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

Filing 82

REPLY to opposition to motion re #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 [PUBLIC REDACTED VERSION] filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 PUBLIC REDACTED VERSION of Reply Declaration of Andrew P. Bridges In Support of Defendant-Counterclaimant Public.Resource.Org, Inc.s Reply In Support of Motion for Extension of Discovery Period, Corresponding Modification of Scheduling Order, and Leave to Take More Than 10 Depositions, #2 Exhibit A to Bridges Reply Declaration In Support, #3 Exhibit B to Bridges Reply Declaration In Support, #4 Exhibit C to Bridges Reply Declaration In Support, #5 Exhibit D to Bridges Reply Declaration In Support, #6 Exhibit E to Bridges Reply Declaration In Support, #7 Exhibit F to Bridges Reply Declaration In Support)(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

PUBLIC.RESOURCE.ORG, INC.’S
REPLY IN SUPPORT OF MOTION
FOR EXTENSION OF DISCOVERY
PERIOD, CORRESPONDING
MODIFICATION OF SCHEDULING
ORDER, AND LEAVE TO TAKE
MORE THAN TEN DEPOSITIONS

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
Plaintiffs,
v.

Complaint Filed: August 6, 2013

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.

PUBLIC REDACTED VERSION

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1 
ARGUMENT ...................................................................................................................................3 
I. 

THERE IS GOOD CAUSE TO EXTEND THE DISCOVERY SCHEDULE
BECAUSE PLAINTIFFS PRODUCED MORE THAN 92% OF THEIR
DOCUMENTS WITHIN, OR AFTER, THE LAST MONTH OF
DISCOVERY. ......................................................................................................................3 
A. 

Plaintiffs’ Last-Minute Productions Included Many of The Most
Significant Documents Produced In This Case .......................................................4 

B. 

Public Resource Could Not Reasonably Review Plaintiffs’ LastMinute Productions In Time To Proceed With Depositions Of
Plaintiffs’ Corporate Designees Pursuant To Rule 30(b)(6) Before The
Original January 30 Close Of Discovery. ................................................................5 

C. 

Public Resource Could Not Reasonably Review Plaintiffs’ LastMinute Productions In Time To Determine Who To Depose From The
Sixteen Individuals Identified In Plaintiffs’ Initial Disclosures, Or
Whether There Are Additional Witnesses Plaintiffs Failed To
Disclose, Before The Original January 30 Close Of Discovery. .............................7 

D. 

Plaintiffs Cannot Blame Public Resource for Plaintiffs’ Own Failure to
Produce Documents in a Timely Manner. ...............................................................8 

E. 

Plaintiffs Have Compounded the Problems Their Untimely
Productions Caused Because They Refuse to Cooperate in Good Faith
in Rescheduling Depositions....................................................................................9 

F. 

Public Resource Has Been Diligent and Cooperative in Scheduling
Depositions of Carl Malamud. ...............................................................................10 

G. 

Plaintiffs Cannot Complain Of Delay After Having Sat On Their
Claims For Almost Three Years Prior To Filing The Complaint. .........................12 

II. 

THERE IS GOOD CAUSE TO EXTEND THE DISCOVERY SCHEDULE
IN THE EVENT THE COURT GRANTS NFPA’S UNTIMELY MOTION
TO AMEND THE COMPLAINT. ....................................................................................13 

III. 

PUBLIC RESOURCE HAS GOOD CAUSE TO TAKE MORE THAN TEN
DEPOSITIONS. .................................................................................................................14 

IV. 

