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

Filing 138

LARGE ADDITIONAL ATTACHMENT(S) by PUBLIC.RESOURCE.ORG, INC. 136 Second MOTION for Summary Judgment filed by PUBLIC.RESOURCE.ORG, INC., 137 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.) filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Errata 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38 FILED UNDER SEAL, # 39 Exhibit 39 FILED UNDER SEAL, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49 FILED UNDER SEAL, # 50 Exhibit 50 FILED UNDER SEAL, # 51 Exhibit 51 FILED UNDER SEAL, # 52 Exhibit 52 FILED UNDER SEAL, # 53 Exhibit 53 FILED UNDER SEAL, # 54 Exhibit 54 FILED UNDER SEAL, # 55 Exhibit 55 FILED UNDER SEAL, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58 FILED UNDER SEAL, # 59 Exhibit 59 FILED UNDER SEAL, # 60 Exhibit 60 FILED UNDER SEAL, # 61 Exhibit 61 FILED UNDER SEAL, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69 FILED UNDER SEAL)(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 CONSOLIDATED INDEX OF EXHIBITS IN
OPPOSITION TO [134] PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
PERMANENT INJUNCTION, AND IN SUPPORT OF PUBLIC RESOURCE’S SECOND
MOTION FOR SUMMARY JUDGMENT

Defendant-Counterclaimant Public.Resource.Org, Inc. (“Defendant”) submits the
following Consolidated Index of Exhibits in Opposition to [134] Plaintiffs’ Motion for Summary
Judgment and Permanent Injunction and in Support of Defendant’s Cross Motion for Summary
Judgment:
Exh. No.

Document Title

1

John Markoff, “Turning the Desktop PC Into a Talk Radio Medium,” New
York Times, March 4, 1993

2

John Markoff, “Plan Opens More Data To Public,” New York Times, October
22, 1993

3

Correspondence from the Securities and Exchange Commission on August
31, 1995 , stating in part: “Looking forward to your support as we continue
down the road you’ve paved.” Service available at
https://www.sec.gov/edgar.shtml.

4

John Schwartz, “Superhighway Routed Through Capitol Hill,” Washington
Post, September 9, 1994

5

Correspondence from Senator Connie Mack on June 16, 1995, concerning the
first congressional hearing on Internet.

6

Katie Hafner, “The Man With Ideas: The Robert Moses of
Cyberspace Plans a 1996 World’s Fair,” Newsweek, July 24, 1995.

7

“Foreword by His Holiness the Dalai Lama,” A World’s Fair for the
Information Age, MIT Press (1997).

8

John Schwartz, “Ideas Whose Time for Free Access Has Come,”
Washington Post, June 29, 1998.

9

John Markoff, “U.S. to Release Patent Data On a World Wide Web Site,”
New York Times, June 25, 1998.

10

Correspondence from the Public Printer of the United States on July 27, 2006.

11

Correspondence from Hon. Nancy Pelosi, the Speaker of the House of
Representatives, on April 17, 2008, supporting “FedFlix” initiative.

12

James Fallows, “Another Win for Carl Malamud,” Atlantic Monthly, March
9, 2007.

2

Exh. No.

Document Title

13

Correspondence from Speaker Boehner and Chairman Issa on January 5,
2011.

14

Remarks of Congressman Issa titled “Commemorating the Tenth Anniversary
of Public.Resource.Org,” Congressional Record, Page E285, March 7, 2017.

15

Suzanne Perry, “IRS Plans to Begin Releasing Electronic Nonprofit Tax
Forms Next Year,” Chronicle of Philanthropy, June 30, 2015.

16

Robert Ambrogi, “1.8M Pages of Federal Case Law To Go Public,” Law
Sites, November 14, 2007.

17

Correspondence from the Hon. Lee H. Rosenthal, Chair of the Committee on
Rules of Practice and Procedure of the Judicial Conference of the United
States, on July 16, 2008

18

Correspondence from Chief Judge Royce C. Lamberth, U.S. District Court for
the District of Columbia, on January 28, 2009.

19

Correspondence from U.S. Senator Joseph I. Lieberman to Hon. Lee H.
Rosenthal, on February 27, 2009.

20

Prepared statement by Carl Malamud before the U.S. Court of Appeals for the
Ninth Circuit on June 23, 2010.

21

Submission by Carl Malamud to the Presidential Transition Effort
(“Change.Gov”), titled “Federal Register 2.0,” on January 5, 2009.

22

Correspondence from the Hon. David Ferriero, Archivist of the United States
to me, on April 2, 2019.

23

Prepared statement by Carl Malamud before the Oregon State Legislature
Legislative Counsel Committee on June 19, 2008.

24

The Editorial Board, “The Law©?,” New York Times, June 25, 2019.

25

“Notice of Incorporation,” dated March 15, 2012.

26

Carl Malamud Response to SMACNA, on January 11, 2013.

27

Response to SMACNA, on January 11, 2013.

28

ANSI website, titled “ANSI Launches Online Portal for Standards
Incorporated by Reference,” dated October 28, 2013.

3

Exh. No.

Document Title

29

Prepared remarks by Carl Malamud before the ABA House of Delegates on
August 9, 2016.

30

Lorelei Laird, “After debate, ABA House calls for publication of privately
drafted standards used in legislation,” ABA Journal, August 9, 2016.

31

Hon. David Ferriero, “Federal Register 2.0,” The White House Blog, July 26,
2010.

32

History of the Federal Register, March 14, 2006.

