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

Filing 133

PROPOSED BRIEFING SCHEDULE (Joint Submission) by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC.. (Elgarten, Clifton)

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.,

Case No. 1:14-cv-00857-TSC

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
JOINT SCHEDULING SUBMISSION
The Parties jointly submit their respective proposed schedules pursuant to the Court’s
February 26, 2019 Minute Order (the “Order”).
The Parties agree that Defendant may take additional discovery in accordance with the
Order and Defendant’s February 14, 2009 submission to the Court (doc #131). The Parties agree
to have objections to written discovery requests due fifteen days after service, rather than the
ordinary thirty days. While the Parties disagree about when to brief the summary judgment
motions, the Parties acknowledge that the Court may ultimately decide that it wishes to entertain
argument on the motions at the same time as motions are argued in the American Society for
Testing and Materials v. Public.Resource.Org, Inc. case, No. 1:13-cv-01215-TSC-DAR
(“ASTM”).

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In addition, the Parties present their respective proposals for scheduling discovery and
summary judgment briefing.
PLAINTIFFS’ SCHEDULING PROPOSAL
This case involves a single instance of copyright infringement by Defendant’s online
posting of the 1999 Standards for Educational and Psychological Testing.
Plaintiffs do not expect to take any discovery.
In its February 14, 2019 submission (doc. # 131), Defendant told the Court exactly what
remand discovery it sought: (1) documents in the form of updated sales data and other items
previously requested; (2) a Rule 30(b)(6) deposition on the updated sales data; and (3)
depositions of unspecified government officials.
Given the very limited discovery at issue, and the fact that this case involves none of the
complexity and factual and contextual variation associated with the ASTM case, discovery (and
briefing) here certainly cannot require the same amount of time as in ASTM. And given the
narrow requests, it is unlikely there will be disputes.1 For those reasons, discovery here could
easily be completed in 60 days. Plaintiffs have stretched the deadlines to 90 days primarily to
accommodate Defendant’s desire to try to depose government officials.
With respect to summary judgment briefing, the Parties can conclude discovery and
begin briefing within 120 days (or less) and Defendant’s proposal to stretch this remand out for
nearly a year is extreme. This case involves a single instance of copying, incorporation only in
Department of Education regulations, and involves none of the numerous fact patterns and
1

As previously noted, the document requests will be easy to answer by virtue of the fact that,
because Plaintiffs do not engage in the activities in question, there will be no responsive
documents. See e.g Pls.’ Reply to Def.’s Opposition, Doc. # 132, at 3 (Plaintiffs do not operate
online reading rooms for the 1999 Standards).
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groupings, variations among types of standards and types of incorporation, ownership and
trademark issues, that will be at issue in the ASTM case. It assuredly does not require the three
separate rounds of summary judgment briefs that Defendant proposes. Two rounds —
simultaneous opening followed by response briefs, with limited pages — should be more than
enough.
While the fair use issues here should be separately briefed, and be separately decided, the
decision whether to hear argument concurrent with the ASTM case is a matter for the Court to
decide in its discretion and convenience, to be determined later, based on the record. It is, of
course, up to the Court whether to decide the cases together. However, Plaintiffs urge that the
Court not decide the two cases in a single opinion because the result the last time was that the
fair use issues in this case got entirely lost in the shuffle when the case reached the Court of
Appeals.
With that in mind, Plaintiffs propose the following schedule on the understanding that all
dates may be extended for good cause, and the parties will meet and agree to extend dates where
good cause exists.
Event
Defendant may request Plaintiffs to update prior
document production, or issue new requests, for
documents or answers to the questions identified
in Defendant’ Opposition February 14, 2019
(doc. # 131).
Plaintiffs shall state any objections to the request.
Plaintiffs will provide responses.
Rule 30(b)(6) deposition on updated sales data, if
such deposition is necessary and cannot be
addressed by alternative means.
Defendant will depose any government
witnesses, and discovery concludes.

Date
April 1, 2019 (or 15 days from the date of this
Court’s order setting the schedule).

