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

Filing 20

MEET AND CONFER STATEMENT. (Hudis, Jonathan)

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.,
Plaintiffs/Counterclaim Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaim Plaintiff.

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Civil Action No. 1:14-cv-00857-CRC
JOINT LCvR 16.3 REPORT

Pursuant to Fed. R. Civ. P. 26(f), LCvR 16.3, and the Court’s order of September 18,
2014, Plaintiffs, American Educational Research Association, Inc. (“AERA”), American
Psychological Association, Inc. (“APA”), and National Council on Measurement in Education,
Inc. (“NCME”) (collectively, “Plaintiffs”), and Defendant, Public.Resource.Org, Inc.
(“Defendant” or “Public Resource”), by and through undersigned counsel, respectfully submit
this Joint LCvR 16.3 Report.
STATEMENT OF THE FACTS
Plaintiffs allege that Defendant is infringing and contributing to the infringement of their
copyrighted work, the 1999 “Standards for Educational and Psychological Testing” (the
“Standards”) by copying the Standards in its entirety, posting the Standards on Defendant’s
public website, and encouraging others to copy, distribute, and create derivative works from the
Standards. Plaintiffs seek injunctive relief, costs and attorneys’ fees under the Copyright Act, 17
U.S.C. §§ 106, 502 and 505.

Public Resource denies that Plaintiffs hold copyright in the Standards at issue. Public
Resource maintains that because governments have incorporated the Standards at issue into law
and the public has the right to read and speak the law, Public Resource cannot have infringed any
copyrights held by Plaintiffs. Public Resource also asserts affirmative defenses to Plaintiffs’
claims, and counterclaims for declaratory relief of non-infringement.
Plaintiffs dispute that governments have incorporated the Standards at issue into law.
Public Resource is currently litigating American Society for Testing and Materials
(“ASTM”), et al. v. Public.Resource.Org, Inc., No. 13-cv-01215, another case pending in this
District. That case, involving claims of copyright and trademark infringement, is before Judge
Tanya S. Chutkan, with fact discovery scheduled to close on December 5, 2014. The ASTM
Case and this case do not meet this Court’s standard for Related Cases, and the parties do not
seek consolidation. However, the Court should be alerted to the other pending case.
LCivR 16.3 Discussions:
1.

Dispositive Motions

The parties believe that their respective claims may be resolved through dispositive
motions during or after discovery. No dispositive motions have been filed thus far.
Though not a dispositive motion, Plaintiffs have a pending motion to strike Public
Resource’s jury demand.
2.

Joinder of Parties, Amendment Of Pleadings And Narrowing Of Issues

The parties do not anticipate joining any additional parties; however, the parties propose
that any motion to join additional parties shall be filed by no later than November 14, 2014.

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Any amendment of pleadings will be made as allowed by the applicable Federal Rules of
Civil Procedure and by Order of the Court. The parties propose that any motion to amend
pleadings shall be filed by no later than November 14, 2014.
The parties have not agreed to narrow any issues at this time.
3.

Assignment of a Magistrate Judge

The parties do not consent to the assignment of this matter to a magistrate judge on
dispositive matters. The parties will consent to the Court’s appointment of a magistrate judge for
discovery purposes.
4.

Possibility of Settlement

The parties do not believe that settlement is a realistic possibility. At this time, no plans
for mediation have been set.
5.

Alternative Dispute Resolution

The parties are aware of the Court’s alternative dispute resolution (“ADR”) procedures
and have considered the factors listed in LCvR 16.3(c)(5). The parties do not believe that any
ADR procedure is likely to resolve their dispute at this time.
6.

Time For Filing Dispositive Motions

The parties agree that the deadline for filing dispositive motions shall be 60 days after
expert discovery closes. The parties also agree that oppositions to dispositive motions shall be
due 30 days after their filing, with replies due 14 days thereafter.
7.

Initial Disclosures

The parties agree to serve initial disclosures, as required by Fed. R. Civ. P. 26(a)(1), on or
before November 14, 2014. Since none of the parties have requested monetary relief, the parties

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request that the Court dispense with the disclosure requirements of Fed. R. Civ. P.
26(a)(1)(A)(iii).
8.

