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

Filing 113

RESPONSE re #106 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (This document is SEALED and only available to aut [Redacted Version] Defendant Public.Resource.Org, Inc.'s Responses to Plaintiffs' Objections to Defendant's Evidence In Support of Its Reply Memorandum In Support of Its Motion for Summary Judgment filed by PUBLIC.RESOURCE.ORG, INC.. (Becker, Matthew)

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,

Civil Action No. 1:14-CV-00857-TSC-DAR
DEFENDANT PUBLIC.RESOURCE.ORG,
INC.’S RESPONSES TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S
EVIDENCE IN SUPPORT OF ITS REPLY
MEMORANDUM IN SUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT

v.
Action Filed: May 23, 2014
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaim-Plaintiff.
[PUBLIC VERSION]

Defendant-Counterclaimant Public.Resource.Org, Inc. (“Defendant”) replies to Plaintiffs,
American Educational Research Association, Inc., American Psychological Association, Inc.,
and National Council on Measurement in Education, Inc. (collectively, “Plaintiffs” or the
“Sponsoring Organizations”), Objections to Defendant-Counterclaimaint Public.Resource.Org,
Inc.’s Evidence in Support of Its Reply Memorandum In Support of Its Motion for Summary
Judgment, as follows.
I.

OBJECTIONS TO THE EXHIBITS IN SUPPORT OF DEFENDANT’S REPLY
MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY
JUDGMENT

Defendant’s Evidence

Plaintiffs’ Objections

1

Defendant’s Response

Defendant’s Evidence

Plaintiffs’ Objections

2

Defendant’s Response

Defendant’s Evidence

Plaintiffs’ Objections

3

Defendant’s Response

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Response

Defendant’s Exhibit No. 80:
A true and correct copy of
excerpts of the deposition of
Plaintiffs’ expert S. E.
Phillips, dated September 22,
2015.

To the extent that Defendant relies on
the excerpts of the deposition of
Plaintiffs’ expert S. E. Phillips dated
September 22, 2015 to argue that
Dr. Phillips is not qualified as an
expert with regard to certain expert
testimony, Plaintiffs object. Federal
Rule of Evidence 106 requires that
when a party introduces part of a
transcript, the adverse party may
require the introduction of other
portions or the full transcript when in
fairness, it ought to be considered at
the same time. The excerpts
designated by Defendant do not
address all of Dr. Phillips’
knowledge, skill, experience,
training, or education upon which
Dr. Phillips relied in giving her
expert testimony. Accordingly,
pursuant to Fed. R. Evid. 106,
Plaintiffs object to Exhibit 80
because Defendant fails to provide
the full deposition transcript of S.E.
Phillips and thus Defendant
mischaracterizes her expert testimony
and qualifications.

Exhibit 80 does not
mischaracterize Dr.
Phillips’ expert testimony or
qualifications. Plaintiffs
can request the entire
transcript, but failure to
provide the entire transcript,
when not requested to do
so, is not evidentiary
grounds to strike the
exhibit. “[A]n adverse party
may require the
introduction. . . of any other
part. . . that in fairness
ought to be considered at
the same time.” Fed. R.
Evid. 106. Thus the onus is
on the Plaintiff to request,
not the defendant to
produce without a formal
request. Plaintiffs appear to
have supplemented the
record by filing additional
portions of the deposition of
S. E. Phillips with their
Opposition, but if the Court
requests Public Resource
would gladly file the entire
transcript for its
consideration.

Defendant’s Exhibit No. 81:
A true and correct copy of

To the extent that Defendant relies on
its Second Amended Responses to

This is not an evidentiary
objection, this is an attempt

4

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Response

Public Resource’s Second
Amended Responses to
Plaintiffs’ First Set of
Interrogatories (No. 8), dated
June 4, 2015.

Plaintiffs’ First Set of Interrogatories
in Exhibit 81 to support the
proposition that it properly raised its
affirmative defenses in compliance
with Fed. R. Civ. P. 8(c), Plaintiffs
object. Federal Rule of Civil
Procedure 8(c) requires that a party
“affirmatively state any avoidance or
affirmative defense” when
responding to a pleading. “[I]t is
well-settled that [a] party’s failure to
plead an affirmative defense ...
generally results in the waiver of that
defense and its exclusion from the
case.” Harris v. Sec'y, U.S. Dep’t of
Veterans Affairs, 126 F.3d 339, 343
(D.C. Cir. 1997) (internal quotation
marks omitted; emphasis removed).
Fed. R. Civ. P. 8(c) “gives the
opposing party notice of the defense
... and permits the party to develop in
discovery and to argue before the
District Court various responses to
the affirmative defense.” Id.; Kapche
v. Holder, 677 F.3d 454, 465 (D.C.
Cir. 2012). A party must first raise
its affirmative defenses in a
responsive pleading before it can
raise them in a dispositive motion.
Gilbert v. Napolitano, 670 F.3d 258,
261 (D.C. Cir. 2012). Accordingly,
Fed. R. Civ. P. 8(c) explicitly
requires that a party affirmatively
state any avoidance or affirmative
defense in its responsive pleading or
else it is waived. As Defendant did
not include the affirmative defenses
of (1) the systems, processes,
procedures bar of 17 U.S.C. §102(b),
(2) the idea/expression merger
doctrine, and (3) the scenes a faire
doctrine in its Answer, they are
therefore waived. (See Plaintiffs’
Reply in Further Support of Their