April 15, 2019 (or 30 days from the date of this
Court’s order)
May 1, 2019 (or 45 days from the date of this
Court’s order)
May 1-May 15, 2019 (or 45–60 days from the
date of this Court’s order)
Until June 15, 2019 (90 days from the date of
the order)

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The parties to simultaneously submit opening
briefs addressing the fair use remand issues.

July 15, 2019. (120 days from the date of this
Court’s order.

Response briefs.

August 15, 2019.

Defendant reserves the right to request, and the
Court (of course) reserves the right, to hear,
argument concurrent with the ASTM matter.

Hearing date to be set by the Court

PUBLIC RESOURCE’S PROPOSAL
To allow for document discovery, interrogatories, and depositions, including depositions
of government officials that may take additional time to schedule, Public Resource proposes the
following schedule:
Event

Deadline

Deadline for serving additional document requests and
interrogatories
Deadline for substantial completion of document production

May 16, 2019

Close of fact discovery

August 1, 2019

June 20, 2019

Public Resource requests a longer interval before the deadline for serving discovery
requests to allow for follow up requests that may be required due to objections and responses to
earlier rounds of discovery requests. Public Resource will work diligently and in good faith to
resolve any disagreements, but disputes may arise.2

2

For example, while meeting and conferring on this joint filing, Plaintiffs argued that their
document production will be limited because “Plaintiffs do not communicate with government
officials to solicit incorporation in regulations or enforcement of 1999 Standards,” and therefore
no such documents exist. Based on documents Plaintiffs filed in their prior summary judgment
motion, Public Resource believes this is incorrect. See, e.g., Dkts. 60-53, 60-54, and 60-55
(letters to United States senators encouraging them to cosponsor a bill that “would require that
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After the close of discovery, Public Resource urges the Court to consolidate briefing in
this case with briefing in the ASTM case (with a short hiatus in this case). If these cases return to
the D.C. Circuit, both cases (and their respective standards) will be evaluated together; it is in the
best interests of all parties and the Court to attempt to analyze and categorize all standards
together when conducting the fair use analysis, rather than allowing one case to proceed ahead of
the other. If the Court chooses to consolidate, Public Resource proposes the following:
Event

Deadline

Consolidated opening cross-motions for summary judgment

October 17, 2019

Amicus briefs

November 14, 2019

Consolidated opposition briefs

December 5, 2019

Consolidated reply briefs

December 19, 2019

If the Court does not believe that consolidation for the purposes of summary judgment is
appropriate, Public Resource requests a staggered briefing schedule, similar to the schedule for
the first summary judgment briefing, to help ensure that it has an adequate opportunity to
respond to each Plaintiff without overwhelming its pro bono resources.
Event

Deadline

[ASTM] ASTM Plaintiffs’ opening motion for summary judgment

October 17, 2019

[ASTM] Public Resource’s joint opening motion for summary
judgment/opposition to ASTM Plaintiffs’ motion
[AERA] AERA Plaintiffs’ opening motion for summary judgment

November 14, 2019
November 14, 2019

assessments meet The Standards for Educational and Psychological Testing (1999) . . . .) (italics
in original).
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Event

Deadline

[ASTM] Amicus briefs due

December 5, 2019

[ASTM] Plaintiffs’ joint reply/opposition to Public Resource’s
motion for summary judgment
[AERA] Public Resource’s joint opening motion for summary
judgment/opposition to AERA Plaintiffs’ motion
[ASTM] Public Resource’s reply

December 12, 2019
December 12, 2019

[AERA] Amicus briefs due

January 9, 2020

[AERA] Plaintiffs’ joint reply/opposition to Public Resource’s
motion for summary judgment
[AERA] Public Resource’s reply

January 16, 2020

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December 30, 2019

January 30, 2020

Respectfully submitted,
/s/ Clifton S. Elgarten
Clifton S. Elgarten (D.C. Bar # 366898)
[e-mail]
Crowell & Moring LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Telephone: [phone]

/s/ Andrew P. Bridges
Corynne McSherry (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]

Counsel for Plaintiffs

Andrew P. Bridges (D.C. Bar No. AR0002)
[e-mail]
Matthews B. Becker (pro hac vice)
[e-mail]
Fenwick & West LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant/CounterclaimPlaintiff Public.Resource.Org, Inc.
Dated: March 12, 2019

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