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

Filing 33

RESPONSE re #31 MOTION for Order of Protection filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 Text of Proposed Order (Exhibit A), #2 Declaration of Andrew P. Bridges (Exhibit B), #3 Exhibit B-1, #4 Exhibit B-2, #5 Exhibit B-3, #6 Declaration of Carl Malamud (Exhibit C))(Bridges, Andrew)

IN THE 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

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and

DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
RESPONSE TO PLAINTIFFS’
MOTION FOR PROTECTIVE ORDER

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

Action Filed: May 23, 2014

Plaintiffs-Counterdefendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant-Counterclaimant.
This is a dispute between several national standards organizations, on the one hand, and a
one-person nonprofit entity, on the other, over a specific legal question: whether it violates
copyright law to post national codes that federal and state governments have incorporated into
their laws.
The parties are not commercial competitors. Except in this case they are not antagonists.
They both seek to promote the public interest: one by creating codes and securing their adoption
into law, and the other by publicizing those legally-incorporated codes and empowering the
public to understand, interpret, and comment on them.
Unfortunately, while the parties have long since agreed on the overall form of a
protective order to govern discovery materials in this case, Plaintiffs-Counterdefendants
(“Plaintiffs”) insist on restrictions that, while typical of commercial disputes between potential
competitors and large organizations, are simply not necessary here. Plaintiffs cannot justify their
proposal, particularly given that it would unfairly prejudice Defendant-Counterclaimant Public
1

Resource.Org (“Public Resource”) by preventing its President, Carl Malamud, from viewing
many documents and lending his expertise to support the defense and counterclaim. By contrast,
Public Resource’s proposed protective order (attached as Exhibit A) is more narrowly-tailored to
the circumstances of this case, provides Plaintiffs with ample protection, and contains
appropriate safeguards against over-designation. Accordingly, Public Resource opposes
Plaintiffs’ motion for protective order and asks the Court to enter instead Exhibit A.
INTRODUCTION
Public Resource is a nonprofit entity committed to promoting the public’s right to know
and speak about the laws that govern us. Public Resource increases public access to the law by
acquiring primary legal materials—including court decisions, statutes and regulations—and
posting them on the Internet so that the public may more easily access, use, understand, and
engage with the law.1 By lowering barriers to access to and engagement with the law, Public
Resource helps students, educators, government employees, public interest organizations,
journalists, and concerned citizens read, understand, apply and improve the law and to participate
in government.
Plaintiffs are not-for-profit corporations that, among other things, develop and publish
standards. Plaintiffs represent their work as a mission to improve public welfare by providing
engineers, tradespeople, and governments with standards that promote safety. Plaintiffs work
hand-in-glove with governmental employees in developing standards, and national, federal, state,
and local governments have incorporated by reference into law the standards that are at issue in

1

Public Resource operates the websites https://public.resource.org, https://law.resource.org,
https://house.resource.org, and https://bulk.resource.org.
2

this case.2
The parties have met and conferred but are unable to resolve three issues regarding the
appropriate scope of the protective order in this action.3
First, the parties dispute whether this case requires a two-tiered protective order, which
would allow a party to declare that some discovery materials are so confidential and sensitive
that they cannot be shared with non-legal officers or employees of a party. Such an order would
result in concrete prejudice to Public Resource because it could be used to prevent Public
Resource’s founder and sole employee, Carl Malamud, from viewing documents crucial to
Public Resource’s defense and counterclaim. Mr. Malamud is an expert in the processes of
standards development and the operations of standards organizations, including Plaintiffs.
Indeed, he is likely to serve as an expert witness in the case. Public Resource’s counsel will
necessarily rely on Mr. Malamud’s expertise to understand fully Plaintiffs’ claims and discovery
materials. Denying Mr. Malamud access to discovery materials will severely prejudice Public
Resource’s ability to defend itself in this lawsuit. Plaintiffs’ offer to consider isolated exceptions
to the confidentiality provisions upon request—introducing a game of “Mother May I?” into the
litigation—is woefully inadequate.
Plaintiffs offer little of substance to justify their demand, relying instead on unwarranted
speculation that because Mr. Malamud believes he has a right to post the standards at issue
here—a right supported by prevailing case law—he will necessarily “disregard” a protective
order issued by this Court. See Mot. at 7-8. But the fact that Public Resource posts public
standards that the law has expressly incorporated—the legality of which is the central issue in

