AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 107

Memorandum in opposition to re #98 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.) filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC.. (Attachments: #1 Declaration of Jonathan Hudis, #2 Certificate of Service)(Hudis, Jonathan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC.,
and NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.,
Plaintiffs/Counterclaim Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

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Civil Action No. 1:14-cv-00857-TSC-DAR
PLAINTIFFS’ OPPOSITION TO THE
MOTIONS EMBEDDED WITHIN
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG’S
OBJECTIONS TO PLAINTIFFS’
SUPPLEMENTAL EVIDENCE
[ECF No. 98-3 (Sealed)]
[ECF No. 99-4 (Redacted)]

Jonathan Hudis (DC Bar # 418872)
Jonathan P. Labukas (DC Bar # 998662)
Nikia L. Gray (pro hac vice)
QUARLES & BRADY LLP
1700 K Street NW, Suite 825
Washington, DC 20006-3825
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]
E-Mail [e-mail]
Counsel for Plaintiffs American Educational Research
Association, Inc., American Psychological Association, Inc.,
and National Council on Measurement in Education, Inc.

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

DEFENDANT’S FAILURE TO MEET AND CONFER WARRANTS STRIKING OR
DENYING THE EMBEDDED MOTIONS ....................................................................... 3

II.

DEFENDANT’S IMPROPER AND PROCEDURALLY DEFICIENT RESPONSES TO
PLAINTIFFS’ STATEMENT OF MATERIAL FACTS NOT IN DISPUTE FORCED
PLAINTIFFS TO RESPOND IN KIND............................................................................. 5

III. DEFENDANT’S MOTION TO STRIKE THE PHILLIPS REPORT FOR THE
ASSERTIONS FOR WHICH IT IS CITED IS AN UNTIMELY DISCOVERY MOTION
FILED NEARLY EIGHT MONTHS AFTER THE REPORT WAS SERVED ON
DEFENDANT..................................................................................................................... 8
IV. THE PHILLIPS REPORT AND THE OPINIONS EXPRESSED THEREIN ARE
ADMISSIBLE..................................................................................................................... 9
a.

Legal Standard On Motions To Exclude Expert Opinions ................................... 10

b.

Dr. Phillips Is A Qualified Rebuttal Expert Whose Opinions Are Reliable.......... 11

c.

Defendant’s Challenges To The Reliability And Methodology Relating To Dr.
Phillips’ Opinions Are Merely Objections To The Validity And Weight Of The
Conclusions, Not The Admissibility Of Them ....................................................... 12

d.

The Phillips Report Is A Proper Rebuttal Expert Report ..................................... 14

e.

Dr. Phillips’ Opinions Concerning The Facts Encompassing Defendant’s Lack of
Compliance With The Copyright Act And The Chafee Amendment Are Not Legal
Conclusions ........................................................................................................... 15

f.

Dr. Phillips Is Familiar With The Facts Of The Case .......................................... 16

g.

Dr. Phillips Has Substantial Practical Experience And Is Able To Assist The
Court In Understanding The Evidence And Deciding The Particular Issues In
This Case............................................................................................................... 17

CONCLUSION ........................................................................................................................... 189
i

TABLE OF AUTHORITIES
Page(s)
Cases
Abbott GmbH & Co. KG v. Yeda Research & Dev., Co.,
576 F. Supp. 2d 44 (D.D.C. 2008) ............................................................................................... 4
Alexander v. FBI,
186 F.R.D. 197 (D.D.C. 1999) ..................................................................................................... 5
Ambrosini v. Labarraque,
101 F.3d 129 (D.C. Cir. 1996) ................................................................................................... 18
Conlon v. Ryder Sys., Inc.,
2014 WL 5843421 (D.N.J. Nov. 12, 2014) .................................................................................. 7
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) ................................................................................................. 10, 12, 13, 18
Evans v. Washington Metro. Area Transit Auth.,
674 F. Supp. 2d 175 (D.D.C. 2009) ........................................................................................... 10
Freeland v. Iridium World Commc’ns, Ltd.,
545 F. Supp. 2d 59 (D.D.C. 2008) ....................................................................................... 12, 13
Glass v. Lahood,
786 F. Supp. 2d 189 (D.D.C. 2011) ............................................................................................. 6
Groobert v. President & Directors of Georgetown College,
219 F. Supp. 2d 1 (D.D.C. 2002) ............................................................................................... 17
Haskins v. First Am. Title Ins. Co.,
2013 WL 5410531 (D.N.J. Sept. 26, 2013).................................................................................. 9
Heller v. D.C.,
952 F. Supp. 2d 133 (D.D.C. 2013) ............................................................................................. 9
In re Rezulin Products Liability Litigation,
309 F. Supp. 2d 531 (S.D.N.Y. 2004) ........................................................................................ 16

