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

Filing 25

MOTION to Compel filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: #1 Declaration of Jonathan Hudis, #2 Exhibit A to Hudis Decl, #3 Exhibit B to Hudis Decl, #4 Exhibit C to Hudis Decl, #5 Exhibit D to Hudis Decl, #6 Exhibit E to Hudis Decl, #7 Exhibit F to Hudis Decl, #8 Exhibit G to Hudis Decl, #9 Exhibit H to Hudis Decl, #10 Exhibit I to Hudis Decl, #11 Exhibit J to Hudis Decl, #12 Exhibit K to Hudis Decl, #13 Exhibit L to Hudis Decl, #14 Exhibit M to Hudis Decl, #15 Exhibit N to Hudis Decl, #16 Exhibit O to Hudis Decl, #17 Exhibit P to Hudis Decl, #18 Exhibit Q to Hudis Decl, #19 Exhibit R to Hudis Decl, #20 Text of Proposed Order)(Hudis, Jonathan)

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

November 18, 2014
Via E-Mail
JONATHAN HUDIS
[phone]
[e-mail]

Andrew P. Bridges, Esq.
Kathleen Lu, Esq.
FENWICK & WEST LLP
555 California Street, 112th Fl.
San Francisco, CA 94104
Re:

Mitchell L. Stoltz, Esq.
Corynne McSherry, Esq.
ELECTRONIC FRONTIER
FOUNDATION
815 Eddy Street
San Francisco, CA 94109

KATHLEEN COONEY-PORTER
[phone]
[e-mail]
*BAR OTHER THAN VIRGINIA

David Halperin, Esq.
1530 P Street NW
Washington, DC 20005

American Education Research Association, Inc. et al. v.
Public.Resource.Org, Inc.
Civil Action No.: 1:14-cv-00857-TSC
Our Ref: 431384US-332060-332060-69-L DMS

Counsel:
We reviewed Public Resource’s Initial Disclosures served on Friday, November 14,
2014. We wish to add the matters noted below to the discussion topics for our telephone
conference scheduled for this Thursday, November 21, 2014 at 11:00 am Eastern Time.
Public Resource’s Rule 26(a)(1)(A)(ii) Disclosures:
Documents That Public Resource May Use to Support its Claims or Defenses
Public Resource identified in its Initial Disclosures the following categories of documents
that it may use to support its claims or defenses:
1. Requests for Information and Notices of Proposed Rulemaking by the Office of
Management and Budget and the Office of the Federal Register regarding incorporation
by reference, communications with the Office of the Federal Register and the National
Archives and Records on the question of incorporation by reference, communications and
prepared statements for Pipeline and Hazardous Safety Administration workshop
regarding incorporation by reference;
2. Documents reporting on or memorializing the standard development and/or lobbying
activities of Plaintiff Organizations;
3. Documents relating to Public Resource’s income and finances;
4. Document relating to Public Resource’s processes for posting standards that various
jurisdictions have incorporated into law; and
OBLON, SPIVAK, MCCLELLAND, MAIER & NEUSTADT, L.L.P.
1940 DUKE STREET  ALEXANDRIA, VIRGINIA 22314  U.S.A.
TELEPHONE: [phone]  FACSIMILE: 703-413-2220  WWW.OBLON.COM

Andrew P. Bridges, Esq., Mitchell L. Stoltz, Esq.,
Kathleen Lu, Esq., Corynne McSherry, Esq., David Halperin, Esq.
Our Ref. 431384US-332060-332060-69-L DMS
Page 2
5. Documents relating to Public Resource’s fair use of the 1999 Standard.
Public Resource’s categories of documents are unduly broad, lack specificity and
undermine the purpose of Fed. R. Civ. P. 26(a)(1). The purpose of the initial disclosure
requirement is to “accelerate the exchange of basic information about the case and to eliminate
the paper work involved in requesting such information.” Fed. R. Civ. P. 26 Advisory
Committee’s Note (1993), cited and discussed by, United States ex rel. Hunt v. Merck-Medco
Managed Care, LLC, 223 F.R.D. 330, 333 (E.D. Pa. 2004). The disclosure requirements should
be applied with common sense, “to help focus the attention on the ‘discovery that is needed, and
facilitate preparation for trial or settlement.’” Robinson v. Champaign Unit 4 Sch. Dist., 412 F.
App’x 873, 877 (7th Cir. 2011) (quoting the Fed. R. Civ. P. 26 Advisory Committee’s Note
(1993)).
The Advisory Committee Notes to the 1993 Federal Rules of Civil Procedure
amendments specifically address the Fed. R. Civ. P. 26(a)(1)(B) initial disclosure requirement.
The Advisory Committee Notes explain that while “an itemized listing of each exhibit is not
required, the disclosure should describe and categorize, to the extent identified during the initial
investigation, the nature and location of potentially relevant documents and records . . .
sufficiently to enable opposing parties (1) to make an informed decision concerning which
documents might need to be examined, at least initially, and (2) to frame their document requests
in a manner likely to avoid squabbles resulting from the wording of the requests.” Fed. R. Civ.
P. 26 Advisory Committee’s Note (1993).
Public Resource’s Initial Disclosures fail to accelerate the exchange of basic information
about this case and eliminate the paper work involved in requesting basic information. Public
Resource’s identification of potentially relevant documents consists of broad categories of
documents that are not specifically tailored to the facts of this case. This is evidenced, for
example, by Public Resource’s inclusion of “communications and prepared statements for
Pipeline and Hazardous Materials Safety Administration workshop” as a category of documents
that Defendant may rely upon to support its claims or defenses.
Public Resource’s broad categories of documents do not provide Plaintiffs with any
useful information that would aid in the drafting of discovery requests. Further, if Plaintiffs
served document requests tailored to Public Resource’s above-identified categories, Defendant
would likely object to the wording as being overly broad and unduly burdensome. Accordingly,
Plaintiffs request that Public Resource supplement its Initial Disclosures to provide a more
specific listing of the categories of documents that Public Resource may rely on in this action.
Plaintiffs also note that their Production Request No. 1 requires Public Resource to
“[p]roduce each document, thing, and/or item of ESI that is identified in Public Resource’s
Mandatory Disclosures pursuant to Fed. R. Civ. P. 26(a)(1).” As already mentioned in our letter

Andrew P. Bridges, Esq., Mitchell L. Stoltz, Esq.,
Kathleen Lu, Esq., Corynne McSherry, Esq., David Halperin, Esq.
Our Ref. 431384US-332060-332060-69-L DMS
Page 3
of Friday, November 14, 2014, Plaintiffs request that Public Resource produce the
above-identified documents by the close of business on Friday, November 21, 2014.
Very truly yours,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT, L.L.P.

Jonathan Hudis

Kathleen Cooney-Porter
JH/jh {11262083_1.DOCX }

cc:

American Educational Research Association, Inc.
American Psychological Association, Inc.
National Council on Measurement in Education, Inc.
Katherine D. Cappaert, Esq.