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

Filing 67

Memorandum in opposition to re #64 First MOTION to Compel Public Resource.Org, Inc. Discovery filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 Declaration of Kathleen Lu In Support of Defendant-Counterclaimant Public.Resource.Org, Inc.'s Opposition to Plaintiff-Counterdefendant American Society for Testing and Materials d/b/a ASTM International Motion to Compel Discovery, #2 Declaration of John Doe In Support of Defendant-Counterclaimant Public.Resource.Org, Inc.'s Response to Plaintiffs' Motion to Compel Discovery, #3 Declaration of Carl Malamud In Support of Defendant-Counterclaimant Public.Resource.Org, Inc.'s Response to Plaintiffs' Motion to Compel Discovery)(Bridges, Andrew)

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-DAR

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and

DECLARATION OF KATHLEEN LU
IN SUPPORT OF DEFENDANTCOUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
OPPOSITION TO PLAINTIFFCOUNTERDEFENDANT AMERICAN
SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM
INTERNATIONAL MOTION TO
COMPEL DISCOVERY

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
Plaintiffs,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant.
PUBLIC.RESOURCE.ORG, INC.,
Counterclaimant,
v.
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, INC.
Counterdefendants.

Filed:

August 6, 2013

I, KATHLEEN LU, declare as follows:
1.

I am an attorney admitted to practice in the State of California and am an

associate with the law firm of Fenwick & West LLP, counsel of record for Defendant/CounterPlaintiff Public.Resource.Org, Inc. (“Public Resource”).
2.

In response to Plaintiffs’ document requests, counsel for Public Resource has

searched for all communications about standards Plaintiffs assert copyright in, which would
include donor communications about any of Plaintiffs or the standards they assert rights in. With
the exception of more recent post-litigation communications which Public Resource is still
reviewing and catalogues on Public Resource’s privilege log, Public Resource has produced all
those communications. Public Resource anticipates completing its review and production in the
next week.
3.

Due to some donors’ concerns regarding anonymity, Public Resource has redacted

the identities of nonpublic donors from the donor communications in its productions.
4.

I along with co-counsel conferred with counsel for Plaintiffs by telephone on

December 5 and December 10, 2014.
5.

On these calls, counsel for Plaintiffs stated that they thought some donors may

have donated to Public Resource for the express purpose of digitizing some of the standards at
issue in this litigation and that they wanted donor identities in order to depose or otherwise seek
discovery from those donors about their motivations. Counsel for Public Resource explained
that First Amendment case law regarding donor anonymity did not support stripping anonymity
without justification. I stated that, while I was not aware of any donor expressing such a
motivation, Public Resource was already prepared to produce donor communications that
mentioned Plaintiffs, only with nonpublic donors’ identities redacted. If, after reviewing these
donor communications, Plaintiffs believed a particular donor communication evidenced such a
motivation on the part of that donor, Plaintiffs could point to that communication as evidence of
“compelling need” for that donor’s identity.

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6.

On December 10, 2014, I explained to Plaintiffs’ counsel by telephone that

searching for and reviewing all donor communications about standards, regardless of whether
they pertained to Plaintiffs, would be extremely burdensome because Public Resource has
hundreds of donors. Plaintiffs then asked about the burden of search for communications with
“large” donors. I asked what they meant by “large” and there was no definitive answer at that
time. Plaintiffs’ counsel also asked if Public Resource could run a search combining the
keyword standards with other keywords such as donate with a wildcard. I informed them we had
tested a search along those lines, but after checking the first few dozen hits we found only
mishits. I told Plaintiffs’ counsel that such a search would be too broad, but I welcomed their
suggestions as to how narrowly to tailor such a search.
7.

Because Plaintiffs had raised questions about “large” donors on the call, Public

Resource tested and proposed searching the communications of donors who had given more than
$50,000 for the keywords “standard and (donat* or contribut*).” The search results included
hundreds of documents, but many times fewer than the previous search Public Resource had
tested.
8.

Plaintiffs rejected this proposal and instead proposed a search for “(Standard or

standards) and (donat! or contribut! or giv! /s money or rais! /s money or rais! /s fund! or
fundrais!).” This search is impossible in the eDiscovery software (Viewpoint) that Public
Resource is using for document review and production. On legal research platforms such as
Lexis and Westlaw, “/s” stands for “within the same sentence as,” but this grammatical structure
does not exist in Viewpoint (or any other eDiscovery software that I am aware of).
9.

Public Resource has tested a syntactically possible variant of this search of

(Standard or standards) and (donat* or contribut* or giv* w/5 money or rais* w/5 money or rais*
w/5 fund* or fundrais*). This search returns tens of thousands of documents. Upon a spot
check, the vast majority of these documents are not donor communications. Since it appears that
the vast majority of search results are not donor communications, I believe we can use the

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software to cull out non-donor communications based on metadata fields, leaving a much smaller
set (under 500) for manual review.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 12th day of January, 2015.

/s/ Kathleen Lu
Kathleen Lu

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