ii

In re Salem,
465 F.3d 767 (7th Cir. 2006) ...................................................................................................... 11
Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner,
101 F.3d 145 (D.C.Cir.1996) ....................................................................................................... 7
Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999) ....................................................................................................... 10, 11, 17
Lawrence v. Lew,
2016 WL 154903 (D.D.C. Jan. 12, 2016) .................................................................................... 7
McReynolds v. Sodexho Marriott Servs., Inc.,
349 F. Supp. 2d 30 (D.D.C. 2004) ............................................................................................. 12
U.S. ex rel. Pogue v. Diabetes Treatment Centers of Am., Inc.,
235 F.R.D. 521 (D.D.C. 2006) ..................................................................................................... 4
United States ex rel. K & R Ltd. P’ship v. Mass. Housing Fin. Agency,
456 F. Supp. 2d 46 (D.D.C. 2006) ............................................................................................... 9
United States v. Brown,
415 F.3d 1257 (11th Cir. 2005) .................................................................................................. 11
United States v. H & R Block, Inc.,
831 F. Supp. 2d 27 (D.D.C. 2011) ....................................................................................... 10, 11
United States v. Hankey,
203 F.3d 1160 (9th Cir.2000) ..................................................................................................... 13
United States v. Ramsey,
165 F.3d 980 (D.C. Cir. 1999) ................................................................................................... 17
Window Specialists, Inc. v. Forney Enterprises, Inc.,
47 F. Supp. 3d 53 (D.D.C. 2014) ............................................................................................... 10
Rules
Civil Rule 7(h)(1).................................................................................................................... 5, 6, 7
Civil Rule 7(m) ...................................................................................................................... Passim

iii

Fed. R. Civ. P. 56 ........................................................................................................................ 5, 7
Fed. R. Civ. P. 56(c)(1) ............................................................................................................... 5, 7
Fed. R. Civ. P. 56(e)(2) ................................................................................................................... 7
Fed. R. Evid. 702 .............................................................................................................. 10, 11, 18
Fed. R. Evid. 704(a) ...................................................................................................................... 16

iv

Plaintiffs, American Educational Research Association, Inc., American Psychological
Association, Inc., and National Council on Measurement in Education, Inc. (collectively,
“Plaintiffs” or the “Sponsoring Organizations”), submit this Opposition to Defendant’s Motions
Embedded Within Defendant-Counterclaimant Public.Resource.Org’s Objections to Plaintiffs’
Supplemental Evidence.
INTRODUCTION
On March 3, 2016, Defendant-Counterclaimant Public.Resource.Org, Inc. (“Defendant”)
filed, among other things, a document titled “Defendant-Counterclaimant Public.Resource.Org’s
Objections to Plaintiffs’ Supplemental Evidence” [ECF No. 98-3 (Sealed), ECF No. 99-4
(Redacted)].

Embedded within that filing are two motions: (1) a brief motion to “strike

Plaintiffs’ Response to Public Resource’s Statement of Disputed Facts (ECF No. 89-2)” (see
Objections at p. 1 (the “Motion to Strike Plaintiffs’ Responses”)); and (2) a more detailed motion
to “strike Plaintiffs’ use of the report of S.E. Phillips 1 for the assertions for which it is cited in
their combined Opposition and Reply Motion (ECF No. 89, pp. 34, 36-37) and Statement of
Disputed Facts (ECF No. 89-1, p. 56)” (id. at p. 5) (the “Motion to Strike the Phillips Report”
and together with the Motion to Strike Plaintiffs’ Responses, the “Embedded Motions”).
As a preliminary and independent basis for denying or striking each of Defendant’s
Embedded Motions, Defendant’s counsel failed to meet and confer with Plaintiffs’ counsel
regarding the issues presented in the Embedded Motions, as required by Local Civil Rule 7(m).
Defendant’s counsel certainly was aware of their obligation to meet and confer prior to filing any
non-dispositive motion, having done so previously in this case.

Had Defendant’s counsel

fulfilled their obligations, the parties may have been able to resolve, or at least narrow, the issues
1

A copy of the Report of Dr. S.E. Phillips was filed under seal at ECF No. 90-5 (the “Phillips
Report”).
1

presented in the Embedded Motions. Defendant’s failure to meet and confer warrants striking or
denying the Embedded Motions.
Over and above Defendant’s failure to meet and confer as required by Local Civil Rule
7.1(m), the Embedded Motions lack merit. As to the Motion to Strike Plaintiffs’ Responses,
many of Defendant’s “responsive” statements are purely self-serving, unsupported, bare
allegations, completely devoid of any factual record support. Moreover, they are written to be,
in essence, a continuation of Defendant’s substantive brief and, therefore, an improper
circumvention of the Court’s page limits. Indeed, in several instances, Defendant’s responses to
Plaintiffs’ facts are merely “disputed” with no support to any specific citation in the record.
In other “responses” where Defendant does actually cite to record evidence, those
citations do nothing to dispel or rebut a material fact.

Instead, they merely raise some

metaphysical doubt as to some fact, though not one on which Plaintiffs’ rely for purposes of their
motion for summary judgment. Given Defendant’s pervasive, improper responses, Plaintiffs
were compelled to address them in their Response to Public Resource’s Statement of Disputed
Facts and, accordingly, should be considered by the Court.
Defendant’s Motion to Strike the Phillips Report is a meritless attempt to sequester from
the Court’s consideration any rebuttal expert opinions Defendant does not like. Dr. Phillips is
qualified to render opinions relevant to this case.

Further, what amounts to Defendant’s

objections to the reliability of Dr. Phillips’ opinions, are merely objections to the validity of her
conclusions. In essence, Defendant distorts Dr. Phillips’ Declaration and associated opinions to
assert evidentiary objections because Defendant disagrees with the underlying facts upon which
Dr. Phillips relies.