2

See, e.g., The National Archives and Records Administration, Incorporation by Reference,
http://www.archives.gov/federal-register/cfr/ibr-locations.html (last visited July 23, 2014).
3
See Declaration of Jordana S. Rubel (Dkt. No. 31-2) (“Rubel Decl.”), Exs. 3-12.
3

this case—does not suggest that Mr. Malamud will disclose private and confidential discovery
materials that a court order protects. Moreover, even if he were some sort of scofflaw, Mr.
Malamud could not possibly gain any advantage from such a disclosure. Again, Public Resource
is not in competition with Plaintiffs, and the ordinary concerns that might justify a two-tiered
protective order simply do not apply here.
Second, the parties dispute whether the protective order should restrict the parties from
using public and non-confidential materials that they produce for purposes other than this
litigation. Plaintiffs want to regulate the use of any material—not just confidential material—in
their protective order. See Mot., Ex. A (Dkt. No. 31-1) (“Plaintiffs’ PO”) ¶ 7 (proposing to
restrict the parties from using “any information or documents obtained during discovery in this
matter, regardless of whether the information and/or documents … are not assigned any
confidentiality designation, for any purpose other than preparing for and conducting this
litigation”). This proposed restriction would, in effect, designate all discovery materials as
confidential, without any justification. While Public Resource agrees on the need to restrict the
parties’ use of confidential information, that restriction should not automatically extend to use of
public information, whether or not the parties produced it in discovery. Therefore, the Court
should enter a protective order that restricts only the parties’ use of properly designated
confidential materials produced in discovery. See Ex. A ¶ 7.
Third, the parties dispute whether, and to what extent, the protective order should include
safeguards against misuse of the confidential designation. Given Plaintiffs’ aggressive positions
on access to confidential (and public) information, Public Resource has proposed two provisions
designed to discourage over-designation. The first provision would require the designating party
to provide a brief statement indicating what information is confidential and why—particularly

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where materials may include both public and nonpublic information. See id. ¶ 1(h). The second
provision would require the designating party—and not the challenging party—to seek court
protection in the event the parties are unable to resolve a dispute over confidentiality. See id. ¶ 3.
This procedure is consistent with the burden of proof for seeking a protective order under Rule
26(c), see HSqd v. Morinville, 2013 WL 1149944, at *3 (D. Conn. Mar. 19, 2013), and is similar
to provisions contained in model protective orders other district courts have adopted. See, e.g.,
Ex. B (Declaration of Andrew P. Bridges) (“Bridges Decl.”), Ex. 1 ¶¶ 5.2, 6.3; id., Ex. 2 ¶¶ 5.2,
6.3.
ARGUMENT
A protective order is appropriate only “when essential to shield a party from significant
harm or to protect an important public interest” and must be tailored “so that it restricts access no
more than necessary.” U.S. ex rel. Barko v. Halliburton Co., 952 F. Supp. 2d 108, 118 (D.D.C.
2013) (citing Doe v. District of Columbia, 697 F.2d 1115, 1119 (D.C. Cir. 1983)). The
proponent bears the burden of demonstrating good cause for protection under Rule 26(c).
Alexander v. F.B.I., 186 F.R.D. 71, 75 (D.D.C. 1998) (“The party requesting a protective order
must make a specific demonstration of facts in support of the request as opposed to conclusory or
speculative statements about the need for a protective order and the harm which will be suffered
without one.”); see also PHE, Inc. v. Dep’t of Justice, 139 F.R.D. 249, 252 (D.D.C. 1991)
(quoting Avirgan v. Hull, 118 F.R.D. 257, 261-62 (D.C. Cir. 1987)); HSqd, 2013 WL 1149944,
at *3; Velocity Press, Inc. v. Key Bank, N.A., 2011 WL 5322415, at *1 (D. Utah Nov. 3, 2011);
Design Basics, L.L.C. v. Strawn, 2010 WL 4667240, at *1 (D. Kan. Nov. 9, 2010). Plaintiffs
have failed to demonstrate good cause for a protective order that would restrict Public
Resource’s access to discoverable information and prohibit Public Resource from using public
information produced in discovery. As a result, the Court should deny Plaintiffs’ motion and
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enter the less restrictive protective order that Public Resource submits as Exhibit A to this
Opposition.
I.

