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

Filing 108

RESPONSE 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.) Plaintiffs' Responses to Defendant's Objections to Plaintiffs' Supplemental Evidence filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC.. (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/Counterclaim Plaintiff.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 1:14-cv-00857-TSC-DAR
PLAINTIFFS’ RESPONSES TO
DEFENDANT’S OBJECTIONS TO
PLAINTIFFS’ SUPPLEMENTAL
EVIDENCE

Respectfully submitted,
Jonathan Hudis (DC Bar # 418872)
Nikia L. Gray (pro hac vice)
Jonathan P. Labukas (DC Bar # 998662)
QUARLES & BRADY LLP
1700 K Street NW, Suite 825
Washington, DC 20006-3825
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail Nikia [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.

i

TABLE OF CONTENTS
Page
I.

THE STANDARD FOR EVIDENCE TO BE PROPERLY CONSIDERED ON SUMMARY
JUDGMENT IS THAT THE EVIDENCE MUST BE CAPABLE OF BEING CONVERTED TO
ADMISSIBLE EVIDENCE AT TRIAL.......................................................................................... 1
A.
B.

The Standard for “Personal Knowledge” Is Much Broader than Defendant
Suggests ......................................................................................................................... 2

C.

A Witness May Testify As to Opinions and Other Information Beyond Facts Known
Personally to the Witness ............................................................................................... 3

D.

Hearsay May Be Considered on Summary Judgment Where There Are Applicable
Hearsay Exceptions........................................................................................................ 3

E.

Authenticity is Not Limited in the Fashion Recited by Defendant ................................ 4

F.
II.

The Standard for Relevance Is A Liberal One ............................................................... 2

Defendant Ignores the Numerous Exceptions to the Secondary Evidence Rule............ 4

PLAINTIFFS’ RESPONSES TO DEFENDANT’S SUPPLEMENTAL OBJECTIONS ............... 5
A.

B.

III.

Declaration of Wayne Camara In Further Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to Public.Resource.Org’s Cross-Motion for Summary
Judgment ........................................................................................................................ 6
Declaration of Nikia L. Gray In Support of Plaintiffs’ Reply in Support of its Motion
for Summary Judgment and Permanent Injunction and Opposition to Defendant’s
Motion for Summary Judgment ................................................................................... 27

CONCLUSION ............................................................................................................................ 111

ii

TABLE OF AUTHORITIES
Page(s)
Cases
Adams v. Ameritech Servs., Inc.,
231 F.3d 414 (7th Cir. 2000).............................................................................................................Passim
Allied Sys., Ltd. v. Teamsters Auto. Transp. Chauffeurs, Demonstrators & Helpers, Local 604, Affiliated
with the Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am.,
304 F.3d 785 (8th Cir. 2002)...................................................................................................................... 3
America v. Mills,
654 F. Supp. 2d 28 (D.D.C. 2009) ............................................................................................................. 4
Barnett v. PA Consulting Grp., Inc.,
35 F. Supp. 3d 11 (D.D.C. 2014) ............................................................................................................... 2
Cook v. Spencer,
688 F.2d 1017 (5th Cir. 1982).................................................................................................................... 2
Covad Commc’ns Co. v. Revonet, Inc.,
267 F.R.D. 14, 25 (D.D.C. 2010) .....................................................................................................Passim
Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993) ................................................................................................................................... 2
Doe v. Lee,
220 F. Supp. 2d 1307 (M.D. Ala. 2002) .................................................................................................... 3
Fraser v. Goodale,
342 F.3d 1032 (9th Cir. 2003)...........................................................................................................Passim
Gleklen v. Democratic Cong. Campaign Comm., Inc.,
199 F.3d 1365 (D.C. Cir. 2000) ........................................................................................................Passim
Great Am. Assur. Co. v. Liberty Surplus Ins. Corp.,
669 F. Supp. 2d 1084 (N.D. Cal. 2009) ............................................................................................Passim
Hines v. Consol. Rail Corp.,
926 F.2d 262 (3d Cir. 1991) ..............................................................................................................Passim
Jones v. United States,
934 F. Supp. 2d 284 (D.D.C. 2013) ..................................................................................................Passim
Nelson v. United States,
55 A.3d 389 (D.D.C. 2012) ........................................................................................................................ 3
Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V.,
69 F.Supp.3d 175 (D.D.C. 2014) ......................................................................................................Passim

iii

U.S. ex rel. El-Amin v. George Washington Univ.,
522 F. Supp. 2d 135 (D.D.C. 2007) ........................................................................................................... 4
Washington Cent. R. Co. v. Nat’l Mediation Bd.,
830 F. Supp. 1343 (E.D. Wash. 1993) ..............................................................................................Passim
Weinstein v. Dist. of Columbia Housing Auth.,
931 F. Supp. 2d 178, 186 (D.D.C. 2013) .........................................................................................Passim
Rules
Fed. R. Civ. P. 30(b)(6)........................................................................................................................Passim
Fed. R. Civ.P. 56 ....................................................................................................................................... 1, 3
Fed. R. Civ. P. 56(c)(2) ........................................................................................................................Passim
Fed. R. Evid. 401 .......................................................................................................................................... 2
Fed. R. Evid. 402 .................................................................................................................................Passim
Fed. R. Evid. 403 .................................................................................................................................Passim
Fed. R. Evid. 602 .................................................................................................................................Passim
Fed. R. Evid. 701 .................................................................................................................................Passim
Fed. R. Evid. 702 .................................................................................................................................Passim
Fed. R. Evid. 801(c) ...................................................................................................................................... 3
Fed. R. Evid. 802 .................................................................................................................................Passim
Fed. R. Evid. 803(6).............................................................................................................................Passim
Fed. R. Evid. 803(6)(D) ................................................................................................................................ 4
Fed. R. Evid. 803(8)...................................................................................................................................... 3
Fed. R. Evid. 803(17)...........................................................................................................................Passim
Fed. R. Evid. 901 .......................................................................................................................................... 4
Fed. R. Evid. 902 .......................................................................................................................................... 4
Fed. R. Evid. 902(11).................................................................................................................................... 4
Fed. R. Evid. 1003 ........................................................................................................................................ 4
Fed. R. Evid. 1004 ........................................................................................................................................ 4

iv

Fed. R. Evid. 1005 ........................................................................................................................................ 4
Fed. R. Evid. 1006 ........................................................................................................................................ 4
Fed. R. Evid. 1007 ........................................................................................................................................ 4
Fed. R. Evid. 1008 ........................................................................................................................................ 4

v

Plaintiffs, American Educational Research Association, Inc. (“AERA”), American Psychological
Association , Inc. (“APA”) and National Council on Measurement in Education, Inc. (“NCME”)
(collectively “Plaintiffs” or the “Sponsoring Organizations”), respectfully submit this response to
Defendant-Counterclaimant Public.Resource.Org.’s Objections to Plaintiffs’ Supplemental Evidence
(Dkt. No. 98-5) (the “Supplemental Objections”).

As a preliminary matter, Defendant’s lengthy

Supplemental Objections should be denied on the grounds that neither the Federal Rules of Civil
Procedure nor the Local Rules provide for or permit the submission of such Supplemental Objections.
Nevertheless, Plaintiffs submit the below responses to the Supplemental Objections out of an abundance
of caution.
I.

THE STANDARD FOR EVIDENCE TO BE PROPERLY CONSIDERED ON SUMMARY
JUDGMENT IS THAT THE EVIDENCE MUST BE CAPABLE OF BEING
CONVERTED TO ADMISSIBLE EVIDENCE AT TRIAL
Defendant’s cumbersome Supplemental Objections, like their prior Objections (Dkt. 68-6), rely

upon a mis-stated standard of admissibility at the summary judgment stage in an effort to distract the
Court from the key material facts and legal principles, which establish that Plaintiffs are entitled to
judgment as a matter of law. Defendant’s Supplemental Objections are primarily conclusory assertions
that the Declarations submitted in opposition to Defendant’s Motion for Summary Judgment and in
Support of Plaintiffs’ Motion for Summary Judgment do not present admissible evidence. In addition to
being inaccurate as to the statements and documents to which it objects, Defendant relies upon an
incorrect standard.
Rule 56 permits a party to “object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2) (emphasis added).
“At the summary judgment stage, a party is not required to produce evidence in a form that is admissible,
but the evidence must be capable of being converted into admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C. 2013) (citing Gleklen v. Democratic Cong. Campaign Comm.,
Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000)) (citations omitted); see also Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003).