2

However, the factual bases underlying an expert’s opinion go to the credibility of her
testimony, not to the admissibility of the testimony. Likewise, Defendant’s disagreements with
Dr. Phillips’ methodology used to render her opinions goes to the weight of the proffered
evidence, not its admissibility. Accordingly, Public Resource fails to carry its burden requiring
the harsh sanction of striking the Phillips Report.

Dr. Phillips’ specialized experience,

knowledge, and skill will, undoubtedly, assist the trier of fact.
ARGUMENT
I.

DEFENDANT’S FAILURE TO MEET AND CONFER WARRANTS STRIKING
OR DENYING THE EMBEDDED MOTIONS
Defendant’s Embedded Motions should be struck for failure to comply with Local Civil

Rule 7(m). Not only did Defendant improperly bury two standalone Motions within a larger set
of evidentiary objections (in a document titled as such) in an attempt to “slip one past” Plaintiffs,
Defendant made no attempt to comply with this Court’s Local Rules prior to filing those
Motions. Local Civil Rule 7(m) states:
Before filing any nondispositive motion in a civil action, counsel shall discuss the
anticipated motion with opposing counsel, either in person or by telephone, in a
good faith effort to determine whether there is any opposition to the relief sought
and, if there is opposition, to narrow the areas of disagreement. . . . A party shall
include in its motion a statement that the required discussion occurred, and a
statement as to whether the motion is opposed.
LCvR 7(m) (emphasis added).
Defendant filed its Embedded Motions without ever having discussed them with
Plaintiffs. Defendant made no effort, let alone a good faith effort, to meet and confer with
Plaintiffs to resolve or narrow the areas of disagreement. See Declaration of Jonathan Hudis,
dated March 21, 2016 submitted herewith as Exhibit A (“Hudis Decl.”) at ¶ 6.

Indeed,

Defendant did not (and could not) include in its Embedded Motions Rule 7(m)’s required
statement affirming that the meet and confer occurred and whether the motions were opposed.
3

See LCvR 7(m); see generally Embedded Motions. Nor, notably, did Defendant include an
argument that good cause existed for its failure to comply with Local Rule 7(m)’s requirements.
Id.
Local Rule 7(m) is not an idle requirement that parties can ignore at leisure. This Court
repeatedly has made clear that the failure to meet and confer in good faith pursuant to Local Rule
7(m) warrants dismissal of a party’s motion ab initio. See, e.g., Abbott GmbH & Co. KG v. Yeda
Research & Dev., Co., 576 F. Supp. 2d 44, 47-49 (D.D.C. 2008) (denying motion to exclude
evidence based on counsel’s failure to discuss anticipated motion either in person or by
telephone); U.S. ex rel. Pogue v. Diabetes Treatment Centers of Am., Inc., 235 F.R.D. 521, 52930 (D.D.C. 2006) (“This Court finds that defendants the Atlanta Physicians’ motion to compel
must be denied because they failed to confer with opposing counsel in an attempt to resolve the
dispute before filing a non-dispositive motion.”).
Nor is the meet and confer requirement pro forma; Local Rule 7(m) requires a good faith
effort. Abbott, 576 F. Supp. 2d at 48-49 (holding that generally notifying the non-moving party
of an intent to file a motion to exclude unspecified evidence and telephoning the nonmoving
party twice the day the motion was filed was not a good faith effort). As Defendant made no
effort to meet and confer or any attempt to show that good cause warrants departure from the
Court’s rules, Defendant’s Embedded Motions should be dismissed.
Defendant certainly is aware of its obligation to meet and confer prior to filing any nondispositive motion; Defendant’s counsel have met and conferred with Plaintiffs’ counsel on prior
motions, including its motion to strike the Declaration of Kurt Geisinger filed a mere month ago.
See Hudis Decl. at ¶ 5. Had Defendant’s counsel done so again in this instance, the parties may
have been able to resolve, or at least narrow, the issues presented in the Embedded Motions--the

4

stated purpose for the meet and confer requirement contemplated by Local Civil Rule 7(m).
Alexander v. FBI, 186 F.R.D. 197, 199 (D.D.C. 1999) (“The entire purpose of the meet-andconfer rule is to force litigants to attempt to resolve, or a least narrow, the disputed issues to
prevent the unnecessary waste of time and effort on any given motion.”).
Defendant’s choice to ignore the meet and confer requirement of Local Rule 7(m) has
imposed an unnecessary and unfair burden on the Court and Plaintiffs. This warrants, as is the
practice of this Court, striking or denying Defendant’s Embedded Motions in their entirety.
II.