CONCLUSION ..................................................................................................................15

i

TABLE OF AUTHORITIES
Page(s)
CASES
Authentic, Inc. v. Atrua Techs., Inc.,
No. C 08-1423 PJH, 2008 WL 5120767 (N.D. Cal. Dec. 4, 2008) .........................................14
Dag Enters., Inc. v. Exxon Mobil Corp.,
226 F.R.D. 95 (D.D.C. 2005).....................................................................................................4
Del Campo v. Am. Corrective Counseling Servs., Inc.,
No. C-01-21151 JW(PVT), 2007 WL 3306496 (N.D. Cal. Nov. 6, 2007)..............................15
Doe v. District of Columbia,
No. Civ. A. 031789, 2005 WL 1278270 (D.D.C. May 27, 2005) ...........................................14
Everlight Elecs. Co. v. Nichia Corp.,
No. 12-CV-11758, 2013 WL 6713789 (E.D. Mich. Dec. 20, 2013) .........................................4
Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604 (9th Cir. 1992) ...................................................................................................12
U.S. Nutraceuticals LLC v. Cynotech Corp.,
No. 5:12-cv-366, 2014 WL 1918040 (M.D. Fla. May 13, 2014) ..............................................4
RULES
Fed. R. Civ. P. 26 ...............................................................................................................1, 3, 7, 14
Fed. R. Civ. P. 30(b) ......................................................................................................................10
Fed. R. Civ. P. 30(b)(6).......................................................................................................... passim
Local Civil Rule 30.1 .....................................................................................................................10

ii

INTRODUCTION
Defendant-counterplaintiff Public.Resource.Org (“Public Resource” or “Defendant”)
seeks an extension of the discovery period for multiple reasons, the most significant of which is
the fact that Plaintiffs-Counterdefendants American Society for Testing and Materials d/b/a
ASTM International (“ASTM”), National Fire Protection, Inc. (“NFPA”) and American Society
of Heating, Refrigerating, and Air Conditioning Engineers, Inc. (“ASHRAE” and, collectively
with ASTM and NFPA, “Plaintiffs”) collectively produced more than 92% of their documents
to Public Resource within, or after, the last month of discovery. These massive productions of
tens of thousands of critical documents, beginning just one month prior to the close of discovery
and continuing well past its close, alone provides good cause for an extension of discovery.
Plaintiffs’ failure to timely produce documents left Public Resource with the gargantuan task of
digesting Plaintiffs’ massive productions, identifying witnesses based on those documents (some
of whom Plaintiffs did not disclose in their Rule 26 initial disclosures), and noticing and taking
depositions of Plaintiffs’ witnesses in three cities in the span of just one month. In short,
Plaintiffs’ document dumps left Public Resource with no reasonable means to complete
depositions prior to the close of discovery. Plaintiffs’ opposition brief completely ignores this
point.
Instead, Plaintiffs now point the finger at Public Resource and rest on the frivolous notion
that Public Resource is not entitled to an extension because it has somehow not been diligent.
On top of this, Plaintiffs take the position that Public Resource’s deposition notices served prior
to the close of discovery were not timely. These assertions disregard that Public Resource
previously had none of the key documents it needs to depose Plaintiffs’ witnesses. Moreover,
Public Resource’s subsequent attempts to cooperate with Plaintiffs’ counsel in scheduling
depositions have been meet with stonewalling, as Plaintiffs have rebuffed Public Resource’s
1

proposed deposition dates only to offer dates which they know that Plaintiff’s counsel cannot
accommodate. Accordingly, Plaintiffs’ delay tactics have only compounded the need for an
extension. Moreover, there is no risk of prejudice to Plaintiffs though granting Public
Resource’s requested extension, as Plaintiffs have had knowledge of Public Resource and its
activities since at least 2008.
In addition to Plaintiff’s delay tactics, NFPA’s recently filed motion to amend the
Complaint on February 3, 2015, after the close of discovery, also provides Public Resource with
good cause for an extension of the discovery schedule. Public Resource would suffer significant
prejudice if the Court were to grant NFPA leave to amend without permitting Public Resource
additional discovery regarding the new claim.
Finally, Public Resource has good cause to seek leave to take 20 depositions. Public
Resource will need to depose many of the 16 witnesses Plaintiffs collectively disclosed in their
initial disclosures, in addition to witnesses Plaintiffs never disclosed that Public Resource
identified in its review of the documents. Public Resource has also noticed a deposition of at
least one non-party. Plaintiffs oppose increasing the deposition limit, relying on the fact that
Public Resource has not yet taken any depositions, despite that this inability to do so sooner was
purely result of Plaintiffs’ own actions. In light of the complex issues at stake and the history of
Plaintiffs’ recalcitrance in this case, Public Resource need not exhaust its current deposition limit
before seeking leave to request further depositions.
In light of these facts, Public Resource has good cause for its requested extension of the
discovery schedule and for leave to take 20 depositions.