1

A.

The Standard for Relevance Is A Liberal One.

In order to be relevant, evidence need only have any tendency to make a fact of consequence in
the litigation more or less probable than it would be without the evidence. Fed. R. Evid. 401; Barnett v.
PA Consulting Grp., Inc., 35 F. Supp. 3d 11, 16 (D.D.C. 2014). See also Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 587 (1993) (“The Rule’s basic standard of relevance thus is a liberal one.”)
Relevant facts are not limited to those facts necessary to prove the elements of a claim, but also include
background facts, contextual facts, and other facts that are helpful to a determination of the issues. See
Fed. R. Evid. 401, Advisory Committee Note (1972) (“Evidence which is essentially background in
nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid
to understanding. . . . A rule limiting admissibility to evidence directed to a controversial point would
invite the exclusion of this helpful evidence, or at least the raising of endless questions over its
admission.”); Cook v. Spencer, 688 F.2d 1017, 1018 (5th Cir. 1982) (“Rule 401, Federal Rules of
Evidence, defines such evidence as ‘... evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it would be
without the evidence.’ Such evidence need not bear on ultimate issues as disputed facts; and background
evidence may be admitted in the judge’s discretion.”).
B.

The Standard for “Personal Knowledge” Is Much Broader than Defendant
Suggests.

“Personal knowledge” is not limited to a person’s first-hand experience, as Defendant argues with
its objections. Personal knowledge may be gained through a person’s education or work experience.
Great Am. Assur. Co. v. Liberty Surplus Ins. Corp., 669 F. Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and inferences grounded in observations and experience.”).
Personal knowledge also applies to information learned by a person through a review of documents or
through industry experience. Washington Cent. R. Co. v. Nat’l Mediation Bd., 830 F. Supp. 1343, 1353
(E.D. Wash. 1993) (“Personal knowledge, however, is not strictly limited to activities in which the
declarant has personally participated. As a case which plaintiff cites clearly demonstrates, personal

2

knowledge can come from review of the contents of files and records.”); Allied Sys., Ltd. v. Teamsters
Auto. Transp. Chauffeurs, Demonstrators & Helpers, Local 604, Affiliated with the Int’l Bhd. of
Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 304 F.3d 785, 792 (8th Cir. 2002) (“Personal
knowledge or perception acquired through review of records prepared in the ordinary course of business,
or perceptions based on industry experience is a sufficient foundation for lay opinion testimony.”).
As noted above, Rule 56 only permits objections that a fact “cannot be presented in a form that
would be admissible in evidence.” Accordingly, a declarant’s sworn testimony may be considered on
summary judgment unless no basis for a witness’s personal knowledge can be supplied at trial.
C.

A Witness May Testify As to Opinions and Other Information Beyond Facts Known
Personally to the Witness.

Defendant’s objections improperly seek to limit the scope of witness testimony. For example,
witnesses may testify regarding their opinions. Nelson v. United States, 55 A.3d 389, 392 (D.C. 2012)
(“[N]on-expert witnesses may also express opinions as long as those opinions are based on the witness’
own observation of events and are helpful to the jury.”) (quotations and citations omitted); Great Am.
Assur. Co., 669 F. Supp. 2d at 1089. See Weinstein v. Dist. of Columbia Housing Auth., 931 F. Supp. 2d
178, 186 (D.D.C. 2013) (“[I]f a corporate officer is noticed for deposition pursuant to Rule 30(b)(6), ‘his
sworn affidavit is admissible,’ even if that declaration is not based on personal knowledge.”) (citations
omitted).
D.

Hearsay May Be Considered on Summary Judgment Where There Are Applicable
Hearsay Exceptions.

Just as hearsay may be considered at trial, where an exception applies, it may also be considered
on summary judgment where an exception would permit its admission at trial. Doe v. Lee, 220 F. Supp.
2d 1307, 1311 (M.D. Ala. 2002) (“In addition, even though a document, deponent, or affiant refers to
hearsay information, that information may be considered on summary judgment if it would be admissible
at trial under an exception to the hearsay rule or as non-hearsay.”). Business records and public records
are examples of documents that may be considered.

Fed. R. Evid. 803(6); Fed. R. Evid. 803(8).

Additionally, documents may be considered, regardless of whether an exception applies, when the

3

evidence is not offered to prove the truth of any out of court statements contained within the document.
Fed. R. Evid. 801(c), Advisory Committee’s Note. (“If the significance of an offered statement lies solely
in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not
hearsay.”); Lee, 220 F. Supp. 2d at 1311.
E.

Authenticity is Not Limited in the Fashion Recited by Defendant.

Defendant seeks to limit the scope of authentication to one acceptable form of authentication.
While authentication can be demonstrated in the manner recited by Defendant, it can also be established
in other ways, including through testimony by a records custodian or through the submission of evidence
that is self-authenticating. See Fed. R. Evid. 803(6)(D), 901, 902. Additionally, as discussed above,
Plaintiffs need not have authenticated documents upon which they rely in their summary judgment
briefing, so long as the documents could be authenticated at trial. America v. Mills, 654 F. Supp. 2d 28,
36 (D.D.C. 2009) (“To repeat, if it is possible to convert potential evidence into a form that would be
admissible at trial—as it appears to be in this case—the Court may consider it at the summary judgment
stage. The Court will not exclude the 2002 DRC Report from consideration at this point. Its admissibility,
with or without the support of additional testimony, will be considered at trial.”) (internal citations
omitted).
F.

Defendant Ignores the Numerous Exceptions to the Secondary Evidence Rule.

Defendant’s objections regarding the “secondary evidence rule” ignore all other recognized forms
of admissible documents. See Fed. R. Evid. 1003-1008; U.S. ex rel. El-Amin v. George Washington
Univ., 522 F. Supp. 2d 135, 145-46 (D.D.C. 2007) (“Because of the numerous avenues of escape from the
mechanical application of the requirement of the original, a party is rarely precluded from producing
significant relevant evidence because of the best evidence rule.”) (citation and quotation omitted).
Evidence may be considered on summary judgment so long as any acceptable form could be supplied at
trial.

4

II.

PLAINTIFFS’ RESPONSES TO DEFENDANT’S SUPPLEMENTAL OBJECTIONS
Plaintiffs respectfully request that the Court overrule Defendant’s cumbersome evidentiary

objections based upon the foregoing standards and based upon Plaintiffs’ responses to Defendant’s
Supplemental Objections set forth in the following chart:

5

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

1. I submit this Reply Declaration in further
support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org, Inc.’s (“Defendant” or
“Public Resource”) Cross-Motion for
Summary Judgment. Unless otherwise noted, I
have knowledge of all facts set forth in this
Declaration and I would, and could, testify
competently thereto if called upon to do so.

No objection.

2. I am currently the Senior Vice President,
Research at ACT, Inc. ACT produces and
publishes the ACT® college readiness

No objection.

assessment — a college admissions and
placement test taken by millions of high school
graduates every year. ACT also offers
comprehensive assessment, research,
information, and program management
services to support education and workforce
development. As the Senior Vice President of
Research, I am responsible for all research and
evidence related to the design, development,
use, and validation of our assessments and
programs. In my position, I serve on the Senior
Leadership Team and manage over 110
researchers.

6

Plaintiffs’ Response to Defendant’s
Objections

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment
3. Prior to working at ACT, I worked at The
College Board, where I held the positions of
Vice President, Research and Development
(July, 2000 – September, 2013), Executive
Director, Office of Research and Development
(March, 1997 – June, 2000), and Research
Scientist (September, 1994 – February, 1997).

4. Before working at The College Board, I
worked for the American Psychological
Association, Inc. (“APA”), in the positions of
Assistant Executive Director for Scientific
Affairs and Executive Director of Science
(1992-1994), Director, Scientific Affairs
(February, 1989 – August, 1992), and Testing
and Assessment Officer (November, 1987 –
January, 1989). During my employment at
APA, I served as the Project Director for the
revision of the 1985 version of the Standards
for Educational and Psychological Testing, the
new product of which was published in 1999
(the “1999 Standards”). In 1997, I was elected
to APA’s Council of Representatives, and I
served on the Council from 1997-2003. In
April, 2012, I was elected to the Council of the
American Educational Research Association,
Inc. (“AERA”), serving from April, 2012 to
April, 2015 as Vice President for Division D. I
also was elected to the Board of Directors of
National Council On Measurement In

Defendant-Counterclaimant Public
Resource’s Objections
No objection.