33

Cornell Legal Information Institute, “Worth A Thousand Words: We’re
Upping Our Game for Images,” April 4, 2019.

34

Email correspondence on March 1, 2016, with Amy Bunk, Director of Legal
Affairs and Policy at the Office of the Federal Register.

35

John Adams’ “Dissertation on the Canon and Feudal Law.”

36

Deposition of Felice Levine dated August 16, 2019.

37

Exhibit 1305 from the deposition of Felice Levine August 16, 2019,
Plaintiffs’ Responses to Public Resource’s Second Set of Interrogatories.

38

Exhibit 1306 from the deposition of Felice Levine dated August 16, 2019,
1999 Standards’ sales report bates stamped AERA_APA_NCME_
RFP2_0000027.

39

SEALED Exhibit 1307 from the deposition of Felice Levine dated August 16,
2019, Plaintiffs’ updates sales reports bates stamped AERA_APA_NCME_
RFP2_0000001-26.

40

Exhibit 1308 from the deposition of Felice Levine dated August 16, 2019,
website printout for the 2014 Standards.

41

Exhibit 1309 from the deposition of Felice Levine dated August 16, 2019,
website printout for the 1999 Standards.

42

Exhibit 1310 from the deposition of Felice Levine dated August 16, 2019,
mail order form necessary to purchase a copy of the 1999 Standards.

43

Signed agreement between Plaintiffs and the New York State Education
Department dated May 11, 2011, bates stamped ERA_APA_NCME_
0032528-9.

44

Plaintiff APA’s memorandum titled “Litigation Report,” dated August 8,
2014.

45

Office of the Federal Register’s “IBR Handbook,” dated July 2018.

46

U.S. Government Accountability Office titled “Proprietary Schools: Stronger
Department of Education Oversight Needed to Help Ensure Only Eligible
Students Receive Federal Student Aid,” dated August 2009.

4

Exh. No.

Document Title

47

Federal Bureau of Investigations Press release, “FastTrain Owner and
Admissions Representative Convicted of Federal Student Aid Scheme,” dated
Nov. 24, 2015, available at https://www.fbi.gov/miami/pressreleases/2015/fasttrain-owner-and-admissions-representative-convicted-offederal-student-aid-scheme.

48

Complaint in the action U.S. vs. FastTrain II Corp., Case No.: 1:12-cv-21431,
Dkt. 54, filed Dec. 2, 2014, available at
http://www.justice.gov/sites/default/files/usaosdfl/legacy/2014/12/03/141203-01.FasttrainIICorpCaseComplaint.pdf.

49

SEALED Deposition transcript of Diane L. Schneider, dated April 23, 2015.

50

SEALED Deposition transcript of Marianne Ernesto, dated April 29, 2015.

51

Deposition transcript of Wayne Camara, dated May 1, 2015.

52

SEALED Deposition transcript of Felice Levine, dated May 4, 2015.

53

Deposition transcript of Lauress Wise, dated May 11, 2015.

54

SEALED Deposition transcript of Kurt F. Geisinger, dated September 10,
2015.

55

SEALED Deposition transcript of S.E. Phillips, dated September 22, 2015.

56

Deposition transcript of Carl Malamud, dated May 12, 2015.

57

Deposition transcript of Christopher Butler, dated December 2, 2014.

58

SEALED Exhibit 1205 in the deposition of Felice Levine, produced by
Plaintiffs bearing control number AERA_APA_NCME_0004818, “American
Educational Research Association | Standards of Educational and
Psychological Testing | Statement of Revenue and Expenses | (FY2000 –
12/31/2013)”.

59

SEALED Exhibit 1211 in the deposition of Felice Levine, produced by
Plaintiffs bearing control number AERA_APA_NCME_0032527, “American
Educational Research Association | Standards of Educational and
Psychological Testing | Statement of Revenue and Expenses | (FY2000 –
12/31/2014)”.

60

Exhibit 1207 in the deposition of Felice Levine, produced by Plaintiffs
bearing control number AERA_APA_NCME_0031848, “Standards for
Educational and Psychological Testing | Sales Report, 1999 Edition.”

61

Exhibit 1208 in the deposition of Felice Levine, produced by Plaintiffs
bearing control number AERA_APA_NCME_0005137, “Standards for
Educational and Psychological Testing | Sales Report.”

62

Expert Report of James R. Fruchterman, dated June 13, 2015.

5

Exh. No.

Document Title

63

National Archives website, titled “Incorporation by Reference”, available at
http://www.archives.gov/federal-register/cfr/ibr-locations.html (accessed and
printed Jan. 22, 2016).

64

Declaration of Carl Malamud dated January 21, 2016, previously filed at Dkt.
69-5.

65

Declaration in Support of Probable Cause, California v. Harris, No. 17-CR017349A (Cal. Super. Ct. June 5, 2017), available at
https://www.scribd.com/document/350446988/Ghost-Ship-fire-criminalcharges.

66

Criminal Complaint, California v. Harris, No. 17-CR-017349A (Cal. Super.
Ct. June 5, 2017), available at
https://web.archive.org/web/20170729051241/https://cbssanfran.files.wordpre
ss.com/2017/06/almena-and-harris-complaint.pdf.)

67

Deposition transcript of James Fruchterman, dated September 8, 2015.

68

OCR Issues Draft Guide on Disparate Impact in Educational Testing TIP
October 1999

69

SEALED APA memorandum produced by Plaintiffs bates labeled
AERA_APA-NCME_0031518-20.

6

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.

7