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

Filing 164

REPLY in support of motion re #163 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.), #120 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.) filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 [Redacted] Declaration of Matthew Becker, #2 [Redacted] Consolidated List of Exhibits, #3 [Redacted] Response to Supplemental Statement of Facts, #4 [Redacted] Response to Statement of Disputed Facts, #5 Supplemental Objections to Evidence, #6 Response to Evidentiary Objections, #7 Supplemental Request for Judicial Notice, #8 Supplemental Declaration of Carl Malamud, #9 Exhibit 1, #10 Exhibit 2, #11 Exhibit 3, #12 Exhibit 4, #13 Exhibit 5, #14 Exhibit 6, #15 Exhibit [Redacted] 7, #16 Exhibit 8, #17 Exhibit 9, #18 Exhibit [Redacted] 10, #19 Exhibit [Redacted] 11, #20 Exhibit 12, #21 Exhibit 13, #22 Exhibit 14, #23 Exhibit 15, #24 Exhibit 16, #25 Exhibit 17)(Bridges, Andrew) Modified text on 2/5/2016 (ztd).

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

SUPPLEMENTAL REQUEST FOR
JUDICIAL NOTICE IN FURTHER
SUPPORT OF DEFNDANTCOUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
MOTION FOR SUMMARY
JUDGMENT

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,
Plaintiffs-Counterdefendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant-Counterclaimant.

Pursuant to Federal Rule of Evidence 201(b) and the authorities cited below, DefendantCounterclaimant Public.Resource.Org respectfully requests that the Court take judicial notice of
each of the following matters in connection with its Motion for Summary Judgment:
1.

A webpage of the U.S. Government Publishing Office entitled Browse

Government Publications, at https://www.gpo.gov/fdsys/browse/collectiontab.action, a true and
correct copy of which is attached to Public Resource’s Consolidated List of Exhibits for Its
Reply Memorandum as Exhibit 12.
2.

A Memorandum for the Heads of Executive Departments and Agencies from John

P. Holdren, Director of the Office of Science and Technology Policy, Executive Office of the
President, regarding Increasing Access to the Results of Federally Funded Scientific Research,
dated Feb. 22, 2013 and published at https://www.whitehouse.gov/sites/default/files/microsites/

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ostp/ostp_public_access_memo_2013.pdf, a true and correct copy of which is attached to Public
Resource’s Consolidated List of Exhibits for Its Reply Memorandum as Exhibit 13.
3.

A webpage of the U.S. Department of Justice entitled “Accessibility of State and

Local Government Websites to People with Disabilities,” at http://www.ada.gov/websites2.htm,
a true and correct copy of which is attached to Public Resource’s Consolidated List of Exhibits
for Its Reply Memorandum as Exhibit 14.
4.

The Report of the Advisory Commission on Accessible Instructional Materials in

Postsecondary Education for Students with Disabilities, dated December 6, 2011 and published
on the U.S. Department of Education website at http://www2.ed.gov/about/bdscomm/list/aim/
meeting/aim-report.pdf, a true and correct copy of which is attached to Public Resource’s
Consolidated List of Exhibits for Its Reply Memorandum as Exhibit 15.
5.

The fact that federal courts of the United States purchase bound volumes of

statutes and case law and also access the law electronically through commercial services.
A district court may take judicial notice of facts that are “not subject to reasonable
dispute in that [they are] either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b).
Specifically, a court may take judicial notice of matters of public record. See Bebchick v.
Washington Metro. Area Transit Comm’n, 485 F.2d 858, 880 (D.C. Cir. 1973) (“matters of
public record . . . [are] well within the range of judicial notice). This Court has “frequently taken
judicial notice of information posted on official public websites of government agencies.”
Pharm. Research & Manufacturers of Am. v. United States Dep't of Health & Human Servs.,

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43 F. Supp. 3d 28, 33 (D.D.C. 2014) (citing Cannon v. District of Columbia, 717 F.3d 200, 205
n. 2 (D.C. Cir. 2013)).
For these reasons, Public.Resource.Org respectfully requests that the Court take judicial
notice of the matters listed above.

Dated: February 4, 2016

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

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