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

Filing 136

Second MOTION for Summary Judgment by PUBLIC.RESOURCE.ORG, INC. (Attachments: # 1 [REDACTED] Public Resources Memorandum of Law, # 2 Declaration Carl Malamud, # 3 Declaration Matthew Becker, # 4 [REDACTED] Public Resources Statement of Material Facts, # 5 [REDACTED] Public Resources Statement of Disputed Facts, # 6 [REDACTED] Public Resources Objections to Plaintiffs Evidence, # 7 Public Resources Request for Judicial Notice in Opposition, # 8 Text of Proposed Order, # 9 Certificate of Service)(Bridges, Andrew)

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,
v.
PUBLIC.RESOURCE.ORG,

Case No. 1:14-CV-00857-TSC-DAR
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
OBJECTIONS TO PLAINTIFFS’
EVIDENCE IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND
PERMANENT INJUNCTION
Action Filed: May 23, 2014

Defendant.

[PUBLIC REDACTED VERSION]

TABLE OF CONTENTS
Page
STANDARDS FOR ADMISSIBLE EVIDENCE IN RULING ON A MOTION FOR
SUMMARY JUDGMENT ..............................................................................................................1
A.

Irrelevant Evidence ..................................................................................................1

B.

Lack of Personal Knowledge/Foundation................................................................2

C.

Improper Lay Testimony on Legal Conclusions or Expert Subject
Matter .......................................................................................................................3

D.

Hearsay ....................................................................................................................4

E.

Unauthenticated Documents ....................................................................................5

F.

Secondary Evidence Rule ........................................................................................5

OBJECTIONS TO DECLARATIONS FILED IN SUPPORT OF PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT.....................................................................................5
II.

OBJECTIONS TO THE DECLARATION OF WAYNE J. CAMARA IN
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND ENTRY OF A PERMANENT INJUNCTION ..........................................................5

III.

OBJECTIONS TO THE DECLARATION OF MARIANNE ERNESTO IN
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND ENTRY OF A PERMANENT INJUNCTION ........................................................18

IV.

OBJECTIONS TO THE DECLARATION OF KURT F. GEISINGER IN
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND ENTRY OF A PERMANENT INJUNCTION ........................................................38

V.

OBJECTIONS TO THE DECLARATION OF PLAINTIFFS’ LEAD
COUNSEL JONATHAN HUDIS IN SUPPORT OF PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT AND ENTRY OF A PERMANENT
INJUNCTION ....................................................................................................................53

VI.

OBJECTIONS TO THE DECLARATION OF FELICE J. LEVINE IN
SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
AND ENTRY OF A PERMANENT INJUNCTION ........................................................62

VII.

OBJECTIONS TO THE DECLARATION OF DIANNE L. SCHNEIDER IN
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND ENTRY OF A PERMANENT INJUNCTION ........................................................80

i

TABLE OF CONTENTS
(Continued)
Page
VIII.

OBJECTIONS TO THE DECLARATION OF LAURESS L. WISE IN
SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
AND ENTRY OF A PERMANENT INJUNCTION ........................................................83

CONCLUSION ..............................................................................................................................95

ii

TABLE OF AUTHORITIES
Page(s)
CASES 
Anheuser-Busch, Inc. v. Natural Beverage Distribs.,
69 F.3d 337 (9th Cir. 1995) .......................................................................................................4
Barthelemy v. Air Lines Pilots Ass’n,
897 F.2d 999 (9th Cir. 1990) .....................................................................................................2
Blair Foods, Inc. v. Ranchers Cotton Oil,
610 F.2d 665 (9th Cir. 1980) .....................................................................................................4
Block v. City of Los Angeles,
253 F.3d 410 (9th Cir. 2001) .....................................................................................................1
Boyd v. City of Oakland,
458 F. Supp. 2d 1015 (N.D. Cal. 2006) .....................................................................................2
Cambridge Elecs. Corp. v. MGA Elecs., Inc.,
227 F.R.D. 313 (C.D. Cal. 2004) ...............................................................................................4
Evangelista v. Inlandboatmen’s Union of Pac.,
777 F.2d 1390 (9th Cir. 1985) ...................................................................................................3
Express, LLC v. Fetish Group, Inc.,
464 F. Supp. 2d 965 (C.D. Cal. 2006) .......................................................................................2
Gable v. Nat’l Broad. Co.,
727 F. Supp. 2d 815 (C.D. Cal. 2010), aff’d, 438 F. App’x 587 (9th Cir. 2011) ......................3
In re Cypress Semiconductor, Inc. Sec. Litig.,
891 F. Supp. 1369 (N.D. Cal. 1995), aff’d, 113 F.3d 1240 (9th Cir. 1997) ..............................4
Int’l Church of Foursquare Gospel v. City of San Leandro,
902 F. Supp. 2d 1286 (N.D. Cal. 2012) .....................................................................................4
Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999) ...................................................................................................................3
Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871 (1990) ...................................................................................................................4
Orr v. Bank of America,
285 F.3d 764 (9th Cir. 2002) .............................................................................................1, 2, 4

iii

TABLE OF AUTHORITIES
(Continued)
Page(s)
Pierce v. Kaiser Found. Hospitals,
CV 09-03837 WHA, 2010 WL 4590930 (N.D. Cal. Nov. 4, 2010),
aff’d, 470 F. App’x 649 (9th Cir. 2012).....................................................................................3
Riggsbee v. Diversity Servs., Inc.,
637 F.Supp.2d 39, 46 (D.D.C. 2009) .........................................................................................4
Smith v. Hughes Aircraft Co.,
22 F.3d 1432 (9th Cir. 1993) .....................................................................................................2
Soremekun v. Thrifty Payless, Inc.,
509 F.3d 978, 984 (9th Cir. 2007) .............................................................................................4
U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc.,
296 F. Supp. 2d 1322, 1331 (S.D. Ala. 2003)............................................................................3
U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc.,
608 F.3d 871 (D.C. Cir. 2010) ...................................................................................................1
U.S. v. Davis,
596 F.3d 852 (D.C. Cir. 2010) ...................................................................................................2
Uche-Uwakwe v. Shinseki,
972 F. Supp. 2d 1159 (C.D. Cal. 2013) .....................................................................................2
United States v. 87.98 Acres of Land More or Less in the County of Merced,
530 F.3d 899 (9th Cir. 2008) .....................................................................................................3
United States v. Dibble,
429 F.2d 598 (9th Cir. 1970) .....................................................................................................5
United States v. Hampton,
718 F.3d 978 (D.C. Cir. 2013) ...................................................................................................3
RULES
Fed. R. Civ. P. 26(a) ..........................................................................................................38, 80, 95
Fed.R.Civ.P. 30(b)(6)...............................................................................................................61, 80
Fed. R. Civ. P. 37 ...............................................................................................................38, 80, 95
Fed. R. Civ. P. 56 .........................................................................................................................2, 5

iv

TABLE OF AUTHORITIES
(Continued)
Page(s)
Fed. R. Civ. P. 56(c) ....................................................................................................................1, 2
Fed. R. Civ. P. 56(e) ........................................................................................................................4
Fed. R. Evid. 101 .............................................................................................................................1
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. 802 ...............................................................................................................18, 80, 95
Fed. R. Evid. 901 .............................................................................................................................5
Fed. R. Evid. 1001 ...........................................................................................................................5
Fed. R. Evid. 1002 ................................................................................................................. passim
Fed. R. Evid. 1101 ...........................................................................................................................1

v

Defendant-Counterclaimant Public.Resource.Org, Inc. hereby submits the following
objections to the Declarations submitted in support of Plaintiffs’ Renewed Motion for Summary
Judgment and for Permanent Injunction, ECF No. 134. Plaintiffs refiled numerous declarations
and exhibits that had been filed in their earlier Motion for Summary Judgment [Dkt. 60]. For
that reason, to avoid any risk of waiving its objections, Public Resource refiles its objections to
evidence applicable to those submissions, below.1 ICE Exhibit citations refer to the exhibits
listed in the Index of Consolidated Exhibits, Dkt. 70.
STANDARDS FOR ADMISSIBLE EVIDENCE IN
RULING ON A MOTION FOR SUMMARY JUDGMENT
It is fundamental that trial courts “can only consider admissible evidence in ruling on a
motion for summary judgment.” Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002)
(emphasis added); see also Fed. R. Civ. P. 56(c); Fed. R. Evid. 101 (Rules of Evidence apply to
all proceedings in the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to
Rule 101). Hearsay, documents that cannot be authenticated, out-of-context excerpts, and
evidence with no foundation will not suffice, and are not to be considered by the court in ruling
on motions for summary judgment or adjudication. See Block v. City of Los Angeles, 253 F.3d
410, 418-19 (9th Cir. 2001) (deciding that consideration of a declaration’s facts not based on
personal knowledge was an abuse of discretion because such facts were inadmissible). Much of
the evidence on which Plaintiffs attempt to rely fails to meet the minimum threshold
requirements of admissibility, as set forth below:
A.

Irrelevant Evidence

Irrelevant evidence cannot be considered in summary judgment proceedings. See Fed. R.
Evid. 402; see also U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc., 608 F.3d 871, 897
1

These objections originally appeared at Dkt. 69-4. Public Resource has excised any objections
that concern documents that Plaintiffs did not refile.
1

(D.C. Cir. 2010) (“To be admitted, evidence must be relevant.”); Smith v. Hughes Aircraft Co.,
22 F.3d 1432, 1439 (9th Cir. 1993) (affirming trial court’s refusal to consider irrelevant evidence
on summary judgment); Uche-Uwakwe v. Shinseki, 972 F. Supp. 2d 1159, 1165 (C.D. Cal. 2013)
(sustaining objection that statement filed in support of motion for summary judgment was
inadmissible for lack of relevance and foundation).
B.

Lack of Personal Knowledge/Foundation

A fact witness may not testify to a matter unless the witness has personal knowledge of
the matter. Fed. R. Evid. 602; Fed. R. Civ. P. 56(c) (“declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated”); U.S. v.
Davis, 596 F.3d 852, 856 (D.C. Cir. 2010) (“The Rules also prohibit a witness from testifying
unless he has personal knowledge of the subject of his testimony.”); Orr, 285 F.3d at 774 & n.9;
Express, LLC v. Fetish Group, Inc., 464 F. Supp. 2d 965, 973 (C.D. Cal. 2006) (“Declarations
submitted in conjunction with summary judgment proceedings must . . . be based on personal
knowledge”). Further, “[a] declarant’s mere assertions that he or she possesses personal
knowledge and competency to testify are not sufficient.” Boyd v. City of Oakland, 458 F. Supp.
2d 1015, 1023 (N.D. Cal. 2006). A declarant must show personal knowledge and competency
“affirmatively,” under Rule 56, for example, by “the nature of the declarant’s position and nature
of participation in matter.” Id.; see also Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018
(9th Cir. 1990) (inferring personal knowledge from affiants’ “positions and the nature of their
participation in the matters to which they swore”). The fact that Public Resource does not object
to the witnesses’ testimony that they have personal knowledge of the facts stated in their
declarations and are competent to testify thereto does not in any way signal Public Resource’s
agreement with those assertions. Public Resource merely does not contend those statements are
2

inadmissible—but they may be wrong.
C.

Improper Lay Testimony on Legal Conclusions or Expert Subject Matter

Legal conclusions are not admissible evidence. See Pierce v. Kaiser Found. Hospitals,
CV 09-03837 WHA, 2010 WL 4590930, at *8 (N.D. Cal. Nov. 4, 2010), aff’d, 470 F. App’x 649
(9th Cir. 2012) (excluding numerous declarant statements containing inadmissible legal
conclusions). The Declarants, without any legal expertise, repeatedly purport to state legal
conclusions and the legal effects of documents supposedly relevant to this dispute. See Fed. R.
Evid. 701; see also Evangelista v. Inlandboatmen’s Union of Pac., 777 F.2d 1390, 1398 n.3 (9th
Cir. 1985) (lay opinion construing contract provisions is inadmissible); Pierce, 2010 WL
4590930, at *8 (declaration that opponent “breached” agreement or “violated” laws is
inadmissible legal conclusion).
Testimony requiring scientific, technical, or other specialized knowledge may be given
only by an expert witness with the requisite knowledge, skill, experience, training, or education,
and opinion testimony is not permitted of a lay person. Fed. R. Evid. 701, 702; see also United
States v. Hampton, 718 F.3d 978, 981–82 (D.C. Cir. 2013) (finding error when district court
allowed FBI agent to testify as a lay witness in the form of an opinion without an applicable
exception in Rule 701); U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F.
Supp. 2d 1322, 1331 (S.D. Ala. 2003) (unqualified expert opinions inadmissible at summary
judgment). The “proponent of the expert bears the burden of demonstrating that the expert is
qualified.” Gable v. Nat’l Broad. Co., 727 F. Supp. 2d 815, 833 (C.D. Cal. 2010), aff’d, 438 F.
App’x 587 (9th Cir. 2011) (citing United States v. 87.98 Acres of Land More or Less in the
County of Merced, 530 F.3d 899, 904-05 (9th Cir. 2008)). See also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147-48 (1999) (expert must have specialized knowledge).

3

One type of improper lay opinion is unsupported, speculative, and conclusory statements.
These statements, as well as and claims of opposing parties and their attorneys, are not evidence
and do not raise a genuine issue of material fact sufficient to preclude summary judgment.
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990) (The purpose of Rule 56(e) is “not to
replace conclusory allegations of the complaint with conclusory allegations of an affidavit.”).
Rather, “[w]here the moving party will have the burden of proof at trial, it must affirmatively
demonstrate that no reasonable trier of fact could find other than for the moving party.” Int’l
Church of Foursquare Gospel v. City of San Leandro, 902 F. Supp. 2d 1286, 1290-91 (N.D. Cal.
2012) (citing Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007)). Cf. Orr,
285 F.3d at 783 (“To defeat summary judgment, [one opposing summary judgment] must
respond with more than mere hearsay and legal conclusions”); Cambridge Elecs. Corp. v. MGA
Elecs., Inc., 227 F.R.D. 313, 320 (C.D. Cal. 2004) (“Conclusory, speculative testimony in
affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary
judgment”).
D.

Hearsay

Generally, “inadmissible hearsay evidence may not be considered on a motion for
summary judgment.” Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 n.4
(9th Cir. 1995); see also Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir.
1980) (“hearsay evidence is inadmissible and may not be considered by this court on review of a
summary judgment”); Riggsbee v. Diversity Servs., Inc., 637 F.Supp.2d 39, 46 (D.D.C. 2009)
(“on summary judgment, statements that are impermissible hearsay or that are not based on
personal knowledge are precluded from consideration by the Court.”); In re Cypress
Semiconductor, Inc. Sec. Litig., 891 F. Supp. 1369, 1374 (N.D. Cal. 1995) (hearsay evidence
cannot be considered in summary judgment proceedings), aff’d, 113 F.3d 1240 (9th Cir. 1997).
4

E.

Unauthenticated Documents

Authentication or identification is a condition precedent to the admissibility of a
document. Fed. R. Evid. 901. Under Federal Rule of Civil Procedure 56, evidence in support of
a motion for summary judgment is objectionable if it cannot be presented in a form that would be
admissible. A document cannot be authenticated by one who does not have personal knowledge
of its authenticity. The foundation is laid for receiving a document in evidence by the testimony
of a witness with personal knowledge of the facts who attests to the identity and due execution of
the document and, where appropriate, its delivery. United States v. Dibble, 429 F.2d 598, 602
(9th Cir. 1970). If there Plaintiffs are unable to show that they could authenticate a document at
trial, then the document should not be considered in support of Plaintiffs’ motion for summary
judgment.
F.

Secondary Evidence Rule

The “secondary evidence rule” requires that contents of documents must be proved by
producing the document itself. Fed. R. Evid. 1001, 1002.
OBJECTIONS TO DECLARATIONS FILED IN SUPPORT OF
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
II.

OBJECTIONS TO THE DECLARATION OF WAYNE J. CAMARA IN
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
ENTRY OF A PERMANENT INJUNCTION

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment
1. I am the Senior Vice President, Research at
ACT. My company produces and publishes the
ACT® college readiness assessment — a
college admissions and placement test taken
[sic by] millions of high school graduates every
year. ACT also offers comprehensive
assessment, research, information, and program

Defendant-Counterclaimant
Public Resource’s Objections
No Objection.

