Filing 193


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  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: 1     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 2     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 3     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. 4     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. 5     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: 202.739.5353 Email: 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: 415.512.4000 Email: 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: 202.737.0500 Email: Kenneth L. Steinthal J. Blake Cunningham King & Spalding LLP 101 Second Street, Ste. 2300 San Francisco, CA 94105 Tel: 415.318.1211 Email: 6     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: 415.875.2300 Email: David Halperin 1530 P Street, NW Washington DC 20005 Tel: 202.905.3434 Email: Corynne McSherry Mitchell Stoltz Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 Tel: 415.436.9333 Email: Counsel for Public.Resource.Org, Inc. 7  

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