Case 3:20-cv-04423-JD Document 94 Filed 09/16/21 Page 1 of 5
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`September 16, 2021
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`VIA ECF
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`The Honorable James Donato
`United States District Judge
`San Francisco Courthouse, Courtroom 11, 19th Floor
`450 Golden Gate Avenue
`San Francisco, CA 94102
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`Schneider v. YouTube—Case No. 3:20-cv-04423 (N.D. Cal.)
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`Dear Judge Donato,
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`The parties in the above-captioned action write jointly pursuant to the Court’s direction
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`that the parties jointly submit a proposed case schedule (ECF No. 92). We certify that the parties
`have met and conferred on the issues raised here consistent with Your Honor’s Standing Orders.
`While we have been able to narrow the issues in dispute, the parties were unable to resolve the
`disputes described below. The parties therefore have attached as Exhibits A and B proposed
`schedules. Below, each party has set forth their position on scheduling.
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`I. Plaintiffs’ Position
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`Plaintiffs’ proposed schedule (Exhibit A) accounts for Defendants’ significant discovery
`delays and includes a necessary deadline for substantial completion of document production of
`March 4, 2022. Pursuant to the Court’s direction (ECF No. 82), lead counsel met and conferred
`throughout June through August about issues in Plaintiffs’ letter motions (e.g., ECF Nos. 70 & 80).
`Although some progress was made, Defendants are still causing undue delay.
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`Plaintiff Maria Schneider, Counterclaim Defendant Pirate Monitor, and targets of
`Defendants’ non-party subpoenas have substantially completed their productions of more than
`54,000 documents. Defendants have produced only 7,105 documents and only 285 since April
`2021. 1 Yet Defendants still oppose as “unnecessary” a deadline for completion of rolling
`productions. Even where some compromises were reached, Defendants continue to impede
`discovery. For example, Defendants agreed on July 15, 2021, to produce the fields and field
`descriptions (and later a small data sample) for their DMCA takedown notice and Content ID claim
`databases, but have still not produced these materials. Plaintiffs have sought this information since
`October 2020 for the purpose of understanding what data Defendants keep in the ordinary course,
`proposing compromises that could address Defendants’ asserted burdens, and balancing any
`burdens of production against the considerable relevance of these databases.
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`Defendants have also impeded discovery by asserting that many of Plaintiffs’ discovery
`Requests outside the Court’s May 27, 2021, Order can be discussed only by lead counsel for each
`side and by demanding that Plaintiffs respond in writing to Defendants’ Responses and Objections
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`1 Moreover, nearly two thirds of Defendants’ production are Plaintiff’s (or Pirate Monitor’s)
`Takedown Notices, copies of industry newsletters, or screenshots of Defendants’ public website.
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`Case 3:20-cv-04423-JD Document 94 Filed 09/16/21 Page 2 of 5
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`but then refusing to engage with Plaintiff’s proposed compromises. Plaintiff expects to bring
`certain discovery disputes to the Court soon but provides this as context for the schedule.
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`A. Deadline for Motion for Class Certification
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`Plaintiffs propose July 21, 2022, as the deadline for their motion for class certification.
`This deadline will allow for any motion to dismiss; for Defendants to produce materials subject to
`discovery compromises and pertaining to the new Plaintiffs Uniglobe Entertainment, LLC and
`AST Publishing; for Plaintiffs to bring motions to compel materials Defendants have refused to
`produce; for Plaintiffs to review Defendants’ productions; and to conduct depositions, none of
`which have been noticed to date. Plaintiffs require substantial discovery to meet their burdens
`under Rule 23 to demonstrate the commonality and predominance of factual issues. See, e.g., Wal-
`Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). Forcing Plaintiffs to file a diluted motion
`for class certification without this necessary discovery would unfairly reward Defendants’
`intransigence. Defendants would be able to contest the motion based on Ms. Schneider and Pirate
`Monitor’s substantially complete document productions while affording Plaintiffs only
`Defendants’ cherry-picked partial productions with large numbers of relevant documents withheld.
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`This danger is not hypothetical. Defendants have delayed and blocked discovery on core
`issues related to class certification. For example, Defendants have only this week advanced in
`writing a compromise proposal to use Content ID to search for videos infringing on the copyrights
`in this case. YouTube makes Content ID available only to large copyright owners, while smaller
`copyright owners like the Plaintiffs must identify infringement through inferior manual searches,
`relying on keywords selected by the infringing uploader. This request is important for class
`certification to aid Plaintiffs in establishing, among other things, (1) the magnitude of the actual
`infringement of Plaintiffs’ copyrights on YouTube; (2) that Content ID identifies more instances
`of infringement than can be found through manual searches; and (3) that Content ID can be used
`to identify infringements as part of a streamlined and efficient process for the putative class.
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`Defendants have also not yet produced their copies of original uploaded videos that contain
`copyright management information (“CMI”) that will show that Defendants have stripped this
`statutorily protected information from copyrighted works in violation of the DMCA. Defendants
`have also refused to answer straightforward questions about what CMI is contained in their copies
`of uploaded videos, claiming that the answers will be contained in as yet unproduced videos.
