Lexicon Update; Schedule Moved, RDR Request for JK Rowling's Notes Denied (Updated)Companion Books
An update containing JKR/WB’s response to RDR’s requests for information is at the second half of this post.
A few things of note today in the case by JKR/WB against RDR Books and those who wish to publish a print version of the Harry Potter Lexicon:
Firstly, the schedule has been moved again. RDR requested and received an extension to file their reply to the complaint. It was scheduled to be due on Feb. 5; it is now due Feb. 8. JKR/WB will reply by Feb. 27. There will be a hearing on the matter in New York on March 13.
Secondly, a judge has denied RDR’s request for copies of the notes that would comprise J.K. Rowling’s encyclopedia, but granted that JKR/WB submit statements J.K. Rowling has made in “publications” regarding her plans for her encyclopedia.
The letter, which you can download here in parts one, two, three and four (or view online here), is from David Hammer, lawyer for RDR, and says that the notes are requested in order to “test the merits” of J.K. Rowling’s claims that she is going to write an encyclopedia and that part of the reason for suppressing the HPL would be to suppress potential competition. RDR asked for “copies of any prepatory materials that Ms. Rowling has drafted or authorized to be drafted, including notes, outlines, drafts, marketing proposals, etc.”
JKR/WB indicated to RDR that they would resist the request, and so RDR asked the judge to convene a discovery conference, which occurred on Nov. 30. At the conference RDR argued, according to this letter, that the notes would determine “how far Ms. Rowling had progressed in this project…how similar, and thus how competitive, Ms. Rowling’s guide, and the Lexicon, were likely to be.” At the time, the letter says, the judge “expressly stated that defendant was entitled to anything that Ms. Rowling had so far composed or authorized.”
When RDR made the request for the papers, a lawyer for Ms. Rowling responded that:
“Ms. Rowling has made notes relating to each of the seven Harry Potter books which she will use in writing her long-planned Harry Potter companion guide. In addition, Scholastic’s Harry Potter continuity editor, Cheryl Klein, among others, has indexed the characters, places, creatures, spells and other things from the Harry Potter world which Ms. Rowling created. Ms. Rowling’s U.K. publisher, Bloomsbury, has similarly copiled four huge volumes of material constituting a comprehensive ‘bible’ of the Harry Potter world. Ms. Rowling believes the information from Scholastic and Bloomsbury to be more detailed and accurate than any other outside source (other than herself) regarding the Harry Potter series, including the Lexicon Website. Ms. Rowling would be free to draw on the materials from either of her two publishers should she choose to do so. The process of turning her existing notes into the definitive encyclolpedic Harry Potter companion guide is ongoing and is being continually augmented with the addition of further material from her creativemind on a regular basis.”
The letter states that RDR submitted a request for the materials in that response, and that JKR/WB provided nothing. (However, large portions of the Harry Potter ‘bible’ mentioned are freely available in the public court documents filed on January 16.)
The letter also states that JKR/WB responded that RDR’s request was “irrelevant and not calculated to lead to the discovery of admissible evidence as the status of Ms. Rowling’s planned companion guide is irrelevant to the determination of whether Defendant has infringed Plaintiff’s copyrights in the existing Harry Potter works at issue.”
RDR says, “If plaintiffs no longer assert that the Lexicon must be suppressed to protect Ms. Rowling’s right to publish a future companion guide, they should make a clear and explicit statement to that effect. Absent such a statement, Ms. Rowling’s notes are highly relevant to this case.”
The letter asks for: 1. The notes that JKR has made on the seven novels 2. Cheryl Klein’s full index 3. Bloomsbury’s ‘comprehensive bible’ 4. The ‘further material from Ms. Rowling’s creative mind.’
The letter also notes that JKR/WB cited confidentiality concerns and stated they are willing to abide by any ‘lawyers only’ restriction to the review of materials, except for one expert witness.
The note from the judge at the bottom of the letter requires JKR/WB to provide RDR with statements contained in publications listed by JKR/WB in a response to one of RDR’s claims, but denies the rest, saying that RDR has “not shown the Court that any further discovery about Ms. Rowling’s notes would be helpful to Defendant’s position.”
We’ve now reviewed the JKR/WB response to RDR’s requests (which also includes the text of those requests), which was sent as a letter to Judge Patterson, the NY judge overseeing the case. This is a 21 page document that says:
1. JKR/WB object to what it sees as RDR’s “pattern of writing the Court whenever it wishes without first making any effort to meet and confer, lte alone giving sufficient advance notice of its intended communication with the Court.”
2. The lawyers on the JKR/WB side called the attempt to access the “top secret, personal, proprietary notes” as “extremely burdensome and unnecessary for the resolution of any issue in this case, particularly in light of Ms. Rowling’s interrogatory responses and the documents that Plaintiffs produced in support of theirm otion for preliminary injunctin.”