PLAINTIFFS HAVE FAILED TO DEMONSTRATE GOOD CAUSE FOR
RESTRICTING CARL MALAMUD’S ACCESS TO DISCOVERY MATERIALS.
A.

Plaintiffs Cannot Meet Their Burden of Showing That Restricting Mr.
Malamud’s Access Is Necessary to Avoid Any Specific or Likely Harm.

By default, materials produced in discovery—i.e., information that is concededly relevant
and not privileged—should be freely accessible to all parties to the litigation. See D’Onofrio v.
SFX Sports Grp., Inc., 2009 U.S. Dist. LEXIS 44539, at *7 (D.D.C. Apr. 1, 2009). “It is only
when the proponent of the protective order can show good cause, usually by demonstrating that
disclosure would be harmful, that the court will interfere and dictate what information can or
cannot be shared with which people and organizations, even if relevant and discoverable.” Id.
(citations omitted).
Plaintiffs have not met that standard with respect to their demand for an Attorneys’ Eyes
Only designation. Good cause for a two-tiered protective order may exist where confidential
information may be misused “to gain a competitive advantage over the producing party.” Mot.
at 6 (quoting Alexander v. F.B.I., 1998 U.S. Dist. LEXIS 11489, at *11 (D.D.C. June 15, 1998)).
But there is no possibility of that here. Plaintiffs devote much ink to discussing Public
Resource’s use of published standards, but they have failed to identify any way in which Public
Resource is likely to misuse their proposed “Highly Confidential” materials—i.e., their finances,
strategic plans and other sensitive information. Courts have consistently denied two-tiered
orders in the absence of competitive or other harm. See, e.g., Velocity Press, 2011 WL 5322415,
at *1-2 (denying two-tiered protective order where defendant failed to allege competitive harm);
Westbrook v. Charlie Sciara & Son Produce Co., Inc., 2008 WL 839745, at *4 (D. Tenn. Mar.
27, 2008) (same).
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Plaintiffs sidestep their inadequate showing of harm by insisting that a two-tiered
protective order is “standard” in “commercial litigation.” Mot. at 6. But this is not commercial
litigation. Nor is it between commercial competitors. While Plaintiffs develop and sell
standards, lobby governments to adopt those standards, conduct professional education, and hold
conferences, Public Resource does none of these things. Public Resource’s mission is to
promote access to and engagement with the law, and it has no interest in Plaintiffs’ businesses
except to the extent the law has expressly incorporated their standards.
Plaintiffs also resort to speculative attacks based on Mr. Malamud’s well-documented
public speaking and writing on the subject of public access to legal materials. Mot. at 7. Of
course, Mr. Malamud’s commitment to making the law accessible does not indicate that he is
incapable of respecting a protective order issued by the Court. Indeed, every single one of
Plaintiffs’ examples illustrates Mr. Malamud’s respect for the law. Mr. Malamud posts only
those materials that have been incorporated into law. Mot. at 7-8; Rubel Decl., Exs. 19-24.
“[T]ake-down notices from senior government officials in Georgia, Idaho, and Mississippi,”
Mot. at 7, are assertions that copyright can restrict publication of the law. The validity of
assertions like those is the ultimate issue in this case. The parties’ disagreement on this singular
legal question is hardly ground to speculate that Public Resource or Mr. Malamud will
“disregard” a protective order issued by this Court.4 See Mot. at 7-8.

4

The cases Plaintiffs cite are inapposite. See FTC v. Exxon Corp., 636 F.2d 1336, 1350 (D.C.
Cir. 1980); D’Onofrio, 2009 U.S. Dist. LEXIS 44539, at *9. Again, Plaintiffs have not
explained how Public Resource is likely to misuse Plaintiffs’ confidential information for
competitive purposes. To the extent Plaintiffs speculate that Mr. Malamud may inadvertently
disclose their confidential information, see Mot. at 7, they have failed to articulate how this case
differs from other cases with one-tier protective orders, let alone implicates heightened
confidentiality concerns.
7

Plaintiffs have failed to demonstrate any specific harm from entering a standard
protective order in this action. Without “pro[of] that the disclosure will result in a clearly
defined and very serious injury to [their] business,” Plaintiffs are not entitled to a two-tiered
protective order. PHE, Inc., 139 F.R.D. at 252 (quoting John Does I–VI v. Yogi, 110 F.R.D. 629,
632 (D.C. Cir. 1986)); see also HSqd, 2013 WL 1149944, at *3 (ordinary protective order
sufficient where there was no evidence that the parties would fail to abide by the protective
order); Martinez v. City of Ogden, 2009 WL 424785, at *3 (D. Utah Feb. 18, 2009) (same).
B.