`Compounding their delays, Defendants insist that they will not produce certain documents for Ms.
`Schneider until they can collect documents for Uniglobe and AST even while simultaneously
`refusing to search for Uniglobe and AST-specific documents until the Court authorizes the
`amended complaint to be formally re-filed. In short, Plaintiffs suggest a July 21, 2022, deadline
`as a reasonable timeline for the motion for class certification.
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`B. Identification of Copyrighted Works and Infringements
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`Defendants have repeatedly tried to impose a requirement—not found in the case law—
`that the Complaint identify each copyrighted work and every infringement of those works that
`Plaintiffs have located through cumbersome and ineffective manual searches. The parties’
`positions were set forth in the briefing on Defendants’ “administrative motion,” which in effect
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`Case 3:20-cv-04423-JD Document 94 Filed 09/16/21 Page 3 of 5
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`sought an advisory ruling on the sufficiency of the Complaint through a motion not permitted by
`the Federal Rules (ECF Nos. 72 & 73; denied without prejudice (ECF No. 92)).
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`To try to resolve this dispute, Plaintiffs have agreed to identify all copyrighted works in
`their amended pleading to be filed within five days of entry of a scheduling order in this case.
`Plaintiffs have also agreed to provide in discovery the URLs for infringing videos of which they
`are aware within 14 days of the Court’s entry of a scheduling order. Contrary to Defendants’
`allegations of a “moving target,” Plaintiffs’ schedule also commits to identifying a final combined
`list of alleged infringements for purposes of this case, deeming those infringements to be amended
`into the operative complaint. Plaintiffs’ schedule thus imposes reasonable deadlines for
`identification of infringements in an effort to streamline the schedule, while also accommodating
`Defendants’ position, even though it is not supported by applicable law. Plaintiffs are open to a
`date as close as January 21, 2022 (the date proposed by Defendants); however, any deadline to
`finally identify infringements must allow sufficient time (60 days) after Defendants use Content
`ID to identify matches reflecting videos that may be infringements not locatable by manual
`searches. Compl. (ECF No. 1) ¶¶ 9-10. Defendants cite to cases involving Pinterest but those
`cases are inapposite because the entire gravamen of this case is that YouTube has a powerful search
`tool (Content ID) that can locate infringements that it refuses to make available to Plaintiffs and
`the class. A fixed date of January 21, 2022, would incentivize Defendants to continue to impede
`their running Content ID on the copyrighted works, avoid providing discovery of all infringements
`on YouTube, and to delay production of other information relevant to infringements.
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`II. Defendants’ Position
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`YouTube’s proposed schedule (attached as Exhibit B) retains almost the same, reasonable
`sequence and timing of events that both parties agreed to five months ago (ECF 72-2), and includes
`deadlines for Plaintiff to identify her copyrighted works in suit and all alleged infringements of
`those works, as the Court directed in its August 25 Order (ECF 92, “the Order”). By contrast,
`Plaintiff now seeks a schedule that would delay until July 2022 (two years into the case) the Court’s
`review of whether a class may be certified. That runs into the teeth of Rule 23’s requirement that
`the class certification decision should be made “early,” and unreasonably prolongs Plaintiff’s
`wide-ranging discovery campaign. See Fed. R. Civ. P. 23(c)(1)(A); accord 5 Moore’s Federal
`Practice - Civil § 23.81 (2021).
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` The prior agreement on the case schedule reflected in YouTube’s proposal was the product
`of Court-directed meet and confers, and memorialized in YouTube’s Administrative Motion filed
`on April 15, 2021 (ECF 72). Notably, that agreement included the mutual recognition that a class
`certification motion should be filed just three months thereafter. Indeed, the parties had agreed on
`nearly all dates in the schedule, with an outstanding dispute limited to whether and when Plaintiff
`should be required to provide a final identification of works and alleged infringements. Id.
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`Following the Order, YouTube proposed a schedule that mirrored the parties’ prior
`submission, with dates extended to account for the passage of time. YouTube further took the
`Court’s direction to propose “a deadline for the identification and disclosure of works and
`infringements.” ECF 92 (emphasis added). YouTube’s proposal maintains a prompt deadline for
`Plaintiff to move for class certification (approximately four months from now). It also provides
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`Case 3:20-cv-04423-JD Document 94 Filed 09/16/21 Page 4 of 5
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`clear deadlines that will permit the parties sufficient time to complete discovery and motion
`practice while moving the case forward.
