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

Filing 101

Memorandum in opposition to re #100 MOTION for Order to Set Expert Schedule filed by PUBLIC.RESOURCE.ORG, INC.. (Bridges, Andrew)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;

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

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and

PUBLIC.RESOURCE.ORG, INC.’S
OPPOSITION TO PLAINTIFFS’ MOTION
TO SET EXPERT SCHEDULE

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,

Filed:

Plaintiffs/Counter-defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

August 6, 2013

Defendant-Counterclaimant Public.Resource.Org (“Public Resource”) opposes Plaintiffs’
motion to re-set the expert schedule. Both Plaintiffs and Defendant have previously recognized
that discovery closed in this case on January 30, 2015, and have otherwise followed the case
schedule as set by this Court on November 25, 2014. Plaintiffs’ failure to abide by the case
schedule or seek amendment in a timely fashion is unexplained, and their motion to re-set the
expert deadlines was filed over two months after their fact discovery in this case had completed.
Plaintiffs’ motion should be denied as untimely and unjustified.
INTRODUCTION AND BACKGROUND
According to the case schedule set by this Court on November 25, 2014, fact discovery in
this case closed on January 30, 2015, opening expert disclosures were due on March 2nd, and
opposition expert disclosures were due on April 13th. Dkt. No. 58. Although Public Resource
had sought an extension to the case schedule in January (Dkt. No. 71), Plaintiffs opposed Public
Resource’s motion—including the extension of dates for expert discovery (Dkt. No. 76).
Subsequently the Court denied Public Resource’s motion to extend the case schedule, although
the Court allowed Public Resource to take three depositions that it had noticed in November
2014. Mar. 23, 2015 Minute Order.
This outcome was entirely consistent with Plaintiffs’ opposition motion: the case
schedule was not changed, fact discovery closed on January 30th, and Public Resource was
allowed to take only those depositions that it had noticed at least two weeks prior to the close of
fact discovery. See Dkt. No. 76 at 14 (Plaintiffs’ opposition motion, stating that Plaintiffs
opposed extending the case schedule as Public Resource proposed, but “Plaintiffs have agreed
not to object to Defendant taking the depositions it noticed timely in advance of the close of fact
discovery”). Yet Plaintiffs now express surprise that their success in opposing Public Resource’s

motion to extend the case schedule has had the predictable result of retaining the case schedule
as set by the Court on November 25, 2014.
Plaintiffs completed their fact discovery on February 27th with the deposition of Carl
Malamud, prior to the March 2 deadline for opening expert disclosures. See Dkt. No. 19 (Mar.
19, 2015 Hr’g Tr.) at 35:14-36:22 (counsel for each plaintiff responding to the Court that after
taking the deposition of Carl Malamud, they have completed their fact discovery). If Plaintiffs
needed an extension of the case schedule on account of their delay in taking Mr. Malamud’s
deposition, they should have anticipated this or at the very least asked for an extension on March
2nd, the date that opening expert disclosures were due.1 In fact, Plaintiffs joined Public
Resource in filing a joint status report on that very same day, March 2nd, demonstrating that
Plaintiffs recognized the November 25, 2015 scheduling order was still operative at that time.
Similarly, if Plaintiffs had a concern about the opening expert disclosure deadline, it is not clear
why Plaintiffs did not raise it with Public Resource when they were working together to prepare
the joint status report.2
Plaintiffs’ failure to prepare an expert report or even raise concerns with the expert
schedule is especially surprising in light of their opposition to Public Resource’s motion to
extend the case schedule. In their opposition motion, Plaintiffs proposed that in the alternative to
denying Public Resource’s motion, the Court should set opening expert disclosures for April
1