No objection.

7

Plaintiffs’ Response to Defendant’s
Objections

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment
Education, Inc. (“NCME”), serving on the
Board from 2002-2005 and 2009-2012, and
served as NCME’s President from 2010-2011.
Additionally, I served on the Management
Committee for the Standards from 2005-2015.

Defendant-Counterclaimant Public
Resource’s Objections

5. I have written extensively on the Standards
for Educational and Psychological Testing, as
well as other professional and technical
guidelines which relate to educational and
industrial testing and assessment, including
journal articles, book chapters, and paper
presentations at national conferences.

No objection.

6. I was asked to rephrase several of the
standards recited in the 1999 Standards,
without changing their meaning.

No objection.

7. Standard 3.3, as recited in the 1999
Standards, states:

No objection.

Those responsible for test development should
include relevant subgroups in validity,
reliability/precision, and other preliminary
studies used when constructing the test.

8

Plaintiffs’ Response to Defendant’s
Objections

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment
8. One of the many ways in which Standard
3.3 could be rephrased without changing its
meaning is as follows:
Studies collecting evidence for the
interpretation and use of test scores,
quantifying the inconsistency in examinee
performance, and of other topics should be
conducted during test construction by
individuals and organizations who mandate,
sponsor, prepare and design, and market tests
so that study results will inform the discussion
of the comparability of subgroup scores.

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

FRE 402 Relevance. Mr. Camara has not been
presented as an expert and his lay opinion is
not relevant. The proffered testimony does not
have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

This evidence is relevant. In order to be
relevant, evidence need only have any
tendency to make a fact of consequence in the
litigation more or less probable than it would
be without the evidence. Defendant has
introduced the issue of whether it is possible to
phrase the individual standards recited in the
1999 Standards without changing their
meaning. Plaintiffs have argued, and still
maintain, that Defendant has waived this
affirmative defense because it was not
included in Defendant’s answer. However,
should the Court consider the defense, Dr.
Camara’s testimony is directly relevant to
whether such rephrasing is possible. In
paragraph 6 of his declaration, Dr. Camara
testifies that he was specifically asked to
rephrase several of the standards in the 1999
Standards, without changing their meaning,
and Defendant did not object to that paragraph.

FRE 403 Prejudice. Plaintiffs assert that the
1999 Standards were written by “a select group
of the leading minds in educational and
psychological testing of their time” (ECF No.
60-1, Pls. Mem. at 1), and that the Joint
Committee members that Plaintiffs credit with
authorship of the 1999 Standards represent a
diverse range of fields including “admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,

As set forth above, Dr. Camara’s testimony is
relevant. Any risk of confusion to the Court is
minimal, is outweighed by its probative value,
and fails to warrant exclusion. Paleteria La
Michoacana, Inc. v. Productos Lacteos
Tocumbo S.A. De C.V., 69 F.Supp.3d 175, 211
n.11 (D.D.C. 2014) reconsideration denied,
No. CV 11-1623(RC), 2015 WL 456400
(D.D.C. Feb. 3, 2015) (unnecessary to exclude
evidence under Rule 403 at the summary

9

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

and program evaluation.” (Pls. Mem. at 5). Mr.
Camara stated in his prior declaration in
support of Plaintiffs’ Motion for Summary
Judgment that the Joint Committee members
were “the leading authorities in psychological
and educational assessments.” (ECF No. 6076, ¶ 11). Mr. Camara was not part of this elite
group of experts. Plaintiffs have not
demonstrated that Mr. Camara has the breadth
of knowledge to evaluate whether his
rephrasing of individual standards from the
1999 Standards is accurate and does not
change the meaning of the standard, nor that he
is qualified to know why the Joint Committee
members or other authors chose the wording
that they did (rather than wording that Mr.
Camara now proposes). Therefore the
probative value of the proffered testimony is
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.

judgment stage “because the prejudicial effect
of the [evidence] at this stage of the
proceedings is minimal at best”) (citing Adams
v. Ameritech Servs., Inc., 231 F.3d 414, 428
(7th Cir. 2000); Hines v. Consol. Rail Corp.,
926 F.2d 262, 274 (3d Cir. 1991)).

FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.

Dr. Camara’s testimony is rationally based
upon his perception based upon his experience
as set forth in paragraphs 1-5 of his
declaration, as well as his personal experience
outlined in his curriculum vitae attached as
Exhibit 1 to his prior declaration, dated
December 8, 2015 (Dkt. 60-76), and is helpful
to the trier of fact. Dr. Camara’s testimony in
this paragraph is both helpful to clearly

10

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
understanding his testimony and to
determining a fact in issue, as discussed above
in response to Defendant’s relevance
objection. Finally, this testimony is not based
on scientific, technical, or other specialized
knowledge within the scope of FRE 702 and is
admissible under at least FRE 602 and FRE
701.

FRE 702 Unreliable Expert Opinion. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

11

Defendant has not identified why this
testimony is subject to FRE 702, rather than
FRE 701. This testimony is not based on
scientific, technical, or other specialized
knowledge within the scope of FRE 702; rather
it is rationally based on Dr. Camara’s
perceptions and personal knowledge and thus
falls under FRE 701. Indeed, Defendant
should be barred from making a FRE 702
objection when Defendant included topics in
its 30(b)(6) notice on these issues and Dr.
Camara was designated as a 30(b)(6) witness
on such topics. See Camara Dep. 43:19-21
(“Q Do you understand you have been
designated to testify as to Topics 15 and 16? A
Yes, I do.”), Exhibit XXXXX to Gray Decl.
(Dkt. 94-2). Defendant’s counsel could have,
but strategically elected not to, ask him to
rephrase the individual standards from the
1999 Standards during his deposition, and this
testimony is, therefore, admissible. See
Weinstein v. Dist. of Columbia Housing Auth.,

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
931 F. Supp. 2d 178, 185-87 (D.D.C. 2013) (in
considering cross-motions for summary
judgment, court admitted testimony in
subsequent affidavits where party challenged
affidavits as inconsistent with testimony during
30(b)(6) deposition); Id. at 185 (“Yet, ‘[i]t is
often impossible in any enterprise where
employees have distinct roles for there to be
one person who can answer all questions posed
during a 30(b)(6) deposition.’”) (quoting
Covad Commc’ns Co. v. Revonet, Inc., 267
F.R.D. 14, 25 (D.D.C. 2010)). As set forth
above, this testimony is opinion testimony by a
lay witness, which is admissible pursuant to
FRE 701.

9. Standard 4.4, as recited in the 1999
Standards, states:

No objection.

If test developers prepare different versions of
a test with some change to the test
specifications, they should document the
content and psychometric specifications of
each version. The documentation should
describe the impact of differences among
versions on the validity of score interpretations
for intended uses and on the precision and
comparability of scores.

12

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment
10. One of the many ways in which Standard
4.4 could be rephrased without changing its
meaning is as follows:
Changes or augmentations to assessments
which impact content, constructs, or statistical
properties of a test should be documented and
made available to test users. Documentation
should address any effect on the overall
reliability of the test, the accuracy of scores, or
the inferences which can be made from scores,
as well as the extent that scores across
different versions are comparable.

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

FRE 402 Relevance. Mr. Camara has not been
presented as an expert and his lay opinion is
not relevant. The proffered testimony does not
have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

This evidence is relevant. In order to be
relevant, evidence need only have any
tendency to make a fact of consequence in the
litigation more or less probable than it would
be without the evidence. Defendant has
introduced the issue of whether it is possible to
phrase the individual standards recited in the
1999 Standards without changing their
meaning. Plaintiffs have argued, and still
maintain, that Defendant has waived this
affirmative defense because it was not
included in Defendant’s answer. However,
should the Court consider the defense, Dr.
Camara’s testimony is directly relevant to
whether such rephrasing is possible. In
paragraph 6 of his declaration, Dr. Camara
testifies that he was specifically asked to
rephrase several of the standards in the 1999
Standards, without changing their meaning,
and Defendant did not object to that paragraph.