3. At the Nov. 30 hearing RDR said it required “expedited discovery” to determine the ‘palpability’ of JKR’s planned encyclopedia, and that the court said RDR could serve interrogatories (which are requests for information) as well as seek discovery on any manuscript. That manuscript would be subject of review inside the judge’s chambers (not handed over). (The Court, according to this letter, did not originally grant full right to JKR’s notes at the Nov. 30 meeting, just gave RDR the right to request it – and presumably prove why they are necessary.)
4. JKR/WB responded to those requests for info by saying there was no manuscript of outline but that JKR had notes, and her publishers had indexes. After this response RDR requested “All COMMUNICATIONS and DOCUMENTS REFERRING OR RELATING TO” [caps in document] JKR’s notes as well as any further material. JKR/WB’s side say they far exceed the scope of discovery that RDR indicated it would require on Nov. 30, and says that they thought the documents from Scholastic and Bloomsbury filed with the motion for injunction would suffice to fulfill RDR’s request.
5. The note calls JKR’s notes and publishers’ materials “completely irrelevant” to the question of whether the Lexicon book infringes copyright. “Obviously, needing to concede copying, RDR’s defense to such copying is based on fair use. It is in connection with RDR’s fair use defense that Plaintiffs have addressed the issue of potential market harm. ... Whether or not the books would be similar or identical and therefore directly competing is not the correct inquiry; it is rather whether or not Ms. Rowling would generally enter the market for companion books, which she already has done with her first two companion guides and has repeatedly stated she will continue to do with her planned encyclopedia to the world of Harry Potter.”
6. Even were the notes relevant, the letter says, JKR/WB is not saying that JKR’s notes are similar to the Lexicon book but that Scholastic and Bloomsbury’s guides that JKR may draw on are similar to the Lexicon book.
7. JKR’s “overwhelmingly sensitive” notes would serve “no legitimate purpose othre htan to harass Ms. Rowling. Rather, the burden of producing these notes far outweighs any benefit to RDR in obtaining them.”
The exhibit attached is an objection to RDR’s requests for then notes, saying that the requests:
-Seek information that is protected by attorney-client privilege, work-prouct doctrine, right to privacy and “any other applicable legal, statutory or constitutional privilege.” -Seek the disclosure of confidential, proprietary or trade secret informatoin -Seek information that RDR may otherwise obtain from public sources (ie, whehter JKR plans to write a companion book or not, not the content of her notes)
It also notes the objections don’t constitute acknowledgment of the relevance, importance or admissibility of any issue discussed.
The first request from RDR (No. 1) was for: outlines, proposals, manuscripts, marketing plans, lettres of intent or contracts that JKR has drafted, authorized to be draftd, or received from any of hre employees or agents concerning the encyclopedia. RDR asked that JKR/WB describe each document’s contents in detail, identify when it was composed and where it is presently located, and who holds it. JKR/WB responded that the request was vague and ambiguous, overbroad and unduly burdensome, because it does not seek a response toa question and is supopsed to be part of an expedited discovery process, which “generally only allows for very limited discovery demands.” It is apparently also very different than what was asked for on Nov. 30.
The second request from RDR (No. 2) was for JKR/WB to identify and describe all communications about the encyclopedia involving JKR or “any person that [she] has authorized to act on her behalf, and ay other person,” and to describe the content, idenfity when the communication took place, and identify the parties involved for each communication. JKR/WB’s response was the same as for No. 1, generally – claiming it is burdensome and overbroad, and not relevant, and such information subject to many restrictions, including lawyer-client privilege. It also notes that JKR has told reps from hre literary agency from as early as 2000, of her plans to write such an encyclopedia, and her agency has acted on her behalf to many other parties since 2001 – including pubilshers – though no contracts have been drawn. It also says she has made many public statements to that effect.
RDR, this exhibit reveals, also attached to its requests for information a press report from MTV News that says JK Rowling has not yet started her encyclopedia,and will take a break from writing before she does. RDR requested that JKR/WB state whether that is true, and describe any further public statements – as well as identify by name, address, phone number and affiliation the reporters who were present at that press conference, as well as a transcript of the press conference. JKR/WB responded with similar complaints to No. 1 and No. 2, and says that the quote is not inaccurate in that JKR had not yet, at the time of that conference, started to turn her notes into a manuscript, but she is “augmenting her existing notes.” She took a break after her tour, but “nevertheless penned some additional materials that are intended for inclusion in her Harry Potter companion guide.” The document then lists instances of 88 press reports of her statements on the encyclopedia ranging back to 2001, and mentions television interviews as well as Leaky’s PotterCast interview and several other web site postings that dealt with the possibility of her publishing an encyclopedia. This is the portion of RDR’s requests for info that the judge granted – that JKR/WB describe these statements, most or all of which are public record.