In their motion, Plaintiffs continue to blame Public Resource for Plaintiffs’ delay in completing
their depositions. Pl. Mot. at 3. As Public Resource stated in its Reply in Support of its Motion
to Extend the Case Schedule, Public Resource had made Mr. Malamud available for deposition
on multiple days, but Plaintiffs refused to take his deposition on the dates provided. Dkt. No. 82
at 10-12. Regardless, the timing of Mr. Malamud’s deposition does not explain why Plaintiffs
failed to raise a concern about the expert schedule until months later.
2
Plaintiffs argue that Public Resource had never told Plaintiffs prior to April 13 that the expert
disclosure deadlines set by the court were still in effect. See Pl. Mot. at 2. Each party is
independently responsible for following the case calendar, and it is not incumbent on Public
Resource to keep Plaintiffs updated on the deadlines set by this Court.
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10th (rather than the later date Public Resource had proposed). Presumably when Plaintiffs’
counsel walked into the courtroom on March 19th, they knew there was a possibility that the
Court would grant the alternative schedule that Plaintiffs had proposed, and they should therefore
have been preparing opening expert disclosures in anticipation of that approaching date. Instead,
Plaintiffs waited until April 10th to first raise a concern with Public Resource regarding the
expert schedule, and it is not clear at this time whether Plaintiffs have done any work to have an
expert report prepared.
Although Plaintiffs now argue that they believed fact discovery had not closed until April
2nd (Pl. Mot. at 2), their opposition to Public Resource’s motion to extend the case schedule
shows that Plaintiffs had always envisioned the close of fact discovery to be January 30th (but
allowing the parties time to complete the depositions that they had timely noticed). In their
opposition motion, Plaintiffs included a chart comparing the current case schedule with Public
Resource’s proposed dates and Plaintiffs’ alternative dates, copied below as Figure 1. Dkt. No.
76 at 11. Plaintiffs listed “1/30/2015” as the “[c]lose of fact discovery” both in the existing
schedule, as well as in Plaintiffs’ alternative schedule. Id. To accommodate for the depositions
that both Plaintiffs and Defendant still needed to take at the time of filing, Plaintiffs proposed
schedule included an additional row for “[l]ast date on which depositions may be taken” and
included that date “3/13/2015.” Id. Likewise, Public Resource has agreed that absent
intervention from the Court, fact discovery closed on January 30. See Dkt. No. 19 (Mar. 19,
2015 Hr’g Tr.) at 28:06-13.

Figure 1: Proposed Schedule from Plaintiffs’ Opposition Motion
3

Plaintiffs have not explained how the taking of three depositions by Public Resource in
the last week of March, after the formal close of fact discovery, affects the date on which
Plaintiffs are able to produce an opening expert report “on issues for which disclosing party
bears the burned of proof.” Pl. Mot. at 5. This is probably because the completion of
depositions by Public Resource has no bearing on Plaintiffs’ ability to produce an expert report
addressing issues on which Plaintiffs have the burden of proof. Plaintiffs completed their fact
discovery in February. They should have either served an opening expert report on the date that
it was due according to the case schedule, or promptly sought an extension to the case schedule if
they had good cause for exceeding that deadline. Instead, Plaintiffs waited months before even
raising the issue.
I.

PLAINTIFFS HAVE SHOWN NEITHER GOOD CAUSE FOR MODIFYING
THE SCHEDULING ORDER, NOR EXCUSABLE NEGLECT FOR THEIR
FAILURE TO ABIDE BY THE CASE SCHEDULE
The scheduling order entered by this Court as Docket No. 58 is binding on all parties to