DEFENDANT’S IMPROPER AND PROCEDURALLY DEFICIENT RESPONSES
TO PLAINTIFFS’ STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
FORCED PLAINTIFFS TO RESPOND IN KIND
Defendant’s request that the Court strike Plaintiffs’ Response to Defendant’s Statement

of Disputed Facts is entirely meritless. 2 Many of Defendant’s “responses” to Plaintiffs’
Statement of Material Facts are not proper responses to a statement of material fact. Rather, they
are argumentative and primarily based on self-serving, unsupported, bare allegations, completely
devoid of any factual support and, therefore, fail to comply with Local Civil Rule 7(h)(1), Fed.
R. Civ. P. 56, and settled caselaw. Given that Defendant’s responses were structured to be
persuasive argument, largely unconnected to Plaintiffs’ statements of material fact, Plaintiffs
were compelled to reply by filing their Response to Defendant’s Statement of Disputed Facts.
Local Civil Rule 7(h)(1) states in pertinent part:
An opposition to such a motion shall be accompanied by a separate concise
statement of genuine issues setting forth all material facts as to which it is
contended there exists a genuine issue necessary to be litigated, which shall
include references to the parts of the record relied on to support the statement.
2

Defendant has adopted the self-contradictory position that it is entitled to file two standalone
motions in its objections to Plaintiffs’ supplemental evidence, which is not contemplated under
LCvR 7(h) or any other local rule; yet Plaintiffs’ Response to Defendant’s Statement of Disputed
Facts should be stricken as being “outside the scope of documents permitted under LCvR 7(h).”
Defendant’s argument is disingenuous at best and should be disregarded by the Court.
5

LCvR 7(h)(1) (emphasis added); see also Fed. R. Civ. P. 56(c)(1).
Defendant was and is required to demonstrate that there are genuine disputes as to
material facts through evidentiary citations that disclose these genuine disputes, or by showing
that Plaintiffs did not submit admissible evidence regarding a material fact. Instead of meeting
this burden, the vast majority of Defendant’s “responses” is entirely unresponsive to the
particular facts asserted by Plaintiffs and constitute, in essence, a continuation of Defendant’s
substantive brief and improper circumvention of the Court’s page limits.
For example, in response to paragraphs 47 and 51 of Plaintiffs’ Statement of Material
Facts, Defendant not only “disputes” the stated facts without citing to any specific record
evidence, Defendant takes the opportunity to inject substantive legal argument into an otherwise
factual issue. See Defendant’s Statement of Disputed Facts (ECF No. 69-3) (“Defendant’s
SDF”) at 22-24, ¶ 47 and 51.
Moreover, Defendant’s response to paragraph 47 is further deficient in that Defendant’s
cite generally to its “Memorandum of Points and Authorities,” effectively asking the Court to sift
through Defendant’s pleading to defend it against summary judgment. 3 See Glass v. Lahood,
786 F. Supp. 2d 189, 199 (D.D.C. 2011) aff’d, No. 11-5144, 2011 WL 6759550 (D.C. Cir. Dec.
8, 2011) (“As Glass is no doubt aware, legal memoranda are not evidence and cannot themselves
create a factual dispute sufficient to defeat a motion for summary judgment. Glass’s attempt to
broadly incorporate a multitude of unspecified facts set forth in a separate filing directly
contradicts both the spirit and the letter of Local Civil Rule 7(h)(1), impermissibly shifts
counsel’s burden to locate and identify the relevant facts, and leaves this Court to guess as to
3

Defendant repeats this same procedurally deficient type of response throughout Defendant’s
SDF. See, e.g., responses to ¶¶ 36, 37, 90, 96, 97, 99, and 100 (citing, generally, to “Public
Resource’s Motion to Strike the Declaration of Dr. Geisinger, Dkt 67.”).
6

which of the many factual statements set forth in Glass’s opposition memorandum are disputed
and, if disputed, whether the dispute is genuine.”); see also Lawrence v. Lew, No. 11-CV-1854
(KBJ), 2016 WL 154903, at *3 (D.D.C. Jan. 12, 2016) (citing Jackson v. Finnegan, Henderson,
Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C.Cir.1996) (“[T]he district court need not
comb through the factual record to ferret out disputes of material fact.”). The fact that Defendant
used its statement of disputed facts improperly to extend the legal arguments in its brief on
summary judgment forced Plaintiffs to object to and provide a reply addressing those legal
arguments for fear that the same would be waived.
Further, Defendant’s remaining “responses,” in many instances, merely assert that the
Statement of Material Fact is “disputed” with no support to any specific citation in the record or
citation to the record that does nothing to dispel or otherwise dispute a material fact. For
example, Defendant merely “disputes” paragraphs 18 and 19 of Plaintiffs’ Material Facts, but
does not cite to any record evidence to the contrary. See Defendant’s SDF at 7-8, ¶ 18-19. In
those instances, Plaintiffs’ corresponding statement of material fact should be deemed
undisputed for purposes of Plaintiffs’ motion for summary judgment. See Fed. R. Civ. P.
56(c)(1); Fed. R. Civ. P. 56(e)(2); Conlon v. Ryder Sys., Inc., No. CIV. 12-6693 RBK/AMD,
2014 WL 5843421, at note 3 (D.N.J. Nov. 12, 2014) (“[W]here Plaintiff only relies on
conclusory responsive statements, attacks the credibility of Defendants’ affiants and declarants,
or asserts denials unsupported by any evidence on the record, the Court will consider
Defendants’ facts undisputed.”).
Again, Defendant’s “responses” required that Plaintiffs respond and show to the Court
that Defendant failed to meet its burden under Fed. R. Civ. P 56. Accordingly, Defendant’s
Motion to Strike Plaintiffs’ Responses should be denied.