by Plaintiffs to extend and
elaborate on their argument
from pages 9–10 of
Plaintiffs’ Reply in Further
Support of Its Motion for
Summary Judgment and
Opposition to Defendant’s
Motion for Summary
Judgment, ECF No. 89.
These issues are addressed
in Public Resource’s Reply
in Support of Its Motion for
Summary Judgment.

5

Defendant’s Evidence

Plaintiffs’ Objections
Motion for Summary Judgment and
Permanent Injunction and Opposition
to Defendant’s Motion For Summary
Judgment [Dkt No. 89], pp. 8-18).
Plaintiffs further object to
Defendant’s attempt to circumvent
the requirements of Fed. R. Civ. P.
8(c) by relying on its Second
Amended Responses to Plaintiffs’
First Set of Interrogatories as
improper. Defendant’s Second
Amended Responses were served on
the last day of the twice-extended
deadline for the close of fact
discovery. Fact discovery in this
matter initially closed on March 16,
2015 [Dkt Nos. 49 & 53]. That
deadline was extended to May 18,
2015, and then extended again to
June 4, 2015 after the Court granted
Plaintiff’s Motion to Compel
Defendant’s Second Amended
Responses to Plaintiff’s First Set of
Interrogatories, which was
necessitated, among other things, by
Defendant’s initial refusal to answer
Interrogatory No. 8. Id. Plaintiffs
object to the extent that Defendant
now offers Exhibit 81 to
disingenuously argue that Defendant
provided Plaintiffs fair notice of its
affirmative defenses asserted in its
Second Amended Responses to
Plaintiffs’ First Set of Interrogatories.
The affirmative defenses described in
Exhibit 81 do not comply with Fed.
R. Civ. P. 8(c), and the last day of the
twice-extended discovery deadline
does not provide Plaintiffs sufficient
notice to develop in discovery and to
argue before the Court various
responses to Defendant’s nonasserted affirmative defenses.

6

Defendant’s Response

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Response

Defendant’s Exhibit No. 82:
A true and correct copy of a
webpage of the U.S.
Department of Justice entitled
“Accessibility of State and
Local Government Websites
to People with Disabilities,” at
http://www.ada.gov/websites2
.htm.

Objection. Exhibit 82 is inadmissible
under Fed. R. Civ. P. 26(a) and
37(c)(1). Fed. R. Civ. P.
26(a)(1)(A)(ii) provides that “a party
must, without awaiting a discovery
request, provide to the other parties
. . . . a copy—or a description by
category and location—of all
documents, electronically stored
information, and tangible things that
the disclosing party has in its
possession, custody, or control and
may use to support its claims or
defenses, unless the use would be
solely for impeachment.” Fed. R.
Civ. P. 26(e) provides that parties
“who [have made] a disclosure under
Rule 26(a)—or who [have]
responded to an interrogatory,
request for production, or request for
admission [as part of formal
discovery]— must supplement or
correct [their] disclosure or response
. . . in a timely manner.” Elion v.
Jackson, 544 F. Supp. 2d 1, 5
(D.D.C. 2008). Fed. R. Civ. P. 37(c)
provides that if a party fails to
provide information as required by
Rule 26(a) or (e), the party is not
allowed to use that information to
supply evidence on a motion, at a
hearing, or at a trial, unless the
failure was substantially harmless.
Fed. R. Civ. P. 37(c)(1) is a selfexecuting sanction, and the motive or
reason for the failure is irrelevant.
Id.

The court may take judicial
notice of adjudicative facts
under Fed. R. Evid. 201, if
it is “not subject to
reasonable dispute” because
it is 1) “generally known
within the trial court’s
territorial jurisdiction” or
2) “can be accurately and
readily determined from
sources whose accuracy
cannot reasonably be
questioned.” The existence
of a government document
on the government website
can be accurately and
readily determined from
unquestionable sources (the
government itself). The
court may “take judicial
notice on its own.” Fed. R.
Evid. 201(c)(1). Notice can
occur at “any stage of the
proceeding.” Fed. R. Evid.
201(d).