Plaintiffs’ Proposal Will Unfairly Prejudice Public Resource’s Defense.

In addition, Plaintiff’s proposed restrictions will result in very concrete prejudice to
Public Resource. Restricting Mr. Malamud’s access to discovery materials “implicates [Public
Resource’s] due process rights to have a full and fair opportunity to litigate.” Martinez, 2009
WL 424785, at *3; see also Klayman v. Judicial Watch, Inc., 247 F.R.D. 19, 24 (D.D.C. 2007)
(“District courts must be [ ] chary of issuing protective orders that restrict the ability of counsel
and client to consult with one another during trial or during the preparation therefor.”) (quoting
Doe, 697 F.2d at 1119). These concerns are particularly warranted here because, unlike
Plaintiffs, Public Resource is a one-person not-for-profit organization with no in-house legal
staff.
Plaintiffs’ argument that Mr. Malamud lacks sufficient training or experience to be a
testifying expert, see Mot. at 8, is premature and misses the mark. This case concerns the
standards development process and the process of incorporation by reference. Mr. Malamud has
a long record of work in standards development, including authoring six RFCs (Internet
architecture standards adopted by the Internet Engineering Task Force (IETF)) and serving as the
first ever paid consultant to the IETF and the Internet Architecture Board on questions of
strategic direction and governance. Ex. C (Declaration of Carl Malamud) (“Malamud Decl.”)
8

¶¶ 2-3. Mr. Malamud has also served as Chairman and Executive Director of three wellregarded not-for-profit organizations active in the fields of Internet infrastructure standards: the
Internet Systems Consortium, the Internet Multicasting Service, and the Jabber Software
Foundation. Id. ¶ 4. He has advised the Judicial Conference of the United States, the Federal
Trade Commission, and U.S. House and Senate committees on issues of standardization,
technology, and promulgation of the law. Id. ¶¶ 5-7. And Mr. Malamud has gained knowledge
of Plaintiffs’ operations and personnel in the course of his work at Public Resource.
Through his seven years of work at Public Resource collecting and posting legal
materials incorporated by reference, he is an expert in the incorporation process as well. Id.
¶¶ 9-13. Plaintiffs have indicated their intention to deny Mr. Malamud access to documents
concerning the “finances and strategic planning” of standards development organizations. Mot.
at 8. But it is on these subjects that Mr. Malamud’s particular expertise is most necessary.
Under the circumstances, “[t]o deny [a party] the right to … assist in its [own] litigation … could
well border on a denial of due process.” Martinez, 2009 WL 424785, at *3 (denying motion for
two-tiered protective order) (citation and quotation omitted); see also United States v. Kellogg
Brown & Root Servs., Inc., 285 F.R.D. 133, 135 (D.D.C. 2012) (“The showing required under
Rule 26(c) must be sufficient to overcome the other party’s legitimate and important interests in
trial preparation … ‘[T]rial preparation and defense are important interests, and great care must
be taken to avoid their unnecessary infringement.’”) (quoting Farnsworth v. Procter & Gamble
Co., 758 F.2d 1545, 1547 (11th Cir.1985).
Plaintiffs’ suggestion that they consider allowing Mr. Malamud access to documents “on
an ad hoc basis,” Mot. at 8, is no solution, as it would give Plaintiffs an effective veto over Mr.
Malamud’s ability to assist in the litigation. Moreover, the proposed requirement that Public

9

Resource articulate a specific reason why Mr. Malamud must review particular materials would
provide Plaintiffs with unprecedented and unwarranted insight into counsel’s work product and
litigation strategy. Indeed, this turns the standard for protective order on its head: Plaintiffs
should consistently bear the burden of seeking extraordinary protection and not shift that burden
to Public Resource to justify access to information necessary for the lawsuit.
Because Plaintiffs have failed to demonstrate good cause for a two-tiered protective
order, and because such an order would prejudice Public Resource’s ability to litigate this case,
Public Resource respectfully requests that the Court deny Plaintiffs’ motion and enter a less
restrictive protective order in the form Public Resource submits as Exhibit A.5
II.

