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

Filing 193

PROPOSED BRIEFING SCHEDULE for Discovery and Briefing by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC. (Fee, J.) Modified event title on 3/13/2019 (znmw).

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

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
JOINT PROPOSED SCHEDULE
The Parties jointly submit a stipulated discovery schedule and their respective
proposed briefing schedules pursuant to the Court’s February 26, 2019 Minute Order (the
“Order”).
The Parties agree to the take the additional discovery in accordance with the
Order. After the Court granted Public Resource’s request to reopen discovery on the
limited matters of fair use and copyright ownership, Plaintiffs now indicate that they
intend to take discovery as well. To allow for document discovery, interrogatories, and
depositions, including depositions of government officials that may take additional time
to schedule, the Parties propose the following schedule:

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Event

Deadline

Deadline for serving additional document requests and
interrogatories
Deadline for substantial completion of document production

May 27, 2019

Close of fact discovery

September 9, 2019

July 19, 2019

In addition, the Parties present their respective proposals for summary judgment
briefing.
Plaintiffs’ Proposal:
Event

Deadline

Cross-motions for summary judgment
Amicus briefs
Responses to motions for summary judgment

October 4, 2019
October 18, 2019
November 22, 2019

Plaintiffs respectfully submit that the parties should not require more than one
month to prepare their cross-motions for summary judgment and one month to prepare
their responses thereto. The parties already briefed the copyright and trademark fair use
issues once before this Court and again before the D.C. Circuit. Nevertheless, Plaintiffs’
schedule provides the parties with significantly more time to respond to the motions for
summary judgment than the 14 days contemplated by Local Rule 7(b). As a result,
Plaintiffs’ proposed briefing schedule fairly balances the parties’ interest in having
adequate time to brief the remaining issues with the prejudice that Plaintiffs are suffering
now that PRO has reposted Plaintiffs’ copyrighted works online.
On the other hand, PRO’s proposed non-consolidated briefing schedule extends

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more than four months beyond the close of fact discovery. As the Court recognized the
last time that PRO sought this type of protracted briefing schedule, “the longer those
documents are up there, the greater the harm that [Plaintiffs] allege they’re suffering.”
11/4/15 Tr. at 7:10-12. As a result, the Court asked PRO if it would agree to take the
standards-at-issue down from the Internet pending a decision on the motion for summary
judgment if PRO wanted a protracted briefing schedule, and PRO agreed to do so. Id. at
19:9-18. The same logic applies this time around, and Plaintiffs respectfully request that
the Court enter a briefing schedule that lasts approximately two months after the close of
fact discovery unless PRO agrees to remove the works-at-issue from the Internet pending
a decision on the cross-motions for summary judgment.
Finally, Plaintiffs object to PRO’s attempt to force them to file a single brief with
the planitiffs in the AERA case. This is not how the parties previously briefed summary
judgment, and the parties did not file a consolidated brief on appeal. PRO offers no
explanation as to why Plaintiffs should be compelled to consolidate their briefs with the
briefs of numerous plaintiffs in a separate case. It will already be complicated enough for
the three plaintiffs in this case to coordinate their brief given that the D.C. Circuit has
made it clear that the parties and the Court will need to develop a “fuller record”
regarding each of the standards at issue. Requiring Plaintiffs to consolidate the briefing
that addresses each of their works with the works of the three plaintiffs in the AERA case
will unnecessarily complicate and lengthen Plaintiffs’ briefs.
Defendant’s Proposal

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After the close of discovery, Public Resource urges the Court to consolidate
briefing in this case with briefing in the AERA case.1 If these cases return to the D.C.
Circuit, both cases (and their respective standards) will be evaluated together; it is in the
best interests of all parties and the Court to attempt to analyze and categorize all
standards together when conducting the fair use analysis, rather than allowing one case to
proceed ahead of the other. If the Court chooses to consolidate, Public Resource proposes
the following:
Event

Deadline

Consolidated opening cross-motions for summary judgment

October 17, 2019

Amicus briefs

November 14, 2019

Consolidated opposition briefs

December 5, 2019

Consolidated reply briefs

December 19, 2019

If the Court does not believe that consolidation for the purposes of summary
judgment is appropriate, Public Resource requests a staggered briefing schedule, similar
to the schedule for the first summary judgment briefing, to help ensure that it has an
adequate opportunity to respond to each Plaintiff without overwhelming its pro bono
resources.

1

While a single, consolidated opening brief by the Plaintiffs in both cases would make the most sense, if
the cases are consolidated on summary judgment Public Resource does not object to the ASTM case
Plaintiffs and the AERA case Plaintiffs choosing to file separate briefs, so long as Public Resource has
adequate opportunity to respond.

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Event

Deadline

[ASTM] ASTM Plaintiffs’ opening motion for summary
judgment
[ASTM] Public Resource’s joint opening motion for
summary judgment/opposition to ASTM Plaintiffs’ motion
[AERA] AERA Plaintiffs’ opening motion for summary
judgment
[ASTM] Amicus briefs due

October 17, 2019

[ASTM] Plaintiffs’ joint reply/opposition to Public
Resource’s motion for summary judgment
[AERA] Public Resource’s joint opening motion for
summary judgment/opposition to AERA Plaintiffs’ motion
[ASTM] Public Resource’s reply

December 12, 2019

[AERA] Amicus briefs due

January 9, 2020

[AERA] Plaintiffs’ joint reply/opposition to Public
Resource’s motion for summary judgment
[AERA] Public Resource’s reply

January 16, 2020

November 14, 2019
November 14, 2019
December 5, 2019

December 12, 2019
December 30, 2019

January 30, 2020

Given that the Court of Appeals dissolved the previous injunction, and that the
Plaintiffs have not sought a preliminary injunction at this stage, Public Resource does not
believe it is either appropriate or necessary to take down the standards at issue pending
summary judgment. Nothing in the current record establishes that the schedule proposed
by Public Resource will subject Plaintiffs to any additional prejudice as compared to
Plaintiffs’ proposal.

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Dated: March 12, 2019

Respectfully submitted,
/s/ J. Kevin Fee
J. Kevin Fee (D.C. Bar: 494016)
Jane W. Wise (D.C. Bar: 1027769)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: [phone]
Email: [e-mail]
[e-mail]
Counsel for American Society For Testing And Materials
d/b/a/ ASTM International
/s/ Kelly M. Klaus
Kelly M. Klaus
Rose L. Ehler
Munger, Tolles & Olson LLP
560 Mission St., 27th Floor
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]
Counsel for National Fire Protection Association, Inc.
/s/ J. Blake Cunningham
Jeffrey S. Bucholtz (D.C. Bar: 452385)
King & Spalding LLP
1700 Pennsylvania Avenue, NW, Ste. 200
Washington, DC 20006-4707
Tel: [phone]
Email: [e-mail]
Kenneth L. Steinthal
J. Blake Cunningham
King & Spalding LLP
101 Second Street, Ste. 2300
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
[e-mail]

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Counsel for American Society of Heating, Refrigerating,
and Air Conditioning Engineers
/s/ Andrew P. Bridges
Andrew P. Bridges (D.C. Bar: AR0002)
Matthew B. Becker
Fenwick & West LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Tel: [phone]
Email: [e-mail]
[e-mail]
David Halperin
1530 P Street, NW
Washington DC 20005
Tel: [phone]
Email: [e-mail]
Corynne McSherry
Mitchell Stoltz
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
Tel: [phone]
Email: [e-mail]
[e-mail]
Counsel for Public.Resource.Org, Inc.

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