2

ARGUMENT
I.

THERE IS GOOD CAUSE TO EXTEND THE DISCOVERY SCHEDULE
BECAUSE PLAINTIFFS PRODUCED MORE THAN 92% OF THEIR
DOCUMENTS WITHIN, OR AFTER, THE LAST MONTH OF DISCOVERY.
Plaintiffs produced almost 46,000 documents consisting of more than 198,000 pages

within the last month of discovery.In fact, NFPA produced an additional 405 documents
consisting of more than 25,000 pages on February 16, 2015—more than two weeks after the
close of discovery. See Reply Declaration of Andrew P. Bridges In Support Of Public Resource’s
Motion For Extension of Discovery Period, Corresponding Modification of Discovery Order, and
Leave to Take More Than 10 Depositions (“Bridges Reply Decl.”) ¶ 3. All in all, Plaintiffs
produced more than 92% of their documents within, or after, the final month of discovery. In
terms of page counts, Plaintiffs produced more than 86% of their production during, or after, the
last month of discovery. Id. Moreover, these productions were not minor or tangential document
productions that might simply tie out or “finalize” prior productions, notwithstanding Plaintiffs’
misleading representations. See Opp. at 6. To the contrary, they represent the vast majority of
documents that Plaintiffs produced during discovery.
Plaintiffs cannot, and do not, dispute the enormous volume of documents Plaintiffs
produced on or after December 30, 2014. See Opp. at 4–5. Instead, Plaintiffs’ brief rests on
misleading statements about their production, particularly two significant productions by NFPA.
First, it fails to include the more substantial of two document productions by NFPA on January
30, 2015 (i.e., the last day of discovery), which included 372 document compilations consisting of
more than 59,000 pages. See Bridges Reply Decl. ¶ 3; Opp. at 4, 6–7 & n.3 (disclosing only a
62-page production on January 30, 2015). Second, as noted above, NFPA produced microfilms
containing an additional 25,000 pages, which it had long delayed turning over, by delivering
them to a vendor for processing and delivery to Defendant at the very end of discovery, and
3

delivery to Defendant occurred on February 16, 2015. It is simply false for Plaintiffs to argue, as
Plaintiffs do, that NFPA “substantially completed its document production on January 5.” Opp. at
7. Nor does it alter the fundamental fact that Plaintiffs collectively produced the vast majority of
their documents on or after December 30, 2014.
Plaintiffs’ voluminous eleventh hour productions alone provide good cause to extend the
fact discovery schedule. See U.S. Nutraceuticals LLC v. Cynotech Corp., No. 5:12-cv-366, 2014
WL 1918040, at *5 (M.D. Fla. May 13, 2014) (granting discovery extension where plaintiffs
produced a “gigantic ‘document dump’ including 64,712 pages of documents” at the end of the
discovery period); Everlight Elecs. Co. v. Nichia Corp., No. 12-CV-11758, 2013 WL 6713789, at
*3–4 (E.D. Mich. Dec. 20, 2013) (finding good cause for discovery extension where defendant
could not complete all necessary discovery, despite its due diligence, because plaintiffs “dumped
voluminous discovery responses” on the eve of the close of fact discovery); see also Opp. at 6
(citing Dag Enters., Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 105 (D.D.C. 2005). Here,
Plaintiffs’ document dumps deprived Public Resource of the opportunity to identify key exhibits
and witnesses, and prepare for depositions prior to the close of fact discovery. Plaintiffs’
opposition never comes to grips with this reality.
A.