7

Moreover, Plaintiffs respectfully

request that where Defendant’s responsive statements do not comply with Local Civil Rule
7(h)(1), Fed. R. Civ. P. 56, and settled case law, the Court deem Plaintiffs’ factual statements as
undisputed.
III.

DEFENDANT’S MOTION TO STRIKE THE PHILLIPS REPORT FOR THE
ASSERTIONS FOR WHICH IT IS CITED IS AN UNTIMELY DISCOVERY
MOTION FILED NEARLY EIGHT MONTHS AFTER THE REPORT WAS
SERVED ON DEFENDANT
At its core, Defendant’s Motion to Strike the Phillips Report for the assertions for which

it is cited in Plaintiffs’ Opposition and Reply Motion and Statement of Disputed Facts is a
“discovery” motion that seeks to strike only limited portions of the Phillips Report, which was
disclosed to Defendant on July 15, 2015. Pursuant to the Scheduling Order entered in this
action, “[n]o discovery motions may be filed without leave of the Court. In the event that a
discovery dispute arises, the parties shall make a good faith effort to resolve or narrow the areas
of disagreement.” Scheduling Order (Docket No. 22) at ¶ 3. 4 Defendant did not seek leave of
the Court to file the motion. Additionally, as explained above, Defendant made no effort to
resolve or narrow the areas of disagreement.
Moreover, Defendant’s Motion is untimely. Plaintiffs served the Phillips Report nearly
eight months ago on July 15, 2015. See Hudis Decl. at ¶ 3. Over five months ago, Defendant
deposed Dr. Phillips on September 22, 2015. Id. at ¶ 4. Shortly thereafter, Defendant affirmed
during the September 29, 2015 post-discovery status conference before Magistrate-Judge
Robinson that discovery was complete and there were “no disputes.” See September 29, 2015
Minute Entry. Thus, almost half-a-year has elapsed since the time the motion should have been
4

See also Scheduling Order entered in the Companion Case (American Society for Testing and
Materials, et al. v. Public.Resource.Org, Inc., Case No. 13-cv-01215 (the “ASTM Action”))
(discussing adherence to Local Rule 7(m) and indicating that “[a]ny motion that does not comply
with Local Rule 7(m) may be, sua sponte, denied by the Court”) (Docket No. 30). As the Court
will recall, this action was consolidated with the ASTM Action for purposes of discovery.
8

brought. Defendant cannot sit on its hands and represent to the Court that all is well – and still
expect to be heard on an improperly filed motion – particularly where Defendant fails to explain
or otherwise justify its unreasonable delay. Defendant’s improper motion, filed at this advanced
stage of the case, is highly prejudicial to Plaintiffs. Accordingly, Defendant’s untimely delay in
filing its motion should be deemed a waiver by Defendant and the Motion to Strike the Phillips
Report should be disregarded in its entirety.
IV.

THE PHILLIPS REPORT AND THE OPINIONS EXPRESSED THEREIN ARE
ADMISSIBLE
The Phillips Report is admissible in support of Plaintiffs’ Motion for Summary

Judgment. Dr. Phillips provided a proper rebuttal report to Defendant’s expert report of James
Fruchterman (see ECF No. 70-50, the “Fruchterman Report”) concerning the accessibility of the
1999 Standards for the blind and persons with print disabilities. Dr. Phillips is an expert in the
field of testing accommodations, including, without limitation, adaptations for persons who are
blind or have print disabilities. Her report provided opinions on the accessibility of the 1999
Standards for individuals with those disabilities - the same subject Mr. Fruchterman’s report
purports to address. See Phillips Report at 30, 33-44, 46-55. The Phillips Report properly
explains or otherwise disproves Mr. Fruchterman’s conclusions and methodologies.

Thus,

Defendant’s contention the Phillips report is an improperly designated affirmative expert report
is without merit. See, e.g., Haskins v. First Am. Title Ins. Co., No. CIV.A. 10-5044 RMB, 2013
WL 5410531, at *3 (D.N.J. Sept. 26, 2013) (denying motion to strike, concluding that rebuttal
report properly “repelled” expert opinions and explained why defendant was wrong).
Defendant’s motion is merely an attempt to sequester from the Court’s consideration
rebuttal expert opinions Defendant does not like and should be denied in its entirety.

9

a. Legal Standard On Motions To Exclude Expert Opinions
“Rejection of an expert’s testimony is the exception rather than the rule.” Heller v. D.C.,
952 F. Supp. 2d 133, 140 (D.D.C. 2013); see also United States ex rel. K & R Ltd. P’ship v.
Mass. Housing Fin. Agency, 456 F. Supp. 2d 46, 53 (D.D.C. 2006) (citations and quotations
omitted) (denying motions to strike expert affidavit and demonstrative chart noting that “a
motion to strike is an exceptional remedy that is generally disfavored..., and that the proponent of
such a motion must shoulder a formidable burden.”). Significantly, “[t]he presumption under the
Federal Rules is that expert testimony is admissible.” Evans v. Washington Metro. Area Transit
Auth., 674 F. Supp. 2d 175, 178 (D.D.C. 2009) (citing Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 588 (1993)); see also Window Specialists, Inc. v. Forney Enterprises, Inc., 47
F. Supp. 3d 53, 59 (D.D.C. 2014).
Federal Rule of Evidence 702 governs the admissibility of expert opinion testimony:
If scientific, technical or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to
the facts of the case.
Fed. R. Evid. 702; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (noting that
where the traditional Daubert factors do not apply, reliability concerns may focus on personal
knowledge or experience).
A district court is granted broad latitude is deciding how to determine reliability and
rendering the ultimate determination of reliability. Kumho, 526 U.S. at 141-42. “Courts take a
flexible approach to deciding Rule 702 motions and have broad discretion in determining