the case until modified by the Court. “A scheduling order is not a frivolous piece of paper, idly
entered, which can be cavalierly disregarded by counsel without peril. Indeed, disregard of the
order would undermine the court’s ability to control its docket, disrupt the agreed-upon course of
the litigation, and reward the indolent and the cavalier.” St. Paul Mercury Ins. Co. v. Capitol
Sprinkler Inspection, Inc., No. 05–2115(CKK), 2007 WL 1589495, at *5 (D.D.C. June 1, 2007)
aff'd sub nom. Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217 (D.C.
Cir.2011) (internal quotation and citation omitted). “The Federal Rules of Civil Procedure make
plain that a scheduling order ‘may be modified only for good cause and with the judge’s
consent.’” Saunders v. District of Columbia, 279 F.R.D. 35, 37 (D.D.C. 2012) (citing FED. R.
CIV. P. 16(b)(4)). When a party seeks to modify deadlines in a scheduling order that have
already elapsed, the party must not only show “good cause” why the deadlines should be
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modified (as with Federal Rule of Civil Procedure 16(b)(4)), but must additionally show
“excusable neglect” for failure to act within the time specified. Id. (citing FED. R. CIV. P. 6(b)).
Plaintiffs have not shown good cause as to why the schedule should be modified, nor
have Plaintiffs demonstrated excusable neglect explaining why they have not only failed to
adhere to the case schedule, but also have not raised a concern with the elapsed deadlines for
opening expert disclosures until two months after the first deadline (and did not file their motion
until over a month after the Court denied Public Resource’s motion to extend the case schedule).
A.

Plaintiffs Have not Shown “Good Cause” for Their Failure to Abide by the
Existing Case Schedule, Nor Why Such a Lengthy Extension to the Case
Schedule is Necessary

The “good cause” standard is primarily concerned with the diligence of the party seeking
to amend the case schedule. St. Paul Mercury Ins., 2007 WL 1589495, at *6 (citing Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992)). Under the “good cause”
standard, Plaintiffs have the burden of proving that they could not reasonably meet the existing
deadlines despite a diligent attempt to do so. Saunders, 279 F.R.D. at 38 (citing Capitol
Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 226 (D.C. Cir. 2011)). “[T]o
demonstrate diligence under Rule 16’s ‘good cause’ standard, the movant may be required to
show the following: ... that [the movant’s] noncompliance with a Rule 16 deadline occurred or
will occur, notwithstanding the [movant’s] diligent efforts to comply, because of matters which
could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling
conference, ... and [ ] that [the movant] was diligent in seeking amendment of the Rule 16 order,
once it became apparent that [the movant] could not comply with that order ....” St. Paul
Mercury Ins, 2007 WL 1589495, at *7 (quoting DAG Enters., Inc. v. Exxon Mobil Corp., 226
F.R.D. 95, 106 (D.D.C. 2005)) (emphasis in original).

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Plaintiffs were not diligent in raising the need to amend the scheduling order “once it
became apparent that [Plaintiffs] could not comply with that order.” Id. Plaintiffs had an
opportunity to raise this concern with the Court in their opposition to Public Resource’s motion
to extend the case schedule, and they could have raised it when they went before the Court on
March 19th. Instead they waited another month before filing the instant motion.
Plaintiffs do not mention the good cause standard in their brief,3 nor do they explain why
they were unable to serve a report by the opening expert deadline or raise this issue with the
Court at a more appropriate time. When meeting and conferring with counsel for Public
Resource on April 17th, Plaintiffs stated that they envisioned serving a single opening expert
report, but would not state what that report was intended to address. Nor do Plaintiffs state in
their motion what opening report they envisioned serving. Without an explanation of the subject
of any report that Plaintiffs intend to serve, it is impossible for the Court to assess whether
Plaintiffs actually needed any information from Public Resource in order to produce this report.
For instance, if their opening expert report was to address the alleged harm to Plaintiffs attributed
to Public Resource’s actions, such a report would presumably rely on records already in
Plaintiffs’ possession, such as sales figures, and Plaintiffs would be unable to demonstrate that
the proximity of the deposition of Carl Malamud to the deadline for the opening expert
disclosures had prevented them from serving their report in a timely manner. But without any
explanation of what report Plaintiffs intend to produce (assuming they have even decided what
report they want to produce), it is impossible for the Court to determine if they had good cause
for failing to meet the opening expert disclosure deadline—especially when Plaintiffs’ fact
discovery had already concluded prior to that deadline.

