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

Filing 29

MEET AND CONFER STATEMENT. (Fee, J.)

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-EGS

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.

JOINT MEET-AND-CONFER REPORT
Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, Local Civil Rule 16.3, and
the Court’s order of November 22, 2013, Plaintiffs 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”) and Defendant Public.Resource.Org, Inc. (“Defendant”), by and
through undersigned counsel, respectfully submit this Joint Meet and Confer Statement.

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STATEMENT OF THE FACTS
Plaintiffs ASTM, NFPA and ASHRAE allege that Defendant Public.Resource.Org is
infringing hundreds of their copyrighted works and infringing Plaintiffs’ trademarks by copying
en masse Plaintiffs’ standards in their entirety, posting them on its public website and
encouraging the public to copy, distribute and create derivative works of the standards. Plaintiffs
have asserted claims for injunctive relief under the Copyright Act, 17 U.S.C. §§ 106, 502, the
Lanham Act, 15 U.S.C. §§ 1114, 1116, 1125, and the common law.

Defendant

Public.Resource.Org denies that it is infringing any copyrights or trademarks held by Plaintiffs.
Local Civil Rule 16.3 discussions:
1.

Dispositive Motions

The parties believe that the claims may be resolved through dispositive motions during or
after discovery. No dispositive motions have been filed thus far.
2.

Joinder of Parties, Amendment Of
Pleadings And Narrowing Of Issues

The parties do not anticipate joining any additional parties; however, the parties propose
that any motion to join additional parties shall be filed by no later than March 14, 2014.
Any amendment of pleadings will be made as allowed by the applicable rules of civil
procedure and by order of the Court.
Regarding narrowing the issues, the parties do not agree to narrow any issues at this time.
3.

Agreement To Magistrate Judge

The parties do not consent to the assignment of this matter to a magistrate judge.
4.

Possibility Of Settlement

The parties do not believe that settlement is a realistic possibility. At this time, no plans
for mediation have been set.
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5.

Alternative Dispute Resolution

The parties are aware of the Court’s alternative dispute resolution (ADR) procedures and
have considered the factors listed in LCvR 16.3(c)(5). The parties do not believe that any ADR
procedure is likely to resolve this dispute at this time.
6.

Time For Filing Of Dispositive Motions

The parties agree that the deadline for dispositive motions shall be June 15, 2015. The
parties agree that oppositions to dispositive motions shall be due 30 days after their filing, with
replies due 14 days thereafter.
7.

Initial Disclosures

The parties agree to serve initial disclosures on or before January 17, 2014.
8.

Extent Of Discovery

The parties propose a fact discovery deadline of October 3, 2014. The parties also
anticipate a narrow stipulated order regarding the confidentiality of discovery material.
The parties anticipate that by October 3, 2014, all answers to written discovery and all
depositions for factual discovery will be completed unless unforeseen motions to compel are
needed.
The parties agree that expert witness discovery will take place following factual
discovery in accordance with the schedule below.
9.

Experts

The parties agree that expert discovery, to the extent necessary or desired by each party,
will commence after the close of factual discovery, and that:
A.

Opening expert disclosures pursuant to Federal Rule of Civil Procedure 26(a)(2)
on issues for which the disclosing party bears the burden of proof shall be made
no later than December 2, 2014.

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B.

Any rebuttal expert disclosures or opening expert disclosures on issues for which
the disclosing party does not bear the burden of proof shall be made no later than
January 16, 2015.

C.

Any rebuttal disclosures or replies to rebuttals on issues for which the disclosing
party bears the burden of proof shall be made no later than March 2, 2015.

D.

Any reply expert disclosures on issues for which the disclosing party does not
bear the burden of proof shall be made no later than March 16, 2015.

E.

All expert depositions will be completed and expert discovery shall close by April
16, 2015.

The parties agree that each party shall bear the fees charged by its own experts when
those experts are being deposed.
10.

Class Actions

This is not a class action.
11.

Bifurcation

At this time, the parties see no reason for bifurcation of the trial and/or discovery.
12.

Pretrial Conference

The parties propose that the Court schedule a pretrial conference approximately 120 days
after the Court’s final ruling on the final dispositive motions or, if no dispositive motions are
filed, approximately 90 days following the deadline to file dispositive motions.
13.

Trial Date

The parties request that the Court set a trial date at the pretrial conference.
14.

Other Matters Appropriate for Inclusion in a Scheduling Order

A.

The parties have discussed preservation and disclosure of electronically stored

information (“ESI”). The parties have agreed to exchange documents and ESI in the following
format: single page TIFF images with associated OCR .txt file including page breaks,
Summation .dii load file or Concordance upload files (in the format requested by the Receiving
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Party), and metadata in an ASCII delimited .dat file. Metadata will be produced, and the parties
will reach an agreement on or before the date on which they exchange documents regarding the
types of documents for which metadata will be produced and the metadata fields to be included.
Documents and ESI that are not reasonably amenable to production in this format may be
produced in another, reasonably usable format. For example, the parties anticipate that
production of oversized documents and production of ESI in spreadsheets (e.g., Excel files) or
databases may warrant a different form of production, depending on the volume of data and the
nature of the request. Further, the parties may make original documents in native form available
for inspection for selection and ultimate production in the aforementioned formats. The parties
will bear the cost of collecting, reviewing and producing their own documents and ESI unless (1)
a party gives notice of intent to seek cost shifting prior to incurring the cost(s) sought to be
shifted to the requesting party; and (2) a Court order is entered or agreement is reached shifting
such cost to the requesting party.
B.

Defendant demanded a jury trial in its Counterclaims and Answer. Plaintiffs

believe that the jury demand is inappropriate in this case and intend to file a motion to strike the
jury demand at an appropriate time.
Respectfully submitted,
/s/ J. Kevin Fee
Michael F. Clayton (D.C. Bar No. 335307)
J. Kevin Fee (D.C. Bar: 494016)
Jordana S. Rubel (D.C. Bar No. 988423)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

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Counsel For American Society For Testing And
Materials d/b/a/ ASTM International

/s/ Anjan Choudhury
Anjan Choudhury (D.C. Bar No. 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/ Jeffrey S. Bucholtz
Jeffrey S. Bucholtz (D.C. Bar No. 452385)
King & Spalding LLP
1700 Pennsylvania Avenue, NW, Ste. 200
Washington, DC 20006-4707
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, Inc.

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/s/ Andrew P. Bridges
Andrew P. Bridges
Kathleen Lu
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Email: [e-mail]
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
Corynne McSherry
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
David Halperin
1530 P Street NW
Washington, DC 20005
Email: [e-mail]
Mark A. Lemley
Joseph C. Gratz
DURIE TANGRI LLP
217 Leidesdorff St, San Francisco, CA 94111
Telephone: [phone]
Email: [e-mail]
[e-mail]
Counsel for Defendant Public.Resource.Org, Inc.

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