5

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

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.
2. I submit this Declaration in support of the
motion of the American Educational Research
Association, Inc. (“AERA”), the American
Psychological Association, Inc. (“APA”), and
the National Council on Measurement in
Education, Inc. (“NCME”) (collectively,
“Plaintiffs” or “Sponsoring Organizations”) for
summary judgment and the entry of a
permanent injunction.

No Objection.

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).

No Objection.

4. Before working at The College Board, I
worked for 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 time at APA, I also served as the
Project Director for the revision of the 1985
edition of the Standards for Educational and
Psychological Testing 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 AERA Council, serving
from April, 2012 to April, 2015 as Vice

No Objection.

6

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

President for Division D. I was also elected to
NCME’s Board of Directors, serving on the
Board from 2002-2005 and 2009-2012, and
served as NCME’s President from 2010-2011.
Additionally, I have served on the Management
Committee for the Standards from 2005-2015.
5. My curriculum vitae is attached to this
Declaration as Exhibit 1.

No Objection.

6. I have written extensively on the Standards,
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.

7. In 1954, APA prepared and published the
“Technical Recommendations for Psychological
Tests and Diagnostic Techniques.” In 1955,
AERA and NCME prepared and published a
companion document entitled, “Technical
Recommendations for Achievement Tests.”
Subsequently, a joint committee of the three
organizations modified, revised, and
consolidated the two documents into the first
Joint Standards. Beginning with the 1966
revision, the Sponsoring Organizations
collaborated in developing the “Joint
Standards” (or simply, the “Standards”). Each
subsequent revision of the Standards has been
careful to note that it is a revision and update of
the prior version.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to his employment
with one of the Plaintiffs.

7

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

8. Beginning in the mid-1950s, the Sponsoring
Organizations formed and periodically
reconstituted a committee of highly trained and
experienced experts in psychological and
educational assessment, charged with the initial
development of the Technical Recommendations and then each subsequent revision of the
(renamed) Standards. These committees were
formed by the Sponsoring Organizations’
Presidents (or their designees), who would meet
and jointly agree on the membership. Often a
chair or co-chairs of these committees were
selected by joint agreement. Beginning with the
1966 version of the Standards, this committee
became referred to as the “Joint Committee.”

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

9. Financial and operational oversight for the
Standards’ revisions, promotion, distribution,
and for the sale of the 1999 and 2014 Standards
has been undertaken by a periodically
reconstituted Management Committee,
comprised of designees of the three Sponsoring
Organizations. As noted above, I served on this
Management Committee from 2005-2015.

FRE 602 Lack of Personal Knowledge. The
proffered testimony concerning what occurred
before 2005 is not based on the witness’s
personal knowledge of the matter and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

10. All members of the Joint Committee(s) and
the Management Committee(s) are unpaid
volunteers. The expenses associated with the
ongoing development and publication of the
Standards include travel and lodging expenses
(for the Joint Committee and Management
Committee members), support staff time,
printing and shipment of bound volumes, and
advertising costs.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues,
and it fails to acknowledge or discuss the
expenses that a large number of unpaid
volunteers and their employers bore in the
drafting of the Standards.

11. From the time of their initial creation to the
present, the preparation of and periodic
revisions to the Standards entail intensive labor
and considerable cross-disciplinary expertise.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.

FRE 701 Improper Lay Opinion. The proffered
testimony contains lay opinion that is not
rationally based on the witness’s perception
and is not helpful to clearly understanding the
witness’s testimony or to determining a fact in
issue, including because the proffered
testimony is conclusory.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the

8

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment
Each time the Standards are revised, the
Sponsoring Organizations select and arrange for
meetings of the leading authorities in
psychological and educational assessments
(known as the Joint Committee). During these
meetings, certain Standards are combined,
pared down, and/or augmented, others are
deleted altogether, and some are created as
whole new individual Standards. The 1999
version of the Standards is nearly 200 pages,
took more than five years to complete, and is
the result of work put in by the Joint Committee
to generate a set of best practices on educational
and psychological testing that are respected and
relied upon by leaders in their fields.

9

Defendant-Counterclaimant
Public Resource’s Objections
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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; and is based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment
12. Draft revisions of the 1985 Standards, for
what became the 1999 Standards, were widely
distributed for public review and comment
during the revision process. The Joint
Committee received thousands of pages of
comments and proposed text revisions from: the
membership of the Sponsoring Organizations,
scientific, professional, trade and advocacy
groups, credentialing boards, state and federal
government agencies, test publishers and
developers, and academic institutions. While
the Joint Committee reviewed and took under
advisement these helpful comments, the final
language of the 1999 Standards was a product
of the Joint Committee members. When the
1985 Standards were revised, more than half the
content of the 1999 Standards resulted from
newly written prose of the Joint Committee.

Defendant-Counterclaimant
Public Resource’s Objections
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter. For
example, the witness does not claim to have
reviewed each submission personally, or to
have supervised each member of the Joint
Committee’s review of the comments. Nor
does the witness claim to have personal
knowledge of whether prose written by other
members of the Joint Committee was “newly
written.”
FRE 701 Improper Lay Opinion. The proffered
testimony contains lay opinion that is not
rationally based on the witness’s perception
and is not helpful to clearly understanding the
witness’s testimony or to determining a fact in
issue, including because the proffered
testimony is conclusory.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of
numerous documents.

13. The Standards originally were created as
principles and guidelines – a set of best
practices to improve professional practice in
testing and assessment across multiple settings,
including education and various areas of
psychology. The Standards can and should be
used as a recommended course of action in the
sound and ethical development and use of tests,
and also to evaluate the quality of tests and
testing practices. Additionally, an essential
component of responsible professional practice
is maintaining technical competence. Many
professional associations also have developed
standards and principles of technical practice in
assessment. The Sponsoring Organizations’

10

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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; and is based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

Standards have been and still are used for this
purpose.
14. The Standards, however, are not simply
intended for members of the Sponsoring
Organizations, AERA, APA, and NCME. The
intended audience of the Standards is broad and
cuts across audiences with varying backgrounds
and different training. For example, the
Standards also are intended to guide test
developers, sponsors, publishers, and users by
providing criteria for the evaluation of tests,
testing practices, and the effects of test use. Test
user standards refer to those standards that help
test users decide how to choose certain tests,
interpret scores, or make decisions based on
tests results. Test users include clinical or
industrial psychologists, research directors,
school psychologists, counselors, employment
supervisors, teachers, and various
administrators who select or interpret tests for
their organizations. There is no mechanism,
however, to enforce compliance with the
Standards on the part of the test developer or
test user. The Standards, moreover, do not
attempt to provide psychometric answers to
policy or legal questions.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.

15. The Standards promote the development of
high quality tests and the sound use of results
from such tests. Without such high quality

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter

11

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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 and contains legal conclusions; and
is based on scientific, technical, or other
specialized knowledge within the scope of
Rule 702.
FRE 702 Unreliable Expert Opinion. The
proffered testimony on the goals, intent, and
operation of the Standards 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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

standards, tests might produce scores that are
not defensible or accurate, not an adequate
reflection of the characteristic they were
intended to measure, and not fair to the person
tested. Consequently, decisions about
individuals made with such test scores would be
no better, or even worse, than those made with
no test score information at all. Thus, the
Standards help to ensure that measures of
student achievement are relevant, that
admissions decisions are fair, that employment
hiring and professional credentialing result in
qualified individuals being selected, and
patients with psychological needs are diagnosed
properly and treated accordingly. Quality tests
protect the public from harmful decision
making and provide opportunities for education
and employment that are fair to all who seek
them.

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

16. The Standards apply broadly to a wide
range of standardized instruments and
procedures that sample an individual’s
behavior, including tests, assessments,
inventories, scales, and other testing vehicles.
The Standards apply equally to standardized
multiple-choice tests, performance assessments
(including tests comprised of only open-ended
essays), and hands-on assessments or
simulations. The main exceptions are that the
Standards do not apply to unstandardized
questionnaires (e.g., unstructured behavioral
checklists or observational forms), teachermade tests, and subjective decision processes
(e.g., a teacher’s evaluation of students’
classroom participation over the course of a
semester).

FRE 402 Relevance. The proffered testimony
concerning the types of testing the standards
apply to does not have any tendency to make a
fact of consequence in this litigation more or
less probable than it would be without the
evidence.

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.

FRE 403 Prejudice. The testimony omits any
relevant timeframe and does not specify which
editions of the Standards are referred to, which
confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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,

12

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
including because the proffered testimony is
conclusory; and is based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.
FRE 702 Unreliable Expert Opinion. The
proffered testimony on the application of the
Standards 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.

17. The Standards have been used as a source in
developing testing guidelines for such activities
as college admissions, personnel selection, test
translations, test user qualifications, and
computer-based testing. The Standards also
have been widely cited to address technical,
professional, and operational norms for all
forms of assessments that are professionally
developed and used in a variety of settings. The
Standards additionally provide a valuable public
service to state and federal governments as they
voluntarily choose to use them. For instance,
each testing company, when submitting
proposals for testing administration, instead of
relying on a patchwork of local, or even
individual and proprietary, testing design and
implementation criteria, may rely instead on the
Sponsoring Organizations’ Standards to afford
the best guidance for testing and assessment
practices.

13

FRE 402 Relevance. The proffered testimony
concerning the use of the Standards does not
have any tendency to make a fact of
consequence in this litigation more or less
probable than it would be without the
evidence.
FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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; and is based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of
documents.

18. The Standards were not created or updated
to serve as a legally binding document, in
response to an expressed governmental or
regulatory need, nor in response to any
legislative action or judicial decision. However,
the Standards have been cited in judicial
decisions related to the proper use and evidence
for assessment, as well as by state and federal
legislators. These citations in judicial decisions
and during legislative deliberations occurred
without any lobbying by the Plaintiffs.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues
as to which editions of the Standards and
which years the witness is referring to.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to the goals of the many authors of the
Standards.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception and is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

19. The Sponsoring Organizations do not keep
any of the revenues generated from the sales of
the Standards. Rather, the income from these
sales is used by the Sponsoring Organizations
to offset their development and production costs
and to generate funds for subsequent revisions.
This allows the Sponsoring Organizations to
develop up-to-date, high quality Standards that
otherwise would not be developed due to the
time and effort that goes into producing them.

FRE 403 Prejudice. The statement that the
Plaintiffs do not “keep” any of the revenues,
but use them for certain operating expenses, is
incomplete and misleading, because Plaintiffs
do keep the revenues but simply earmark them
for particular purposes.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally

14

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
based on the witness’s perception, including
because it is speculative; 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.
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.

20. At one time, funding for the Standards
revision process from third party sources (e.g.,
governmental agencies, foundations, other
associations interested in testing and assessment
issues, etc.) was raised as a consideration.
However, this option was not seriously explored
as the potential conflicts of interest in doing so
left the Sponsoring Organizations to conclude
that the Standards revisions should be selffunding – that is, from the sale of prior editions
of the Standards.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues
as to which editions of the Standards and
which years the witness is referring to.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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; and is based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.
FRE 802 Hearsay. The proffered testimony

15

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
relies on an out-of-court statement that is
offered to prove the truth of the matter
asserted.

21. In late 2013 and early 2014, the Sponsoring
Organizations became aware that the 1999
Standards had been posted on the Internet
without their authorization, and that psychology
students were obtaining free copies from the
posting source. Upon further investigation, the
Sponsoring Organizations discovered that
Public.Resource.Org, Inc. (“Public Resource”)
was the source of the online posting.
Accompanying this Declaration as
Exhibit MMM is a true copy of a thread of
emails exchanged among Laurie Wise, Suzanne
Lane, David Frisbie, Jerry Sroufe, Marianne
Ernesto, Barbara Plake, and myself2 sent
between December 16, 2013 and February 4,
2014, discussing Public Resource’s posting of
the 1999 Standards on the Internet, and marked
as Exhibit 1185 during my deposition.’
22. Past harm to the Sponsoring Organizations
from Public Resource’s activities includes a
lack of greater funding that otherwise would
have been available for the update of the
Sponsoring Organizations’ Standards from the
1999 to the 2014 versions, due to the reduced
volume of sales of the 1999 Standards.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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

2

Laurie Wise is the Immediate Past President of NCME and was serving as President of NCME
at the time of the email, Suzanne Lane is a member of the Standards Management Committee:
David Frisbie also is a member of the Standards Management Committee; Jerry Sroufe is the
Director of Government Relations at AERA, Marianne Ernesto is the Director, Testing and
Assessment, at APA, and Barbara Plake was Laurie Wise’s co-chair of the Joint Committee for
the revision of the 1999 Standards, which ultimately were published in 2014.
16

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
conclusory.

23. Should Public Resource’s infringement be
allowed to continue, the harm to the Sponsoring
Organizations, and public at large who rely on
the preparation and administration of valid, fair
and reliable tests, includes: (i) uncontrolled
publication of the 1999 Standards without any
notice that those guidelines have been replaced
by the 2014 Standards; (ii) future unquantifiable
loss of revenue from sales of authorized copies
of the 1999 Standards (with proper notice that
they are no longer the current version) and the
2014 Standards; and (iii) lack of funding for
future revisions of the 2014 Standards and
beyond.

FRE 403 Prejudice. The 2014 Standards are
not at issue in this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. The witness’s
statement is misleading because it suggests
that Public Resource’s actions risk depriving
Plaintiffs of income from the sale of the 2014
Standards. The witness’s statement is also
speculative and risks confusing the issues in
this case.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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; and is based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.
FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning harm
attributed to Public Resource 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.

17

Declaration of Wayne J. Camara In Support
of Plaintiffs’ Motion for Summary Judgment
24. Due to the small membership size of
NCME, and the relative minor portion of the
membership of AERA and APA who devote
their careers to testing and assessment, it is
highly unlikely that the members of the
Sponsoring Organizations will vote for a dues
increase to fund future Standards revision
efforts if Public Resource successfully defends
this case and is allowed to post the Standards
online for the public to download or print for
free. As a result, the Sponsoring Organizations
would likely abandon their practice of
periodically updating the Standards and there
would be an absence of any authoritative and
independent source of sound guidance relating
to the development, use, and evaluation of
psychological and educational tests.

III.

Defendant-Counterclaimant
Public Resource’s Objections
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.

OBJECTIONS TO THE DECLARATION OF MARIANNE ERNESTO IN
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
ENTRY OF A PERMANENT INJUNCTION

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections

1. I am the Director, Testing and Assessment, at
the American Psychological Association, Inc.
(“APA”). I have been employed with the APA
since May 2001. I submit this Declaration in
support of the motion of the American
Educational Research Association, Inc.
(“AERA”), the APA, and the National Council
on Measurement in Education, Inc. (“NCME”)
(collectively, “Plaintiffs” or the “Sponsoring
Organizations”) for a summary judgment and
the entry of a permanent injunction.

No Objection.

2. In my role as Director, Testing and
Assessment, I serve as APA’s primary authority
on all matters that relate to testing and
assessment. This subject matter includes

No Objection.

18

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections

educational testing, clinical assessment,
forensic testing and employment testing. I
advocate on behalf of APA in matters involving
federal or state legislative, regulatory or other
policy issues concerning testing and
assessment. I coordinate APA’s involvement in
testing issues in matters such as governance,
executive boards, and managerial bodies. I also
manage APA’s responses to internal, public,
member and media inquiries regarding testing
issues in a manner that is consistent with the
Standards for Educational and Psychological
Testing (the “Standards”). I advise, counsel and
oversee the activities of the APA’s Science
Directorate (and in particular its Office of
Testing and Assessment) on policy and
governance issues related to testing and
assessments. I further serve as staff liaison to
the APA’s Committee on Psychological Tests
an Assessment (“CPTA”). Since 2001, I have
served as APA’s primary contact for
information concerning the availability and
interpretation of the Standards published in
1999, and more recently I have done so
regarding the updated Standards published in
2014.
3. APA is a District of Columbia not-for-profit
corporation.

No Objection.