Plaintiffs’ Last-Minute Productions Included Many of The Most Significant
Documents Produced In This Case

It bears special emphasis that Plaintiffs waited to produce their most significant
documents as part of their last-minute data dumps, including:


Copies of assignment forms that contain non-exclusive grant language, which is
ineffective to transfer copyright and calls into question Plaintiffs’ standing to
assert copyright claims based on the standards (Plaintiffs had fiercely resisted, and
delayed, producing these documents);



Copies of incomplete grant forms, which again rebut the presumption that
Plaintiffs own the copyrights over the standards at issue;

4



Documents reflecting Plaintiffs’ affirmative efforts to lobby government officials
to incorporate the standards at issue into law;



Documents reflecting coordination between Plaintiffs and other standards
developing organizations on incorporation by reference issues generally;



Documents discussing Plaintiffs’ online reading rooms, which provide read-only
access to their standards, as well as intentional limitations on the public’s ability
to use such reading rooms;



Documents reflecting ongoing coordination between Plaintiffs and other standards
developing organizations regarding Public Resource and Mr. Malamud’s
activities, including documents discussing this litigation; and



Documents discussing the lack of financial harm to Plaintiffs as a result of Public
Resource and Mr. Malamud’s activities.

These categories of documents all go to the heart of the dispute between Plaintiffs and Public
Resource, but Plaintiffs withheld them until the very end of the discovery period.
B.

Public Resource Could Not Reasonably Review Plaintiffs’ Last-Minute
Productions In Time To Proceed With Depositions Of Plaintiffs’ Corporate
Designees Pursuant To Rule 30(b)(6) Before The Original January 30 Close
Of Discovery.

Plaintiffs argue that Public Resource could have finished discovery on time if only it had
been diligent enough. For example, Plaintiffs complain that Public Resource postponed the
depositions of two NFPA witnesses scheduled for January 9 and 13, 2015, resulting in
“significant inconvenience” to Plaintiffs. Opp. at 1. But Plaintiffs fail to explain how Public
Resource could have reviewed the 1,953 documents (7,984 pages) produced by NFPA on
December 30, 2014 or the 586 documents (9,808 pages) produced by NFPA on January 5, 2015
before a January 9, 2015 deposition, particularly given that:


Public Resource did not receive the productions until December 31 and January 6,
respectively;



Public Resource needed time to process and upload the production to its review
platform before it could start reviewing documents;

5



There were two holidays between NFPA’s production and the scheduled
deposition (New Year’s Eve and New Year’s Day); and



Public Resource needed additional time to travel to Boston for the deposition.

And this ignores, of course, the prejudice Public Resource would have suffered had it deposed
NFPA witnesses without the benefit of the more than 84,000 pages of documents NFPA still had
not produced as of January 9, 2015.
At the same time that Public Resource had to contend with NFPA’s last minute document
dump, it also had to review and analyze the nearly 42,000 documents (89,565 pages) that ASTM
shipped on December 31, 2014, which Public Resource’s counsel received on January 2, 2015.
Plaintiffs summarily argue that Public Resource had “ample time to take depositions before the
close of discovery” (Opp. at 7) but even assuming that Public Resource deposed ASTM on
January 30 (i.e., the last day of discovery), this would have required Public Resource to finish
reviewing more than 1,500 documents a day every day for the entire month of January (including
weekends) just to finish a first-level review of ASTM’s documents. And this ignores the need to
review NFPA’s massive productions during the same time period, let alone take NFPA’s Rule
30(b)(6) deposition, ASHRAE’s Rule 30(b)(6) deposition, and the depositions of each individual
Plaintiffs had disclosed in their Amended Initial Disclosures. In short, the notion that Public
Resource could have reviewed Plaintiffs’ voluminous productions and deposed witnesses about
the documents in those productions within the span of one month is ludicrous.1

1

The timing of Plaintiff ASHRAE’s document productions has been more reasonable in
relation to NFPA and ASTM, and Public Resource was willing to begin depositions of
ASHRAE much sooner. However, in light of NFPA and ASTM’s last-minute, voluminous
productions, ASHRAE agreed to postpone the depositions of its own witnesses.
6

C.

Public Resource Could Not Reasonably Review Plaintiffs’ Last-Minute
Productions In Time To Determine Who To Depose From The Sixteen
Individuals Identified In Plaintiffs’ Initial Disclosures, Or Whether There
Are Additional Witnesses Plaintiffs Failed To Disclose, Before The Original
January 30 Close Of Discovery.