FRE 403 Prejudice. Plaintiffs assert that the
1999 Standards were written by “a select group
of the leading minds in educational and
psychological testing of their time” (ECF No.
60-1, Pls. Mem. at 1), and that the Joint
Committee members that Plaintiffs credit with
authorship of the 1999 Standards represent a
diverse range of fields including “admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,

As set forth above, Dr. Camara’s testimony is
relevant. Any risk of confusion to the Court is
minimal, is outweighed by its probative value,
and fails to warrant exclusion. Paleteria La
Michoacana, Inc. v. Productos Lacteos
Tocumbo S.A. De C.V., 69 F.Supp.3d 175, 211
n.11 (D.D.C. 2014) reconsideration denied,
No. CV 11-1623(RC), 2015 WL 456400
(D.D.C. Feb. 3, 2015) (unnecessary to exclude
evidence under Rule 403 at the summary

13

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

and program evaluation.” (Pls. Mem. at 5). Mr.
Camara stated in his prior declaration in
support of Plaintiffs’ Motion for Summary
Judgment that the Joint Committee members
were “the leading authorities in psychological
and educational assessments.” (ECF No. 6076, ¶ 11). Mr. Camara was not part of this elite
group of experts. Plaintiffs have not
demonstrated that Mr. Camara has the breadth
of knowledge to evaluate whether his
rephrasing of individual standards from the
1999 Standards is accurate and does not
change the meaning of the standard, nor that he
is qualified to know why the Joint Committee
members or other authors chose the wording
that they did (rather than wording that Mr.
Camara now proposes). Therefore the
probative value of the proffered testimony is
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.

judgment stage “because the prejudicial effect
of the [evidence] at this stage of the
proceedings is minimal at best”) (citing Adams
v. Ameritech Servs., Inc., 231 F.3d 414, 428
(7th Cir. 2000); Hines v. Consol. Rail Corp.,
926 F.2d 262, 274 (3d Cir. 1991)).

FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.

Dr. Camara’s testimony is rationally based
upon his perception based upon his experience
as set forth in paragraphs 1-5 of his
declaration, as well as his personal experience
outlined in his curriculum vitae attached as
Exhibit 1 to his prior declaration, dated
December 8, 2015 (Dkt. 60-76), and is helpful
to the trier of fact. Dr. Camara’s testimony in
this paragraph is both helpful to clearly

14

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
understanding his testimony and to
determining a fact in issue, as discussed above
in response to Defendant’s relevance
objection. Finally, this testimony is not based
on scientific, technical, or other specialized
knowledge within the scope of FRE 702 and is
admissible under at least FRE 602 and FRE
701.

FRE 702 Unreliable Expert Opinion. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

15

Defendant has not identified why this
testimony is subject to FRE 702, rather than
FRE 701. This testimony is not based on
scientific, technical, or other specialized
knowledge within the scope of FRE 702; rather
it is rationally based on Dr. Camara’s
perceptions and personal knowledge and thus
falls under FRE 701. Indeed, Defendant
should be barred from making a FRE 702
objection when Defendant included topics in
its 30(b)(6) notice on these issues and Dr.
Camara was designated as a 30(b)(6) witness
on such topics. See Camara Dep. 43:19-21
(“Q Do you understand you have been
designated to testify as to Topics 15 and 16? A
Yes, I do.”), Exhibit XXXXX to Gray Decl.
(Dkt. 94-2). Defendant’s counsel could have,
but strategically elected not to, ask him to
rephrase the individual standards from the
1999 Standards during his deposition, and this
testimony is, therefore, admissible. See
Weinstein v. Dist. of Columbia Housing Auth.,

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
931 F. Supp. 2d 178, 185-87 (D.D.C. 2013) (in
considering cross-motions for summary
judgment, court admitted testimony in
subsequent affidavits where party challenged
affidavits as inconsistent with testimony during
30(b)(6) deposition); Id. at 185 (“Yet, ‘[i]t is
often impossible in any enterprise where
employees have distinct roles for there to be
one person who can answer all questions posed
during a 30(b)(6) deposition.’”) (quoting
Covad Commc’ns Co. v. Revonet, Inc., 267
F.R.D. 14, 25 (D.D.C. 2010)). As set forth
above, this testimony is opinion testimony by a
lay witness, which is admissible pursuant to
FRE 701.

11. Standard 5.2, as recited in the 1999
Standards, states:

No objection.

The procedures for constructing scales used for
reporting scores and the rationale for these
procedures should be described clearly.

12. One of the many ways in which Standard
5.2 could be rephrased without changing its
meaning is as follows:
Testing programs that use derived scale scores
to enhance interpretation of assessment results

FRE 402 Relevance. Mr. Camara has not been
presented as an expert and his lay opinion is
not relevant. The proffered testimony does not
have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

16

This evidence is relevant. In order to be
relevant, evidence need only have any
tendency to make a fact of consequence in the
litigation more or less probable than it would
be without the evidence. Defendant has
introduced the issue of whether it is possible to

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment
must report the justification and procedures
used to create the derived scores.

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
phrase the individual standards recited in the
1999 Standards without changing their
meaning. Plaintiffs have argued, and still
maintain, that Defendant has waived this
affirmative defense because it was not
included in Defendant’s answer. However,
should the Court consider the defense, Dr.
Camara’s testimony is directly relevant to
whether such rephrasing is possible. In
paragraph 6 of his declaration, Dr. Camara
testifies that he was specifically asked to
rephrase several of the standards in the 1999
Standards, without changing their meaning,
and Defendant did not object to that paragraph.

FRE 403 Prejudice. Plaintiffs assert that the
1999 Standards were written by “a select group
of the leading minds in educational and
psychological testing of their time” (ECF No.
60-1, Pls. Mem. at 1), and that the Joint
Committee members that Plaintiffs credit with
authorship of the 1999 Standards represent a
diverse range of fields including “admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation.” (Pls. Mem. at 5). Mr.
Camara stated in his prior declaration in
support of Plaintiffs’ Motion for Summary
Judgment that the Joint Committee members
were “the leading authorities in psychological
and educational assessments.” (ECF No. 60-

17

As set forth above, Dr. Camara’s testimony is
relevant. Any risk of confusion to the Court is
minimal, is outweighed by its probative value,
and fails to warrant exclusion. Paleteria La
Michoacana, Inc. v. Productos Lacteos
Tocumbo S.A. De C.V., 69 F.Supp.3d 175, 211
n.11 (D.D.C. 2014) reconsideration denied,
No. CV 11-1623(RC), 2015 WL 456400
(D.D.C. Feb. 3, 2015) (unnecessary to exclude
evidence under Rule 403 at the summary
judgment stage “because the prejudicial effect
of the [evidence] at this stage of the
proceedings is minimal at best”) (citing Adams
v. Ameritech Servs., Inc., 231 F.3d 414, 428
(7th Cir. 2000); Hines v. Consol. Rail Corp.,
926 F.2d 262, 274 (3d Cir. 1991)).

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

76, ¶ 11). Mr. Camara was not part of this elite
group of experts. Plaintiffs have not
demonstrated that Mr. Camara has the breadth
of knowledge to evaluate whether his
rephrasing of individual standards from the
1999 Standards is accurate and does not
change the meaning of the standard, nor that he
is qualified to know why the Joint Committee
members or other authors chose the wording
that they did (rather than wording that Mr.
Camara now proposes). Therefore the
probative value of the proffered testimony is
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.

18

Dr. Camara’s testimony is rationally based
upon his perception based upon his experience
as set forth in paragraphs 1-5 of his
declaration, as well as his personal experience
outlined in his curriculum vitae attached as
Exhibit 1 to his prior declaration, dated
December 8, 2015 (Dkt. 60-76), and is helpful
to the trier of fact. Dr. Camara’s testimony in
this paragraph is both helpful to clearly
understanding his testimony and to
determining a fact in issue, as discussed above
in response to Defendant’s relevance
objection. Finally, this testimony is not based
on scientific, technical, or other specialized
knowledge within the scope of FRE 702 and is

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
admissible under at least FRE 602 and FRE
701.