PLAINTIFFS’ PROPOSED RESTRICTION ON THE USE OF DISCOVERABLE
INFORMATION IS OVERBROAD AND UNDULY BURDENSOME.
Public Resource does not oppose restrictions on the use of properly designated

confidential material produced in discovery. But Plaintiffs want to protect much more: they
seek to restrict the use of “any information or documents obtained during discovery
… regardless of whether the information and/or documents … are not assigned any
confidentiality designation.” Plaintiffs’ PO ¶ 7 (emphasis added). This blanket restriction would
apply to materials not designated as confidential, including materials that are already public,
thereby chilling the parties’ ability to participate in public discourse regarding this litigation,

5

Plaintiffs’ motion is silent on whether a two-tiered protective order is necessary to protect
Plaintiffs from misuse of confidential information by other Plaintiffs. To the extent that a twotiered protective order is necessary to address such concerns—and Public Resource does not take
a position on the issue—Public Resource respectfully requests that the Court modify Plaintiffs’
proposed order to grant Mr. Malamud access to material designated as “Highly Confidential.”
See, e.g., FTC v. Whole Foods, 2007 WL 2059741, at *2-3 (D.D.C. July 6, 2007) (permitting
employee access to highly confidential information where she had no role in competitive
decision-making, and where disclosure of highly confidential information would not result in
specific harm to the disclosing party); see also Intervet v. Merial Ltd., 241 F.R.D. 55, 57-58
(D.D.C. 2007) (same).
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which is already the subject of intense public interest.6 That is a gag order on all discovery,
even non-confidential discovery, in the case. Plaintiffs have not justified, and cannot justify,
such an order.7
Plaintiffs’ proposed language could also subject Public Resource to open-ended liability
for using confidential materials even if Plaintiffs have not designated them as such. To repeat:
paragraph 7 of Plaintiffs’ proposed order applies even to materials that “are not assigned any
confidentiality designation.” Plaintiffs’ PO ¶ 7 (emphasis added). This improperly jeopardizes
Public Resource in case of Plaintiffs’ failure to identify information as confidential. The Court
should reject Plaintiffs’ proposal.8
III.

THE PROPOSED ORDER SHOULD CONTAIN SPECIFIC SAFEGUARDS
AGAINST OVER-DESIGNATING DOCUMENTS AS CONFIDENTIAL
As discussed above, Plaintiffs’ motion and proposed protective order take aggressive

positions on protecting Plaintiffs’ information, even if the information is already public. Public
Resource therefore justifiably fears that Plaintiffs may take similarly aggressive positions in their
confidentiality designations. See In re ULLICO Inc. Litig., 237 F.R.D. 314, 317-18 (D.D.C.

6

See, e.g., Victor Li, “Who owns the law? Technology reignites the war over just how public
documents should be,” ABA Journal (June 1, 2014),
http://www.abajournal.com/magazine/article/who_owns_the_law_technology_reignites_the_war
_over_just_how_public_document.
7
Plaintiffs’ cases do not support a broad provision restricting use of public information. The
restriction in Seattle Times Co. v. Rhinehart applied narrowly to categories of information likely
to implicate confidentiality concerns, including “the financial affairs of the various plaintiffs, the
names and addresses of Aquarian Foundation members, contributors, or clients, and the names
and addresses of those who have been contributors, clients, or donors to any of the various
plaintiffs.” 467 U.S. 20, 27 & n.8 (1984). The court in Klayman v. Judicial Watch, Inc. did not
even discuss whether the restriction should apply to both public and nonpublic information. 247
F.R.D. 19 (D.D.C. 2007).
8
Public Resource offered, in the spirit of compromise, to refrain from using Bates-stamped
versions of documents produced in this action for any purpose other than this litigation, even if
such documents are not expressly labeled Confidential or Highly Confidential. Rubel Decl., Ex.
12. Plaintiffs did not accept that offer.
11