3

There are no citations to case law or rules of procedure in Plaintiffs’ motion.
6

Waiting for Public Resource to complete its final three depositions of Plaintiffs is not
“good cause.” Rather, Plaintiffs were sitting on their hands while Public Resource completed its
fact investigation, and did not even raise the issue of expert reports until a week and a half after
Public Resource took its final deposition. In contrast, despite the fact that Public Resource was
completing its final depositions, Public Resource simultaneously worked with its expert to
prepare an opposition expert report that it timely served in accordance with the November 25,
2014 scheduling order.4
Moreover, Plaintiffs have not established why it is that they need an extension until June
5th to serve their opening expert disclosures. Under the case calendar as it currently stands,
opening expert disclosures were due thirty-one days after the close of fact discovery. June 5th is
over three months after Plaintiffs took their final deposition in this case and over two months
after Public Resource took its last deposition. Far from showing good cause for why such distant
deadlines should be chosen, Plaintiffs have not provided any explanation for these lengthy dates
in their motion. This is particularly odd because when Plaintiffs opposed Public Resource’s
motion to extend the case schedule, they did so in part on the basis that an extension of the case
schedule by even one month would prejudice Plaintiffs. Dkt. No. 76 at 11. Now they seek to
push the opening expert disclosure deadline back three months.5
B.

Plaintiffs Have Not Shown “Excusable Neglect” for Their Failure to Act
Within the Time Specified

Even were Plaintiffs to show good cause, they must also demonstrate excusable neglect
concerning their failure to serve either an opening expert report or an opposition expert report
4

Public Resource’s opposition expert report addresses factors that Plaintiffs must establish in
order to be granted an injunction.
5
Plaintiffs’ proposed modifications of the case schedule would push the deadlines for this case
past the deadlines in the parallel case, Am. Educ. Research Ass’n, et al. v. Public.Resource.Org,
No. 1:14-cv-00857-TSC-DAR (D.D.C.), which was filed nine months later.
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according to the deadlines in the case calendar. FED. R. CIV. P. 6(b) (“When an act may or must
be done within a specified time, the court may, for good cause, extend the time … on motion
made after the time has expired if the party failed to act because of excusable neglect.”). As
recognized by the D.C. Circuit, the Supreme Court has established four factors to consider when
determining whether neglect may be termed “excusable”: “(1) the danger of prejudice to the
party opposing the modification, (2) the length of delay and its potential impact on judicial
proceedings, (3) the reason for the delay, including whether it was within the reasonable control
of the movant, and (4) whether the movant acted in good faith.” In re Vitamins Antitrust Class
Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003) (citing Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).
Of all four Pioneer factors, the third factor—fault—is commanding. See Jarvis v.
Parker, 13 F. Supp. 3d 74, 78–79 (D.D.C. 2014) (citing Inst. for Policy Studies v. C.I.A., 246
F.R.D. 380, 383 (D.D.C. 2007); Webster v. Pacesetter, Inc., 270 F. Supp. 2d 9, 14–15 (D.D.C.
2003); Wilson v. Prudential Fin., 218 F.R.D. 1, 3 (D.D.C. 2003)). In Jarvis, the court held that
although three of the four factors favored the movant (there was no danger of prejudice to the
opposing party, the length of delay was only a matter of days, and there was no bad faith in the
movant’s failure to meet his filing deadline), the movant’s neglect was not excusable because the
movant was at fault for miscalculating a deadline. 13 F. Supp. 3d at 79; see also Pioneer Inv.
Servs., 507 U.S. at 392 (stating that “inadvertence, ignorance of the rules, or mistakes construing
the rules do not usually constitute ‘excusable’ neglect”).
In their motion, Plaintiffs do not identify why they failed to prepare expert reports in time
for the first two expert disclosure deadlines, other than suggesting that they relied on an
assumption that Public Resource would again seek to have the case schedule extended after the