Defendant served its Amended Initial
Disclosures pursuant to Fed. R. Civ.
P. 26(a)(1) on May 18, 2015 ( See
Plaintiffs’ Objections to DefendantCounterclaimant Public
Resource.Org, Inc.’s Evidence in
Support of Defendant7

Exhibit 82 is a publicly
available webpage that
consists entirely of
information in the public
domain, specifically a
government document by
the Department of Justice.
Impeachment: Under
Federal Rule of Civil
Procedure 26(a)(1)(A)(ii),
Public Resource is not
requires to disclose
documents that it may use
for the purposes of
impeachment.
Possession: Under Federal
Rule of Civil Procedure
26(a)(1)(A)(ii), Public

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Response

Counterclaimant’s Motion for
Summary Judgment [Dkt No. 89-64],
Exhibit 1, pp. 55-67), in which
Defendant identified six categories of
documents that it may use to support
its claims or defenses. However,
Defendant failed to identify Exhibit
82 as a possible item in its initial
Rule 26(a) disclosures. Exhibit 82
does not fall under any of the
identified six categories of
documents in Defendant’s Amended
Initial Disclosures. As a result,
pursuant to the self-executing
sanction provided in Fed. R. Civ. P.
37(c)(1), Defendant is not allowed to
use Exhibit 82 to support its Motion
for Summary Judgment.
Accordingly, Plaintiffs object to
Defendant’s attempt to introduce
Exhibit 82.

Resource was required to
disclose documents that
Public Resource “has in its
possession, custody, or
control.” This Exhibit is a
copy of a publicly
accessible website, which
was not in Public
Resource’s possession,
custody, or control.
Therefore, Public Resource
was not required to disclose
this Exhibit under Rule
26(a).

Moreover, the proffered exhibit, a
print-out of the U.S. Department of
Justice webpage entitled
“Accessibility of State and Local
Government Websites to People with
Disabilities,” has no bearing on
whether Public Resource directly and
contributorily infringed Plaintiffs’
copyright in the 1999 Standards.
This evidence does not have the
tendency to make the existence of
any fact that is of consequence to the
determination of this action more
probable or less probable than it
would be without the evidence. See
Fed. R. Evid. 401, 402. Accordingly,
Plaintiffs further object that
Exhibit 82 is irrelevant.

Harmless. Under Federal
Rule of Civil Procedure
37(c)(1), undisclosed
evidence is not excluded if
the failure to disclose was
harmless. Plaintiffs cannot
identify any harm from
Public Resource’s nondisclosure of a nonparty
website that was publicly
available online. Therefore,
this exhibit should not be
excluded.
Lesser Sanction. Under
Federal Rule of Civil
Procedure 37(c)(1), if and
only if the Court finds this
Exhibit should be excluded,
Public Resource asks leave
to move for the court to
impose a lesser sanction of
staying the proceedings so
that Plaintiff can cure any
reasonable harm they can
identify from the nondisclosure.
This material is relevant
because this evidence
corroborates Public

8

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Response
Resource’s argument that its
activities constitute a
transformative purpose
because it provides access
to the law to people who are
blind or visually disabled,
which is important because
the internet is the medium
through which most citizens
receive and access
information about the
workings of the
government.

Defendant’s Exhibit No. 83:
A true and correct copy of the
Report of the Advisory
Commission on Accessible
Instructional Materials in
Postsecondary Education for
Students with Disabilities,
dated December 6, 2011 and
published on the U.S.
Department of Education
website at
http://www2.ed.gov/about/bds
comm/list/aim/ meeting/aimreport.pdf.

Objection. Exhibit 83 is inadmissible
under Rules 26(a) and 37(c)(1) of the
Federal Rules of Civil Procedure.
R. Civ. P. 26(a)(1)(A)(ii) [sic]
provides that “a party must, without
awaiting a discovery request, provide
to the other parties . . . a copy—or a
description by category and
location—of all documents,
electronically stored information, and
tangible things that the disclosing
party has in its possession, custody,
or control and may use to support its
claims or defenses, unless the use
would be solely for impeachment.”
Fed. R. Civ. P. 26(e) provides that
parties “who [have made] a
disclosure under Rule 26(a)—or who
[have] responded to an interrogatory,
request for production, or request for
admission [as part of formal
discovery]—must supplement or
correct [their] disclosure or response
. . . in a timely manner.” Elion v.
Jackson, 544 F. Supp. 2d 1, 5
(D.D.C. 2008). Fed. R. Civ. P. 37(c)
provides that if a party fails to
provide information as required by
Rule 26(a) or (e), the party is not
allowed to use that information to
supply evidence on a motion, at a
9