10

whether to admit or exclude expert testimony.” United States v. H & R Block, Inc., 831 F. Supp.
2d 27, 30 (D.D.C. 2011) (quotations omitted).
Importantly, where (as here) the judge and not a jury is the trier of fact, “[t]he Court’s
gatekeeper role is ‘significantly diminished’” Window Specialists, Inc., 47 F. Supp. at 59-60
(quoting H & R Block, Inc., 831 F. Supp. at 30). This is because “[w]here the gatekeeper and the
factfinder are one and the same—that is, the judge—the need to make such decisions prior to
hearing the testimony is lessened.” In re Salem, 465 F.3d 767, 777 (7th Cir. 2006) (citing United
States v. Brown, 415 F.3d 1257, 1268–69 (11th Cir. 2005)).
An expert may be qualified by “knowledge, skill, experience, training, or education.”
Fed. R. Evid. 702. “[T]he text of Rule 702 expressly contemplates that an expert may be
qualified on the basis of experience. In certain fields, experience is the predominant, if not sole,
basis for a great deal of reliable expert testimony.” Fed. R. Evid. 702 advisory committee notes,
2000 amendments. In light of these qualifications, courts assess whether a proffered expert has
“sufficient specialized knowledge to assist the jurors in deciding the particular issues in this
case.” Kumho Tire Co., 526 U.S. at 156 (internal quotation marks omitted). Here, Dr. Phillips
unquestionably possesses “sufficient specialized knowledge” to assist the Court in deciding the
particular issues in this case.
b. Dr. Phillips Is A Qualified Rebuttal Expert Whose Opinions Are Reliable
Dr. Phillips is an expert in the field of psychometrics and assessment law, which includes
the development and evaluation of policies concerning testing accommodations, including,
adaptations for persons who are blind or have print disabilities. See Phillips Report at ¶ 1. She
has authored or contributed to authoring a number of articles regarding testing accommodation
policy. Id. ¶ 13-16. For over 20 years, Dr. Phillips has been a member of Plaintiff NCME,

11

including serving on the NCME Newsletter Board where she has authored more than 30 columns
on, among other things, testing accommodations. Id. ¶ 17. She has attended numerous NCME
annual meetings. See, e.g., September 22, 2015 Deposition of S.E. Phillips (“Phillips Dep.”) at
34:12. She has consulted and served as an expert witness in other actions regarding testing
accommodations. See Phillips Report at ¶¶ 18-21. Each of the substantive issues upon which
Dr. Phillips opines is sufficiently within her expertise to render those opinions valid and reliable.
Defendant’s significantly diminished, distorted view of Dr. Phillips’ qualifications and expertise
does nothing to dispel this fact.
c. Defendant’s Challenges To The Reliability And Methodology Relating To Dr.
Phillips’ Opinions Are Merely Objections To The Validity And Weight Of The
Conclusions, Not The Admissibility Of Them
Defendant distorts the Phillips Report to assert evidentiary objections because Defendant
disagrees with the underlying facts upon which Dr. Phillips relies. However, the factual basis of
an expert opinion goes to the credibility of the testimony, not its admissibility. Freeland v.
Iridium World Commc’ns, Ltd., 545 F. Supp. 2d 59, 88 (D.D.C. 2008) (“Motorola may crossexamine Saunders about the factual basis of his opinions, but its disagreements with that factual
basis does not affect the testimony’s admissibility.”). Similarly, Defendant’s disagreement with
Dr. Phillips’ methodology goes to the weight of the proffered evidence, not its admissibility. Id.
As Daubert instructs, “[v]igorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the traditional and appropriate means of attacking
shaky, but admissible, evidence.” Daubert, 509 U.S. at 595.
For example, Defendant asserts that Dr. Phillips’ reliance on information provided by
others as it relates to screen reading technologies requires the exclusion of her opinions on that
issue. First, Dr. Phillips’ reliance on information supplied to her by Dr. Claudia Flowers and an

12

employee of Plaintiff APA in connection with rendering her opinions relating to screen reading
software is permissible. 5 See, e.g., McReynolds v. Sodexho Marriott Servs., Inc., 349 F. Supp. 2d
30, 37-38 (D.D.C. 2004) (“In sum, Siskin’s analyses are sufficiently reliable, notwithstanding his
reliance on his assistants, especially given the fact that collaboration, such as occurred here, is
typical of experts . . . in his field.”); see also Fed. R. Evid. § 703 (“[T]he facts or data in the
particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences upon the subject, the facts or data need
not be admissible in evidence in order for the opinion or inference to be admitted.”); Daubert,
509 U.S. at 595.
Thus, Dr. Phillips’ consideration of facts and information provided by others is well
within the scope of materials an expert is allowed to rely on under Fed. R. Evid. § 703. In any
event, Defendant’s challenges to Dr. Phillips’ reliance on information supplied to her by others
merely goes to the weight of the opinion, not the admissibility of it. See Freeland, 545 F. Supp.
2d at 88.
Further, Dr. Phillips did conduct an independent investigation of screen reading
technology websites 6 and that, combined with her personal observation as having been part of a
demonstration of certain screen reading software 7 and review of relevant materials, including
the facts of this case, support the reliability of her rebuttal opinions. These factors, taken as a
whole, comprise a solid foundation for the admissibility of Dr. Phillips’ opinions. United States