2006) (“[O]verus[ing] the ‘confidential’ label … [would] provide a strategic advantage in the
form of an unwarranted and unfair designation of ‘confidential’ for months.”). To help ensure
appropriate designations, Public Resource suggested two specific provisions that are consistent
with the designating party’s burden to demonstrate good cause for protection under Rule 26(c).
HSqd, 2013 WL 1149944, at *3; cf. Mot. at 10.
First, the parties should produce a brief statement indicating which specific facts or
elements within the designated material are confidential, along with a brief explanation why the
designation is necessary.9 This procedure would establish the “specific facts” that must justify
protection. Univ. of Mass. v. Roslin Inst., 437 F. Supp. 2d 57, 60 (D.D.C. 2006). This procedure
is also necessary to determine which portion(s) of a document or transcript are confidential and
which portion(s) are public and will prevent the parties from designating an entire document or
transcript as confidential based on a single reference to confidential information. For example,
several district courts have adopted model stipulated protective orders providing that “[i]f only a
portion or portions of the material on a page qualifies for protection, the Producing Party also
must clearly identify the protected portion(s).” E.g., Bridges Decl., Ex. 1 ¶ 5.2; id., Ex. 2 ¶ 5.2.
Moreover, the additional burden of providing a brief confidentiality statement is likely to be
minimal. The parties must already determine and code confidentiality designations on a
document-by-document basis, and it is neither unreasonable nor unduly burdensome to require
the parties to code one or two additional fields that can be exported from the document review
database to create an automatic confidentiality log.

9

Public Resource’s proposed provision reads: “All materials designated as “CONFIDENTIAL”
under this Order must be accompanied by a statement explaining which specific facts or
elements within the designated material are confidential, and explaining why such designation is
warranted. Where possible, confidential information must be separated from non-confidential
material to limit over-designation.” Ex. A ¶ 1(h).
12

Public Resource’s second proposal is to require the designating party to file a motion to
retain confidential treatment in the event the parties are unable to resolve a challenge through the
meet and confer process. Again, this procedure is consistent with the principle that the party
seeking protection under Rule 26(c) bears the burden of demonstrating good cause. HSqd, 2013
WL 1149944, at *3. It is also consistent with several model protective orders, which require the
designating party to seek judicial confirmation of confidentiality designations. See, e.g., Bridges
Decl., Ex. 1 ¶ 6.3 (“If the Parties cannot resolve a challenge without court intervention, the
Designating Party shall file and serve a motion to retain confidentiality.”) (emphasis added); id.,
Ex. 2 ¶ 6.3. Plaintiffs argue that this procedure will result in frivolous litigation, Mot. at 11-12,
but they ignore several safeguards built into the discovery process, including the requirement to
meet and confer in good faith and potential sanctions (including possible fee-shifting) for
confidentiality challenges made in bad faith or for some other improper motive.10
CONCLUSION
Because a two-tiered protective order will prejudice Public Resource’s ability to litigate
its case but is not necessary to prevent any specific misuse of Plaintiffs’ confidential information;
because Plaintiffs’ proposed order wrongly restricts the parties’ use of non-confidential
information; and because the protective order should contain safeguards against over-designation
10

As an alternative to the above two provisions, Public Resource respectfully requests that the
protective order include an express remedy in the event a party abuses the “Confidential”
designation. For example, the Hon. William Alsup of the Northern District of California
routinely adds the following provision to stipulated protective orders in his cases: “The parties
must make a good-faith determination that any information designated “confidential” truly
warrants protection under Rule 26(c) of the Federal Rules of Civil Procedure. Designations of
material as ‘confidential’ must be narrowly tailored to include only material for which there is
good cause. A pattern of over-designation may lead to an order de-designating all or most
materials on a wholesale basis.” See, e.g., Bridges Decl., Ex. 3 ¶ 1 (emphasis added). Not only
would this deter a pattern of over-designation, but it would also provide a way to address gross
abuse of the protective order without requiring any party to file a motion with respect to each
improperly-designated document.
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of confidential materials, Public Resource respectfully requests that the Court deny Plaintiffs’
motion and enter the more appropriate and narrowly-tailored protective order in the form Public
Resource submits as Exhibit A.
Dated: July 24, 2014

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[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]
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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