FRE 702 Unreliable Expert Opinion. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

19

Defendant has not identified why this
testimony is subject to FRE 702, rather than
FRE 701. This testimony is not based on
scientific, technical, or other specialized
knowledge within the scope of FRE 702; rather
it is rationally based on Dr. Camara’s
perceptions and personal knowledge and thus
falls under FRE 701. Indeed, Defendant
should be barred from making a FRE 702
objection when Defendant included topics in
its 30(b)(6) notice on these issues and Dr.
Camara was designated as a 30(b)(6) witness
on such topics. See Camara Dep. 43:19-21
(“Q Do you understand you have been
designated to testify as to Topics 15 and 16? A
Yes, I do.”), Exhibit XXXXX to Gray Decl.
(Dkt. 94-2). Defendant’s counsel could have,
but strategically elected not to, ask him to
rephrase the individual standards from the
1999 Standards during his deposition, and this
testimony is, therefore, admissible. See
Weinstein v. Dist. of Columbia Housing Auth.,
931 F. Supp. 2d 178, 185-87 (D.D.C. 2013) (in
considering cross-motions for summary
judgment, court admitted testimony in
subsequent affidavits where party challenged
affidavits as inconsistent with testimony during
30(b)(6) deposition); Id. at 185 (“Yet, ‘[i]t is

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
often impossible in any enterprise where
employees have distinct roles for there to be
one person who can answer all questions posed
during a 30(b)(6) deposition.’”) (quoting
Covad Commc’ns Co. v. Revonet, Inc., 267
F.R.D. 14, 25 (D.D.C. 2010)). As set forth
above, this testimony is opinion testimony by a
lay witness, which is admissible pursuant to
FRE 701.

13. Standard 5.3, as recited in the 1999
Standards, states:

No objection.

If there is sound reason to believe that specific
misinterpretation of a score scale are
likely, test users should be explicitly
cautioned.

14. One of the many ways in which Standard
5.3 could be rephrased without changing its
meaning is as follows:
When inaccurate interpretations of reported
scores by users can be anticipated, Test
Publishers have the responsibility to articulate
both the correct and the possible incorrect
interpretations for users.

FRE 402 Relevance. Mr. Camara has not been
presented as an expert and his lay opinion is
not relevant. The proffered testimony does not
have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

20

This evidence is relevant. In order to be
relevant, evidence need only have any
tendency to make a fact of consequence in the
litigation more or less probable than it would
be without the evidence. Defendant has
introduced the issue of whether it is possible to
phrase the individual standards recited in the
1999 Standards without changing their
meaning. Plaintiffs have argued, and still
maintain, that Defendant has waived this
affirmative defense because it was not

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
included in Defendant’s answer. However,
should the Court consider the defense, Dr.
Camara’s testimony is directly relevant to
whether such rephrasing is possible. In
paragraph 6 of his declaration, Dr. Camara
testifies that he was specifically asked to
rephrase several of the standards in the 1999
Standards, without changing their meaning,
and Defendant did not object to that paragraph.

FRE 403 Prejudice. Plaintiffs assert that the
1999 Standards were written by “a select group
of the leading minds in educational and
psychological testing of their time” (ECF No.
60-1, Pls. Mem. at 1), and that the Joint
Committee members that Plaintiffs credit with
authorship of the 1999 Standards represent a
diverse range of fields including “admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation.” (Pls. Mem. at 5). Mr.
Camara stated in his prior declaration in
support of Plaintiffs’ Motion for Summary
Judgment that the Joint Committee members
were “the leading authorities in psychological
and educational assessments.” (ECF No. 6076, ¶ 11). Mr. Camara was not part of this elite
group of experts. Plaintiffs have not
demonstrated that Mr. Camara has the breadth
of knowledge to evaluate whether his
rephrasing of individual standards from the

21

As set forth above, Dr. Camara’s testimony is
relevant. Any risk of confusion to the Court is
minimal, is outweighed by its probative value,
and fails to warrant exclusion. Paleteria La
Michoacana, Inc. v. Productos Lacteos
Tocumbo S.A. De C.V., 69 F.Supp.3d 175, 211
n.11 (D.D.C. 2014) reconsideration denied,
No. CV 11-1623(RC), 2015 WL 456400
(D.D.C. Feb. 3, 2015) (unnecessary to exclude
evidence under Rule 403 at the summary
judgment stage “because the prejudicial effect
of the [evidence] at this stage of the
proceedings is minimal at best”) (citing Adams
v. Ameritech Servs., Inc., 231 F.3d 414, 428
(7th Cir. 2000); Hines v. Consol. Rail Corp.,
926 F.2d 262, 274 (3d Cir. 1991)).

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

1999 Standards is accurate and does not
change the meaning of the standard, nor that he
is qualified to know why the Joint Committee
members or other authors chose the wording
that they did (rather than wording that Mr.
Camara now proposes). Therefore the
probative value of the proffered testimony is
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.

Dr. Camara’s testimony is rationally based
upon his perception based upon his experience
as set forth in paragraphs 1-5 of his
declaration, as well as his personal experience
outlined in his curriculum vitae attached as
Exhibit 1 to his prior declaration, dated
December 8, 2015 (Dkt. 60-76), and is helpful
to the trier of fact. Dr. Camara’s testimony in
this paragraph is both helpful to clearly
understanding his testimony and to
determining a fact in issue, as discussed above
in response to Defendant’s relevance
objection. Finally, this testimony is not based
on scientific, technical, or other specialized
knowledge within the scope of FRE 702 and is
admissible under at least FRE 602 and FRE

FRE 702 Unreliable Expert Opinion. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by

Defendant has not identified why this
testimony is subject to FRE 702, rather than
FRE 701. This testimony is not based on

22

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

23

Plaintiffs’ Response to Defendant’s
Objections
scientific, technical, or other specialized
knowledge within the scope of FRE 702; rather
it is rationally based on Dr. Camara’s
perceptions and personal knowledge and thus
falls under FRE 701. Indeed, Defendant
should be barred from making a FRE 702
objection when Defendant included topics in
its 30(b)(6) notice on these issues and Dr.
Camara was designated as a 30(b)(6) witness
on such topics. See Camara Dep. 43:19-21
(“Q Do you understand you have been
designated to testify as to Topics 15 and 16? A
Yes, I do.”), Exhibit XXXXX to Gray Decl.
(Dkt. 94-2). Defendant’s counsel could have,
but strategically elected not to, ask him to
rephrase the individual standards from the
1999 Standards during his deposition, and this
testimony is, therefore, admissible. See
Weinstein v. Dist. of Columbia Housing Auth.,
931 F. Supp. 2d 178, 185-87 (D.D.C. 2013) (in
considering cross-motions for summary
judgment, court admitted testimony in
subsequent affidavits where party challenged
affidavits as inconsistent with testimony during
30(b)(6) deposition); Id. at 185 (“Yet, ‘[i]t is
often impossible in any enterprise where
employees have distinct roles for there to be
one person who can answer all questions posed
during a 30(b)(6) deposition.’”) (quoting
Covad Commc’ns Co. v. Revonet, Inc., 267
F.R.D. 14, 25 (D.D.C. 2010)). As set forth

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
above, this testimony is opinion testimony by a
lay witness, which is admissible pursuant to
FRE 701.

15. I believe the forgoing exercise could be
done with any of the standards recited in the
1999 Standards by a person who is sufficiently
knowledgeable in psychometrics and/or
educational testing as well as the meaning and
import of the standards contained within the
1999 Standards.

FRE 402 Relevance. Mr. Camara has not been
presented as an expert and his lay opinion is
not relevant. The proffered testimony does not
have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

This evidence is relevant. In order to be
relevant, evidence need only have any
tendency to make a fact of consequence in the
litigation more or less probable than it would
be without the evidence. Defendant has
introduced the issue of whether it is possible to
phrase the individual standards recited in the
1999 Standards without changing their
meaning. Plaintiffs have argued, and still
maintain, that Defendant has waived this
affirmative defense because it was not
included in Defendant’s answer. However,
should the Court consider the defense, Dr.
Camara’s testimony is directly relevant to
whether such rephrasing is possible. In
paragraph 6 of his declaration, Dr. Camara
testifies that he was specifically asked to
rephrase several of the standards in the 1999
Standards, without changing their meaning,
and Defendant did not object to that paragraph.

FRE 403 Prejudice. Plaintiffs assert that the
1999 Standards were written by “a select group
of the leading minds in educational and
psychological testing of their time” (ECF No.
60-1, Pls. Mem. at 1), and that the Joint

As set forth above, Dr. Camara’s testimony is
relevant. Any risk of confusion to the Court is
minimal, is outweighed by its probative value,
and fails to warrant exclusion. Paleteria La
Michoacana, Inc. v. Productos Lacteos

24

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

Committee members that Plaintiffs credit with
authorship of the 1999 Standards represent a
diverse range of fields including “admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation.” (Pls. Mem. at 5). Mr.
Camara stated in his prior declaration in
support of Plaintiffs’ Motion for Summary
Judgment that the Joint Committee members
were “the leading authorities in psychological
and educational assessments.” (ECF No. 6076, ¶ 11). Mr. Camara was not part of this elite
group of experts. Plaintiffs have not
demonstrated that Mr. Camara has the breadth
of knowledge to evaluate whether his
rephrasing of individual standards from the
1999 Standards is accurate and does not
change the meaning of the standard, nor that he
is qualified to know why the Joint Committee
members or other authors chose the wording
that they did (rather than wording that Mr.
Camara now proposes). Therefore the
probative value of the proffered testimony is
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.