4. APA is the largest scientific and professional
organization representing psychology in the
United States. APA is the world’s largest
association of psychologists and counts a vast
number of researchers, educators, clinicians,
consultants and students among its members.
APA’s mission is to advance the creation,
communication and application of
psychological knowledge to benefit society and
improve people’s lives.

FRE 402 Relevance. 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.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally

19

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
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.

5. In 1954, APA prepared and published the
“Technical Recommendations for Psychological
Tests and Diagnostic Techniques.” It is my
understanding that in 1955 AERA NCME
prepared and published a companion document
entitled, “Technical Recommendations for
Achievement Tests.”

FRE 402 Relevance. The witness’s
understanding of the facts is not relevant.

6. Subsequently, a joint committee of the three
organizations modified, revised and
consolidated the two documents into the first
Joint Standards. Beginning with the 1966
revision, the three organizations (AERA, APA
and NCME) collaborated in developing the
“Joint Standards” (or simply, the “Standards”).
Each subsequent revision of the Standards has
been careful to cite the previous Standards and
note that it is a revision and update of that
document.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with the APA in May 2001.

20

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with the APA in May 2001.

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections

7. Beginning in the mid-1950s, AERA, APA,
and NCME formed and periodically
reconstituted a committee of experts in
psychological and educational assessment,
charged with the initial development of the
Technical Recommendations and then each
subsequent revision of the (renamed) Standards.
These committees were formed by the
Plaintiffs’ Presidents (or their designees), who
would meet and jointly agree on the
membership. Often a chair or co-chairs of these
committees were selected by joint agreement.
Beginning with the 1966 version of the
Standards, this committee became referred to as
the “Joint Committee.”

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with APA in May 2001.

8. Financial and operational oversight for the
Standards’ revisions, promotion, distribution,
and for the sale of the 1999 and 2014 Standards
has been undertaken by a periodically
reconstituted Management Committee,
comprised of designees of the three Sponsoring
Organizations.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with APA in May 2001.

9. All members of the Joint Committee(s) and
the Management Committee(s) are unpaid
volunteers. The expenses associated with the
ongoing development and publication of the
Standards include travel and lodging expenses
(for the Joint Committee and Management
Committee members), support staff time,
printing and shipment of bound volumes, and
advertising costs.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues,
and it fails to acknowledge or discuss the
expenses that a large number of unpaid
volunteers and their employers bore in the
drafting of the Standards.

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.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with APA in May 2001.

21

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections

10. Many different fields of endeavor rely on
assessments. The Sponsoring Organizations
have ensured that the range of these fields of
endeavor is represented in the Joint
Committee’s membership e.g., admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation. Similarly, the Joint
Committee’s members, who are unpaid
volunteers, represent expertise across major
functional assessment areas e.g., validity,
equating, reliability, test development, scoring,
reporting, interpretation, and large scale
interpolation.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.

11. From the time of their initial creation to the
present, the preparation of and periodic
revisions to the Standards entail intensive labor
and considerable cross-disciplinary expertise.
Each time the Standards are revised, the
Sponsoring Organizations select and arrange for
meetings of the leading authorities in
psychological and educational assessments
(known as the Joint Committee). During these
meetings, certain Standards are combined,
pared down and/or augmented, others are
deleted altogether, and some are created as
whole new individual Standards. The 1999
version of the Standards is nearly 200 pages and
took more than five years to complete.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with APA in May 2001.
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.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with APA in May 2001.
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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a

22

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
document.

12. The Standards, however, are not simply
intended for members of the Sponsoring
Organizations, AERA, APA, and NCME. The
intended audience of the Standards is broad and
cuts across audiences with varying backgrounds
and different training. For example, the
Standards also are intended to guide test
developers, sponsors, publishers, and users by
providing criteria for the evaluation of tests,
testing practices, and the effects of test use. Test
user standards refer to those standards that help
test users decide how to choose certain tests,
interpret scores, or make decisions based on
tests results. Test users include clinical or
industrial psychologists, research directors,
school psychologists, counselors, employment
supervisors, teachers, and various
administrators who select or interpret tests for
their organizations. There is no mechanism,
however, to enforce compliance with the
Standards on the part of the test developer or
test user. The Standards, moreover, do not
attempt to provide psychometric answers to
policy or legal questions.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with APA in May 2001, or for the goals or
intent of the Standards, which she did not
author.
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.
FRE 702 Unreliable Expert Opinion. The
proffered testimony on the goals, intent, and
operation of the Standards 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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

13. The Standards apply broadly to a wide

FRE 402 Relevance. The proffered testimony

23

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections

range of standardized instruments and
procedures that sample an individual’s
behavior, including tests, assessments,
inventories, scales, and other testing vehicles.
The Standards apply equally to standardized
multiple-choice tests, performance assessments
(including tests comprised of only open-ended
essays), and hands-on assessments or
simulations. The main exceptions are that the
Standards do not apply to unstandardized
questionnaires (e.g., unstructured behavioral
checklists or observational forms), teachermade tests, and subjective decision processes
(e.g., a teacher’s evaluation of students’
classroom participation over the course of a
semester).

concerning the types of testing the standards
apply to does not have any tendency to make a
fact of consequence in this litigation more or
less probable than it would be without the
evidence.
FRE 403 Prejudice. The testimony omits any
relevant timeframe and does not specify which
editions of the Standards are referred to, which
confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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; and is based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.
FRE 702 Unreliable Expert Opinion. The
proffered testimony on the application of the
Standards 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.

14. The Standards have been used to develop
testing guidelines for such activities as college

FRE 402 Relevance. The proffered testimony
concerning the use of the Standards does not

24

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment
admissions, personnel selection, test
translations, test user qualifications, and
computer-based testing. The Standards also
have been widely cited to address technical,
professional, and operational norms for all
forms of assessments that are professionally
developed and used in a variety of settings. The
Standards additionally provide a valuable public
service to state and federal governments as they
voluntarily choose to use them. For instance,
each testing company, when submitting
proposals for testing administration, instead of
relying on a patchwork of local, or even
individual and proprietary, testing design and
implementation criteria, may rely instead on the
Sponsoring Organizations’ Standards to afford
the best guidance for testing and assessment
practices.

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
have any tendency to make a fact of
consequence in this litigation more or less
probable than it would be without the
evidence.
FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of
documents.

15. The Standards were not created or updated
to serve as a legally binding document, in
response to an expressed governmental or
regulatory need, nor in response to any
legislative action or judicial decision. However,
the Standards have been cited in judicial
decisions related to the proper use and evidence
for assessment, as well as by state and federal
legislators. These citations in judicial decisions
and during legislative deliberations occurred
without any lobbying by the Plaintiffs.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues
as to which editions of the Standards and
which years the witness is referring to.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to the goals of the many authors of the
Standards.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception and is not

25

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

16. During the discovery phase of this litigation, FRE 1002 Secondary Evidence. The proffered
APA located in its archives correspondence
testimony is offered to prove the contents of a
relating to APA’s support for proposed
document.
legislation sought to be introduced in 2001 by
Senator Paul Wellstone (D-MN) on Fairness
and Accuracy in High Stakes Educational
Decisions for Students – a suggested
amendment to the Elementary and Secondary
Education Act (“No Child Left Behind Act”)
147 Cong. Rec. S. 4,644 (daily ed. May 9,
2001).
17. Accompanying this Declaration as
Exhibit NN is a true copy of a signed
correspondence between Ellen Garrison Ph.D.
and Patricia Kobor of APA and Ms. Jill
Morningstar, Legislative Assistant to U.S.
Senator Paul Wellstone dated April 7, 2000,
marked as Exhibit 1109 during my deposition.

No Objection.

18. Accompanying this Declaration as
Exhibit OO is a true copy of an unsigned
correspondence between Ellen Garrison Ph.D.
and Patricia Kobor of APA and Ms. Jill
Morningstar, Legislative Assistant to
U.S. Senator Paul Wellstone dated April 7,
2000, marked as Exhibit 1110 during my
deposition.

No Objection.

26

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections

19. Accompanying this Declaration as
Exhibit PP is a true copy of a signed
correspondence between Patricia Kobor and
Ellen Garrison, Ph.D. of APA and Ms. Jill
Morningstar, Legislative Assistant to
U.S. Senator Paul Wellstone dated April 13,
2000, marked as Exhibit 1111 during my
deposition.

No Objection.

20. Accompanying this Declaration as
Exhibit QQ is a true copy of an unsigned
correspondence between Raymond D. Fowler,
Ph.D. of APA and an unnamed Senator dated
May 7, 2001, marked as Exhibit 1114 during
my deposition.

No Objection.

21. Accompanying this Declaration as
Exhibit RR is a true copy of an unsigned
correspondence between L. Michael Honaker,
Ph.D. of APA and an unnamed Senator dated
March 6, 2001, marked as Exhibit 1115 during
my deposition.

No Objection.

22. Accompanying this Declaration as
Exhibit SS is a true copy of a document
containing “Highlights of APA’s Involvement
in Educational Testing Provisions of the
‘No Child Left Behind Act’” that also contains
an unsigned correspondence to an unnamed
Senator dated May 7, 2001, marked as
Exhibit 1116 during my deposition.

No Objection.

23. As noted above, many of these letters are
unsigned and are not printed on APA letterhead.
Therefore, in accordance with APA practices
and protocols, it is likely that the unsigned
letters (not printed on letterhead) were internal
discussion drafts that were never sent.

FRE 403 Prejudice. The witness’s belief as to
what is “likely” is less probative than
prejudicial, and risks confusing the issues and
misleading the factfinder.

27

FRE 602 Lack of Personal Knowledge. The
proffered testimony is explicitly speculative
and is not based on the witness’s personal
knowledge of the matter and the proffering
party has not introduced sufficient evidence to
show the witness has personal knowledge of
this matter, particularly as to documents

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
created by other individuals, and documents
created prior to her employment with APA in
May 2001.

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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.
24. Regarding the signed letters that were
printed on APA letterhead, they relate to
Senator Wellstone’s proposed legislation that
tests and assessments administered by the states
are of high quality and used appropriately for
the benefit of test administrators and test takers.
These are goals that are consistent with APA
policy as then reflected in the 1999 Standards.
Even though Senator Wellstone’s amendments
sought, in part, to mandate states’ compliance
with the Standards, none of the Sponsoring
Organizations actively advocated for this – and
in any event Senator Wellstone’s proposed
amendment including this language was never
enacted into law. Accompanying this
Declaration as Exhibit TT is a true copy of
20 U.S.C. § 6301, which is the current version
of the legislation Senator Wellstone sought to
amend.

28

FRE 402 Relevance. The relevant issue is
whether the APA lobbied in support of Senator
Wellstone’s proposed amendments mandating
compliance with the 1999 Standards, not
whether the proposed amendments were
unsuccessful notwithstanding the APA’s
lobbying activity.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to documents created by other individuals,
and documents created prior to her
employment with APA in May 2001.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

25. APA’s search of its records did not disclose
any further communications with Congress
relating to the Standards and, to the best of
APA’s knowledge, it has not engaged in
communications with Congress regarding
citation of the Standards in legislation since
2001.

FRE 403 Prejudice. The probative value of the
proffered testimony is substantially
outweighed by a danger of unfair prejudice,
confusing the issues, and misleading the
factfinder, because it omits mention of other
documents concerning APA’s communication
with Congress relating to the Standards that
were discussed at deposition, as well as other
communications with other policymakers. See,
e.g. ICE Exs.
47–49 (Plaintiffs’ briefing on
the 2014 Standards at the Russell Senate
Office Building on Capitol Hill on September
12, 2014).
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to documents created by other individuals.

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

29

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
scope of Rule 702.

26. APA has not solicited any government
agency to incorporate the Standards into the
Code of Federal Regulations or other rules of
Federal or State agencies.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues
as to which editions of the Standards and
which years the witness is referring to.
Moreover, Plaintiffs refused to provide
discovery concerning any edition of the
Standards other than the 1999 Standards, and it
would be unfairly prejudicial to allow them to
introduce testimony on the 2014 Standards or
other editions at summary judgment.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to any time period before she was employed
by APA in May 2001.

FRCP 26(a) and 37 Withheld Evidence.
Plaintiffs refused to provide evidence or
testimony concerning any edition of the
Standards other than the 1999 Edition, and
redacted documents that included data
concerning the 1985 and 2014 editions of the
Standards. See ICE Ex. 62
(Plaintiffs/counterclaim-defendants’
Objections and Answers to
Defendant/counterclaim-plaintiff’s First Set of
Interrogatories (Nos. 1–10) (objecting to
production of documents concerning any
publications other than the 1999 Standards and
stating that such documents are irrelevant));
ICE Ex. 63 (correspondence PRO counsel
identifying earlier versions and redactions as
issues in discovery). Plaintiffs should not be
allowed to now testify on matters they refused

30

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
to allow discovery into.

27. Rather, in the policymaking arena, APA
believes the Standards should be treated as
guidelines informing the enactment of
legislation and regulations consistent with best
practices in the development and use of test – to
insure that they are valid, reliable and fair.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.
This may, for instance, be APA’s belief now,
but was not APA’s belief at the time it lobbied
for the 1999 Standards to be mandated by law
in 2001.

28. Plaintiffs promote and sell copies of the
Standards via referrals to the AERA website, at
annual meetings, in public offerings to students,
and to educational institution faculty.
Advertisements promoting the Standards have
appeared in meeting brochures, in scholarly
journals, and in the hallways at professional
meetings. Accompanying this Declaration as
Exhibit UU is a true copy of an advertisement
for the 1999 Standards that appeared in the
December 1999 issue of APA’s Journal of
Educational Psychology.

FRE 403 Prejudice. The testimony omits any
relevant timeframe and does not specify which
editions of the Standards are referred to, which
confuses the issues. Plaintiffs ceased selling
and promoting the 1999 Standards in 2014,
and only resumed selling it in July 2015,

29. Distribution of the Standards is closely
monitored, by the Sponsoring Organizations.
AERA, the designated publisher of the
Standards, sometimes does provide promotional
complementary print copies to students or
professors. Except for these few complementary
print copies, however, the Standards are not
given away for free; and certainly they are not
made available to the public by any of the three
organizations for anyone to copy free of charge.

FRE 403 Prejudice. The testimony omits any
relevant timeframe and does not specify which
editions of the Standards is referred to, which
confuses the issues. Plaintiffs ceased selling
and promoting the 1999 Standards in 2014,
and only resumed selling it in recent months

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to any time period before she was employed
by APA in May 2001, and the activities of the
other Plaintiffs.

31

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections

30. To date, the Sponsoring Organizations have
never posted, or authorized the posting of, a
digitized copy of the 1999 Standards on any
publicly accessible website.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to any time period before she was employed
by APA in May 2001, and the activities of the
other Plaintiffs.

31. The Sponsoring Organizations do not keep
any of the revenues generated from the sales of
the Standards. Rather, the income from these
sales is used by the Sponsoring Organizations
to offset their development and production costs
and to generate funds for subsequent revisions.
This allows the Sponsoring Organizations to
develop up-to-date, high quality Standards that
otherwise would not be developed due to the
time and effort that goes into producing them.

FRE 403 Prejudice. The statement that the
Plaintiffs do not “keep” any of the revenues,
but use them for certain operating expenses, is
incomplete and misleading, because Plaintiffs
do keep the revenues but simply earmark them
for particular purposes.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to any time period before she was employed
by APA, and the activities of the other
Plaintiffs.
FRE 701 Improper Lay Opinion. The proffered
testimony as to the effects and necessity of
Plaintiffs’ financing model 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.
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

32

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
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.

32. Without receiving at least some moderate
income from the sales of the Standards to offset
their production costs and to allow for further
revisions, it is very likely that the Sponsoring
Organizations would no longer undertake to
periodically update them, and it is unknown
who else would.

FRE 403 Prejudice. The 2014 Standards are
not implicated by this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. The witness’s
statement is misleading because it suggests
without justification or basis that Public
Resource’s actions risk depriving Plaintiffs of
income from the sale of the 2014 Standards.
The witness’s statement is also speculative and
risks confusing the issues in this case.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
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

33

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

33. Due to the relative minor portion of the
membership of APA who devote their careers to
testing and assessment, it is highly unlikely that
the members of APA will vote for a dues
increase to fund future Standards revision
efforts if Public Resource successfully defends
this case and is allowed to post the Standards
online for the public to download or print for
free. As a result, the Sponsoring Organizations
would likely abandon their practice of
periodically updating the Standards.

