judge Chin once again actively encouraged both parties to seek him and the court out to help arrive at a settlement agreement.

When Chin asked attorneys for the Guild and the AAP if their case would still ask him to evaluate whether Google's snippets qualify for fair use, they indicated they have moved on from that argument (as has the world), and would focus on the copying, scanning, storing and distribution of entire books. (That reflects in part the broad argument made by the Guild in their new lawsuit earlier this week, though Judge Chin did not mention that case, which has been referred to him as well.) Boni indicated a belief that "books are being distributed in ways we couldn't even envision back in 2005" when their case was first filed.

Even swift litigation runs slowly; here is the "generous but acceptable" calendar the judge agreed to, which still would mean no actual trial likely until next fall or beyond, which will be recapped in his official order, filed later today:

Opening briefs from the plaintiffs by December 12, a response from Google by January 26, a rebuttal by March 12, expert reports by April 20, rebuttal by May 10, expert depositions from May 14–25, a summary judgment motion due by May 31, opposition filings by July 9, replies by July 31.