Tocumbo S.A. De C.V., 69 F.Supp.3d 175, 211
n.11 (D.D.C. 2014) reconsideration denied,
No. CV 11-1623(RC), 2015 WL 456400
(D.D.C. Feb. 3, 2015) (unnecessary to exclude
evidence under Rule 403 at the summary
judgment stage “because the prejudicial effect
of the [evidence] at this stage of the
proceedings is minimal at best”) (citing Adams
v. Ameritech Servs., Inc., 231 F.3d 414, 428
(7th Cir. 2000); Hines v. Consol. Rail Corp.,
926 F.2d 262, 274 (3d Cir. 1991)).

FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s

Dr. Camara’s testimony is rationally based
upon his perception based upon his experience
as set forth in paragraphs 1-5 of his
declaration, as well as his personal experience

25

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.

outlined in his curriculum vitae attached as
Exhibit 1 to his prior declaration, dated
December 8, 2015 (Dkt. 60-76), and is helpful
to the trier of fact. Dr. Camara’s testimony in
this paragraph is both helpful to clearly
understanding his testimony and to
determining a fact in issue, as discussed above
in response to Defendant’s relevance
objection. Finally, this testimony is not based
on scientific, technical, or other specialized
knowledge within the scope of FRE 702 and is
admissible under at least FRE 602 and FRE

FRE 702 Unreliable Expert Opinion. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

Defendant has not identified why this
testimony is subject to FRE 702, rather than
FRE 701. This testimony is not based on
scientific, technical, or other specialized
knowledge within the scope of FRE 702; rather
it is rationally based on Dr. Camara’s
perceptions and personal knowledge and thus
falls under FRE 701. Indeed, Defendant
should be barred from making a FRE 702
objection when Defendant included topics in
its 30(b)(6) notice on these issues and Dr.
Camara was designated as a 30(b)(6) witness
on such topics. See Camara Dep. 43:19-21
(“Q Do you understand you have been
designated to testify as to Topics 15 and 16? A
Yes, I do.”), Exhibit XXXXX to Gray Decl.
(Dkt. 94-2). Defendant’s counsel could have,
but strategically elected not to, ask him to

26

Declaration of Wayne Camara In Further
Support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org’s Cross-Motion for
Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
rephrase the individual standards from the
1999 Standards during his deposition, and this
testimony is, therefore, admissible. See
Weinstein v. Dist. of Columbia Housing Auth.,
931 F. Supp. 2d 178, 185-87 (D.D.C. 2013) (in
considering cross-motions for summary
judgment, court admitted testimony in
subsequent affidavits where party challenged
affidavits as inconsistent with testimony during
30(b)(6) deposition); Id. at 185 (“Yet, ‘[i]t is
often impossible in any enterprise where
employees have distinct roles for there to be
one person who can answer all questions posed
during a 30(b)(6) deposition.’”) (quoting
Covad Commc’ns Co. v. Revonet, Inc., 267
F.R.D. 14, 25 (D.D.C. 2010)). As set forth
above, this testimony is opinion testimony by a
lay witness, which is admissible pursuant to
FRE 701.

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
1. I am an attorney with Quarles & Brady LLP,
attorneys for Plaintiffs, American Educational
Research Association, Inc., American

Defendant-Counterclaimant Public
Resource’s Objections

No Objection.

27

Plaintiffs’ Response to Defendant’s
Objections

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
Psychological Association, Inc. and National
Council on Measurement in Education, Inc.
Unless otherwise stated, I have knowledge of
all facts set forth in this declaration, and I
would, and could, testify competently thereto if
called upon to do so.

Defendant-Counterclaimant Public
Resource’s Objections

2. I submit this Declaration in support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent Injunction
and Opposition to Defendant’s Motion for
Summary Judgment.

No Objection.

3. Attached as Exhibit VVV is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) on the WorldCat website.

FRE 403 Prejudice. This website printout
includes results for all 69 different editions of
the Standards for Educational and
Psychological Testing, the majority of which
are not the 1999 edition at issue in this
litigation, and many of which are translations
into foreign languages. Therefore this
statement and the related exhibit is misleading
and does not accurately portray instances in
which the English version of the 1999
Standards may or may not be available in
libraries. The probative value of the proffered
exhibit is substantially outweighed by a danger
of unfair prejudice, confusing the issues,
misleading the factfinder, and needlessly
presenting cumulative evidence.

Plaintiffs’ Response to Defendant’s
Objections

28

This evidence is relevant. In order to be
relevant, evidence need only have any
tendency to make a fact of consequence in the
litigation more or less probable than it would
be without the evidence. This evidence is
relevant to whether copies of the Standards for
Educational and Psychological Testing (1999)
are available to the public in libraries.
The testimony is clear in context. Any risk of
confusion to the Court is minimal, is
outweighed by its probative value, and fails to
warrant exclusion. Paleteria La Michoacana,
Inc. v. Productos Lacteos Tocumbo S.A. De
C.V., 69 F.Supp.3d 175, 211 n.11 (D.D.C.
2014) reconsideration denied, No. CV 11-

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
1623(RC), 2015 WL 456400 (D.D.C. Feb. 3,
2015) (unnecessary to exclude evidence under
Rule 403 at the summary judgment stage
“because the prejudicial effect of the
[evidence] at this stage of the proceedings is
minimal at best”) (citing Adams v. Ameritech
Servs., Inc., 231 F.3d 414, 428 (7th Cir. 2000);
Hines v. Consol. Rail Corp., 926 F.2d 262, 274
(3d Cir. 1991)).

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
libraries, but the witness has no personal
knowledge to this effect and the proffering
party has not introduced sufficient evidence to
show the witness has personal knowledge of
this matter.

29

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.
To the extent that the exhibit contains records
of the contents of individual third-party library
catalogs that WorldCat ostensibly obtains
information from, this constitutes hearsay
within hearsay.

30

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807. These
exceptions apply to both the WorldCat record,
as well as included library catalogs. Therefore,
to the extent there is hearsay within hearsay,
the exhibit is admissible because hearsay
exceptions apply at all pertinent levels. See
FRE 805.

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
4. Attached as Exhibit WWW is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Arizona State University
Library.

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have

31

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

5. Attached as Exhibit XXX is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Baylor University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

32

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

6. Attached as Exhibit YYY is a true and

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This

Defendant seeks to unduly restrict the bounds

33

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Defendant-Counterclaimant Public
Summary Judgment and Permanent
Resource’s Objections
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
exhibit is introduced to support the assertion
correct copy of the catalog record for
that the 1999 Standards at issue are available in
Standards for Educational and Psychological
a particular library, but the witness has no
Testing (1999) at the Boston College Library.
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

34

Plaintiffs’ Response to Defendant’s
Objections
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.
A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

7. Attached as Exhibit ZZZ is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Boston University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

35

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

8. Attached as Exhibit AAAA is a true and
correct copy of the catalog record for

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.

36

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Defendant-Counterclaimant Public
Summary Judgment and Permanent
Resource’s Objections
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
Standards for Educational and Psychological
that the 1999 Standards at issue are available in
Testing (1999) at the California State
a particular library, but the witness has no
University Library.
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

37

Plaintiffs’ Response to Defendant’s
Objections
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.
A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

9. Attached as Exhibit BBBB is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Columbia University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

38

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

10. Attached as Exhibit CCCC is a true and
correct copy of the catalog record for
Standards for Educational and Psychological

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
Defendant seeks to unduly restrict the bounds
exhibit is introduced to support the assertion
of personal knowledge under FRE 602.
that the 1999 Standards at issue are available in Personal knowledge applies to information

39

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Defendant-Counterclaimant Public
Summary Judgment and Permanent
Resource’s Objections
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
Testing (1999) at the Cornell University
a particular library, but the witness has no
Library.
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

40

Plaintiffs’ Response to Defendant’s
Objections
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.
A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

11. Attached as Exhibit DDDD is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Dartmouth College
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

41

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

12. Attached as Exhibit EEEE is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Duke University Library.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of

42

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.

