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)

IN THE 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.,

C.A. No. 1:14-cv-00857-TSC

Plaintiff-Counterdefendants,
v.
PUBLIC.RESOURCE.ORG., INC.,
Defendant-Counterclaimant.

DEFENDANT PUBLIC RESOURCE’S
REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO [134] PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF PUBLIC
RESOURCE’S SECOND MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Evidence 201(b) and the authorities cited below, DefendantCounterclaimant Public.Resource.Org respectfully requests that the Court take judicial notice of
several matters in connection with its Memorandum of Law In Opposition to [134] Plaintiffs’
Motion for Summary Judgment and In Support of Defendant’s Cross Motion for Summary
Judgment. In particular, Public Resource requests that the Court take judicial notice of certain
aspects of the version of the 2002 National Electrical Safety Code (NESC) that the Indiana
Supreme Court cited in Bellwether Properties, LLC v. Duke Energy Indiana, Inc., 87 N.E.3d 462,
469 (Ind. 2017).
Public Resource respectfully asks this Court to take judicial notice of the fact (1) that the
version of the NESC that Indiana Supreme Court cited is a resource on the Internet Archive
website, archive.org, which is evident from examining the URL cited by the Bellwether court:
https://ia600704.us.archive.org/16/items/gov.law.ieee.c2.2002/ieee.c2.2002.pdf; and (2) that the
metadata page for this document indicates that it was “Uploaded by Public.Resource.Org.” 1
In addition, Public Resource requests that the Court take judicial notice that the Institute of
Electrical and Electronics Engineer (IEEE), which published the 2002 edition of the NESC,
describes this version as “[s]uperseded,” even though it is still Indiana law. 2
A district court may take judicial notice of facts that are “not subject to reasonable dispute
in that [they are] either (1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b).

1

See https://archive.org/details/gov.law.ieee.c2.2002 and
https://ia600704.us.archive.org/16/items/gov.law.ieee.c2.2002/ieee.c2.2002.pdf_meta.txt
2

See http://ieeexplore.ieee.org/document/6516109/
1

Specifically, a court may take judicial notice of matters of public record. See Bebchick v.
Washington Metro. Area Transit Comm’n, 485 F.2d 858, 880 (D.C. Cir. 1973) (“[M]atters of
public record . . . [are] well within the range of judicial notice.”). This Court has “frequently taken
judicial notice of information posted on official public websites of government agencies.” Pharm.
Research & Manufacturers of Am. v. United States Dep't of Health & Human Servs., 43 F. Supp.
3d 28, 33 (D.D.C. 2014) (citing Cannon v. District of Columbia, 717 F.3d 200, 205 n. 2 (D.C. Cir.
2013)).
For these reasons, Public Resource respectfully requests that the Court take judicial notice
of the matters listed above.

2

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.Org, Inc.

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