5

See Phillips Report at ¶¶ 34, 36, 38-39, 47-48 (discussing screen reading technologies and
addressing the Fruchterman Report’s contentions regarding verification procedures relating to
same).
6
See Phillips Report at Exhibit B, ¶ 22.
7
Phillips Dep. at 67:19-72:21.
13

v. Hankey, 203 F.3d 1160, 1169 (9th Cir.2000) (noting that with non-scientific experts, as Dr.
Phillips is in this case, “the Daubert factors (peer review, publication, potential error rate, etc.)
simply are not applicable” and “reliability depends heavily on the knowledge and experience of
the expert rather than the methodology or theory behind it.”). There is no basis for the Court to
strike the Phillips Report.
d. The Phillips Report Is A Proper Rebuttal Expert Report
Defendant mischaracterizes the Phillips Report to assert that Dr. Phillips is an improperly
identified rebuttal witness. Specifically, Defendant contends that the Phillips Report contains
“extensive discussion and opinions on issues that are only relevant to Plaintiffs’ affirmative
case,” including discussion regarding that the 1999 Standards are copyrighted and that
Defendant’s actions at issue in this case caused Plaintiffs harm. See Embedded Motions at 8.
This is incorrect; the Phillips Report properly explains or otherwise disproves the Fruchterman
Report. See Phillips Report at ¶¶ 29, 30, 32-35, 46-49, 51, and 53-54.
First, Defendant’s argument concerning the nature of the copyright of the 1999 Standards
is a non sequitur. That the 1999 Standards is a registered copyrighted work is not disputed; it is
an admitted fact and not an improperly designated affirmative expert opinion. See Defendant’s
SDF at ¶¶ 31, 40-42. Defendant’s dispute in this case, is whether that registration is valid - not
whether it exists - and Dr. Phillips does not opine on the former.
Second, Defendant mischaracterizes the nature of Dr. Phillips’ references to the harm
caused by Defendant’s conduct. In each instance where Dr. Phillips references harm and cites to
the opinions of Dr. Kurt Geisinger, she does so to point out the glaring deficiencies in the
Fruchterman Report, which is the proper purpose of a rebuttal report.

14

Dr. Phillips is not adopting or “parroting back” the opinions of Dr. Geisinger that are
relevant to Plaintiffs’ affirmative case, as Defendant contends. Rather, she is referencing these
issues as a backdrop in her critique of the methodology employed in the Fruchterman Report and
that bear upon Mr. Fruchterman’s credibility. See, e.g., Phillips Report at ¶¶ 30, 33-35, 46-47
(critiquing Mr. Fruchterman’s methodology in omitting discussion of Defendant’s failure to
place restrictions on access to the 1999 Standards posted on its website); ¶ 48 (critiquing Mr.
Fruchterman’s methodology in omitting discussion of alternatives to sign-up procedures); and ¶
51 (critiquing Mr. Fruchterman’s methodology in omitting discussion of implementation of
reasonable qualification criteria and verification procedures as his own company, Bookshare,
employs).
A rebuttal expert is permitted, and in fact expected, to critique the methodology used by
an expert, including, establishing that the methodology used ignores important pieces to the
puzzle that bear on the ultimate conclusion. That is what Dr. Phillips did here. Thus, the Phillips
Report is a proper rebuttal report that explains or otherwise disproves the Fruchterman Report.
e. Dr. Phillips’ Opinions Concerning The Facts Encompassing Defendant’s Lack
of Compliance With The Copyright Act And The Chafee Amendment Are Not
Legal Conclusions
Defendant mischaracterizes Dr. Phillips’ expert opinions as impermissibly opining on
legal issues when, in reality, Dr. Phillips is merely providing proper expert analysis on factual
questions. Nowhere in her report does Dr. Phillips purport to challenge or explain the applicable
rules of law or otherwise seek to impose legal conclusions on the Court.
Again, as a fundamental matter, Defendant’s argument concerning the nature of the
copyright in the 1999 Standards is misplaced. See generally Embedded Motions at 8-9. As
explained above, the fact that the 1999 Standards is a copyrighted work is not in dispute; it is an

15

admitted fact. See Defendant’s SDF at ¶¶ 31, 40-42.

Thus, in referencing that the 1999

Standards is copyrighted, Dr. Phillips’ is stating a fact that Defendant does not even dispute, not
making a legal conclusion.
Moreover, Dr. Phillips does not opine as a legal expert on the standards relating to the
Copyright Act and/or the Chafee Amendment. Where Dr. Phillips discusses the Copyright Act
and/or the Chafee Amendment, it is in relation to background facts concerning to the nature of
the accessibility of the Standards and to Defendant’s lack of compliance with those requirements
concerning the blind and print disabled individuals. See Phillips Report at ¶¶ 29-30, 39, and 43.
Indeed, each is cited or referenced by Dr. Phillips and followed by a discussion of the facts of the
case as they relate to the Copyright Act and/or the Chafee Amendment and how those facts
concern Defendant’s lack of compliance with them.