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Court denied Public Resource’s previous request for an extension. But even if Public Resource
also sought to move the expert disclosure deadlines, this does not guarantee that the Court would
actually grant such a request. See Saunders, 279 F.R.D. at 38 (denying in part plaintiff and
defendant’s joint motion to extend expert deadlines, where the court did not believe that the
parties had shown good cause and excusable neglect).
Moreover, it is notable that Plaintiffs’ motion does not mention (nor attach) any specific
discussion that they had with Public Resource regarding pushing back the expert disclosure
deadlines. To be clear, Public Resource did not expressly agree that expert discovery would only
commence after all fact depositions had concluded. Cf. Pl. Mot. at 2-3. This is because
Plaintiffs never raised the issue, instead opting to allow the deadlines to pass while
simultaneously opposing Public Resource’s motion to extend the case schedule (a motion that
would have had the incidental effect of extending the expert disclosure schedule, though not as
far as Plaintiffs now seek to have it extended). Indeed, Plaintiffs may have made a strategic
decision to allow these expert deadlines to pass without raising the issue, because it would have
been contradictory to their opposition to Public Resource’s motion if Plaintiffs had voiced their
concern that the expert disclosure deadlines might need to be pushed back even further than
Public Resource had proposed.
Without a clear explanation from Plaintiffs, it is difficult to determine if their failure to
abide by the case schedule was due to inadvertence, ignorance of the rules, mistake, or due to a
strategic decision on their part to avoid undermining their position (at that time) that an extension
in the case schedule would prejudice them. Regardless of the explanation, the outcome is the
same: Plaintiffs are at fault for missing the expert disclosure deadlines, and their neglect is not
excusable.

9

Regarding the other three Pioneer factors, at least two of them suggest that Plaintiffs’
motion should be denied for inexcusable neglect. First, Plaintiffs’ delay in raising the possibility
of an extension to the case schedule has impacted Public Resource, causing Public Resource to
invest time and resources in preparing and serving an opposition report in reliance on the
expectation that the case schedule would not be altered. A change to the case schedule at this
point will prejudice Public Resource. With pro bono representation and much more limited
resources than its well-funded opponents, Public Resource has been forced to make strategic
decisions on what expert representation it is capable of obtaining, shaped in part by Public
Resource’s recognition that opening expert reports were not served by either side. Public
Resource will also be prejudiced because Plaintiffs chose not to raise their concerns about the
expert schedule until after Public Resource’s motion to extend the case schedule had been
denied, basing their opposition in part on their claim that Plaintiffs would be prejudiced by an
extension in the schedule of even one month. Dkt. No. 76 at 11. Had Plaintiffs confided in the
Court that they intended to seek an extension in the case schedule that was even later than the
extension that Public Resource had requested, the outcome of Public Resource’s motion might
have been very different.
Regarding the second factor, the length of delay caused by Plaintiffs and the impact it
would have on the judicial proceeding is significant. Plaintiffs waited months to even raise a
concern over the expert deadlines, and now seek to push the case schedule back by months.
Moreover, under Plaintiffs’ proposed schedule, they would have over four months to prepare an
expert report to rebut the opposition report that Public Resource served them on April 13th.
Finally, regarding the fourth Pioneer factor—good faith—it is not clear whether Plaintiffs
acted in good faith when they failed to meet the expert disclosure deadlines, and did not raise the

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issue until over a month after the first expert deadline had passed. If Plaintiffs’ did decide to
ignore the opening expert disclosure deadline so as to oppose Public Resource’s earlier motion,
then that would suggest that Plaintiffs’ silence was a strategic decision, lacking a good faith
justification.
In summary, Plaintiffs’ post hoc motion to extend the expert schedule lacks good cause
and Plaintiffs’ neglect is far from excusable.
CONCLUSION
For the reasons above, Public Resource respectfully requests that the Court deny
Plaintiffs’ motion to re-set the expert schedule.

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Dated: May 11, 2015

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Kathleen Lu (pro hac vice)
[e-mail]
Matthew B. Becker (pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
Corynne McSherry (pro hac vice)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

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