The court may take judicial
notice of adjudicative facts
under Fed. R. Evid. 201, if
it is “not subject to
reasonable dispute” because
it is 1) “generally known
within the trial court’s
territorial jurisdiction” or
2) “can be accurately and
readily determined from
sources whose accuracy
cannot reasonably be
questioned.” The existence
of a government document
on the government website
can be accurately and
readily determined from
unquestionable sources (the
government itself). Notice
can occur at “any stage of
the proceeding.” Fed. R.
Evid. 201(d).
Exhibit 83 is a publicly
available webpage that
consists entirely of
information in the public
domain, specifically a
government document.
Impeachment: Under
Federal Rule of Civil

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Response

hearing, or at a trial, unless the
failure was substantially harmless.
Fed. R. Civ. P. 37(c)(1) is a selfexecuting sanction, and the motive or
reason for the failure is irrelevant.
Id.

Procedure 26(a)(1)(A)(ii),
Public Resource is not
requires to disclose
documents that it may use
for the purposes of
impeachment.

Defendant served its Amended Initial
Disclosures pursuant to Fed. R. Civ.
P. 26(a)(1) on May 18, 2015 ( See
Plaintiffs’ Objections to DefendantCounterclaimant Public
Resource.Org, Inc.’s Evidence in
Support of DefendantCounterclaimant’s Motion for
Summary Judgment [Dkt. No. 8964], Exhibit 1, pp. 55-67), in which
Defendant identified six categories of
documents that it may use to support
its claims or defenses. However,
Defendant failed to identify Exhibit
83 as a possible item in its initial
Rule 26(a) disclosures. Exhibit 83
does not fall under any of the
identified six categories of
documents in Defendant’s Amended
Initial Disclosures. As a result,
pursuant to the self-executing
sanction provided in Fed. R. Civ. P.
37(c)(1), Defendant is not allowed to
use Exhibit 83 to support its Motion
for Summary Judgment.
Accordingly, Plaintiffs object to
Defendant’s attempt to introduce
Exhibit 83.

Possession: Under Federal
Rule of Civil Procedure
26(a)(1)(A)(ii), Public
Resource was required to
disclose documents that
Public Resource “has in its
possession, custody, or
control.” This Exhibit is a
copy of a publicly
accessible website, which
was not in Public
Resource’s possession,
custody, or control.
Therefore, Public Resource
was not required to disclose
this Exhibit under Rule
26(a).

Moreover, the proffered exhibit, a
print-out of a Report of the Advisory
Commission on Accessible
Instructional Materials in
Postsecondary Education for
Students with Disabilities, has no
bearing on whether Public Resource
directly and contributorily infringed
Plaintiffs’ copyright in the 1999
Standards. This evidence does not
10

Harmless. Under Federal
Rule of Civil Procedure
37(c)(1), undisclosed
evidence is not excluded if
the failure to disclose was
harmless. Plaintiffs cannot
identify any harm from
Public Resource’s nondisclosure of a nonparty
website that was publicly
available online. Therefore,
this exhibit should not be
excluded.
Lesser Sanction. Under
Federal Rule of Civil
Procedure 37(c)(1), if and
only if the Court finds this
Exhibit should be excluded,
Public Resource asks leave
to move for the court to

Defendant’s Evidence

Defendant’s Response

have the tendency to make the
existence of any fact that is of
consequence to the determination of
this action more probable or less
probable than it would be without the
evidence. See Fed. R. Evid. 401,
402. Accordingly, Plaintiffs further
object that Exhibit 83 is irrelevant.

II.

Plaintiffs’ Objections

impose a lesser sanction of
staying the proceedings so
that Plaintiff can cure any
reasonable harm they can
identify from the nondisclosure.
This material is relevant
because this source helps
establish that educational
institutions and government
agencies have never relied
on the Chafee Amendment
alone to serve the needs to
students with disabilities.
Thus this demonstrates the
policy of the government is
for more accessibility
beyond that statute, and the
applicability of the fair use
defense that Public
Resource asserts.

CONCLUSION
WHEREFORE, Defendant respectfully requests that this Court deny Plaintiffs’

evidentiary objections at the hearing on the Parties’ Cross-Motions for Summary Judgment.

11

Dated: March 31, 2016

Respectfully submitted,
/s Matthew Becker
Andrew P. Bridges (admitted)
[e-mail]
Sebastian E. Kaplan (admitted pro hac vice)
[e-mail]
Matthew Becker (admitted pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone:
[phone]
Facsimile:
[phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

12