See In re Rezulin Products Liability

Litigation, 309 F. Supp. 2d 531, 541 (S.D.N.Y. 2004) (“[F]actual conclusions on an ultimate
issue to be decided by the jury are permissible.”).
Thus, Dr. Phillips’ opinions concern how the facts of the case relate to the ultimate issues
to be decided by the Court - a proper subject for an expert opinion. See Fed. R. Evid. 704(a)
(“An opinion is not objectionable just because it embraces an ultimate issue.”). Accordingly, Dr.
Phillips’ opinions are not improper legal opinions and do not usurp the province of this Court;
they are well-founded, factually-based conclusions embracing the ultimate legal issues in this
case.
f. Dr. Phillips Is Familiar With The Facts Of The Case
Defendant’s assertion that Dr. Phillips is “not well versed with the facts of the case” is
not supported by the evidence. See Embedded Motions at 14. Indeed, Dr. Phillips discusses, at
length, the facts of the case as they relate to the opinions expressed in her Report. See generally,

16

Phillips Report at ¶¶ 25-55. Defendant’s argument is solely based on one instance where Dr.
Phillips said she skimmed Defendant’s Answer and Counterclaim and did not recall that
Defendant pled Fair Use as an affirmative defense. See Motions at 14; Phillips Dep. 154:08-23.
Based on this, Defendant concludes, wholesale, that she is ignorant of the facts of the case. That
is ridiculous. 8 In fact, Fair Use was never discussed in the Fruchterman Report. Defendant,
again, takes the contradictory position that the Phillips Report exceeded the scope of a proper
rebuttal report, yet, at the same time, contends that the Phillips Report did not go far enough.
This underscores that Defendant’s Motion to Strike the Phillips Report is meritless. In any
event, the consideration of Fair Use or alleged lack thereof, goes to the weight of the Phillips
Report and not the admissibility of it.
g. Dr. Phillips Has Substantial Practical Experience And Is Able To Assist The
Court In Understanding The Evidence And Deciding The Particular Issues In
This Case
Defendant ignores almost completely that personal experience is a reliable and valid basis
for the admission of expert testimony. See Kumho Tire, 526 U.S. at 156 (“[N]o one denies that
an expert might draw a conclusion from a set of observations based on extensive and specialized
experience.”).

Dr. Phillips’ rebuttal opinions are based, properly, on the knowledge and

experience she holds, rather than any formalistic methodology or theory. See, e.g. United States
v. Ramsey, 165 F.3d 980 (D.C. Cir. 1999) (upholding admission of Drug Enforcement
Administration agent’s testimony regarding defendant’s past criminal history because expert was
testifying based on specialized knowledge); Groobert v. President & Directors of Georgetown

8

As explained in Plaintiffs’ opposition to Defendant’s motion for summary judgment, Fair Use
is not applicable here. See ECF No. 89 at 30-41 (discussing, among other things, that
Defendant’s activities merely supplanted Plaintiffs’ original work and, moreover, the first copy
of the Standards posted on Defendant’s website was not enabled with Optical Character
Recognition).
17

College, 219 F. Supp. 2d 1, 8 (D.D.C. 2002) (admitting expert’s testimony based on his 12 years
of experience in the field of stock photography, various speaking engagements and his
continuous study of industry trends).
As discussed above, the presumption under the Federal Rules of Evidence is that expert
testimony is admissible. Daubert, 509 U.S. at 588; Ambrosini v. Labarraque, 101 F.3d 129, 134
(D.C. Cir. 1996); Fed. R. Evid. 702 Advisory Committee Note (2000) (“A review of the case law
after Daubert shows that the rejection of expert testimony is the exception rather than the rule.”).
Thus, Dr. Phillips’ knowledge and experience in field of accessibility, her review of the relevant
facts in this case, and the application of her knowledge to the facts of the case to generate her
proper rebuttal opinions to the Fruchterman Report, sufficiently satisfy the requirements of
Daubert, Kumho, and Fed. R. Evid. 702--i.e. Dr. Phillips’ “professional judgment obtained
through long experience in the field” (Heller, 952 F. Supp. at 142)--and will assist the Court in
understanding the evidence and deciding the particular issues in this case.
//
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CONCLUSION
Defendant’s Embedded Motions are substantively meritless and, in any event, were filed
in flagrant violation of the Court’s local rules requiring, among other things, that counsel meet
and confer prior to filing any non-dispositive motion.

Accordingly, Plaintiffs’ respectfully

request that the Court deny or strike Defendant’s Embedded Motions in their entirety.

Respectfully submitted,
QUARLES & BRADY LLP
Dated: March 21, 2016
By:

/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Jonathan P. Labukas (DC Bar # 998662)
Nikia L. Gray (pro hac vice)
1700 K Street NW, Suite 825
Washington, DC 20006-3825
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]
E-Mail [e-mail]
Counsel for Plaintiffs American Educational
Research Association, Inc., American
Psychological Association, Inc., and
National Council on Measurement in
Education, Inc.

19