FRE 403 Prejudice. The 2014 Standards are
not implicated by this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. The witness’s
statement is misleading because it suggests
that Public Resource’s actions risk depriving
Plaintiffs of income from the sale of the 2014
Standards. The witness’s statement is also
speculative and risks confusing the issues in
this case.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
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.

34

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections

34. The Joint Committee that authored the 1999
Standards comprised 16 members. Except for
Manfred Meier (who could not be located, nor
could his heirs), work made-for-hire letters
were signed by 13 Joint Committee Members,
and posthumous assignments were signed by
the heirs of 2 deceased Joint Committee
Members, vesting ownership of the copyright to
the 1999 Standards in the Sponsoring
Organizations. Accompanying this Declaration
as Exhibits VV-HHH are the 13 work made-forhire letters signed by Eva Baker, Lloyd Bond,
Daniel Goh, Bert Green, Edward Haertel, Jo-Ida
Hansen, Suzanne Lane, Sharon Johnson-Lewis,
Joseph Matarazzo, Pamela Moss, Esteban
Olmedo, Diana Pullin, and Paul Sackett,
marked as Exhibits 1065, 1069, 1071, 1072.
1075, 1078, 1082, 1085, 1086, 1089, 1090,
1091, and 1094 during my deposition.
Accompanying this Declaration as Exhibits III
and JJJ are the posthumous assignments signed
by the heirs of Leonard S. Feldt and Charlie
Spielberger, marked as exhibits 1070 and 1097
during my deposition.

FRE 403 Prejudice. The witness’s testimony is
misleading and confuses the issues. 17
individuals participated in the Joint Committee
for the 1999 Standards, not 16.
Additionally, the witness fails to mention that
hundreds of individuals, organizations, and
other entities participated in the development
of the 1999 Standards in collaboration with the
Joint Committee members. See SMF ¶ 9.,
Moreover, the witness’s opinion as to the legal
effect of these alleged “work-made-for-hire
letters” and “posthumous assignments” is
prejudicial.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
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

35

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
the case.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

35. Public Resource posted Plaintiffs’ 1999
Standards to its website and the Internet
Archive website without the permission or
authorization of any of the Sponsoring
Organizations.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

36. Past harm from Public Resource’s
infringing activities includes misuse of
Plaintiffs’ intellectual property without
permission.

FRE 403 Prejudice. The witness’s testimony is
misleading and confuses the issues by alleging
that Public Resource’s activities were
infringing, and suggesting that Public
Resource should have obtained permission to
use the 1999 Standards incorporated by
reference and that Plaintiffs could be harmed
by such use.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
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

36

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
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.

37. Should Public Resource’s infringement be
allowed to continue, the harm to the Sponsoring
Organizations, and public at large who rely on
the preparation and administration of valid, fair
and reliable tests, includes: (i) uncontrolled
publication of the 1999 Standards without any
notice that those guidelines have been replaced
by the 2014 Standards; (ii) future unquantifiable
loss of revenue from sales of authorized copies
of the 1999 Standards (with proper notice that
they are no longer the current version) and the
2014 Standards; and (iii) lack of funding for
future revisions of the 2014 Standards and
beyond.

FRE 403 Prejudice. The 2014 Standards are
not at issue in this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. The witness’s
statement is misleading because it suggests
that Public Resource’s actions risk depriving
Plaintiffs of income from the sale of the 2014
Standards. The witness’s statement is also
speculative and risks confusing the issues in
this case.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
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

37

Declaration of Marianne Ernesto In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public.Resource.Org, Inc.’s Objections
reliable principles and methods to the facts of
the case.

IV.

OBJECTIONS TO THE DECLARATION OF KURT F. GEISINGER IN
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
ENTRY OF A PERMANENT INJUNCTION

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

1. I am currently Director of the Buros Center
on Testing and W. C. Meierhenry Distinguished
University Professor at the University of
Nebraska-Lincoln. I submit this Declaration in
support of the motion of the American
Educational Research Association, Inc.
(“AERA”), the American Psychological
Association, Inc. (“APA”), and the National
Council on Measurement in Education, Inc.
(“NCME”) (collectively, “Plaintiffs” or
“Sponsoring Organizations”) for summary
judgment and the entry of a permanent
injunction.

No Objection.

2. My curriculum vitae is attached to this
Declaration as Exhibit 1.

No Objection.

3. I received my doctoral degree in Educational
Psychology in 1977 from the Pennsylvania
State University, after previously receiving my
masters’ degree in Psychology at the University
of Georgia and my bachelor’s degree from
Davidson College (with honors). I also studied
German, Psychology and other topics as an
undergraduate at the Phillips Universität in
Marburg, Germany and at Harvard University
when I attended the Institute for Educational
Management in 1995.

No Objection.

4. From 2001 to 2006, I served as the Vice
President of Academic Affairs and Professor of

No Objection.

38

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

Psychology at the University of St. Thomas in
Houston, Texas, where I was responsible for
four academic schools, approximately 200
faculty members, and over 4,000 students. From
1997 to 2001, I served as Academic Vice
President and Professor of Psychology at
Le Moyne College. From 1992 to 1997 I served
as Dean of the College of Arts and Sciences and
Professor of Psychology at the State University
of New York at Oswego. And, from 1977-1992
I served as a Professor of Psychology at
Fordham University in New York City, where I
served as department chair for the Department
of Psychology and director of the Doctoral
program in Psychometrics.
No Objection.
5. Over the past forty years, I have researched,
studied, and taught psychometrics
(psychometrics is the quantitative study of tests
and measures in terms of the value, usefulness,
and interpretation of the results of such
measures). I also am a fellow, diplomate, and
member of numerous professional societies
involving educational and psychological testing,
such as the APA (fellow), the American
Association for Assessment Psychology
(diplomate), the AERA (fellow), and the
NCME, as well as other professional
associations. I have represented the APA by
serving on and chairing the Joint Committee on
Testing Practices (which is separate from the
APA committee responsible for the 1999
Standards for Educational and Psychological
Testing) and have served on the APA’s
Committee on Psychological Testing and
Assessment. In 2010, I was elected to serve two
terms (2006-2008 and 2009-2011) as the
representative on the Council of
Representatives for the APA’s Division of
Evaluation, Measurement and Statistics. My
second term was cut short by one year when I
was elected to serve as a member-at-large on
the APA’s Board of Directors in 2010, a

39

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

position I held for a three-year term (20112013).
6. I have authored numerous publications about
psychological and educational testing. I have
worked at the Educational Testing Service
(“ETS”), chaired its Technical Advisory
Committee for the Graduate Record
Examination (“GRE”), served on the Board of
Directors for the GRE (a Board that I also
chaired), and have been a member of the
College Board, (formerly known as the College
Entrance Examination Board) for which I
served (2000-2002) on its SAT Committee. I
recently concluded a four-year term (20112014) on the Advisory Research Committee for
the College Board, serving the last two years as
its chair. I currently serve on the Technical
Advisory Committee for the Educational
Records Bureau3 and on Saudi Arabia’s
International Advisory Board for its National
Center for Assessment and Evaluation.

No Objection.

7. In 2010, I was elected to the Council (i.e.,
Board of Directors) for the International Test
Commission—the primary international testing
body. In 2012, I was also elected as its
Treasurer and to serve on its Executive Council.
I am the only American who serves on its
Executive Council.

No Objection.

8. I was asked to review and share my
comments’ [sic] chapters of the 1999 Standards
for Educational and Psychological Testing,
published jointly by the AERA, the APA, and
the NCME (the “1999 Standards”). The
Standards4 embody the professionally accepted

FRE 402 Relevance / FRE 403 Prejudice. The
testimony omits reference to any relevant
timeframe, and witness’s use of the term
“Standards” without referencing a particular
edition or relevant timeframe confuses the
issues.

3

The Educational Record Bureau specializes in the development and use of tests and testing
products for private and independent educational institutions at the p-12 levels.
4
I use the term “Standards” to refer to the Standards for Educational and Psychological Testing
as a whole, not a specific version of the Standards, i.e. 1999 or 2014.
40

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

practices for testing and measurement. One of
the chapters I reviewed was based upon the
testing of individuals with disabilities, an area
in which I have engaged in research and have
served as an expert witness in federal courts as
well as state courts in New York, New Jersey,
and California.
9. In addition to my 130 plus journal articles
and book chapters, I have written, edited, or coedited approximately 15 books and
monographs. The vast majority of these
publications deal with testing and measurement
issues. For example, I have edited two books on
the psychological testing of Hispanics and
another I co-edited related to fairness in testing.
I have also co-edited several books of reviews
of published tests and measures. I was also
Editor-in-Chief for the three-volume Handbook
of Testing and Assessment in Psychology
(published by the APA in 2013) and have been
editor of the journal Applied Measurement in
Education for the past 9 plus years. Taylor &
Francis, in conjunction with the Buros Center
for Testing publishes this journal.

No Objection.

10. I also co-chaired a sub-committee of the
APA’s Joint Committee on Testing Practices
and the overall committee itself that developed
a document on the rights and responsibilities of
test takers (1993-2001). This document has
been endorsed by a number of professional
associations related to proper test use, including
the APA, the National Association of School
Psychologists, the American Counseling
Association, and the NCME. While chairing the
Joint Committee on Testing Practices, the
committee developed a book entitled Assessing
Individuals with Disabilities, in which I wrote a
chapter. I also served on a task force charged to
illuminate issues related to the testing of
individuals with disabilities as well as ethnic
minorities. The task force wrote and edited a

No Objection.

41

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

book entitled Test Interpretation and Diversity:
Achieving Equity in Assessment, which was
published by the APA’s publication unit in
1997. I had three chapters in that volume.
11. I additionally served on an APA task force
(2007-2010) that considered the assessment and
intervention of individuals with disabilities. The
results of our work, Guidelines for the
“Assessment of and Intervention with
Individuals with Disabilities,” was published in
the American Psychologist, the premier
publication of the APA (Geisinger et al., 2012)
and endorsed as the policy of the APA by its
governance. A reference for the American
Psychologist article may be found on my
curriculum vitae, which is attached as Exhibit 1.

No Objection.

12. In the past two years (2014-2015), I have
No Objection.
served on two task forces related to the use of
measures in clinical psychology. One of these
has written a policy, recently accepted by the
APA’s Board of Directors, that differentiates
the use of tests and other measures, for
screening and assessment, two highly related
types of testing, but which differ in specificity
and focus. Tests are usually standardized
measures that are given to a number of people
for a specific purpose. A bar examination would
be an example of a test. Measures are other
variables yielding typically quantitative values
that are used to evaluate a person and include
tests. A bathroom scale results in a measure
(weight), but would not normally be considered
as a test.
13. During 2013-2014, I served on a committee
of the Institute of Medicine (a component of the
National Academy of Sciences) that evaluated
the use of psychological and clinical
neuropsychological measures by the Social
Security Administration in determining

42

No Objection.

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

disability status. The final report, entitled
Psychological Testing in the Service of
Disability Determination, has been published
by the National Academy of Sciences and is
also available from the Institute of Medicine’s
website.
14. For approximately four years (2008-2012), I
jointly represented three professional
associations (the AERA, the APA, and the
NCME) in developing the International
Standards Organization’s (“ISO”) first standard
on psychological testing. The results of the
work of the committee that engaged in this
activity was ISO Standard 10677. The standard
is divided into two parts. The first establishes
requirements and guidance for a client working
with a service provider to carry out the
assessment of an individual, a group, or an
organization for work-related purposes. ISO
10667-1:2011 enables the client to base its
decisions on sound assessment results. ISO
10667-1:2011 also specifies the responsibilities
of a service provider in terms of the assessment
methods and procedures that can be carried out
for various work-related purposes made by or
affecting individuals, groups or organizations.

No Objection.

15. I also built or helped to build a number of
testing measures. Specifically, I served as the
primary consultant on a number of civil service
examinations given in New York City for police
officers, sergeants, lieutenants, and captains,
fire fighters, fire lieutenants, fire captains,
sanitation supervisors, and a variety of other
civil service occupations over a period of at
least a decade ending in 1992. I sometimes
defended these measures in court. I also
represented the Public Service Alliance of
Canada against the Public Service of Canada in
two cases related to their national testing efforts
and assisted Disability Rights Advocates with
regard to several testing disputes concerning

FRE 402 Relevance. The witness’s prior
experience as an expert on testing issues is not
relevant to his opinions in this case, which
concerns alleged harm to Plaintiffs.

43

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

individuals with disabilities. See Exh. 1.
16. In recent years, my primary efforts have
been to assure testing fairness for those with
disabilities, language minorities, and ethnic
minorities.

FRE 402 Relevance. The witness’s prior
experience with testing issues is not relevant to
his opinions in this case, which concerns
alleged harm to Plaintiffs.

17. I first learned about the Standards for
Educational and Psychological Testing while I
was in my first or second year of graduate
school. They are widely discussed in classes on
testing and testing practice and treated with
great respect. Some graduate programs and
courses require that students purchase the
Standards as part of their coursework and
education. In teaching graduate classes on
topics related to testing and associated with the
Standards, I often refer to them, building the
thoughts and approaches described in the
Standards, as well as specific standards, into my
lectures and classes. I expect students to
purchase and read the Standards in a number of
the classes I taught. When writing chapters and
articles on such topics as test validity, test
reliability, and test fairness—all topics I have
discussed in writing—I frequently refer to the
Standards to check my use of language, my
interpretations, and to check that I am not
omitting a topic of importance relevant to the
specific publication. Also, when building tests,
such as the Police and Fire Department Civil
Service tests I helped construct for the City of
New York, or when serving on technical
advisory committees for the well-known SAT
and GRE committees and boards, I refer to the
Standards frequently. Usually, in meetings I
attempt to express what I believed to be best
practices, and then would “back up” my beliefs
with quotes from the specific and relevant
standards. Perhaps my greatest use of the
Standards has occurred in my legal defense of
specific tests or in my critique of particular uses
of some tests, both of which I have engaged in

FRE 402 Relevance. The witness’s prior
experience as an expert on testing issues is not
relevant to his opinions in this case, which
concerns alleged harm to Plaintiffs.

44

FRE 403 Prejudice. The testimony omits
reference to any relevant timeframe, and
witness’s use of the term “Standards” without
referencing a particular edition or relevant
timeframe confuses the issues.

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

during my career as an expert witness.
18. The ultimate advantages of the Standards in
my opinion are that they are written and edited
by first-rate professionals covering a number of
the representative fields in which testing and
assessment are primarily employed, they are
thoroughly and publicly vetted by other
professionals, and they are openly discussed
during the revision process at many
professional conferences. The resultant
document becomes a living document of best
practices. That the members of the committee
drafting the Standards are generally extremely
highly respected professionals in the field of
testing and testing practice also provides the
Standards great credibility. Given my
experience over the last 10 years as Director of
the Buros Center for Testing, thought of by
many as the Consumer Reports of the testing
industry, and my service as the co-editor of the
Mental Measurements Yearbooks, where
commercially available tests are evaluated, I
can state categorically that the Standards serve
as the primary basis for all test evaluations. The
other editors of these Yearbooks and I refer to
the Standards with great frequency to determine
and assure ourselves that the comments made
by reviewers are consistent with the Standards
and that the reviews themselves are based upon
principles supported by, and coherent with, the
Standards. The Standards originally were
created as principles and guidelines – a set of
best practices to improve professional practice
in testing and assessment across multiple
settings, including education and various areas
of psychology. The Standards can and should
be used as a recommended course of action in
the sound and ethical development and use of
tests, and also to evaluate the quality of tests
and testing practices. Additionally, an essential
component of responsible professional practice
is maintaining technical competence. Many

45

FRE 402 Relevance. The witness’s prior
experience as an expert on testing issues is not
relevant to his opinions in this case, which
concerns alleged harm to Plaintiffs.
FRE 403 Prejudice. The testimony omits
reference to any relevant timeframe, and
witness’s use of the term “Standards” without
referencing a particular edition or relevant
timeframe confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

professional associations also have developed
standards and principles of technical practice in
assessment. The Sponsoring Organizations’
Standards have been and still are used for this
purpose.
19. The Standards, however, are not simply
intended for members of the Sponsoring
Organizations: AERA, APA, and NCME. The
intended audience of the Standards is broad and
cuts across audiences with varying backgrounds
and different training. For example, the
Standards also are intended to guide test
developers, sponsors, publishers, and users by
providing criteria for the evaluation of tests,
testing practices, and the effects of test use. Test
user-oriented standards refer to those standards
that help test users decide how to choose certain
tests, interpret scores, or make decisions based
on test results. Test users include clinical or
industrial psychologists, research directors,
school psychologists, counselors, employment
supervisors, teachers, and various
administrators who select or interpret tests for
their organizations. There is no mechanism,
however, to enforce compliance with the
Standards on the part of the test developer or
test user. The Standards, moreover, do not
attempt to provide psychometric answers to
policy or legal questions. They do not
themselves set requirements, but serve to
distribute best practices and procedures.

