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

Filing 48

Memorandum in opposition to re #41 MOTION to Compel Discovery filed by AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC.. (Attachments: #1 Declaration of M. Andrew Zee, #2 Exhibit 1, #3 Exhibit 2, #4 Declaration of Claire Ramspeck)(Steinthal, Kenneth)

Exhibit 1

From:
To:
Cc:

Subject:
Date:

Andrew Bridges
Zee, Andrew; "[e-mail]"; Kathleen Lu; "[e-mail]"; "[e-mail]";
"[e-mail]"; "[e-mail]"; Matthew Becker
"[e-mail]"; "[e-mail]"; "[e-mail]"; Bucholtz, Jeff; Steinthal,
Kenneth; Wetzel, Joseph; "[e-mail]"; "[e-mail]"; "[e-mail]";
"[e-mail]"
Re: ASTM et al. v. Public.Resource.Org -- Motion to Compel
Tuesday, September 30, 2014 9:34:28 AM

Thanks for your message.  We will proceed with the motion, which was an obvious consequence of our
failure to make meaningful progress during our previous efforts to resolve these issues without a
motion.
Andrew
Andrew P. Bridges
Fenwick & West LLP - San Francisco
[e-mail]
www.fenwick.com/andrewbridges
Direct [phone]
Mobile [phone]
Sent from my wireless PDA
----- Original Message ----From: Zee, Andrew [mailto:[e-mail]]
Sent: Tuesday, September 30, 2014 08:30 AM Pacific Standard Time
To: Andrew Bridges; '[e-mail]' <[e-mail]>; Kathleen Lu; '[e-mail]'
<[e-mail]>; '[e-mail]' <[e-mail]>; '[e-mail]'
<[e-mail]>; '[e-mail]' <[e-mail]>; Matthew Becker
Cc: '[e-mail]' <[e-mail]>; '[e-mail]'
<[e-mail]>; '[e-mail]' <[e-mail]>; Bucholtz, Jeff
<[e-mail]>; Steinthal, Kenneth <[e-mail]>; Wetzel, Joseph
<[e-mail]>; '[e-mail]' <[e-mail]>; '[e-mail]'
<[e-mail]>; '[e-mail]' <[e-mail]>;
'[e-mail]' <[e-mail]>
Subject: RE: ASTM et al. v. Public.Resource.Org -- Motion to Compel
Andrew,
We disagree that any of PRO’s letters or teleconferences made any mention of the motion that was filed
on September 15.  As indicated in my initial email, Plaintiffs believe that there areas where the parties
can reach a resolution.  However, we will not engage in a meet-and-confer while PRO’s motion to
compel remains pending.  That is precisely the situation that the local rule in question is designed to
prevent.
Best,
Andrew
________________________________________
From: Andrew Bridges [[e-mail]]
Sent: Monday, September 29, 2014 6:55 PM
To: Zee, Andrew; '[e-mail]'; Kathleen Lu; '[e-mail]'; '[e-mail]';
'[e-mail]'; '[e-mail]'; Matthew Becker
Cc: '[e-mail]'; '[e-mail]'; '[e-mail]'; Bucholtz, Jeff;
Steinthal, Kenneth; Wetzel, Joseph; '[e-mail]'; '[e-mail]';
'[e-mail]'; '[e-mail]'
Subject: RE: ASTM et al. v. Public.Resource.Org -- Motion to Compel

Dear Mr. Zee:
P.R.O. believes that the parties thoroughly discussed these issues both by teleconferences and by
letters.  Accordingly it plans to proceed with the motion and, if necessary, it will explain to the Court all
the communications between counsel that led up to the motion.
Of course, P.R.O. does not want to burden the Court any more than necessary.  Therefore it might
reconsider this decision if you can inform us, right away, that plaintiffs *do not* oppose the relief
P.R.O. seeks.  Alternatively, please indicate what specific issues plaintiffs believe the parties can
substantially narrow.
Andrew P. Bridges
Fenwick & West LLP – San Francisco
T [phone]
M [phone]
@andrewbridges
[e-mail]<mailto:[e-mail]>
www.fenwick.com/andrewbridges<http://www.fenwick.com/andrewbridges>
From: Zee, Andrew [mailto:[e-mail]]
Sent: Monday, September 29, 2014 2:05 PM
To: '[e-mail]'; Andrew Bridges; Kathleen Lu; '[e-mail]'; '[e-mail]';
'[e-mail]'; '[e-mail]'; Matthew Becker
Cc: '[e-mail]'; '[e-mail]'; '[e-mail]'; Bucholtz, Jeff;
Steinthal, Kenneth; Wetzel, Joseph; '[e-mail]'; '[e-mail]';
'[e-mail]'; '[e-mail]'
Subject: ASTM et al. v. Public.Resource.Org -- Motion to Compel
Counsel,

Plaintiffs write to request that Public.Resource.Org withdraw its motion to compel because it has not
complied with Local Rule 7(m).  As you are likely aware, that Rule requires counsel for the moving party
to discuss the anticipated motion with opposing counsel in a good-faith effort to determine whether
there is any opposition to the relief sought and to narrow the areas of disagreement.  Although the
parties exchanged letters about some of the issues raise in your motion, you did not initiate any such
discussion with counsel for the Plaintiffs, and thus, by necessity, the motion also fails to include the
required statement that such discussion took place.

As numerous courts in D.D.C. have held, a nondispositive motion that does not comply with Rule 7(m)
should be denied on that basis.  See, e.g., K & R Ltd. Partnership v. Massachusetts Housing Finance
Agency, 456 F. Supp. 2d 46 (D.D.C. 2006); Alexander v. FBI, 186 F.R.D. 185, 187 (D.D.C. 1999).

If you agree to withdraw the motion, Plaintiffs remain open to discussing the issues raised by
Public.Resource once you have done so.  In the event Public.Resource chooses to proceed with its
deficient motion, Plaintiffs will have little choice but to present this issue to the court in their response
papers.  Please let us know your response by noon Pacific time tomorrow.  Thank you.

Best regards,
Andrew

M. Andrew Zee
Associate, King & Spalding LLP
[phone]
[e-mail]<mailto:[e-mail]>

________________________________
King & Spalding Confidentiality Notice:
This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or
entity to which it is addressed. This communication may contain information that is proprietary,
privileged or confidential or otherwise legally exempt from disclosure. If you are not the named
addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of
it. If you have received this message in error, please notify the sender immediately by e-mail and delete
all copies of the message.
------------------------------------------NOTICE:
This email and all attachments are confidential, may be legally privileged, and are intended solely for
the individual or entity to whom the email is addressed.  However, mistakes sometimes happen in
addressing emails.  If you believe that you are not an intended recipient, please stop reading
immediately.  Do not copy, forward, or rely on the contents in any way.  Notify the sender and/or
Fenwick & West LLP by telephone at [phone] and then delete or destroy any copy of this email
and its attachments.  Sender reserves and asserts all rights to confidentiality, including all privileges that
may apply.