Plaintiffs’ suggestion that Public Resource could have noticed, scheduled and completed
depositions of fact witnesses prior to the discovery cutoff defies logic. Public Resource timely
served deposition notices on each of the three Plaintiffs pursuant to Rule 30(b)(6). Plaintiffs
oppose Public Resource’s request to depose more than ten witnesses, and so, absent court
intervention, Public Resource is limited to seven additional depositions. But Plaintiffs concede
that they collectively identified sixteen individuals in their Rule 26 disclosures, as amended.
Opp. at 3–4. Plaintiffs apparently fault Public Resource for not selecting and deposing seven of
these individuals prior to the discovery deadline, but Plaintiffs utterly fail to explain how Public
Resource could reasonably select seven of the sixteen individuals to depose without the benefit
of the documents Plaintiffs produced in the last month of discovery. Plaintiffs cannot seriously
suggest that Public Resource should have selected witnesses solely on the basis of the general
descriptions included in Plaintiffs’ amended initial disclosures. See Bridges Decl., Ex. A. Nor,
in the absence of Plaintiffs’ documents, could Public Resource evaluate whether, and to what
extent, it would need to depose all sixteen of the individuals disclosed by Plaintiffs, let alone
whether there are additional witnesses with relevant knowledge that Plaintiffs failed to timely
disclose. In fact, based on Plaintiffs’ last minute productions, Public Resource identified eight
individuals who are likely to have salient, non-duplicative knowledge relevant to the litigation
and who were never disclosed by Plaintiffs, including seven individuals related to Plaintiffs and
one non-party witness. Of course, even if Public Resource could have somehow identified an
appropriate set of witnesses, it plainly could not have questioned them about core documents
absent sufficient time to review and digest Plaintiffs’ belated productions.
7

D.

Plaintiffs Cannot Blame Public Resource for Plaintiffs’ Own Failure to
Produce Documents in a Timely Manner.

Plaintiffs’ opposition brief sidesteps their obligation to produce documents in a timely
manner in two ways. First, Plaintiffs argue that their productions were delayed because “the
parties were in the process of resolving objections to the relevant document requests.” Opp. at 5.
That may be true, but it is hardly Public Resource’s fault that Plaintiffs chose to withhold or delay
production on the basis of meritless objections. It also misses the fundamental point of Public
Resource’s motion. Regardless of whether they were justified or not, Plaintiffs failed to produce
the vast majority of their documents until the last month of discovery. All Public Resource is
asking for is additional time to review Plaintiffs’ untimely productions and depose witnesses on the
documents in those productions.
Plaintiffs also attempt to blame Public Resource for allegedly failing timely to inspect
assignment forms related to the development of NFPA’s standards. See id. at 4, 7. But Plaintiffs
again misconstrue the record. Public Resource did not receive notice that NFPA would make
documents available for inspection until December 16, 2014. Public Resource promptly contacted
NFPA to schedule an inspection to take place on December 26, 2014—offering to fly to
Massachusetts only ten days after receiving notice from NFPA. See Bridges Reply Decl. ¶ 6, Ex.
B. When NFPA informed Public Resource that its offices would be closed on December 26, 2014,
Public Resource attempted to reschedule the inspection for December 29, 2014. Id. NFPA refused
to make the records available then for inspection. Indeed, while NFPA now argues that Public
Resource could not inspect records as a result of some unspecified holiday falling on December 29,
2014 (see Opp. at 7 n.4) at the time, NFPA could not even represent that the documents would be
ready by December 29. See Bridges Reply Decl. ¶ 6, Ex. B. Indeed, NFPA’s untimely response
made clear that the assignment documents would not be available for inspection until January 5,

8

2015—only eight days before the original date for the deposition of NFPA’s Rule 30(b)(6)
designee on assignments. See Bridges Reply Decl. ¶ 7, Ex. C.
E.

Plaintiffs Have Compounded the Problems Their Untimely Productions
Caused Because They Refuse to Cooperate in Good Faith in Rescheduling
Depositions.