43

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

13. Attached as Exhibit FFFF is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Emory University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

44

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

14. Attached as Exhibit GGGG is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Florida Atlanta
University Library.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l

45

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.

46

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

15. Attached as Exhibit HHHH is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Florida International
University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

47

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

16. Attached as Exhibit IIII is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the George Mason University
Library.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.

48

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

evidence to show the witness has personal
knowledge of this matter.

Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369

49

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

17. Attached as Exhibit JJJJ is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the George Washington
University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

50

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

18. Attached as Exhibit KKKK is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Harvard University
Library.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,

51

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

knowledge of this matter.

is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also

52

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

19. Attached as Exhibit LLLL is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Indiana University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

53

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

20. Attached as Exhibit MMMM is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Lehigh University
Library.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the

54

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

55

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

21. Attached as Exhibit NNNN is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Lewis and Clark College
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

56

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

22. Attached as Exhibit OOOO is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Louisiana State
University Library.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case

57

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

58

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

23. Attached as Exhibit PPPP is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Loyola Marymount
University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an

A hearsay exception applies because the

59

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

24. Attached as Exhibit QQQQ is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Marian University
Library.

referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,

60

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

61

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

25. Attached as Exhibit RRRR is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Northwestern University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove

A hearsay exception applies because the
referenced catalog record is commonly relied

62

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

26. Attached as Exhibit SSSS is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Oregon State University
Library.

upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of

63

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

64

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

27. Attached as Exhibit TTTT is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Pepperdine University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular

65

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

28. Attached as Exhibit UUUU is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Purdue University
Library.

occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.

66

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

67

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
hearsay exception pursuant to FRE 807.

29. Attached as Exhibit VVVV is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Rutgers University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,

68

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

have no means of curing that hearsay at trial.

30. Attached as Exhibit WWWW is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the San Diego State
University Library.

this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.

69

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

70

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

31. Attached as Exhibit XXXX is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Seattle Pacific University
Library.

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted

71

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

32. Attached as Exhibit YYYY is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Southern Utah University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

72

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

73

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
33. Attached as Exhibit ZZZZ is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Stanford University
Library.

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception

74

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

34. Attached as Exhibit AAAAA is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Suffolk University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

75

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

76

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
35. Attached as Exhibit BBBBB is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Trinity International
University Library.

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have

77

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

36. Attached as Exhibit CCCCC is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of Alabama
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

78

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

37. Attached as Exhibit DDDDD is a true and

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This

Defendant seeks to unduly restrict the bounds

79

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of California
Library.

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need

80

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

38. Attached as Exhibit EEEEE is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of Chicago
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

81

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

39. Attached as Exhibit FFFFF is a true and
correct copy of the catalog record for

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.

82

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Defendant-Counterclaimant Public
Summary Judgment and Permanent
Resource’s Objections
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
that the 1999 Standards at issue are available in
Standards for Educational and Psychological
Testing (1999) at the University of Connecticut a particular library, but the witness has no
personal knowledge to this effect and the
Library.
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

83

Plaintiffs’ Response to Defendant’s
Objections
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.
A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

40. Attached as Exhibit GGGGG is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of Florida
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

84

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

41. Attached as Exhibit HHHHH is a true and
correct copy of the catalog record for
Standards for Educational and Psychological

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
Defendant seeks to unduly restrict the bounds
exhibit is introduced to support the assertion
of personal knowledge under FRE 602.
that the 1999 Standards at issue are available in Personal knowledge applies to information

85

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Defendant-Counterclaimant Public
Summary Judgment and Permanent
Resource’s Objections
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
Testing (1999) at the University of Maryland
a particular library, but the witness has no
Library.
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

86

Plaintiffs’ Response to Defendant’s
Objections
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.
A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

42. Attached as Exhibit IIIII is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of Miami
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

87

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

43. Attached as Exhibit JJJJJ is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of Minnesota

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of

88

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Defendant-Counterclaimant Public
Summary Judgment and Permanent
Resource’s Objections
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
Library.
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

89

Plaintiffs’ Response to Defendant’s
Objections
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.
A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

44. Attached as Exhibit KKKKK is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of Mississippi
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

90

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

45. Attached as Exhibit LLLLL is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of Nevada
Library.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l

91

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.

92

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

46. Attached as Exhibit MMMMM is a true
and correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of New
Mexico Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

93

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

47. Attached as Exhibit NNNNN is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of North
Carolina Library.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.

94

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

evidence to show the witness has personal
knowledge of this matter.

Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369

95

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

48. Attached as Exhibit OOOOO is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of Oregon
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

96

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

49. Attached as Exhibit PPPPP is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of Pittsburgh
Library.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,

97

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

knowledge of this matter.

is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also

98

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

50. Attached as Exhibit QQQQQ is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of South
Carolina Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

99

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

51. Attached as Exhibit RRRRR is a true and FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
correct copy of the catalog record for
that the 1999 Standards at issue are available in
Standards for Educational and Psychological
Testing (1999) at the University of Washington a particular library, but the witness has no
personal knowledge to this effect and the
Library.
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

100

Plaintiffs’ Response to Defendant’s
Objections

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

101

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

52. Attached as Exhibit SSSSS is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Vanderbilt University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

102

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

53. Attached as Exhibit TTTTT is a true and
correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the Yale University Library.

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available in
a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

Defendant seeks to unduly restrict the bounds
of personal knowledge under FRE 602.
Personal knowledge applies to information
learned by a person through a review of
documents. Washington Cent. R. Co. v. Nat’l
Mediation Bd., 830 F. Supp. 1343, 1353 (E.D.
Wash. 1993) (“Personal knowledge, however,
is not strictly limited to activities in which the
declarant has personally participated. As a case

103

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
which plaintiff cites clearly demonstrates,
personal knowledge can come from review of
the contents of files and records.”); Great Am.
Assur. Co. v. Liberty Surplus Ins. Corp., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009)
(“Personal knowledge includes opinions and
inferences grounded in observations and
experience.”). Ms. Gray’s declaration
represents that the exhibit is a true and
accurate copy o f the catalog record. Mr. Gray
has personal knowledge of this fact sufficient
to make the forgoing representation by virtue
of having personally prepared the copy of the
record and/or reviewed the same.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

104

A hearsay exception applies because the
referenced catalog record is commonly relied
upon by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a record of regularly conducted
activity, and is subject to a hearsay exception
pursuant to FRE 803(6). Exhibits do not have
to be admissible in the form offered, but need
only “be capable of being converted into
admissible evidence at trial.” Jones v. United
States, 934 F. Supp. 2d 284, 289 (D.D.C.
2013) (citing Gleklen v. Democratic Cong.
Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000)) (citations omitted); see also
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003). To the extent necessary, Plaintiffs

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
will obtain a certification that complies with
FRE 902(11) prior to trial. Finally, this exhibit
would be admissible pursuant to the residual
hearsay exception pursuant to FRE 807.

54. Attached as Exhibit UUUUU is a true and
correct copy of the Stipulation of Facts filed on
January 15, 2016 in Code Revision
Commission, et al. v. Public.Resource.Org,
Inc., Case No. 1:15-cv-02594-MHC, N.D. Ga.

FRE 402 Relevance. Plaintiffs selectively
quote portions of sentences from the
Stipulation of Facts filed in Code Revision
Commission, et al. v. Public.Resource.Org,
Inc. to make the statements sound as if they are
relevant to issues in the present litigation with
AERA et al., when in fact these statements are
explicitly confined to only the Code Revision
Commission case, and specifically concern
only the Official Code of Georgia Annotated
(abbreviated as “O.C.G.A.”). Plaintiffs have no
evidence, and there is no indication, that the
same facts and statements that apply to Public
Resource’s posting of the Official Code of
Georgia Annotated also apply to Public
Resource’s posting of the 1999 Standards. The
proffered exhibit therefore is irrelevant and
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

105

This evidence is relevant. In order to be
relevant, evidence need only have any
tendency to make a fact of consequence in
the litigation more or less probable than it
would be without the evidence. Exhibit
UUUUU is a true and correct copy of the
Stipulation of Facts filed on January 15, 2016
in Code Revision Commission, et al. v.
Public.Resource.Org, Inc., Case No. 1:15-cv02594-MHC, N.D. Ga. In that matter,
Defendant has stipulated to certain facts
relevant to this matter, including, without
limitation, that by placing copyrighted
material online, it is made available to the
public at large and the public does access,
download and further copy said material, a
fact that is highly relevant to Plaintiffs’
contributory infringement claim. Further,
Exhibit UUUUU is a true and correct copy of
the complete Stipulation of Facts filed on
January 15, 2016 in Code Revision
Commission, et al. v. Public.Resource.Org,
Inc., Case No. 1:15-cv-02594-MHC, N.D.
Ga. Accordingly, Plaintiffs have provided
the full statements from the Stipulation of

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
Facts and there is no risk of confusion, as
asserted by Defendant.

