AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 100

STRICKEN PURSUANT TO MINUTE ORDER FILED ON 06/10/2015.....MOTION for Order to Set Expert Schedule by AMERICAN SOCIETY FOR TESTING AND MATERIALS (Attachments: #1 Exhibit Proposed Order Granting Plaintiffs' Motion to Set Expert Schedule)(Fee, J.) Modified on 6/11/2015 (jf).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING
AND MATERIALS d/b/a/ ASTM
INTERNATIONAL;
NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR
CONDITIONING ENGINEERS,

Case No. 1:13-cv-01215-TSC-DAR

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
PLAINTIFFS’ MOTION TO SET EXPERT SCHEDULE
Plaintiffs/Counter-Defendants American Society for Testing and Materials d/b/a ASTM
International (“ASTM”), National Fire Protection Association, Inc. (“NFPA”), and American
Society of Heating, Refrigerating, and Air Conditioning Engineers (“ASHRAE”) (collectively,
“Plaintiffs”) respectfully move for the Court to set an expert schedule that is consistent with the
Court’s March 23 Order. At the March 19 hearing, Plaintiffs informed the Court that they
believed the parties would be able to agree on a schedule for expert discovery. That was because
Defendant Public.Resource.Org, Inc. (“Defendant”) had represented to Plaintiffs and to the Court
that the expert disclosure schedule would need to be adjusted to accommodate Defendant’s
efforts to take depositions after the previously scheduled close of fact discovery. Plaintiffs relied
on those representations. But Defendant has now abandoned that position and has refused to
engage in any discussions with Plaintiffs about setting a new schedule for expert disclosures.
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Accordingly, Plaintiffs have no choice but to seek the Court’s assistance in this matter.
Prior to last week, the parties have always expressly agreed that the expert witness phase
of this case would commence after the close of fact discovery. On November 25, 2014, the
Court granted a consent motion to set a case schedule that reflected this mutual agreement. See
Dkt. 58. The scheduling order set January 30, 2015 as the close of fact discovery, with initial
expert reports due on March 2, 2015 and subsequent expert deadlines through July 14, 2015.
However, due to efforts by Defendant to unilaterally extend and expand discovery, fact
discovery did not actually conclude in this case until April 2, 2015, a date set by the Court in
ruling on Defendant’s motion to extend discovery. See March 23 Minute Order. Accordingly, it
is now necessary to set a new expert schedule.
Plaintiffs have proposed such a schedule to Defendant, but Defendant recently has taken
the position that the expert phase should have commenced in March – while fact depositions
were still ongoing – and that any opening expert report served by Plaintiffs will be challenged as
untimely. Defendant never made any such suggestion to Plaintiffs prior to last week, and in fact
it consistently represented that expert reports would need to be moved back to accommodate its
efforts to push back the close of fact discovery.
In accordance with Local Rule 7(m) and in light of the Court’s previous instructions to
the parties to work together to resolve disputes, Plaintiffs conferred with Defendant regarding the
need to set a reasonable schedule for the expert phase of this case. Defendant has been unwilling
to agree to a reasonable schedule, or even to propose an alternative to the schedule proposed by
Plaintiffs.
ARGUMENT
A brief recounting of past motion practice and discovery efforts in this case is helpful to

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understand the current scheduling dispute. Plaintiffs took third-party depositions in November
and noticed a 30(b)(6) deposition of Defendant and the deposition of Defendant’s founder, Carl
Malamud, for dates prior to January 30, 2015. Defendant and Mr. Malamud repeatedly refused
to appear for their depositions as noticed, both before and after January 30, 2015. As a result,
Plaintiffs were unable to depose Defendant and Mr. Malamud until February 26 and 27, 2015,
respectively. Defendant served 30(b)(6) deposition notices on each of the Plaintiffs in November
2014 but, although Plaintiffs made their witnesses available, Defendant did not take any of those
depositions prior to the close of fact discovery. Instead, on January 29, 2015, the day before the
close of fact discovery, Defendant moved for an extension of fact discovery and for leave to take
more than 10 depositions, which Plaintiffs opposed. See Dkt. 71, 76.
Prior to Defendant’s filing of the motion to extend discovery, the parties had multiple
telephone conversations attempting to reach a compromise on the fact discovery schedule, and in
those conversations, the parties agreed that the expert timeline would commence after all fact
depositions had been taken. Even in the motion itself, Defendant acknowledged that a change to
the fact discovery cutoff would necessitate “a reset of later expert discovery deadlines to fit this
change,” and that “Plaintiffs agree that the parties need until at least February 28 to take
depositions; the current expert discovery schedule, which posits opening expert reports two days
after the close of fact discovery, thus also needs to change.” Dkt. 71 at 3, 11.
Moreover, it was apparent at the March 19, 2015 hearing that all of the parties understood
that the expert deadlines would have to be adjusted in light of the delays in completing fact
discovery. In fact, the Court began the hearing by asking if the parties had any additional areas
of disagreement besides the date that fact discovery would close and the number of depositions
Defendant would be permitted to take. Based on the discussions between the parties, NFPA’s