FRE 403 Prejudice. The federal government
requires compliance with the 1999 Standards
through Title 34 Section 668.146 of the Code
of Federal Regulations, and the witness’s
discussion of compliance mechanisms by other
parties is irrelevant and confuses the issues.
The testimony omits reference to any relevant
timeframe, and witness’s use of the term
“Standards” without referencing a particular
edition or relevant timeframe confuses the
issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with APA, or for the goals or intent of the
Standards, which she did not author.
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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

46

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

20. The Standards apply broadly to a wide
range of standardized instruments and
procedures that sample an individual’s
behavior, including tests, assessments,
inventories, scales, and other testing vehicles.
The Standards apply equally to standardized
multiple-choice tests, performance assessments
(including tests comprised of only open-ended
essays), and hands-on assessments or
simulations. The main exceptions are that the
Standards do not apply to unstandardized
questionnaires (e.g., unstructured behavioral
checklists or observational forms), teachermade tests, and subjective decision processes
(e.g., a teacher’s evaluation of students’
classroom participation over the course of a
semester).

FRE 402 Relevance. The proffered testimony
concerning the types of testing the standards
apply to does not have any tendency to make a
fact of consequence in this litigation more or
less probable than it would be without the
evidence.
FRE 403 Prejudice. The testimony omits any
relevant timeframe and does not specify which
editions of the Standards are referred to, which
confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 702 Unreliable Expert Opinion. The
proffered testimony on the application of the
Standards 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.

21. The Standards have been used to develop
testing guidelines for such activities as college
admissions, personnel selection, test
translations, test user qualifications, and
computer-based testing. The Standards also
have been widely cited to address technical,
professional, and operational norms for all
forms of assessments that are professionally
developed and used in a variety of settings. The
Standards additionally provide a valuable public
service to state and federal governments as they

47

FRE 402 Relevance. The proffered testimony
concerning the use of the Standards does not
have any tendency to make a fact of
consequence in this litigation more or less
probable than it would be without the
evidence.
FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

voluntarily choose to use them. For instance,
each testing company, when submitting
proposals for testing administration, instead of
relying on a patchwork of local, or even
individual and proprietary, testing design and
implementation criteria, may rely instead on the
Sponsoring Organizations’ Standards to afford
the best guidance for testing and assessment
practices.

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

22. The Sponsoring Organizations do not keep
any of the revenues generated from the sales of
the Standards. Rather, the income from these
sales is used by the Sponsoring Organizations
to offset their development and production costs
and to generate funds for subsequent revisions.
This strategy allows the Sponsoring
Organizations to develop up-to-date, high
quality Standards that otherwise would not be
developed due to the time and effort that goes
into producing them.

FRE 403 Prejudice. The statement that the
Plaintiffs do not “keep” any of the revenues,
but use them for certain operating expenses, is
incomplete and misleading, because Plaintiffs
do keep the revenues but simply earmark them
for particular purposes.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of
documents.

FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning the business
model used for sale and development of the
Standards 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.
23. Without the sales revenue from prior
Standards versions (because – if Public
Resource succeeds in this litigation – this
publication will be made freely available
online), it is extremely unlikely that future

FRE 403 Prejudice. The 2014 Standards are
not at issue in this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. The witness’s
statement is misleading because it suggests

48

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

updates to the Standards will be undertaken.
This well-informed opinion is made because
NCME is too small an organization to
financially support periodic updates of the
Standards, AERA does not have the budget for
it, and an insufficient number of
psychometricians are members of APA for it to
justify the ongoing expenditures. Charging
extra membership fees to fund ongoing updates
to the Standards would never happen, because
the governing bodies of AERA, APA and
NCME would not vote for it. If these
Sponsoring Organizations ceased updating the
Standards, it is unlikely that other organizations
would step in and continue the effort.
Moreover, there are no other organizations with
the expertise in their memberships to populate
such a committee or task force.

that Public Resource’s actions risk depriving
Plaintiffs of income from the sale of the 2014
Standards. The witness’s statement is also
speculative and risks confusing the issues in
this case.

24. There simply is no way for Plaintiffs to
calculate with any degree of certainty the
number of university/college professors,
students, testing companies and others who
would have purchased Plaintiffs’ Standards but
for their wholesale posting on Defendant’s
https://law.resource.org website and the Internet
Archive http://archive.org website.

FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning the economic
substitution effect of Public Resource’s posting
of the 1999 Standards 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.

25. In Fiscal Year (“FY”) 2011 to FY 2012, as

FRE 403 Prejudice. The probative value of the

49

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning the business
model used for sale and development of the
Standards 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.

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment
compared to FY 2011, the Sponsoring
Organizations experienced a 34% drop in sales
of the 1999 Standards. In FY 2013, sales of the
1999 Standards remained at their low level from
the prior fiscal year (See F. Levine Declaration,
¶ 18, Exh. OOO). For a publication with the
longevity of the 1999 Standards, one otherwise
would expect to see a gradual decline in sales
year-over-year; not the precipitous drop in sales
experienced by the 1999 Standards in 2012 and
2013 - even considering that updated Standards
were published in 2014. It is also clear that this
drop did not occur due to the expected
publication of the 2014 Standards, because they
were actually due to be published more than a
year earlier. Thus, one would have expected
such a drop to occur perhaps in 2010 or 2011.

Defendant-Counterclaimant
Public Resource’s Objections
proffered testimony on sales is substantially
outweighed by a danger of unfair prejudice,
confusing the issues, and misleading the
factfinder, because the witness’s conclusions
are both contrary to fact and mischaracterize
the evidence. What the witness presents as
sales data is actually gross revenue data. The
witness fails to provide context as to the
general decline in both sales and revenues for
the 1999 Standards that began prior to Public
Resource’s posting of the 1999 Standards.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning the sales of the
1999 Standards and the economic substitution
effect of Public Resource’s posting of the 1999
Standards 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

50

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
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.

26. Past harm from Public Resource’s
infringing activities includes misuse of
Plaintiffs’ intellectual property without
permission, lost sales that cannot be totally
accounted for – due to potentially infinite
Internet distribution, especially by
psychometrics students, and lack of funding that
otherwise would have been available for the
update of the Sponsoring Organizations’
Standards from the 1999 to the 2014 versions.

FRE 403 Prejudice. The witness’s statement
regarding “potentially infinite Internet
distribution” has no factual basis and invites
speculation through unrealistic and bombastic
terminology. The probative value of the
proffered testimony is substantially
outweighed by a danger of unfair prejudice,
confusing the issues, and misleading the
factfinder.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning harm
attributed to Public Resource 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.

27. Should Public Resource’s infringement be
allowed to continue, the harm to the Sponsoring
Organizations, and public at large who rely on
the preparation and administration of valid, fair
and reliable tests, includes: (i) uncontrolled
publication of the 1999 Standards without any

51

FRE 403 Prejudice. The 2014 Standards are
not at issue in this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. The witness’s
statement is misleading because it suggests
that Public Resource’s actions risk depriving

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment
notice that those guidelines have been replaced
by the 2014 Standards; (ii) future unquantifiable
loss of revenue from sales of authorized copies
of the 1999 Standards (with proper notice that
they are no longer the current version) and the
2014 Standards; and (iii) lack of funding for
future revisions of the 2014 Standards and
beyond.

Defendant-Counterclaimant
Public Resource’s Objections
Plaintiffs of income from the sale of the 2014
Standards. The witness’s statement is also
speculative and risks confusing the issues in
this case.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning harm
attributed to Public Resource 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.

52

Declaration of Kurt F. Geisinger In Support
of Plaintiffs’ Motion for Summary Judgment
28. The harm caused to the public by
publication of out-of-date Standards (not
labeled as such) will be significant, because the
testing and assessment fields are constantly
changing, given updates in testing technology
and ever-evolving collective thought on the
validity, reliability and fairness of tests.
Members of the public who would be harmed
by discontinued updates of the Standards
include psychometrics professors, students and
professionals, as well as test developers,
administrators and takers.

V.

Defendant-Counterclaimant
Public Resource’s Objections
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning harm
attributed to Public Resource 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.

OBJECTIONS TO THE DECLARATION OF PLAINTIFFS’ LEAD COUNSEL
JONATHAN HUDIS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY
JUDGMENT AND ENTRY OF A PERMANENT INJUNCTION

Declaration of Jonathan Hudis In Support of
Plaintiffs’ Motion for Summary Judgment
1. I am a partner with Quarles & Brady LLP,
lead counsel to Plaintiffs, AMERICAN
EDUCATIONAL RESEARCH
ASSOCIATION, INC. (“AERA”),
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC. (“APA”) and
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.
(“NCME”) (collectively, “Plaintiffs”) in the
captioned action. I submit this Declaration in
support of Plaintiffs’ motion for summary
judgment and entry of a permanent injunction
against Defendant, Public.Resource.Org, Inc.

Defendant-Counterclaimant
Public Resource’s Objections
No Objection.

53

Declaration of Jonathan Hudis In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

(“Defendant” or “Public Resource”).
2. Accompanying this Declaration as Exhibit A
is a true copy of the transcript from the
deposition of Carl Malamud (“Malamud”),
taken in his personal capacity and as the
Fed.R.Civ.P. 30(b)(6) representative of
Defendant (see transcript, pp. 14-22), on
May 12, 2015 (the “Malamud/Public Resource
Deposition”).

Public Resource hereby preserves the
objections that its counsel made at the time of
the deposition.

3. Accompanying this Declaration as Exhibit B
is a true copy of the Articles of Incorporation of
Public Resource, filed with the California
Secretary of State on April 13, 2007, marked as
Exhibit 16 during the Malamud/Public
Resource Deposition.

No Objection.

4. Accompanying this Declaration as Exhibit C
is a true copy of the Bylaws of Public Resource,
having a “last revised” date of April 18, 2007
(see p. 23), marked as Exhibit 17 during the
Malamud/Public Resource Deposition.

No Objection.

5. Accompanying this Declaration as Exhibit D
are true copies of the home page and “About”
page from Public Resource’s website,
https://public.resource.org, marked as
Exhibits 19 and 20 during the Malamud/Public
Resource Deposition.

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

6. Accompanying this Declaration as Exhibit E
is a true copy of a representative list of projects
Malamud/Public Resource has been involved in
and publications he has written as author or coauthor, marked as Exhibit 15 during the
Malamud/Public Resource Deposition.

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

7. Accompanying this Declaration as Exhibit F
is a true copy of a documented Kickstarter
crowd-funding campaign launched by Public
Resource in 2013, to obtain outside financial
support for copying and posting third party

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

54

Declaration of Jonathan Hudis In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

standards and codes to the
https://public.resource.org website. These
captured Kickstarter web pages were marked as
Exhibit 27 during the Malamud/Public
Resource Deposition.
8. Accompanying this Declaration as Exhibit G
is a true copy of the “Geneva” chapter from
Malamud’s book entitled Exploring the
Internet: A Technical Travelogue, published in
1993, marked as Exhibit 22 during the
Malamud/Public Resource Deposition.

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

9. Accompanying this Declaration as Exhibit H
is a true copy of Malamud, C., Liberating
America’s Secret, For-Pay Laws, boingboing,
March 19, 2012, marked as Exhibit 25 during
the Malamud/Public Resource Deposition.

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

10. Accompanying this Declaration as Exhibit I
is a true copy of Garfield, B., Making Laws
More Public Transcript - On The Media,
interview of Carl Malamud, The Media,
April 13, 2012, marked as Exhibit 24 during the
Malamud/Public Resource Deposition.

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

11. Accompanying this Declaration as Exhibit J No Objection.
to this Declaration is a true and accurate copy of
“Public Safety Codes Incorporated by Law,”
appearing on Defendant’s website at
http://law.resource.org/pub/us/code/safety.html
(last visited December 17, 2015).
12. Accompanying this Declaration as
Exhibit K to this Declaration is a true and
accurate copy of “Public Safety Standards
United States (Federal Government),”
appearing on Defendant’s website at
http://law.resource.org/pub/us/cfr/manifest.us.
html (last visited December 17, 2015).

No Objection.

13. Accompanying this Declaration as Exhibit L Plaintiffs did not refile this document. Public
to this Declaration is a true and accurate copy of Resource reserves its prior objections stated in

55

Declaration of Jonathan Hudis In Support of
Plaintiffs’ Motion for Summary Judgment
the Register of Copyrights’ online abstract for
U.S. Copyright Registration No. TX 5-920-538,
for the work “Safety standard for belt manlifts:
ASME A90.1-2003.”

Defendant-Counterclaimant
Public Resource’s Objections
Dkt. 69-4.

14. Accompanying this Declaration as
Plaintiffs did not refile this document. Public
Exhibit M to this Declaration is a true and
Resource reserves its prior objections stated in
accurate copy of the Register of Copyrights’
Dkt. 69-4.
online abstract for U.S. Copyright Registration
No. TX 5-181-138, for the work “Guidelines for
the definition of onshore gas gathering lines.”
15. Accompanying this Declaration as
Exhibit N to this Declaration is a true and
accurate copy of the Register of Copyrights’
online abstract for U.S. Copyright Registration
No. TX 427-109, for the work “Official
methods of analysis of the Association of
Official Analytical Chemists.”

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

16. Accompanying this Declaration as
Exhibit O to this Declaration is a true and
accurate copy of the Register of Copyrights’
online abstract for U.S. Copyright Registration
No. TX 1-142-464, for the work “Classification
in mental retardation.”

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

17. Accompanying this Declaration as Exhibit P Plaintiffs did not refile this document. Public
to this Declaration is a true and accurate copy of Resource reserves its prior objections stated in
the Register of Copyrights’ online abstract for
Dkt. 69-4.
U.S. Copyright Registration No. TX 2-953-680,
for the work “Glazing manual.”
18. Accompanying this Declaration as
Exhibit Q to this Declaration is a true and
accurate copy of the Register of Copyrights’
online abstract for U.S. Copyright Registration
No. TX 6-062-476, for the work “Mobile and
locomotive cranes : ASME B30.5-2004.”

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

19. Accompanying this Declaration as
Exhibit R to this Declaration is a true and
accurate copy of the Register of Copyrights’

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

56

Declaration of Jonathan Hudis In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

online abstract for U.S. Copyright Registration
No. TX 5-434-639, for the work “Drinking
water system components: health effects:
American national standard/NSF international
standard for drinking water additives:
ANSI/INSF 61-2001.”
20. Accompanying this Declaration as Exhibit S Plaintiffs did not refile this document. Public
to this Declaration is a true and accurate copy of Resource reserves its prior objections stated in
the Register of Copyrights’ online abstract for
Dkt. 69-4.
U.S. Copyright Registration No. TX 5-902-199,
for the work “Minimum design loads for
buildings and other structures.”
21. Accompanying this Declaration as Exhibit T Public Resource hereby preserves the
is a true copy of DEFENDANTobjections made in its interrogatory responses.
COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
AMENDED RESPONSES TO PLAINTIFFS’
COUNTERDEFENDANTS’ FIRST SET OF
INTERROGATORIES (NOS 1-8), marked as
Exhibit 29 during the Malamud/Public
Resource Deposition.
22. Accompanying this Declaration as
Exhibit U is a true copy of Public Resource’s
receipt, dated May 17, 2015, for its purchase of
Plaintiff’s Standards for Educational and
Psychological Testing (1999 ed.), marked as
Exhibit 30 during the Malamud/Public
Resource Deposition.