Public Resource served deposition notices pursuant to Federal Rule of Civil Procedure
30(b)(6) on November 14, 2014, noticing the depositions of Plaintiffs’ corporate designees. On
January 30, 2014 at 9:42 PM PST, Public Resource served deposition notices on Plaintiffs,
including amended Rule 30(b)(6) deposition notices and deposition notices of individual
witnesses. As noted above, the delay in serving further deposition notices was directly related to
Plaintiffs’ decision to delay production of documents needed to identify potential deponents until
the very end of discovery. In recognition of the prejudice to Public Resource, Plaintiffs’ counsel
agreed to accept service of deposition notices through January 30, 2015 and indicated that they
would work with Public Resource to schedule depositions following the close of fact discovery.
Counsel for Public Resource has also continually tried to reach out to and work with
Plaintiffs to schedule depositions on mutually agreeable dates since the close of fact discovery.
Plaintiffs have stonewalled these attempts in two ways: they refuse to discuss the scheduling of
five party-related deponents, and they repeatedly “offer” other key deponents on dates when they
know that Defendant’s lead counsel (who will conduct the depositions) is unavailable. The record
shows that the organizing principle for NFPA’s and ASTM’s scheduling negotiations has been to
rebuff Defendant and to offer only dates which they know that Plaintiff’s counsel cannot
accommodate. Plaintiffs have also failed to identify corporate designees to testify on topics added
to Public Resource’s amended Rule 30(b)(6) deposition notices.

9

In support of their refusal to make witnesses available, Plaintiffs argue that
Public Resource has failed to comply with this Court’s Local Civil Rule 30.12, which requires
that a party notice depositions 7 or 14 days in advance of the deposition, and that Public
Resource’s deposition notices are not timely because they were served on the last day of
discovery. But Plaintiffs’ agreed to permit depositions after the close of discovery, and their
contention that the deposition notices served by Public Resource on January 30, 2015 are
untimely under Local Civil Rule 30.1 is frivolous. Moreover, Plaintiffs construe the close of
discovery selectively to claim that only the depositions they want to go forward may occur after
the close of discovery. See Opp. at 11.
In addition, Public Resource needs additional time to accommodate Plaintiffs’ demand
that certain party-related depositions occur outside the District of Columbia. Plaintiffs
affirmatively chose to file this action in this forum, but ASHRAE and NFPA insist that
depositions of their employees occur in Atlanta and Boston, respectively. Public Resource has
agreed to accommodate Plaintiffs’ requests in the spirit of compromise, but Plaintiffs’ opposition
brief fails to acknowledge the additional time needed to schedule depositions of a number of
party-related witnesses in multiple locations.
F.

Public Resource Has Been Diligent and Cooperative in Scheduling
Depositions of Carl Malamud.

Despite Plaintiffs’ contentions to the contrary, Public Resource has been diligent both in
seeking to schedule depositions of Plaintiffs’ witnesses and in making its employee Carl
Malamud available for depositions. Plaintiffs falsely assert that Public Resource has “refused” to
2

Local Civil Rule 30.1 provides: “[s]ervice of a notice of deposition seven days in advance of
the date set for taking the deposition shall constitute “reasonable notice” to a party as
required by Rule 30(b), Federal Rules of Civil Procedure, unless the deposition is to be
taken at a place more than 50 miles from the District of Columbia, in which case 14 days
shall constitute reasonable notice.”
10