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counsel represented to the court that there were no other areas of disagreement, and specifically
stated that the parties agreed that we would “start that clock on the expert reports” at the close of
fact discovery and that Plaintiffs anticipated the parties would be able to reach agreement on the
precise schedule once the date for the close of fact discovery was set. Tr. of 3/19/15 hearing at 89. Defendant’s counsel, who were of course present at the hearing, did not disagree with the
representation that the parties agreed to start the clock on expert reports after the close of fact
discovery even though, according to Defendant’s recently announced position, the deadline for
initial expert reports had passed more than two weeks prior to the March 19 hearing. If
Defendant’s counsel had disagreed with that representation, it would have been contrary to their
repeated representations to Plaintiffs and to the position taken in their motion, and Plaintiffs
would have immediately raised the issue with the Court at that time. Instead, in reliance on the
parties’ agreement as to that point, the Court focused the hearing on the issues related to fact
discovery.
At the March 19 hearing, the Court denied Defendant’s motion to take additional
depositions because the depositions had not been timely noticed but gave Defendant until April
2, 2015 to take the depositions of Plaintiffs’ 30(b)(6) witnesses. See March 23 Minute Order.
Pursuant to the Court’s order, Plaintiffs promptly made their 30(b)(6) witnesses available and the
last deposition took place on April 1, 2015.
On April 10, 2015, Plaintiffs proposed new expert deadlines. At 7:59 p.m. on April 13,
2015, Defendant advised Plaintiffs for the first time that its position was that the initial expert
disclosure deadline had passed on March 2, and that it did not believe that the expert deadlines
should be changed. Defendant then served what it characterized as an “opposition” expert report

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15 minutes later.1 According to Defendant, the deadlines from the November 25, 2014
scheduling order were still in effect such that the parties’ opening expert reports were due on
March 2, 2015, which was one business day after Defendant finally appeared for its deposition
and made Mr. Malamud available for his deposition and before the depositions of any of
Plaintiffs’ witnesses had been taken.
Plaintiffs have proposed the below schedule, which they believe is reasonable in light of
the recent depositions and the schedules of Plaintiffs’ counsel and their experts.
Proposed Deadline
Opening Expert Disclosures on issues for which disclosing party bears the
burden of proof

June 5, 2015

Rebuttal expert disclosures or opening expert disclosures on issues for which
disclosing party does not bear the burden of proof

July 2, 2015

Rebuttal expert disclosures or replies to rebuttal disclosures on issues for
which disclosing party bears the burden of proof

July 31, 2015

Reply expert disclosures on issues for which disclosing party does not bear
the burden of proof

August 14, 2015

Close of Expert Discovery

September 11, 2015

Joint Status Report

September 18, 2015

Status Conference

September 25, 2015

Plaintiffs’ proposed deadline for the close of expert discovery is less than two months after the
close of expert discovery as set out in the November 25, 2014 scheduling order. This two month
extension of the expert phase of this case is warranted given Defendant’s delay in making its
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Defendant’s opposition report did not actually rebut any prior report filed by Plaintiffs. Instead, it was a report
discussing the accessibility of Plaintiffs’ copyrighted material by visually impaired individuals. Defendant
presumably believes that this report will aid its fair use defense. As Defendant has the burden of proof on that issue,
this report should have been served as an opening report on which the disclosing party bears the burden of proof. In
other words, if Defendant had the courage of its convictions, this report would have been served by March 2, 2015
instead of April 13, 2015. The timing and content of Defendant’s “opposition” report further expose Defendant’s
position for what it truly is – a gambit that Defendant devised only after failing in its attempts to expand fact
discovery.

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witnesses available until after the scheduled close of discovery and taking depositions until April
1, 2015, which was more than two months after fact discovery was set to close under the
November 25, 2014 order.
CONCLUSION
A new expert schedule is necessary to accommodate for the delay in discovery as a result
of Defendant’s conduct. Defendant’s position that the expert schedule began to run while the
parties were still taking fact depositions is not only unrealistic and unreasonable, it is also
contrary to every prior communication and discussion the parties and the Court had regarding the
expert schedule. For all of the foregoing reasons, Plaintiffs respectfully request that the Court
grant this Motion and enter a new expert schedule. A proposed order is attached hereto as
Exhibit A.

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Dated: April 23, 2015

Respectfully submitted,
/s/ J. Kevin Fee
Michael F. Clayton (D.C. Bar: 335307)
J. Kevin Fee (D.C. Bar: 494016)
Jordana S. Rubel (D.C. Bar: 988423)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel For American Society For Testing And Materials
d/b/a/ ASTM International
/s/ Anjan Choudhury
Anjan Choudhury (D.C. Bar: 497271)
Munger, Tolles & Olson LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071
Tel: [phone]
Email: [e-mail]
Kelly M. Klaus
Jonathan H. Blavin
Michael J. Mongan
Munger, Tolles & Olson LLP
560 Mission St., 27th Floor
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel for National Fire Protection Association, Inc.
/s/ Joseph R. Wetzel
Jeffrey S. Bucholtz (D.C. Bar: 452385)
King & Spalding LLP
1700 Pennsylvania Avenue, NW, Ste. 200
Washington, DC 20006-4707
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Tel: [phone]
Email: [e-mail]
Kenneth L. Steinthal
Joseph R. Wetzel
King & Spalding LLP
101 Second Street, Ste. 2300
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
Counsel for American Society of Heating, Refrigerating,
and Air Conditioning Engineers

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion to Set Expert
Schedule was served this 23rd day of April, 2015 via CM/ECF upon the following:
Counsel for National Fire Protection Association, Inc.
Jonathan H. Blavin ([e-mail])
Anjan Choudhury ([e-mail])
Kelly M. Klaus ([e-mail])
Nathan M. Rehn ([e-mail])
Counsel for American Society of Heating, Refrigerating, and Air Conditioning Engineers
Jeffrey S. Bucholtz ([e-mail])
Kenneth L. Steinthal ([e-mail])
Joseph R. Wetzel ([e-mail])
Blake Cunningham ([e-mail])
Counsel for Public.Resource.Org, Inc.
Andrew Bridges ([e-mail])
Kathleen Lu ([e-mail])
David Halperin ([e-mail])
Mitchell L. Stoltz ([e-mail])
Corynne McSherry ([e-mail])
Joseph Gratz ([e-mail])
Mark Lemley ([e-mail])

/s/ J. Kevin Fee
J. Kevin Fee

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