No Objection.

22. Accompanying this Declaration as
Exhibit U is a true copy of Public Resource’s
receipt, dated May 17, 2015, for its purchase of
Plaintiff’s Standards for Educational and
Psychological Testing (1999 ed.), marked as
Exhibit 30 during the Malamud/Public
Resource Deposition.

No Objection.

57

Declaration of Jonathan Hudis In Support of
Plaintiffs’ Motion for Summary Judgment
23. Accompanying this Declaration as
Exhibit V is a true copy of Plaintiffs’ Standards
for Educational and Psychological Testing
(1999 ed.), marked as Exhibit 31 during the
Malamud/Public Resource Deposition.

Defendant-Counterclaimant
Public Resource’s Objections
No Objection.

24. Accompanying this Declaration as
No Objection.
Exhibit W is a true copy of a letter and Freedom
of Information Action (“FOIA”) request dated
July 14, 2009 from Public Resource to the
General Counsel of the National Archives,
requesting a copy of, inter alia, Plaintiffs’ 1999
Standards for free or at reduced cost pursuant to
a “fee waiver,” marked as Exhibit 32 during the
Malamud/Public Resource Deposition.
25. Accompanying this Declaration as
Exhibit X is a true copy of letter dated
August 3, 2009 from the National Archives to
Public Resource, marked as Exhibit 33 during
the Malamud/Public Resource Deposition, in
which the National Archives denies Public
Resource’s FOIA request of Exhibit W above.

No Objection.

27. Accompanying this Declaration as Exhibit Z Public Resource hereby preserves the
is a true copy of the transcript from the
objections that its counsel made at the time of
deposition of James R. Fruchterman
the deposition.
(“Fruchterman”), Defendant’s Expert, taken on
September 8, 2015 (the “Fruchterman
Deposition”).
28. Accompanying this Declaration as
Exhibit AA is a true copy of the Fruchterman
Expert Report, marked as part of Exhibit 64
during the Fruchterman Deposition.

No Objection.

29. Accompanying this Declaration as
Exhibit BB is a true copy of portions of the
transcript from the deposition of Christopher
Butler (“Butler”), Office Manager of the
Internet Archive (see transcript at pp. 5, 7-8 and
28-30), taken on December 2, 2014 (the
“Butler/Internet Archive Deposition”).

Public Resource hereby preserves the
objections that its counsel made at the time of
the deposition.

58

Declaration of Jonathan Hudis In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

30. Accompanying this Declaration as
Exhibit CC is a true copy of a Declaration of
Internet Archive (C. Butler) and Stipulation of
the Parties (the “Butler/Internet Archive
Declaration”) signed by Butler on January 20,
2015, subsequent to and as a supplementation
of the Butler/Internet Archive Deposition.

No Objection.

31. Accompanying this Declaration as
Exhibit DD is a true copy of Internet Archive’s
Terms of Use dated March 10, 2001, marked as
Exhibit 5 during the Butler/Internet Archive
Deposition.

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

32. Accompanying this Declaration as
Exhibit EE is a true copy of Internet Archive’s
Item History for gov.law.aera.standards 1999,
marked as Exhibit 7 during the Butler/Internet
Archive Deposition.

No Objection.

33. Accompanying this Declaration as
Exhibit FF is a true copy of Internet Archive’s
Logs pertaining to the Item History for
gov.law.aera.standards.1999, marked as
Exhibit 8 during the Butler/Internet Archive
Deposition.

No Objection.

34. Accompanying this Declaration collectively
as Exhibit GG are a [sic] true copies of screen
captures of Plaintiffs’ 1999 Standards in the
form that they were uploaded by Public
Resource to the Internet Archive website,
marked as Exhibit 6 during the Butler/Internet
Archive Deposition.

FRE 403 Prejudice. The description of this
document is misleading and risks confusing
the issues because it is erroneous. At
deposition, the Rule 30(b)(6) representative of
the Internet Archive identified these as
screenshots of a details page depicting in part
select pages from the 1999 Standards. ICE Ex.
61 (Butler Dep. 57:07–59:09).

35. Accompanying this Declaration as
Exhibit HH is a true copy of DEFENDANT
PUBLIC.RESOURCE.ORG, INC.’S
RESPONSES TO PLAINTIFFS’ FIRST
REQUESTS FOR ADMISSIONS, SET ONE
(NOS. 1-8).

Public Resource hereby preserves the
objections that it made in its responses to
Plaintiffs’ requests for admissions.

59

Declaration of Jonathan Hudis In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

36. On December 15, 2014, Plaintiffs filed a
motion to compel discovery of, inter alia,
documentation verifying when Public Resource
published or posted Plaintiffs’ 1999 Standards
to one of Public Resource’s websites, as well
documentation verifying the number of times
Plaintiffs’ 1999 Standards were viewed on,
accessed from or downloaded from one of
Public Resource’s websites (i.e., Public
Resource’s Internet server logs). The parties’
motion papers pertaining to Plaintiffs’
discovery motion may [sic] found on the
Court’s docket at Dkt. Nos. 27, 29 and 30. Five
months later, and without explanation, the
Court (Robinson, M-J) denied these parts of
Plaintiffs’ discovery motion (Court Order,
May 20, 2015, Dkt. No. 49).

FRE 402 Relevance. 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.

37. Accompanying this Declaration as
Exhibit II is a true copy of Internet Archive’s
screen capture of its query results to determine
from its records the download count for the
item with the identifier
gov.law.aera.standards.1999, marked as
Exhibit 11 during the Butler/Internet Archive
Deposition.

FRE 403 Prejudice. The Rule 30(b)(6)
representative of the Internet Archive specified
that “download” in this context referred to any
access of the web address, not necessarily a
download onto a hard drive or other medium,
and such access could be from either human
beings or from Internet crawling robots
(automated programs like webcrawlers), or
uploaders, or internal visits from Internet
Archive processes or staff. ICE Ex. 61 (Butler
Dep. 126:02–126:21). The probative value of
the proffered testimony is substantially
outweighed by a danger of unfair prejudice,
confusing the issues, and misleading the
factfinder.

FRE 403 Prejudice. Plaintiffs’ motion was
granted in part and denied in part after a full
briefing and opportunity to argue before the
Court. Plaintiffs had an opportunity to appeal
the ruling and did not do so, and should not
now attempt to cast doubt on the Court’s ruling
and sow speculation. The probative value of
the proffered testimony is substantially
outweighed by a danger of unfair prejudice,
confusing the issues, misleading the factfinder,
and wasting time.

38. Accompanying this Declaration as
No Objection.
Exhibit JJ is a true copy of an e-mail dated
December 16, 2013 from Mr. John Neikirk,
Director of Publications of Plaintiff AERA, to
Carl Malamud, requesting removal of Plaintiffs’
1999 Standards from Public Resource’s
https://law.resource.org website, marked as
Exhibit 39 during the Malamud/Public
Resource Deposition.

60

Declaration of Jonathan Hudis In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

39. Accompanying this Declaration as
Exhibit KK is a true copy of a letter dated
December 19, 2013 from Carl Malamud (on
Public Resource stationery) refusing to remove
Plaintiffs’ 1999 Standards from Public
Resource’s https://law.resource.org website,
marked as Exhibit 40 during the
Malamud/Public Resource Deposition.

No Objection.

40. Accompanying this Declaration as
Exhibit LL is a true copy of an e-mail dated
June 10, 2014 from the undersigned to Carl
Malamud regarding the initiation of this
lawsuit, marked as Exhibit 42 during the
Malamud/Public Resource Deposition.

No Objection.

41. Accompanying this Declaration as
Exhibit MM is a true copy of a memorandum
on Public Resource letterhead, signed by Carl
Malamud on June 12, 2014, undertaking to
remove Plaintiffs’ 1999 Standards from Public
Resource’s https://law.resource.org website and
from the Internet Archive https://archive.org
website pending the outcome of this litigation,
marked as Exhibit 43 during the
Malamud/Public Resource Deposition.

No Objection.

61

VI.

OBJECTIONS TO THE DECLARATION OF FELICE J. LEVINE IN SUPPORT
OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND ENTRY OF A
PERMANENT INJUNCTION

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

1. I am the Executive Director of the American
Educational Research Association, Inc.
(“AERA”) I have been employed by the AERA
since May 2002. I submit this Declaration in
support of the motion of the AERA, the
American. Psychological Association, Inc.
(“APA”), and the National Council on
Measurement in Education, Inc. (“NCME”)
(collectively, “Plaintiffs” or “Sponsoring
Organizations”) for summary judgment and the
entry of a permanent injunction.

No Objection.

2. As set forth in the AERA Bylaws, the
Executive Director is the chief executive officer
of the Association. In that capacity, I am
responsible for all programmatic, financial,
administrative, staffing, and managerial
responsibilities of the AERA. I also advise on
and implement the policies that guide our
organization.

No Objection.

3. As publisher, the AERA has provided general No Objection.
oversight since November 1999 for the
production, printing, sales, and marketing of the
“Standards for Educational and Psychological
Testing” (the “Standards”), and for the fiscal
management of the revenue and expenditure of
funds and resources of that publication. AERA
was selected to serve as publisher by the
Management Committee of the three
Sponsoring Organizations. As the Executive
Director of the AERA, I have administrative
oversight over all of AERA’s implementation
of its responsibilities regarding the Standards
4. AERA is a District, of Columbia not-forprofit corporation.

No Objection.

62

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

5. AERA is the major national scientific society
for research on education and learning. AERA’s
mission is to advance knowledge about
education, to encourage scholarly inquiry
related to education, and to promote the use of
research to improve education and serve the
public good.

No Objection.

6. In 1955, Plaintiffs AERA and NCME
prepared and published a companion document
to APA’s “Technical Recommendations for
Psychological Tests and Diagnostic
Techniques” (published in 1954), entitled,
“Technical Recommendations for Achievement
Tests.” Subsequently, a joint committee of the
three organizations modified, revised, and
consolidated the two documents into the first
Joint Standards. Beginning with the 1966
revision, the Sponsoring Organizations
collaborated in developing the “Joint
Standards” (or simply, the “Standards”). Each
subsequent revision of the Standards has been
careful to note that it is a revision and update of
the prior version.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with AERA in May 2002.

7. Beginning in the mid-1950s, the Sponsoring
Organizations formed and periodically
reconstituted a committee of highly trained and
experienced experts in psychological and
educational assessment, charged with the initial
development of the Technical
Recommendations and then each subsequent
revision of the (renamed) Standards. These
committees were formed by the Sponsoring
Organizations’ Presidents (or their designees),
who would meet and jointly agree on the
membership. Often a chair or co-chairs of these
committees were selected by joint agreement.
Beginning with the 1966 version of the
Standards, this committee became referred to as
the “Joint Committee.”

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with AERA in May 2002.

63

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.

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

8. Financial and operational oversight for the
Standards’ revisions, promotion, distribution,
and for the sale of the 1999 and 2014 Standards
has been undertaken by a periodically
reconstituted Management Committee,
comprised of the designees of the three
Sponsoring Organizations. As Publisher of the
1999 and 2014 Standards, AERA works in
consultation with the Management Committee
to implement its managerial guidance.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with AERA in May 2002.

9. All members of the Joint Committee(s) and
the Management Committee(s) are unpaid
volunteers. The expenses associated with the
ongoing development and publication of the
Standards include travel and lodging expenses
(for the Joint Committee and Management
Committee members), support staff time,
production, printing and shipment of bound
volumes, and advertising costs. For the 2014
Standards, the production, printing and
shipment of bound volumes, and advertising
costs, are paid for by the publisher, AERA.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues,
and it fails to acknowledge or discuss the
expenses that a large number of unpaid
volunteers and their employers bore in the
drafting of the Standards.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with AERA in May 2002.

10. Many different fields of endeavor rely on
assessments. The Sponsoring Organizations
have ensured that the range of these fields of
endeavor is represented in the Joint
Committee’s membership – e.g., admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation. Similarly, the Joint
Committee’s members, who are unpaid
volunteers, represent expertise across major
functional assessment areas – e.g., validity,
equating, reliability, test development, scoring,
reporting, interpretation, and large scale
interpolation.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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,

64

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
or other specialized knowledge within the
scope of Rule 702.

11. From the time of their initial creation to the
present, the preparation of and periodic
revisions to the Standards entail intensive labor
and considerable cross-disciplinary expertise.
Each time the Standards are revised, the
Sponsoring Organizations select and arrange for
extensive meetings of and work by the leading
authorities in psychological and educational
assessments (known as the Joint Committee).
During these meetings, certain Standards are
combined, pared down, and/or augmented,
others are deleted altogether, and some are
created as whole new individual Standards. The
1999 version of the Standards is nearly 200
pages, took more than five years to complete.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

12. The Standards were not created or updated
to serve as a legally binding document, in
response to an expressed governmental or
regulatory need, nor in response to any
legislative action or judicial decision. However,
the Standards have been cited in judicial
decisions related to the proper use and evidence
for assessment, as well as by state and federal
legislators. These citations in judicial decisions
and during legislative deliberations occurred
without any lobbying by the Plaintiffs.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues
as to which editions of the Standards and
which years the witness is referring to.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to the goals of the many authors of the
Standards.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception and is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,

65

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
including because the proffered testimony is
conclusory.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

13. AERA has not solicited any government
agency to incorporate the Standards into the
Code of Federal Regulations or other rules of’
Federal or State agencies.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues
as to which editions of the Standards and
which years the witness is referring to.
Moreover, Plaintiffs refused to provide
discovery concerning any edition of the
Standards other than the 1999 Standards, and it
would be unfairly prejudicial to allow them to
introduce testimony on the 2014 Standards or
other editions at summary judgment.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to any time period before she was employed
by AERA in May 2002.
FRCP 26(a) and 37 Withheld Evidence.
Plaintiffs refused to provide evidence or
testimony concerning any edition of the
Standards other than the 1999 Edition, and
redacted documents that included data
concerning the 1985 and 2014 editions of the
Standards. See ICE Ex. 62
(Plaintiffs/counterclaim-defendants’
Objections and Answers to
Defendant/counterclaim-plaintiff’s First Set of
Interrogatories (Nos. 1–10) (objecting to
production of documents concerning any
publications other than the 1999 Standards and
stating that such documents are irrelevant));
ICE Ex. Ex. 63 (correspondence PRO counsel
identifying earlier versions and redactions as
issues in discovery). Plaintiffs should not be

66

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
allowed to now testify on matters they refused
to allow discovery into.

14. Plaintiffs promote and sell copies of the
Standards via referrals to the AERA website, at
annual meetings, in public offerings to students,
and to educational institution faculty.
Advertisements promoting the Standards have
appeared in meeting brochures, in scholarly
journals, and in the hallways at professional
meetings. Accompanying this Declaration as
Exhibit NNN is a true copy of advertisements
promoting the 1999 Standards, marked as
Exhibit 1218 during my deposition.

FRE 403 Prejudice. The testimony omits any
relevant timeframe and does not specify which
editions of the Standards are referred to, which
confuses the issues. Plaintiffs ceased selling
and promoting the 1999 Standards in 2014,
and only resumed selling it in July 2015,

15. All copies of the Standards bear a copyright
notice.

FRE 402 Relevance. 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.
FRE 403 Prejudice. The testimony does not
specify which editions of the Standards the
witness is referring to, which confuses the
issues. Plaintiffs refused to provide discovery
concerning any edition of the Standards other
than the 1999 Standards, and it would be
unfairly prejudicial to allow them to introduce
testimony on other editions of the Standards at
summary judgment.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

16. Distribution of the Standards is closely
monitored by the Sponsoring Organizations.
AERA, the designated publisher of the
Standards, sometimes provides promotional
complementary print copies to students or
professors. Except for these few complementary
print copies, however, the Standards are not
given away for free; and certainly they are not
made available to the public by any of the three
organizations for anyone to copy free of charge.