FRE 403 Prejudice. Plaintiffs selectively quote
portions of sentences from the Stipulation of
Facts filed in Code Revision Commission, et al.
v. Public.Resource.Org, Inc. to make the
statements sound as if they are relevant to
issues in the present litigation with AERA et
al., when in fact these statements are explicitly
confined to only the Code Revision
Commission case, and specifically concern
only the Official Code of Georgia Annotated
(abbreviated as “O.C.G. A.”). Plaintiffs have
no evidence, and there is no indication, that the
same facts and statements that apply to Public
Resource’s posting of the Official Code of
Georgia Annotated also apply to Public
Resource’s posting of the 1999 Standards.
Moreover, Plaintiffs fail to inform the Court
that this stipulation of facts concerns a
different matter entirely, and that Plaintiffs’
selective quotation omits the parts of the
quoted sentences that limit the statements to
the Official Code of Georgia Annotated. The
probative value of the proffered exhibit is
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.

106

The testimony is clear in context. Any risk of
confusion to the Court is minimal, is
outweighed by its probative value, and fails to
warrant exclusion. Paleteria La Michoacana,
Inc. v. Productos Lacteos Tocumbo S.A. De
C.V., 69 F.Supp.3d 175, 211 n.11 (D.D.C.
2014) reconsideration denied, No. CV 111623(RC), 2015 WL 456400 (D.D.C. Feb. 3,
2015) (unnecessary to exclude evidence under
Rule 403 at the summary judgment stage
“because the prejudicial effect of the
[evidence] at this stage of the proceedings is
minimal at best”) (citing Adams v. Ameritech
Servs., Inc., 231 F.3d 414, 428 (7th Cir. 2000);
Hines v. Consol. Rail Corp., 926 F.2d 262, 274
(3d Cir. 1991)).

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Defendant-Counterclaimant Public
Summary Judgment and Permanent
Resource’s Objections
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
55. Attached as Exhibit VVVVV is a true and See Public Resource’s objections to the Expert
correct copy of the Expert Report of S. E.
Report of S. E. Phillips, above at section III.a.
Phillips, Ph.D., J.D. Pursuant to Fed. R. Civ. P.
26(a)(2)(B).

Plaintiffs’ Response to Defendant’s
Objections
See Plaintiff’s 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)], filed
contemporaneously herewith.

56. Attached as Exhibit WWWWW is a true
and correct copy of the resume of S. E.
Phillips, Ph.D., J.D.

See Public Resource’s objections to the Expert
Report of S. E. Phillips, above at section III.a.

See Plaintiff’s 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)], filed
contemporaneously herewith.

57. Attached as Exhibit XXXXX is a true and
correct copy of the deposition transcript of
Wayne J. Camara, Ph.D., taken on May 1,
2015.

FRE 802 Hearsay. The proffered exhibit
contains out-of-court statements offered to
prove the truth of the matters asserted in the
exhibit.

At the summary judgment stage, parties are
specifically permitted to cite to deposition
transcripts. Fed. R. Civ. P. 56(c)(1)(A). The
testimony does not have to be admissible in the
form offered, but need only “be capable of
being converted into admissible evidence at
trial.” Jones v. United States, 934 F. Supp. 2d
284, 289 (D.D.C. 2013) (citing Gleklen v.
Democratic Cong. Campaign Comm., Inc., 199
F.3d 1365, 1369 (D.C. Cir. 2000)) (citations
omitted); see also Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003). Here, Plaintiffs
can provide this testimony in court at trial by
presenting Dr. Camara as a witness.

107

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment
58. Attached as Exhibit YYYYY is a true and
correct copy of the deposition transcript of
Dianne L. Schneider, Ph.D., taken on April 23,
2015.

Defendant-Counterclaimant Public
Resource’s Objections

FRE 802 Hearsay. The proffered exhibit
contains out-of-court statements offered to
prove the truth of the matters asserted in the
exhibit.

59. Attached as Exhibit ZZZZZ is a true and FRE 402 Relevance. Plaintiffs introduce this
correct copy of information from Bookshare’s exhibit to argue that Public Resource does not
website.
comply with the Chafee Amendment, but
Public Resource does not claim to comply with
the Chafee Amendment, and the Chafee
Amendment is not the only provision in the
Copyright Act through which an organization
can provide accessible material to people who
are print disabled. The proffered exhibit does
not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

108

Plaintiffs’ Response to Defendant’s
Objections

At the summary judgment stage, parties are
specifically permitted to cite to deposition
transcripts. Fed. R. Civ. P. 56(c)(1)(A). The
testimony does not have to be admissible in the
form offered, but need only “be capable of
being converted into admissible evidence at
trial.” Jones v. United States, 934 F. Supp. 2d
284, 289 (D.D.C. 2013) (citing Gleklen v.
Democratic Cong. Campaign Comm., Inc., 199
F.3d 1365, 1369 (D.C. Cir. 2000)) (citations
omitted); see also Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003). Here, Plaintiffs
can provide this testimony in court at trial by
presenting Dr. Schneider as a witness.

This evidence is relevant. In order to be
relevant, evidence need only have any
tendency to make a fact of consequence in the
litigation more or less probable than it would
be without the evidence. Exhibit ZZZZZ is a
printout from Bookshare.org, an online library
for people with print disabilities offered by Mr.
Fruchterman’s company Benetech, and shows
that Mr. Fruchterman is aware of the
requirements of the Chafee Amendment and of
how to provide access to printed material for
the print disabled while also protecting the
rights of copyright holders. As Mr.
Fruchterman’s expert report glaringly omits

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
any mention of such requirements and
protections when discussing the “benefits” of
Defendant’s copying, Exhibit ZZZZZ is highly
relevant to the credibility of Mr. Fruchterman
and goes directly to the weight the Court
should ascribe his opinions (none).

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted (the procedures
used by Bookshare.org). This exhibit was used
at deposition to ask Mr. Fruchterman
questions, but Mr. Fruchterman did not say
that he wrote the content, and the exhibit does
not fall into any hearsay exceptions.

60. Attached as Exhibit AAAAAA is a true
and correct copy of the deposition transcript of
Marianne Ernesto, taken on April 29, 2015.

A hearsay exception applies because the
referenced document is commonly relied upon
by the public or persons in particular
occupations. See FRE 803(17). Additionally,
this exhibit is a business record pursuant to
FRE 803. If necessary, Plaintiffs will call Mr.
Fruchterman as a custodian at trial. Finally,
this exhibit would be admissible pursuant to
the residual hearsay exception pursuant to FRE
807.

FRE 802 Hearsay. The proffered exhibit
contains out-of-court statements offered to
prove the truth of the matters asserted in the
exhibit.

At the summary judgment stage, parties are
specifically permitted to cite to deposition
transcripts. Fed. R. Civ. P. 56(c)(1)(A). The
testimony does not have to be admissible in the
form offered, but need only “be capable of
being converted into admissible evidence at
trial.” Jones v. United States, 934 F. Supp. 2d
284, 289 (D.D.C. 2013) (citing Gleklen v.
Democratic Cong. Campaign Comm., Inc., 199
F.3d 1365, 1369 (D.C. Cir. 2000)) (citations
omitted); see also Fraser v. Goodale, 342 F.3d
1032, 1036 (9th Cir. 2003). Here, Plaintiffs
can provide this testimony in court at trial by

109

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent
Injunction and Opposition to Defendant’s
Motion for Summary Judgment

Defendant-Counterclaimant Public
Resource’s Objections

Plaintiffs’ Response to Defendant’s
Objections
presenting Ms. Ernesto as a witness.

110

III.

CONCLUSION
Wherefore, Plaintiffs respectfully request that the Court overrule Defendant’s evidentiary

objections and consider all of the evidence submitted by Plaintiffs in ruling on Plaintiffs’ Motion
for Summary Judgment and for Entry of a Permanent Injunction and in ruling on Defendant’s
Motion for Summary Judgment.

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

/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Nikia L. Gray (pro hac vice)
Jonathan P. Labukas (DC Bar # 998662)
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.

111