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 M
Case No. 1:14-cv-00857-TSC

November 21, 2014
Via E-Mail
Andrew P. Bridges, Esq.
FENWICK & WEST LLP
555 California Street, 112th Fl.
San Francisco, CA 94104

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

Re: 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
Dear Andrew:
This letter serves to memorialize our conversation from yesterday, regarding outstanding
discovery issues related to Public Resource’s: 1) Interrogatory Answers, 2) Responses to
Production Requests, 3) Responses to Admissions Requests, and 4) Initial Disclosures. If you
disagree with any item summarized below, please reply via e-mail by November 25, 2014.
1. Public Resource’s General Objections
It is Plaintiffs’ position that, unless Public Resource asserted an objection or objections
specifically addressing the alleged drawback(s) of each discovery request propounded by
Plaintiffs, Public Resource’s objections were waived. Public Resource contends that it has not
waived any general objections to date and does not plan on doing so.
2. Public Resource’s Privilege Objections
The parties agree that privilege logs served in this action may omit any references to
communications had between any party and its counsel since the filing of the Complaint.
Plaintiffs asked for a date-certain by which Public Resource will produce a log of specifically
identified documents and other materials that are being withheld on various privilege grounds,
and the reasons therefor. Public Resource does not agree to produce a privilege log by any
promised due-date, but rather plans to provide privilege logs as Defendant produces its
documents on a rolling basis.

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.
Our Ref. 431384US-332060-332060-69-L DMS
Page 2
3. Public Resource’s Interrogatory Answers 1, 5 and 6, and Responses to
Production Requests Nos. 1 through 7
It is Plaintiffs’ position that the production of documents identified in Public Resource’s
Interrogatory Answers 1, 5 and 6, as well as documents responsive to Production Requests Nos.
1 through 7, is well overdue. Public Resource does not agree to produce its discovery documents
by a date-certain, but rather plans to produce such materials on a rolling basis.
4. Public Resource’s Interrogatory Answer No. 5
The parties reached an understanding that the terms “viewed” and “accessed” are being
used synonymously in Interrogatory No. 5. On this basis, Public Resource will consider
modifying its answer to Interrogatory No. 5. We were not provided a date-certain by which
Public Resource will modify its answer to this Interrogatory, if at all.
5. Public Resource’s Interrogatory Answers 6 and 7, and Response to Production
Request No. 8
The parties reached an understanding regarding the definitions of “viewed” (which refers
to the “act of seeing or examining”) and “downloaded” or “downloading” (which refers to the act
of copying data and/or data files from one computer system to another, typically over the
Internet) as used in Plaintiffs’ discovery requests. On this basis, Public Resource will consider
modifying its answers to Interrogatory Nos. 6 and 7, and its response to Production Request No.
8. We were not provided a date-certain by which Public Resource will modify these
interrogatory answers or its response to this production request, if at all.
6. Public Resource’s Responses to Production Request Nos. 6 and 7
The parties agreed that Public Resource’s responses to Production Requests Nos. 6 and 7
were unclear. Public Resource will consider modifying or supplementing its responses to these
Production Requests. We were not provided a date-certain by which Public Resource will
modify these responses, if at all.
7. Public Resource’s Interrogatory Answer No. 8 and Response to Production
Request No. 9
The parties were unable to agree on these discovery requests. Plaintiffs stand by their
belief that Public Resource’s refusal to respond is not justifiable. Public Resource stands by its
belief that it is justified in refusing to answer Interrogatory No. 8 and refusing respond to
Production Request No. 9.

Andrew P. Bridges, Esq.
Our Ref. 431384US-332060-332060-69-L DMS
Page 3
8. Public Resource’s Response to Admission Request No. 1
Public Resource stands by its response to Plaintiffs’ Admission Request No. 1. Plaintiffs
will consider Public Resource’s position as discussed during our telephone conference.
9. Public Resource’s Response to Admission Request No. 3
Public Resource stands by its denial of Admission Request No. 3 on the grounds that the
term “publish,” in the context of this copyright infringement action, has only one meaning – and
that is the definition provided by the U.S. Copyright Act. The parties did not come to a
resolution of this issue.
Plaintiffs request, one final time, that Public Resource reconsider its position regarding
Admission Request No. 3 and the definition of the term “publish,” in view of the following:
I am in receipt of your communication of December 16 regarding the publication
of the AERA publication, “Standard for Educational and Psychological Testing”
(1999) at htpps://law.resource.org/pub/us/cfr/ibr/001/aera.standards.1999.pdf. We
are responsible for uploading this document. (emphasis added).
Letter from C. Malamud to J. Neikirk, December 19, 2013, p. 1.
10. Public Resource’s Responses to
Request No. 6

Admission Request No. 6 and Production

Public Resource acknowledges that, as they currently stand, Defendant’s responses to
Admission Request No. 6 and Production Request No. 6 are inconsistent. Public Resource will
consider modifying or supplementing its responses to Admission Request No. 6 and/or
Production Request No. 6 to address this inconsistency, and in view of the parties’ understanding
of the term “downloaded” as used in these discovery requests. We were not provided a datecertain by which Public Resource will modify these discovery responses, if at all.

Andrew P. Bridges, Esq.
Our Ref. 431384US-332060-332060-69-L DMS
Page 4
11. Public Resource’s Initial Disclosures and Response to Production Request No. 2
The parties were unable to agree on the adequacy of Public Resource’s Initial
Disclosures. Public Resource stands by its position that the identification of document categories
in its Initial Disclosures is satisfactory. Plaintiffs maintain that Public Resource’s identified
document categories are vague and ambiguous. Public Resource further does not agree to a datecertain by which it will produce the documents identified in its Initial Disclosures (see
Production Request No. 2), but rather will produce these materials on a rolling basis.
Very truly yours,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT, L.L.P.

Jonathan Hudis

Kathleen Cooney-Porter
JH/jh {11281388_1.DOCX }

cc:

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