67

FRE 403 Prejudice. The testimony omits any
relevant timeframe and does not specify which
editions of the Standards is referred to, which
confuses the issues. Plaintiffs ceased selling
and promoting the 1999 Standards in 2014,
and only resumed selling it in recent months

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

To date, AERA has never posted, or authorized
the posting of, a digitized copy of the 1999
Standards on any publicly accessible website.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to any time period before she was employed
by AERA in May 2002, and the activities of
the other Plaintiffs.

17. The 1999 Standards have been sold at retail
prices ranging from $25.95 to $49.95 per copy.
From 2000 to 2014, except for the near twoyear period during which Public Resource
posted unauthorized copies online and sales
diminished significantly, income generated
from sales of the 1999 Standards, on average,
had been approximately in excess of $127,000
per year.

FRE 403 Prejudice. The “average” gross
revenue that the witness describes fails to note
the fluctuations in sales revenue during the
first 12 years that the 1999 Standards were on
sale, nor the general downward trend of sales
revenue. Nor does the witness’s testimony
explain how she arrived at her calculations.
The probative value of the proffered testimony
is substantially outweighed by a danger of
unfair prejudice, confusing the issues, and
misleading the factfinder.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
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

68

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

18. Accompanying this Declaration as
Exhibit OOO is a true copy of AERA’s
Statement of Revenue and Expenses for the
Standards from FY2000 to December 31, 2013,
marked as Exhibit 1211 during my deposition.

No Objection.

19. After the 2014 Standards were published in
the late summer of 2014, AERA for a time
discontinued sales of the 1999 Standards. This
was to encourage sales of the newly-revised
edition – the 2014 Standards. Accompanying
this Declaration as Exhibit PPP is a true copy of
the publication page for the 1999 Standards on
the AERA website as of May 4, 2015 showing
that the 1999 Standards were not available for
sale at that time, marked as Exhibit 1196 during
my deposition.

FRE 403 Prejudice. At deposition, AERA’s
Rule 30(b)(6) witness

20. However, so long as purchasers are made
aware that it is no longer the current edition, the
1999 Standards do have an enduring value for
those in the testing and assessment profession
who (i) need to know the state of best testing
practices as they existed between 1999 and
2014, (ii) believe they still may be held
accountable to the guidance of the 1999
Standards even now, and/or (iii) study the
changes in best testing and assessment practices
over time. For this reason, in the summer of
2015 AERA resumed sales of the 1999
Standards. Accompanying this Declaration as

69

Plaintiffs
should not now be allowed to introduce
testimony on this subject, as the probative
value of the proffered testimony is
substantially outweighed by a danger of unfair
prejudice.
FRE 403 Prejudice. Exhibit QQQ is dated
“12/17/2015” and does not show that the 1999
Standards were available for sale as of the
summer of 2015, and the testimony is therefore
misleading.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

Exhibit QQQ is a true copy of the publication
page for the 1999 Standards on the AERA
website as updated during the summer of 2015,
showing that the 1999 Standards are available
for sale.

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.
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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

21. All revenue from the sale of the 1999
Standards above expenses is used to cover the
publishing costs of the Standards and for the
preparation of subsequent editions of the
Standards. The Sponsoring Organizations do
not distribute any proceeds from the sales of the
Standards to the Sponsoring Organizations.
Rather, the income from these sales is used by
the Sponsoring Organizations to offset their
development and production costs and to
generate funds for subsequent revisions. This
allows the Sponsoring Organizations to develop
up-to-date, high quality Standards that
otherwise would not be developed due to the
time and effort that goes into producing them.

70

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to any time period before she was employed
by AERA in May 2002, and the activities of
the other Plaintiffs.
FRE 701 Improper Lay Opinion. The proffered
testimony as to the effects and necessity of
Plaintiffs’ financing model 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

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
specialized knowledge within the scope of
Rule 702.
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.

22. Without receiving revenue from the sales of
the Standards to offset their preparation costs
and to allow for further revisions, it is very
likely that the Sponsoring Organizations would
no longer undertake to periodically update
them, and it is unknown who else would.

FRE 403 Prejudice. The 2014 Standards are
not implicated by this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. The witness’s
statement is misleading because it suggests
that Public Resource’s actions risk depriving
Plaintiffs of income from the sale of the 2014
Standards. The witness’s statement is also
speculative and risks confusing the issues in
this case.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
FRE 702 Unreliable Expert Opinion. The

71

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
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.

23. The Sponsoring Organizations decided on a
model of self-funding of revisions of the
Standards; that is, from the sale of prior editions
of the Standards. Funding for the Standards
revision process from third party sources (e.g.,
governmental agencies, foundations, other
associations interested in testing and assessment
issues, etc.) was rejected because of the
appearance or potential of conflicts of interest
and the importance of users of the Standards
being able to trust in their scientific integrity.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues
as to which editions of the Standards and
which years the witness is referring to.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to any time period before she was employed
by AERA in May 2002, and the activities of
the other Plaintiffs.
FRE 701 Improper Lay Opinion. The proffered
testimony as to the effects and necessity of
Plaintiffs’ financing model 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.
FRE 802 Hearsay. The proffered testimony
relies on an out-of-court statement that is
offered to prove the truth of the matter
asserted.

72

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

24. Due to the relative minor portion of the
membership of AERA who devote their careers
to testing and assessment, it is highly unlikely
that the members of AERA will vote for a dues
increase to fund future Standards revision
efforts if Public Resource successfully defends
this case and is allowed to post the Standards
online for the public to download or print for
free. As a result, the Sponsoring Organizations
would likely abandon their practice of
periodically updating the Standards.

FRE 403 Prejudice. The 2014 Standards are
not implicated by this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. The witness’s
statement is misleading because it suggests
that Public Resource’s actions risk depriving
Plaintiffs of income from the sale of the 2014
Standards. The witness’s statement is also
speculative and risks confusing the issues in
this case.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
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.

73

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

25. The Standards were registered with the
No Objection.
U.S. Register of Copyrights under Registration
Number TX 5-100-196, having an effective date
of December 8, 1999. Accompanying this
Declaration as Exhibit RRR is a true copy of the
December 8, 1999 Copyright Certificate of
Registration for the 1999 Standards.
26. A supplementary copyright registration for
the Standards was issued by the U.S. Register
of Copyrights under Supplementary
Registration Number TX 6-434-609, having an
effective date of February 25, 2014. This
Supplementary Registration was obtained to
correct an error in the listing of copyright
ownership in Registration Number TX 5-100196. Accompanying this Declaration as
Exhibit SSS is a true copy of the February 25,
2014 Supplementary Copyright Certificate of
Registration for the 1999 Standards.

Plaintiffs did not refile this document. Public
Resource reserves its prior objections stated in
Dkt. 69-4.

27. The Joint Committee that authored the 1999
Standards comprised 16 members.

FRE 403 Prejudice. At deposition, Plaintiffs’
Rule 30(b)(6) representative on the subject of
copyright ownership and assignment stated

Additionally, the witness fails to mention that
hundreds of individuals, organizations, and
other entities participated in the development
of the 1999 Standards in collaboration with the
Joint Committee members. See SMF ¶ 9.
The
probative value of the proffered testimony is
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.
FRE 602 Lack of Personal Knowledge. The
witness was not hired until May 2002, years
after the Joint Committee for the 1999
Standards completed its work. The proffered
testimony is not based on the witness’s

74

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
personal knowledge of the matter and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

28. Accompanying this Declaration as
Exhibit TTT is a true copy of the 1999
Standards.

No Objection.

29. Public Resource posted Plaintiffs’ 1999
Standards to its website and the Internet
Archive website without the permission or
authorization of any of the Sponsoring
Organizations.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to the activities of individuals at APA and
NCME.

30. The Sponsoring Organizations can only
speculate on the number of electronic copies of
the 1999 Standards that were made and
distributed to others by the original Internet
users who accessed the unauthorized copies that
Public Resource posted to its site and the
Internet Archive site. There simply is no way
for the Sponsoring Organizations to calculate
with any degree of certainty the number of
university/college professors, students, testing
companies and others who would have
purchased Plaintiffs’ Standards but for their
wholesale posting on Defendant’s
https://law.resource.org website and the Internet
Archive http://archive.org website.

FRE 403 Prejudice. Plaintiffs have the burden
of proving infringement, and lacking evidence,
cannot simply invite the Court to “speculate”
as to the existence and number of downstream
copies. The probative value of the proffered
testimony is substantially outweighed by a
danger of unfair prejudice, confusing the
issues, misleading the factfinder, and wasting
time.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.

75

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
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.

31. In December 2013, Plaintiff AERA
requested in writing that Public Resource
remove the 1999 Standards from its online
postings. Accompanying this Declaration as
Exhibit UUU is a true copy of a letter sent from
John S. Neikirk, Director of Publications at
AERA, to Carl Malamud of Public Resource
regarding the posting of the 1999 Standards at
https://law.resource.org/pub/us/cfr/ibr/001/aera.
standards.1999.pdf, marked as Exhibit 1228
during my deposition.

No Objection.

32. Had Public Resource not promised to
remove the 1999 Standards from its
law.resource.org website and the Internet
Archive website while this lawsuit is pending,
and followed through with, these promises, the
Sponsoring Organizations seriously
contemplated moving forward with a motion to
preliminary [sic] enjoin Public Resource from
maintaining the unauthorized postings of
electronic copies of the 1999 Standards on the
Internet, and delaying publication of the 2014
Standards.

FRE 402 Relevance. 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.

33. By June 2014, when Public Resource finally
removed its online postings of the 1999
Standards, the damage already had been done.
In Fiscal Year (“FY”) 2011 to FY 2012, as
compared to FY 2011, the Sponsoring

FRE 403 Prejudice. The probative value of the
proffered testimony on sales is substantially
outweighed by a danger of unfair prejudice,
confusing the issues, and misleading the
factfinder, because the witness’s conclusions

76

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment
Organizations experienced a 34% drop in sales
of the 1999 Standards. In FY 2013, sales of the
1999 Standards remained at their low level from
the prior fiscal year.

Defendant-Counterclaimant
Public Resource’s Objections
are both contrary to fact and mischaracterize
the evidence. What the witness presents as
sales data is actually gross revenue data. The
witness fails to provide context as to the
general decline in both sales and revenues for
the 1999 Standards that began prior to Public
Resource’s posting of the 1999 Standards.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning the sales of the
1999 Standards and harm attributed to Public
Resource is an expert opinion by a witness
who is not qualified as an expert by
knowledge, skill, experience, training, or

77

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
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.

34. This is notable, given that Public Resource
posted the Standards to the Internet in 20122013, and that the Sponsoring Organizations’
updated Standards were not published until the
summer of 2014.

FRE 403 Prejudice. The witness does not
specify when precisely Public Resource posted
the 1999 Standards, and invites speculation as
to a connection between Public Resource’s
actions and the sales of the 1999 Standards,
which were in decline prior to the posting of
the 1999 Standards. The probative value of the
proffered testimony on sales is substantially
outweighed by a danger of unfair prejudice,
confusing the issues, and misleading the
factfinder.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.

35. Past harm from Public Resource’s
infringing activities includes lost sales that
cannot be totally accounted for — due to
potentially infinite Internet distribution; for
example, by psychometrics students — and a
lack of funding that otherwise would have been

78

FRE 403 Prejudice. The witness’s statement
regarding “potentially infinite Internet
distribution” has no factual basis and invites
speculation through unrealistic and bombastic
terminology. The probative value of the
proffered testimony is substantially

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment
available for the update of the Sponsoring
Organizations’ Standards from the 1999 to the
2014 versions.

Defendant-Counterclaimant
Public Resource’s Objections
outweighed by a danger of unfair prejudice,
confusing the issues, and misleading the
factfinder.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning harm
attributed to Public Resource 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.

36. Should Public Resource’s infringement be
allowed to continue, the harm to the Sponsoring
Organizations, and public at large who rely on
the preparation and administration of valid, fair
and reliable tests, includes: (i) uncontrolled
publication of the 1999 Standards without any
notice that those guidelines have been replaced
by the 2014 Standards; (ii) future unquantifiable
loss of revenue from sales of authorized copies

79

FRE 403 Prejudice. The 2014 Standards are
not at issue in this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. The witness’s
statement is misleading because it suggests
that Public Resource’s actions risk depriving
Plaintiffs of income from the sale of the 2014
Standards. The witness’s statement is also
speculative and risks confusing the issues in

Declaration of Felice J. Levine In Support of
Plaintiffs’ Motion for Summary Judgment
of the 1999 Standards (with proper notice that
they are no longer the current version) and the
2014 Standards; and (iii) lack of funding for
future revisions of the 2014 Standards and
beyond.

Defendant-Counterclaimant
Public Resource’s Objections
this case.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
FRE 702 Unreliable Expert Opinion. The
proffered testimony concerning harm
attributed to Public Resource 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.

VII.

OBJECTIONS TO THE DECLARATION OF DIANNE L. SCHNEIDER IN
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
ENTRY OF A PERMANENT INJUNCTION
Declaration of Dianne L. Schneider
In Support of Plaintiffs’ Motion for
Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

1. I am a Senior Human Capital Consultant at
Personnel Decisions Research Institute

No Objection.

80

Declaration of Dianne L. Schneider
In Support of Plaintiffs’ Motion for
Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

(“PDRI”). My work for PDRI includes
providing consulting services, in areas such as
performance management and career
development, to a variety of public and private
sector clients. I submit this Declaration in
support of the motion of the American
Educational Research Association, Inc.
(“AERA”), the American Psychological
Association, Inc. (“APA”), and the National
Council on Measurement in Education, Inc.
(“NCME”) (collectively, “Plaintiffs” or
“Sponsoring Organizations”) for summary
judgment and the entry of a permanent
injunction.
2. Prior to working at PDRI, from 1998 through
2012, I worked as a private consultant,
providing consulting services for the APA and
for Valtera, Inc. in the areas of leader,
assessment and development, and psychological
testing and assessment. Between 2009 and
2012, I worked as a consultant and a project
coordinator for APA during the revision by the
Joint Committee of the Sponsoring
Organizations of the 1999 edition of the
Standards for Educational and Psychological
Testing (the “Standards”) that were published in
2014. Prior to becoming a private consultant,
from 1994 through 1998, I worked as a Testing
and Assessment Officer at the APA. Prior to
becoming a Testing and Assessment Officer,
from 1992 to 1994, I worked as a Research
Officer for APA. From 1993 through 1998, I
also participated as a staff liaison for the Joint
Committee during their revision of the 1985
edition of the Standards that were produced in
published in 1999.

No Objection.

3. My work for the revision of the 1985
Standards published in 1999, and my work for
the revision of the 1999 Standards published in
2014, consisted of providing administrative

No Objection.

81

Declaration of Dianne L. Schneider
In Support of Plaintiffs’ Motion for
Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

support to the project, such as arranging
meeting logistics, taking notes and preparing
minutes from the meetings, and managing
committee correspondence including sending
draft versions of the Standards for comment and
compiling input from the public reviews.
4. Financial and operational oversight for the
Standards’ revisions, promotion, distribution,
and for the sale of the 1999 and 2014 Standards
has been undertaken by a periodically
reconstituted Management Committee,
comprised of the designees of the three
Sponsoring Organizations.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

5. All members of the Joint Committee(s) and
the Management Committee(s) are unpaid
volunteers. The expenses associated with the
ongoing development and publication of the
Standards include travel and lodging expenses
(for the Joint Committee and Management
Committee members), support staff time,
printing and shipment of bound volumes, and
advertising costs.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues,
and it fails to acknowledge or discuss the
expenses that a large number of unpaid
volunteers and their employers bore in the
drafting of the Standards.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

6. Draft revisions of the 1985 Standards, for
No Objection.
what became the 1999 Standards, were widely
distributed for public review and comment three
times during this revision effort to gauge
whether the testing community believed the
revised drafts to be current and inclusive of the
topics at issue.
7. The Joint Committee received thousands of
pages of comments and proposed text revisions
from: the membership of the Sponsoring
Organizations, scientific, professional, trade and
advocacy groups, credentialing boards, state

82

FRE 602 Lack of Personal Knowledge. The
proffered testimony as to the Joint
Committee’s use of submitted comments and
language is not based on the witness’s personal
knowledge of the matter and the proffering

Declaration of Dianne L. Schneider
In Support of Plaintiffs’ Motion for
Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

and federal government agencies, test
publishers and developers, and academic
institutions. While the Joint Committee
reviewed and took under advisement these
helpful comments, the final language of the
1999 Standards was a product of the Joint
Committee members.