appear for depositions, including for depositions that Plaintiffs noticed for January 29 and 30,
2015 and February 12 and 13, 2015.While Plaintiffs did notice Mr. Malamud’s deposition for
January 29 and 30, counsel for Public Resource notified Plaintiffs as early as December that a
deposition of Mr. Malamud in late January was unworkable, given Public Resource’s lead
counsel’s trial schedule. See Bridges Decl., ¶ 2. After previously notifying Plaintiffs of Mr.
Malamud’s unavailability since December, Public Resource again confirmed on January 27,
2015 that Mr. Malamud would not appear for depositions on January 29 and 30. Thus,
Plaintiffs’ characterization of Public Resource’s inability to appear for depositions as a “refusal”
to appear—on dates that Plaintiffs knew weeks in advance was unworkable—is disingenuous.
Moreover, Public Resource did agree to offer Mr. Malamud for a Rule 30(b)(6)
deposition on February 12 and 13, 2015, and did not “unilaterally announce[] that it would not
appear for the depositions,” as Plaintiffs contend. See Opp. at 1.Rather, Public Resource on
February 9, 2015 notified Plaintiffs that Mr. Malamud was prepared to go forward with the
deposition, on the condition that Mr. Malamud’s deposition be consolidated with his deposition
in a related action, AERA v. Public Resource. See Bridges Decl., ¶ 9. Counsel for Public
Resource notified Plaintiffs that it was otherwise improper and burdensome to require Mr.
Malamud to sit for 4 days of depositions in two related cases. See id.. Nevertheless, and despite
the coordination between the ASTM and AERA Plaintiffs, each set of Plaintiffs insisted on
separate depositions of Carl Malamud in the separate cases, both in his capacity as an individual,
and in his capacity as the sole employee and representative of Public Resource pursuant to Rule
30(b)(6), for a total of four days of deposition. Public Resource filed a Motion for a Protective
Order on February 20, 2015, requesting that the Court stay the Rule 30(b)(6) and personal
depositions of Carl Malamud that the Plaintiffs in this action had renoticed for February 26 and

11

27, 2015, pending this Court’s ruling on Public Resource’s Motion for Consolidation. Because
the Court did not rule on the motion for protective order by the date of the deposition, Defendant
provided Mr. Malamud for deposition on February 26 and 27 and withdrew its motion for
protective order as moot. Because coordinating the deposition of Defendant and Mr. Malamud
across both cases was a major reason for the motion for consolidation for purposes of discovery,
Defendant also withdrew its consolidation motion as moot. Defendant has at all times acted
appropriately with respect to the discovery Plaintiffs have sought from it, but Plaintiffs refuse to
reciprocate.
G.

Plaintiffs Cannot Complain Of Delay After Having Sat On Their Claims For
Almost Three Years Prior To Filing The Complaint.

Plaintiffs concede that prejudice to the opposing party is a secondary factor in
determining good cause to modify the scheduling order and cannot outweigh Public Resource’s
inability to complete discovery by January 30, 2015 despite diligent efforts to review Plaintiffs’
eleventh hour productions in a timely manner. See Opp. at 6 (“Although the existence or degree
of prejudice to the party opposing the modification might supply additional reasons to deny a
motion, the focus of the inquiry is upon the moving party’s reasons for seeking modification.”)
(quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (emphasis
added).
Even were prejudice to Plaintiffs a significant factor, Plaintiffs’ own documents flatly
contradict Plaintiffs’ assertion that they will suffer prejudice by a mere month’s extension and
the extremely short delay in resolving the case. Opp. at 11. Plaintiffs learned about Public
Resource and its activities as early as 2008. See, e.g., Bridges Decl., Ex. E at NFPAPRO024355. In February 2011, NFPA’s former President, James Shannon, circulated

12

See, e.g., id., Ex. F at NFPAPRO022638–39. In April 2011, NFPA began
Id., Ex. E at NFPA-PRO024356.
Yet Plaintiffs sat on their hands for two and a half years before filing this action in August 2013.
To cry foul at a month’s extension now—particularly since Public Resource’s request for an
extension is a direct result of Plaintiffs’ own last-minute productions—is simply another attempt
to shut down appropriate discovery for their own strategic advantage.
II.

THERE IS GOOD CAUSE TO EXTEND THE DISCOVERY SCHEDULE IN THE
EVENT THE COURT GRANTS NFPA’S UNTIMELY MOTION TO AMEND
THE COMPLAINT.
As Public Resource noted in its opening papers, NFPA seeks to amend the Complaint to

add a new claim for alleged copyright infringement of an additional standard. Mot. at 6.
However, NFPA failed to seek leave to amend the Complaint prior to the discovery cutoff.
NFPA did not file its motion to amend the Complaint until February 3, 2015—more than two full
months after the parties’ agreed upon deadline to serve written discovery and several days after
Plaintiffs’ unilaterally-imposed deadline to serve deposition notices. See Plaintiff National Fire
Protection Association’s Motion to Amend Complaint, Dkt. No. 74. Public Resource does not
oppose NFPA’s proposed amendment so long as Public Resource is afforded sufficient
opportunity to conduct discovery on the new claim. See Public Resource’s Opposition to
National Fire Protection Association, Inc.’s Motion to Amend Complaint, Dkt. No. 79.
However, Public Resource would suffer significant prejudice if the Court were to grant NFPA
leave to amend without permitting Public Resource additional discovery regarding the new
claim. See generally id. Plaintiffs are silent on this point.

