AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.
Filing
71
MOTION for Extension of Time to Complete Discovery Defendant-Counterclaimant Public.Resource.Org, Inc.'s Motion for Extension of Discovery Period, Corresponding Modification of Scheduling Order, and Leave to Take More Than 10 Depositions by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Declaration Declaration of Kathleen Lu in Support of Defendant-Counterclaimant Public.Resource.Org, Inc.'s Motion for Extension of Discovery Period, Corresponding Modification of Scheduling Order, and Leave to Take More Than 10 Depositions, #2 Text of Proposed Order [Proposed] Order Granting Defendant's Motion for Extension of Discovery Period, Corresponding Modification of Scheduling Order, and Leave to Take More Than 10 Depositions)(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
MOTION FOR EXTENSION OF
DISCOVERY PERIOD,
CORRESPONDING MODIFICATION
OF SCHEDULING ORDER, AND
LEAVE TO TAKE MORE THAN 10
DEPOSITIONS
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
Plaintiffs,
v.
PUBLIC.RESOURCE.ORG, INC.,
Complaint Filed: August 6, 2013
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.
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.
Counsel for Public Resource have conferred with counsel for Plaintiffs on
numerous occasions throughout the month of January regarding an extension of the schedule to
allow Public Resource time to review Plaintiffs’ many and sizable productions in late December
and throughout January before Public Resource takes the depositions it had already noticed and
completes its noticing of depositions.
3.
Public Resource received nearly 42000 documents from ASTM on January 2,
2015. NFPA has stated that it has sent up to 50 banker’s boxes of paper documents and 11 rolls
of microfilm containing 4000-7000 images each to vendors for scanning. Public Resource has
not received the scans yet. Based on the rate of review of the productions thus far, counsel for
Public Resource estimates that review of the documents that have come in since Christmas will
take approximately 400 hours assuming a fairly fast rate. We will not be able to estimate
whether we can review the NFPA productions at a similar rate until we receive the productions
from the vendors, but if so, we estimate that review will also take several hundred hours. This
chart shows, to the best of my knowledge, Plaintiffs’ past and upcoming productions:
No. of
Docs
Party
Beg Bates
End Bates
08/11/14 08/12/14
19
ASHRAE
ASHRAE0000001
ASHRAE0001618
08/27/14 08/28/14
2076
ASHRAE
ASHRAE0001619
ASHRAE0022482
10/17/14 10/20/14
33
ASHRAE
ASHRAE0022483
ASHRAE0022663
10/30/14 10/31/14
144
ASHRAE
ASHRAE0022664
ASHRAE0024176
11/21/14 11/24/14
349
ASHRAE
ASHRAE0024177
ASHRAE0027441
Date Sent
Date of
Receipt
1
12/23/14 12/29/14
196
ASHRAE
ASHRAE0027442
ASHRAE0029541
01/09/15 01/09/15
153
ASHRAE
ASHRAE0029542
ASHRAE0029846
07/29/14 07/30/14
310
ASTM
ASTM000001
ASTM001830
10/17/14 10/20/14
266
ASTM
ASTM001831
ASTM007110
12/31/14 01/02/14
41839
ASTM
ASTM007111
ASTM096675
01/16/15 01/20/16
763
ASTM
ASTM096676
ASTM102865
Anticipated
unknown
01/30/15
unknown
ASTM
n/a
n/a
05/22/14 05/23/14
52
NFPA
NFPA‐PR0000001 NFPA‐PR0013031
06/20/14 06/23/14
24
NFPA
NFPA‐PR0013032 NFPA‐PR0020392
11/24/14 11/25/14
40
NFPA
NFPA‐PR0020393 NFPA‐PR0020701
12/30/14 12/31/14
1953
NFPA
NFPA‐PR0020702 NFPA‐PR0028685
01/05/15 01/06/15
586
NFPA
NFPA‐PR0028686 NFPA‐PR0038493
44,000‐
77,000
pages
NFPA
n/a
n/a
unknown
NFPA
n/a
n/a
Up to 50
banker’s
boxes
NFPA
n/a
n/a
1/26/15
unknown
Anticipated
unknown
01/30/15
Unknown
4.
unknown
From my review of our production log, Public Resource produced 8,560
documents on August 28, 2014; 823 documents on October 31, 2014; 522 documents on
November 14, 2014; and 1,968 documents on December 23, 2014.
5.
Counsel for Public Resource has communicated with Plaintiffs by telephone and
by email about an extension throughout January, including on January 5, January 7, January 8,
January 11, January 20, January 21, January 22, January 23, January 27, and January 28. On
2
Friday, January 23, 2015, Mr. Childs, counsel for ASTM proposed on behalf of all plaintiffs that
the parties have until January 30 to notice depositions that they would take “within a reasonable
amount of time outside the current discovery period.”
6.
On January 28, 2015, counsel for Public Resource had a call with counsel for all
three plaintiffs. On that call, counsel for all three plaintiffs reiterated their position that the cutoff
for taking depositions should be February 28, and that the cutoff for noticing depositions should
be January 30.
7.
Also on January 28, 2015, plaintiff NFPA served its amended Rule 26 disclosures,
which added one witnesses. On December 24, plaintiff ASTM disclosed three additional
witness, and on January 14, it disclosed one additional witness. Today, January 29, 2015,
ASHRAE stated that it may disclose one additional witness. In total, Plaintiffs have disclosed 16
witnesses (other than Mr. Malamud).
8.
Based on my review of some of the documents Plaintiffs have produced, it
appears that Plaintiffs knew of and actively discussed Public Resource’s activities in March
2012.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 29th day of January, 2015.
/s/ Kathleen Lu
Kathleen Lu
3
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