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

VIII. OBJECTIONS TO THE DECLARATION OF LAURESS L. WISE IN SUPPORT
OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND ENTRY OF A
PERMANENT INJUNCTION
Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

1. I am the Immediate Past President of the
National Council on Measurement in
Education, Inc. (“NCME”). I have been a
member of this organization for approximately
30 years. I previously was the President of
NCME from April 2014 through April 2015,
and Vice President of this organization from
April 2013 through April 2014. I submit this
Declaration in support of the motion of the
American Educational Research Association,
Inc. (“AERA”), the American Psychological
Association, Inc. (“APA”), and the NCME
(collectively, “Plaintiffs” or “Sponsoring
Organizations”) for summary judgment and the
entry of a permanent injunction.

No Objection.

2. I also am a principal scientist with the
Human Resources Research Organization
(“HumRRO”), spending full time on research

No Objection.

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Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

and evaluation projects relating to educational
measurement. I previously served as HumRRO
CEO for 13 years, combining management and
research activities and, before that, directed
research and development for the Armed
Services Vocational Aptitude Battery for the
Department of Defense. Before that I spent
16 years as a researcher for the American
Institutes for Research, rising to the position of
Director of Research. I am also a member of
both AERA and APA.
3. NCME is a District of Columbia not-forprofit corporation.

No Objection.

4. NCME is a professional organization for
individuals involved in assessment, evaluation,
testing, and other aspects of educational
measurement. NCME’s members are involved
in the construction and use of standardized
tests; new forms of assessment, including
performance-based assessment; program
design; and program evaluation.

No Objection.

5. In 1955, AERA and NCME prepared and
published a companion document to APA’s
“Technical Recommendations for Psychological
Tests and Diagnostic Techniques” (published in
1954), entitled “Technical Recommendations
for Achievement Tests.”

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

6. Subsequently, a joint committee of the three
organizations modified, revised and
consolidated the two documents into the first
Joint Standards. Beginning with the 1966
revision, the Sponsoring Organizations
collaborated in developing the “Joint
Standards” (or simply, the “Standards”). Each
subsequent revision of the Standards has been
careful to note that it is a revision and update of
that document

84

Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

7. Beginning in the mid-1950s, the Sponsoring
Organizations formed and periodically
reconstituted a committee of experts in
psychological and educational assessment,
charged with the initial development of the
Technical Recommendations and then each
subsequent revision of the (renamed) Standards.
These committees were formed by the three
organizations’ Presidents (or their designees),
who would meet and jointly agree on the
membership. Often a chair or co-chairs of these
committees were selected by joint agreement.
Beginning with the 1966 version of the
Standards, this committee became referred to as
the “Joint Committee.” For example, I was the
co-chair of the Joint Committee for the 2014
edition of the Standards.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

8. Financial and operational oversight for the
Standards’ revisions, promotion, distribution,
and for the sale of the 1999 and 2014 Standards
has been undertaken by a periodically
reconstituted Management Committee,
comprised of designees of the three Sponsoring
Organizations.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

9. All members of the Joint Committee(s) and
the Management Committee(s) are unpaid
volunteers. The expenses associated with the
ongoing development and publication of the
Standards include travel and lodging expenses
(for the Joint Committee and Management
Committee members), support staff time,
printing and shipment of bound volumes, and
advertising costs.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues,
and it fails to acknowledge or discuss the
expenses that a large number of unpaid
volunteers and their employers bore in the
drafting of the Standards.

10. Many different fields of endeavor rely on
assessments. The Sponsoring Organizations
have ensured that the range of these fields of

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.

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.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

FRE 602 Lack of Personal Knowledge. The

85

Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

endeavor is represented in the Joint
Committee’s membership – e.g., admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation. Similarly, the Joint
Committee’s members represent expertise
across major functional assessment areas –
e.g., validity, equating, reliability, test
development, scoring, reporting, interpretation,
large scale interpolation and cognitive
behavioral therapy.

proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

11. From the time of their initial creation to the
present, the preparation and periodic revisions
to the Standards entail intensive labor and
considerable cross-disciplinary expertise. Each
time the Standards are revised, the Sponsoring
Organizations select and arrange for meetings
of the leading authorities in psychological and
educational assessments (known as the Joint
Committee). During these meetings, certain
Standards are combined, pared down, and/or
augmented, others are deleted altogether, and
some are created as whole new individual
Standards. The 1999 version of the Standards is
nearly 200 pages, and took more than five years
to complete – resulting from work put in by the
Joint Committee to generate a set of best
practices on educational and psychological
testing that are respected and relied upon by
leaders in their fields.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.

12. The Standards originally were created as
principles and guidelines – a set of best
practices to improve professional practice in
testing and assessment across multiple settings,
including education and various areas of

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has

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.

86

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

psychology. The Standards can and should be
used as a recommended course of action in the
sound and ethical development and use of tests,
and also to evaluate the quality of tests and
testing practices. Additionally, an essential
component of responsible professional practice
is maintaining technical competence. Many
professional associations also have developed
standards and principles of technical practice in
assessment. The Sponsoring Organizations’
Standards have been and still are used for this
purpose.

personal knowledge of this matter.

13. The Standards, however, are not simply
intended for members of the Sponsoring
Organizations, AERA, APA, and NCME. The
intended audience of the Standards is broad and
cuts across audiences with varying backgrounds
and different training. For example, the
Standards also are intended to guide test
developers, sponsors, publishers, and users by
providing criteria for the evaluation of tests,
testing practices, and the effects of test use. Test
user standards refer to those standards that help
test users decide how to choose certain tests,
interpret scores, or make decisions based on
tests results. Test users include clinical or
industrial psychologists, research directors,
school psychologists, counselors, employment
supervisors, teachers, and various
administrators who select or interpret tests for
their organizations. There is no mechanism,
however, to enforce compliance with the
Standards on the part of the test developer or
test user. The Standards, moreover, do not
attempt to provide psychometric answers to
policy or legal questions.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.

87

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; and is based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
for any time period prior to her employment
with APA, or for the goals or intent of the
Standards, which she did not author.
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.
FRE 702 Unreliable Expert Opinion. The
proffered testimony on the goals, intent, and
operation of the Standards 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

Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

14. The Standards promote the development of
high quality tests and the sound use of results
from such tests. Without such high quality
standards, tests might produce scores that are
not defensible or accurate, not an adequate
reflection of the characteristic they were
intended to measure, and not fair to the person
tested. Consequently, decisions about
individuals made with such test scores would be
no better, or even worse, than those made with
no test score information at all. Thus, the
Standards help to ensure that measures of
student achievement are relevant, that
admissions decisions are fair, that employment
hiring and professional credentialing result in
qualified individuals being selected, and
patients with psychological needs are diagnosed
properly and treated accordingly. Quality tests
protect the public from harmful decision
making and provide opportunities for education
and employment that are fair to all who seek
them.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

15. The Standards apply broadly to a wide
range of standardized instruments and
procedures that sample an individual’s
behavior, including tests, assessments,
inventories, scales, and other testing vehicles.
The Standards apply equally to standardized
multiple-choice tests, performance assessments
(including tests comprised of only open-ended
essays), and hands-on assessments or
simulations. The main exceptions are that the

FRE 402 Relevance. The proffered testimony
concerning the types of testing the standards
apply to does not have any tendency to make a
fact of consequence in this litigation more or
less probable than it would be without the
evidence.

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.

FRE 403 Prejudice. The testimony omits any
relevant timeframe and does not specify which
editions of the Standards are referred to, which

88

Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment
Standards do not apply to unstandardized
questionnaires (e.g., unstructured behavioral
checklists or observational forms), teachermade tests, and subjective decision processes
(e.g., a teacher’s evaluation of students’
classroom participation over the course of a
semester).

Defendant-Counterclaimant
Public Resource’s Objections
confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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; and is based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.
FRE 702 Unreliable Expert Opinion. The
proffered testimony on the application of the
Standards 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.

16. The Standards have been used to develop
testing guidelines for such activities as college
admissions, personnel selection, test
translations, test user qualifications, and
computer-based testing. The Standards also
have been widely cited to address technical,
professional, and operational norms for all
forms of assessments that are professionally
developed and used in a variety of settings. The
Standards additionally provide a valuable public
service to state and federal governments as they

89

FRE 402 Relevance. The proffered testimony
concerning the use of the Standards does not
have any tendency to make a fact of
consequence in this litigation more or less
probable than it would be without the
evidence.
FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter

Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment
voluntarily choose to use them. For instance,
each testing company, when submitting
proposals for testing administration, instead of
relying on a patchwork of local, or even
individual and proprietary, testing design and
implementation criteria, may rely instead on the
Sponsoring Organizations’ Standards to afford
the best guidance for testing and assessment
practices.

Defendant-Counterclaimant
Public Resource’s Objections
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of
documents.

17. The Standards were not created or updated
to serve as a legally binding document, in
response to an expressed governmental or
regulatory need, nor in response to any
legislative action or judicial decision. However,
the Standards have been cited in judicial
decisions related to the proper use and evidence
for assessment, as well as by state and federal
legislators. These citations in judicial decisions
and during legislative deliberations occurred
without any lobbying by the Plaintiffs.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues
as to which editions of the Standards and
which years the witness is referring to.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to the goals of the many authors of the
Standards.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception and is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

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Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

18. NCME has never communicated with
Congress for the purpose of encouraging the
enactment of the Standards into law.

FRE 403 Prejudice. The probative value of the
proffered testimony is substantially
outweighed by a danger of unfair prejudice,
confusing the issues, and misleading the
factfinder, because it omits mention of
NCME’s participation in a briefing on the
Standards at Capitol Hill. See, e.g. ICE
Exs.
and 47–49.

19. Additionally, NCME has never solicited any
government agency to incorporate the Standards
into the Code of Federal Regulations or other
rules of Federal or State agencies.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues
as to which editions of the Standards and
which years the witness is referring to.
Moreover, Plaintiffs refused to provide
discovery concerning any edition of the
Standards other than the 1999 Standards, and it
would be unfairly prejudicial to allow them to
introduce testimony on the 2014 Standards or
other editions at summary judgment.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRCP 26(a) and 37 Withheld Evidence.
Plaintiffs refused to provide evidence or
testimony concerning any edition of the
Standards other than the 1999 Edition, and
redacted documents that included data
concerning the 1985 and 2014 editions of the
Standards. See ICE Ex. 62
(Plaintiffs/counterclaim-defendants’
Objections and Answers to
Defendant/counterclaim-plaintiff’s First Set of
Interrogatories (Nos. 1–10) (objecting to
production of documents concerning any
publications other than the 1999 Standards and
stating that such documents are irrelevant));
ICE Ex. Ex. 63 (correspondence PRO counsel
identifying earlier versions and redactions as
issues in discovery). Plaintiffs should not be

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Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
allowed to now testify on matters they refused
to allow discovery into.

20. In the policymaking arena, NCME believes
the Standards should be treated as guidelines
informing the enactment of legislation and
regulations consistent with best practices in the
development and use of tests – to insure that
they are valid, reliable and fair.

FRE 403 Prejudice. The testimony omits any
relevant timeframe, which confuses the issues.

21. The Sponsoring Organizations promote and
sell copies of the Standards via referrals to the
AERA website, at annual meetings, in public
offerings to students, and to educational
institution faculty. Advertisements promoting
the Standards have appeared in meeting
brochures, in scholarly journals, and in the
hallways at professional meetings.
Accompanying this Declaration as
Exhibit KKK is a true copy of advertisements
for the 1999 Standards published in NCME’s
Journal of Educational Management. These
advertisements were produced at Bates
Nos. AERA_ APA_NCME_0031444-0031451.

FRE 403 Prejudice. The testimony omits any
relevant timeframe and does not specify which
editions of the Standards are referred to, which
confuses the issues. Plaintiffs ceased selling
and promoting the 1999 Standards in 2014,
and only resumed selling it in July

22. Distribution of the Standards is closely
monitored by the Sponsoring Organizations.
AERA, the designated publisher of the
Standards, sometimes does provide promotional
complementary print copies to students or
professors. Except for these few complementary
print copies, however, the Standards are not
given away for free; and certainly they are not
made available to the public by any of the three
organizations for anyone to copy free of charge.

FRE 403 Prejudice. The testimony omits any
relevant timeframe and does not specify which
editions of the Standards is referred to, which
confuses the issues. Plaintiffs ceased selling
and promoting the 1999 Standards in 2014,
and only resumed selling it in recent months

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter, particularly
as to the activities of the other Plaintiffs.

92

Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

23. To date, NCME has never posted, or
authorized the posting of, a digitized copy of
the 1999 Standards on any publicly accessible
website.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

24. Without receiving at least some moderate
income from the sales of the Standards to offset
their production costs and to allow for further
revisions, it is very likely that the Sponsoring
Organizations would no longer undertake to
periodically update them, and it is unknown
who else would.

FRE 403 Prejudice. The 2014 Standards are
not implicated by this litigation, and Plaintiffs
voluntarily stopped selling the 1999 Standards,
the only edition at issue. The witness’s
statement is misleading because it suggests
without justification or basis that Public
Resource’s actions risk depriving Plaintiffs of
income from the sale of the 2014 Standards.
The witness’s statement is also speculative and
risks confusing the issues in this case.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
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

93

Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
reliable principles and methods to the facts of
the case.

25. In late 2013 and early 2014, the Sponsoring
Organizations became aware that the 1999
Standards had been posted on the Internet
without their authorization, and that students
were obtaining free copies from the posting
source. Upon further investigation, the
Sponsoring Organizations discovered that
Public Resource was the source of the online
posting.

FRE 602 Lack of Personal Knowledge. The
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
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.
FRE 802 Hearsay. This testimony refers to an
out-of-court statement that is offered to prove
the truth of the matter asserted.

26. Public Resource posted Plaintiffs’ 1999
Standards to its website and the Internet
Archive website without the permission or
authorization of any of the Sponsoring
Organizations.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.

27. Plaintiffs have been made aware that at least
some of those users who obtained the 1999
Standards for free from Public Resource did so
to avoid paying the modest sale price for
authorized print copies.

FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
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.
FRE 802 Hearsay. The proffered testimony is
an out-of-court statement that is offered to
prove the truth of the matter asserted.

94

Declaration of Lauress L. Wise In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

28. Accompanying this Declaration as
Exhibit LLL is a true copy of an e-mail dated
March 5, 2014 from Gregory J. Cizek to me
regarding a student not purchasing the 1999
Standards because “they [were] available for
free online” at
https://law.resource.org/pubtus/cfr/ibr/001/aera.
standards.1999.pdf.” This e-mail exchange was
marked as Exhibit 1252 during my deposition.

FRE 403 Prejudice. The proffered exhibit is so
heavily redacted that it is not possible to
discern the full context of the email – only one
sentence appears and even that sentence is
partially redacted. The probative value of the
proffered testimony is substantially
outweighed by a danger of unfair prejudice or
misleading the factfinder.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
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. The alleged
statement by the student that is referred to in
the email is hearsay-within-hearsay.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.
FRCP 26(a) and 37 Withheld Evidence.
Plaintiffs heavily redacted the proffered exhibit
such that its content and context cannot
properly be understood, and should not be
allowed to now use it at summary judgment to
suggest inferences based off what little content
can be read.

CONCLUSION
Defendant-Counterclaimant Public.Resource.Org, Inc. respectfully requests that this
Court sustain these evidentiary objections at the hearing on Plaintiffs’ Renewed Motion for
Summary Judgment and for Entry of a Permanent Injunction.

95

Dated: November 8, 2019

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Matthew B. Becker (admitted pro hac vice)
[e-mail]
Armen N. Nercessian (pending pro hac vice)
[e-mail]
Shannon E. Turner (pending pro hac vice)
[e-mail]
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
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
CSRL 2nd Floor
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public Resource, Inc.

96