13

III.

PUBLIC RESOURCE HAS GOOD CAUSE TO TAKE MORE THAN TEN
DEPOSITIONS.
There are three Plaintiffs in this action, and they have collectively identified sixteen

individuals in their Rule 26 disclosures. Public Resource has already served notice that it intends
to take the deposition of each Plaintiff pursuant to Rule 30(b)(6), as well as the deposition of
American National Standards Institute (“ANSI”), a non-party that is heavily involved in promoting
the adoption of standards. Absent intervention by the Court, Public Resource will be limited to six
additional depositions. In other words, Public Resource will be limited to deposing two witnesses
per Plaintiff, and fewer than half of the individuals that Plaintiffs themselves concede have
discoverable knowledge regarding this litigation. Moreover, as noted in Section I.C., supra, Public
Resource has learned that there are additional witnesses who have salient, non-duplicative
knowledge of the underlying facts but that were never identified in Plaintiffs’ initial disclosures.
Each of these particularized reasons are sufficient to demonstrate good cause to increase the
number of depositions Public Resource may take. See Doe v. District of Columbia, No. Civ. A.
031789, 2005 WL 1278270, at *1 (D.D.C. May 27, 2005) (where a party reasonably believes it
needs more than 10 depositions, it is appropriate for the Court to grant leave for the party to take
more depositions); see also Opp. at 9 (good cause for leave to take more than ten depositions may
be made by “a particularized showing of the need for the additional discovery”) (quoting
Authentic, Inc. v. Atrua Techs., Inc., No. C 08-1423 PJH, 2008 WL 5120767, at *1 (N.D. Cal. Dec.
4, 2008).
Plaintiffs primary argument is that Public Resource has not yet taken any depositions and
so has failed to demonstrate the need to take more than ten. But as noted above, Public
Resource’s inability to take depositions prior to the original discovery cutoff was a direct result
of Plaintiffs’ eleventh hour productions. See supra Sections I.B. and I.C. Moreover, Plaintiffs

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have refused to cooperate in scheduling the depositions Public Resource noticed on January 30,
2015. See supra Section I.E. Plaintiffs cannot turn around and credibly argue that Public
Resource should be denied the opportunity to question witnesses about discoverable information
as a result of Plaintiffs’ actions. Even if there were a kernel of truth to Plaintiffs’ argument—
and again, it contradicts the discovery record—Plaintiffs’ argument is inapposite. Courts do not
require a party to have taken depositions and exhausted its ten deposition limit before seeking
leave for further depositions where, as here, the issues in the case are complex, there are
numerous parties and non-parties, and there is justification for additional discovery. See Del
Campo v. Am. Corrective Counseling Servs., Inc., No. C-01-21151 JW(PVT), 2007 WL
3306496, at *6 (N.D. Cal. Nov. 6, 2007) (it is “prejudicial to require Plaintiffs to choose the ten
depositions to take before they know whether they will be granted more”). This action involves
three Plaintiffs, numerous non-party witnesses and document custodians, and novel and complex
copyright and trademark issues. In light of the complex issues at stake and the history of
Plaintiffs’ recalcitrance in this case, the Court should not require Public Resource to exhaust its
deposition limit before seeking leave to request further depositions.
IV.

CONCLUSION
For the reasons Public Resource has explained, the Court should grant an extension of the

discovery period to April 15, 2015, and permit Public Resource to take up to 20 depositions.

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Dated: February 27, 2015

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
abridges @fenwick.com
Matthew Becker (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]
Corynne McSherry (admitted)
[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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