Extent of Discovery

The parties agree to a limit of 25 interrogatories per side and 10 depositions per side.
The parties propose a deadline for sending initial written discovery requests of January
14, 2015.
The parties anticipate that all answers to written factual discovery will be completed by
March 2, 2015, unless motions to compel are needed.
The parties anticipate that all depositions for factual discovery will be completed by
March 16, 2015, unless motions to compel are needed.
The parties propose a fact discovery deadline of March 16, 2015, subject to rulings on
any motions to compel.
The parties agree that expert witness discovery will take place following factual
discovery in accordance with the schedule below.
9.

Experts

The parties agree that expert discovery, to the extent necessary or desired by any of the
parties, will commence after the close of factual discovery, and that:
A.

Opening expert disclosures pursuant to Fed. R. Civ. P. 26(a)(2) on issues
for which the disclosing party bears the burden of proof shall be made no
later than 30 days following the close of fact discovery.

B.

Any rebuttal expert disclosures or opening expert disclosures on issues for
which the disclosing party does not bear the burden of proof shall be made
no later than 30 days following opening expert disclosures.

C.

Any rebuttal disclosures or replies to rebuttals on issues for which the
disclosing party bears the burden of proof shall be made no later than 14
days following the initial rebuttal expert disclosures.

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D.

E.
10.

Any reply expert disclosures on issues for which the disclosing party does
not bear the burden of proof shall be made no later than 14 days following
final rebuttal expert disclosures.
All expert depositions will be completed and expert discovery shall close
30 after the final rebuttal or reply disclosures.

Class Actions

This is not a class action.
11.

Bifurcation

At this time, the parties see no reason for bifurcation of the trial and/or discovery.
12.

Pretrial Conference

The parties propose that the court schedule a pretrial conference approximately 120 days
after the Court’s final ruling on the final dispositive motions or, if no dispositive motions are
filed, approximately 90 days following the deadline to file dispositive motions.
13.

Trial Date

The parties request that the Court set a trial date at the pretrial conference.
14.

Other Matters Appropriate for Inclusion in a Scheduling Order
A.

The parties anticipate submitting a stipulated protective order regarding

the confidentiality of discovery material, as well as assertions of privilege and work
product immunity.
B.

The parties have discussed the preservation and disclosure of

electronically stored information (“ESI”).

The parties have agreed to exchange

documents and ESI in the following format: single page TIFF images with associated
multi-page OCR .txt file including page breaks, Summation .dii load file or Concordance
load files (in the format requested by the Receiving Party), and metadata in an ASCII or
UTF8 delimited .dat file. Metadata will be produced, and the parties will reach an

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agreement on or before the date on which they exchange documents and ESI regarding
the types of documents and ESI for which metadata will be produced and the metadata
fields to be included. Documents and ESI that are not convertible to TIFF images (such
as database files, audio files, video files, etc.) as well as spreadsheets (e.g., Excel files)
will be produced in their native format with slip-sheets (TIFF image files) inserted into
the production identifying the files as having been produced as native files and including
the corresponding Bates numbers. A corresponding .txt file will also be produced for the
slip-sheet TIFF image files. Further, the parties may make original documents in native
form available for inspection for selection and ultimate production in the aforementioned
formats. The parties will bear the cost of collecting, reviewing, and producing their own
documents and ESI.
C.

The parties agree to serve and accept service of discovery by e-mail, and

to serve and accept service of document production by FTP (with courtesy copies of
document production also sent on media disk).
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Respectfully submitted,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT,LLP
Dated: October 9, 2014

/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Kathleen Cooney-Porter (DC Bar # 434526)
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]
Attorneys for Plaintiffs-Counterclaim Defendants
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC.
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC.
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.
FENWICK & WEST LLP

Dated: October 9, 2014

/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]

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Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
Corynne McSherry (Pro Hac Vice)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant-Counterclaimant
PUBLIC.RESOURCE.ORG, INC.
{431384US, 11049903_1.DOCX}

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CERTIFICATE OF SERVICE
I hereby certify that on October 9, 2014, the foregoing JOINT LCvR 16.3 REPORT
was filed using the CM/ECF system that sent notice of the filing of these documents to all
counsel of record, and was also served via e-mail to:
Andrew P. Bridges
FENWICK & WEST LLP
555 California Street, 112th Floor
San Francisco, CA 94104
[e-mail]
David Halperin
1530 P Street NW
Washington, DC 20005
[e-mail]
Mitchell L. Stoltz
Corynne McSherry
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
[e-mail]
[e-mail]
Counsel for Defendant
PUBLIC.RESOURCE.ORG, INC.
/s/ Jonathan Hudis
Jonathan Hudis