Case 1:22-cv-02435-LLS-SN Document 398 Filed 11/21/24 Page 1 of 4
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`OR\G\NAL
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF NEW YORK
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`LYNNE FREEMAN,
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`DOCL':\JENT
`ELECTRO:\ICALL Y FILED i
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`I.! DATE FILED: 1\(-,)t_ji_l:Lj !
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`Plaintiff,
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`22 Civ. 2435 (LLS)
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`- against -
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`ORDER
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`TRACY DEEBS-ELKENANEY, et al.,
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`Defendants.
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`This is an action for copyright infringement, breach of contract, breach of fiduciary
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`duty, fraud, and fraudulent concealment. Plaintiff Freeman moved for summary judgment on
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`her direct copyright infringement claim. The defendants cross-moved for summary judgment
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`on that claim and also moved for summary judgment on Freeman' s state law claims for breach
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`of contract, breach of fiduciary duty, fraud, and fraudulent concealment. In a Report and
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`Recommendation on August 1, 2024 ("R&R") (Dkt. No. 361), Magistrate Judge Netbum
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`recommended denying both summary judgment motions on the direct copyright infringement
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`claim but granting summary judgment dismissing Freeman's state law claims. The parties filed
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`timely objections. After a review of the R&R and the parties' objections, the Court adopts both
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`Case 1:22-cv-02435-LLS-SN Document 398 Filed 11/21/24 Page 2 of 4
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`of Magistrate Judge Netburn's conclusions, but narrows the scope of her direct copyright
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`infringement rulings.
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`Both parties also moved to exclude certain expert testimony and to strike and/or seal
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`various summary judgment exhibits. Magistrate Judge Netburn ruled on those motions in an
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`Opinion & Order on August 1, 2024 (Dkt. No. 362), to which the parties also objected. After a
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`review of that opinion and the parties' objections, the Court adopts all of Magistrate Judge
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`Netburn's rulings regarding expert testimony and motions to strike, and it has already
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`addressed sealing in an earlier order from October 24, 2024 (Dkt. No. 389).
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`DIRECT COPYRIGHT INFRINGEMENT
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`As shown by Magistrate Judge Netburn's detailed and comprehensive R&R, the
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`factual issues about access, along with substantial or lesser degrees of similarity, compel the
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`denial of summary judgment. Fed.R.Civ.P. 56 requires that to render summary judgment, there
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`must be "no genuine dispute of any material fact," and it must be clear that the prevailing party
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`is entitled to judgment as a matter oflaw. Fed.R.Civ.P. 56(a). If there is no dispute about the
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`material facts and the Court can decide the issues in the case as a matter of law, it can render
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`summary judgment; but unless the material facts are undisputed and the law is clear, the proper
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`disposition of the case is by the familiar trial by jury. Magistrate Judge Netburn properly
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`recognized that there are genuine factual issues about claimed similarities between Freeman's
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`work and the defendants' work that require a jury trial. Rule 56 reserves summary judgment
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`for cases without fact issues, and so the Court's function is confined to applying the law and
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`the constitutional right to trial by jury is preserved.
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`Magistrate Judge Netburn made carefully limited analyses of the degrees of similarity
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`between the two parties' works, recognizing that "questions of non-infringement have
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`Case 1:22-cv-02435-LLS-SN Document 398 Filed 11/21/24 Page 3 of 4
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`traditionally been reserved for the trier of fact" and that, because of the central importance of
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`similarity between the competing works, it "is frequently a fact issue for jury resolution." R&R
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`at 6. However, she did hold that "the parties' works share probative, but not striking,
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`similarities." R&R at 15. Those analyses should be taken as advisory rather than mandatory.
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`Her perceptions are shrewd, but their validity and consequences cannot be taken as substitutes
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`for a trial verdict rendered on independent evidence by a properly charged jury. Therefore, all
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`questions related to direct copyright infringement - including access, probative similarity,
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`striking similarity, actual copying, independent creation, and unlawful appropriation - are best
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`left for trial.
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`Defendants object to preserving the question of substantial similarity for trial, arguing
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`that "trial cannot be held without an antecedent judicial analysis on whether the allegedly
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`infringed elements of the plaintiffs work are protected by copyright," and a trial would take
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`"months given the volume of literature currently at issue" and "impose an impossible burden
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`on the members of the public who are empaneled." Defendants' Objections to the R&R at 13-
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`14 (Dkt. No. 382). However, it is unnecessary to fear that a jury trial will have to cope with
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`more than 5,000 pages of novels, manuscript versions, and drafts that require months to read.
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`Magistrate Judge Netburn correctly identified Freeman's mammoth index of claimed
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`similarities as argument, not evidence. Her recommendation that it be excluded in toto will
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`probably be adopted at trial, but until then the decision is reserved. In fact, the entire case on
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`similarity, in more than necessary detail, is presented in pages 7-21 of plaintiffs response to
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`the defendants' objections to the R&R filed on October 29, 2024 (Dkt. No. 393), and
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`experienced trial counsel will be able to present the meat of it as efficiently at trial.
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`The cross-motions for summary judgment on direct copyright infringement are denied,
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`Case 1:22-cv-02435-LLS-SN Document 398 Filed 11/21/24 Page 4 of 4
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`and all related questions are preserved for trial.
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`ST A TE LAW CLAIMS
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`Magistrate Judge Netburn properly dismissed Freeman's claims for breach of contract,
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`breach of fiduciary duty, fraud, and fraudulent concealment. The parties did not object to her
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`rulings, and they are therefore adopted without de novo review.
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`NON-DISPOSITIVE RULINGS
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`The Court finds nothing clearly erroneous or contrary to law in Magistrate Judge
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`Netburn's non-dispositive rulings, and they are all affirmed. She properly identified, detailed,
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`and excluded the experts' suggestions, which were primarily argumentation. Her Daubert
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`rulings represent meticulously analyzed and reasoned exclusions of Dr. Chaski, Dr. Juola, and
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`Professor Reiss. The rebuttal reports of Dr. Coulthard and Ms. Easton are therefore unnecessary
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`and are also excluded, as are all expert reports related to the state law claims that have now been
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`dismissed. The Court adopts Magistrate Judge Netburn's decision to exclude Mr. Kaplan's
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`affidavit on metadata but not Ms. Cole's. It also affirms all of Magistrate Judge Netburn's
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`rulings on the motions to strike. The Court has already addressed sealing in a separate order
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`(Dkt. No. 389).
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`So ordered.
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`Dated:
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`New York, New York
`NovemberZ.l 2024
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`·b~.s L. st:h.J~
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`LOUIS L. ST ANTON
`U.S .D.J.
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`4
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