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`In response, Plaintiff has proposed a schedule that is a stark departure from the parties’
`prior agreement (Ex. A).2 After more than a year of discovery, Plaintiff claims she needs nearly
`another year to move for class certification, and cannot do so until YouTube provides her with
`highly individualized results of a process using YouTube’s proprietary Content ID system to find
`potential “matches” of her works on the service. But the results of that process would have no
`bearing on the Rule 23 class certification analysis. And it is telling that Plaintiff previously agreed
`to a class certification deadline without raising the process, let alone obtaining such results. ECF
`72. There is no justification to delay class certification on this basis. See True Health Chiropractic,
`Inc. v. McKesson Corp., 2015 U.S. Dist. LEXIS 7015, at *6 (N.D. Cal. Jan. 20, 2015) (rejecting
`proposal to bifurcate discovery where additional discovery would delay consideration of class
`certification). The Court should hold Plaintiff to the terms of the parties’ prior agreement and set
`the class certification deadline in Defendants’ proposal. That gives Plaintiff not only the time she
`previously claimed to need, but also the benefit of the five months that have passed since that
`agreement was struck.
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` Plaintiff’s scheduling proposal is also contrary to the Order—it still lacks an actual
`deadline for final identification of alleged infringements. Plaintiff appears intent on forcing
`Defendants to continue chasing a moving target with respect to her claims. Under Plaintiff’s
`schedule, Plaintiff would have until “[t]he later of January 21, 2022 or 60 days after Defendants
`disclose all Content ID matches for the copyrighted works contained in the amended complaint.”
`Ex. A. Plaintiff’s contingent deadline will create mischief and uncertainty, giving Plaintiff a
`unilateral option to assert that she is dissatisfied with Defendants’ process and indefinitely delay
`her final identification. Tying a final identification deadline to Plaintiff’s satisfaction with use of
`YouTube’s Content ID system is a further invitation to dispute, delay, and manipulation. By
`adopting YouTube’s proposed schedule, the Court would be following the lead of other courts in
`this District that have set forth a clear and unconditional deadline for a plaintiff’s final
`identification of alleged infringements, one well before the close of fact discovery to give
`Defendants time to then investigate the claims. See Harrington III v. Pinterest, Inc., No. 5:20-cv-
`05290-EJD, ECF 37 at 2 (N.D. Cal. July 15, 2021) (Davila, J.) (setting deadline for plaintiff to
`serve final identification of alleged infringements); Davis v. Pinterest, Inc., No. 4:19-cv-07650-
`HSG, ECF 63 at 1 (N.D. Cal. Dec. 15, 2020) (Gilliam, J.) (same).
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`Plaintiff’s argument for an elongated case schedule rests on claims about YouTube’s
`supposed delays in providing discovery. Those claims are unfounded. Plaintiff has propounded
`hundreds of document requests to YouTube. Despite Plaintiff’s ocean-boiling approach to
`discovery, YouTube has worked diligently to respond. YouTube and its counsel have interviewed
`more than twenty YouTube engineers and operations personnel, provided detailed written
`responses to the document requests, made a dozen document productions, exchanged countless
`letters regarding proposed compromises, and conducted more than a dozen extended meet-and-
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`2 Plaintiff’s proposed schedule includes other overly-complicated departures from the previously-
`agreed schedule including multiple deadlines that are contingent on other case events and
`therefore uncertain, and various unnecessary interim discovery deadlines.
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`Case 3:20-cv-04423-JD Document 94 Filed 09/16/21 Page 5 of 5
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`confer calls. See Gallo White Decl., ECF 89-5. YouTube has also produced detailed interrogatory
`responses. The notion that it has failed to engage meaningfully in the discovery process is
`demonstrably false.
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`Only after the Court ordered lead counsel to meet and confer about the parties’ motions to
`compel (ECF 82) did Plaintiff begin to prioritize her myriad discovery demands. Over the course
`of perhaps another dozen hours of conversations, the parties have made significant progress in
`right-sizing Plaintiff’s requests and agreeing on the scope of materials to be produced. YouTube
`has already satisfied several of the commitments it made in that process.3 And Plaintiff has not
`seen fit to seek the Court’s assistance on any discovery matters in the months that have passed
`since.4 Given that, it is surprising to see Plaintiff set forth supposed grievances here. Regardless,
`they do not justify the extended case schedule that Plaintiff seeks.
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`In short, Plaintiff’s proposed schedule is not reasonable. YouTube respectfully requests
`that the Court enter its proposed schedule for the reasons set forth above.
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`Respectfully submitted,
`/s/ Philip C. Korologos
`Philip C. Korologos
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`Counsel for Plaintiffs Maria Schneider,
`Uniglobe Entertainment, LLC, AST
`Publishing, and Counterclaim Defendant
`Pirate Monitor LTD
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`Respectfully submitted,
`/s/ David H. Kramer
`David H. Kramer
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`Counsel for Defendants and Counterclaimants
`YouTube, LLC and Google LLC
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`cc: All counsel via ECF
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`3 Plaintiff’s reductive description of YouTube’s productions, as mere document counts, ignores
`that YouTube has produced, for example, spreadsheets that may be a single “document” but
`contain considerable volumes of data, as well as other types of files such as video files.
`Plaintiff’s “document count” comparisons are further flawed in that they apparently claim credit
`for the thousands of illegible, duplicative, and empty documents that litter her production.
`4 The parties have some disagreements and are continuing to discuss those to see if they can
`reach accord. If they cannot, both sides have the ability to seek the Court’s intervention through
`the process detailed in the Court’s Standing Order.
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