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

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,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant.

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Civil Action No. 1:14-cv-00857-CRC
PLAINTIFFS’ FIRST SET
OF INTERROGATORIES

Plaintiffs, American Educational Research Association, Inc. (“AERA”), American
Psychological Association, Inc. (“APA”), and National Council on Measurement in Education,
Inc. (“NCME”) (collectively, “Plaintiffs”), serve these Interrogatories under Fed. R. Civ. P. 33,
to be answered separately and fully in writing under oath by an officer or agent of Defendant,
Public.Resource.Org, Inc. (“Public Resource”), and served upon counsel for Plaintiffs at the
offices of OBLON, SPIVAK, MCCLELLAND, MAIER & NEUSTADT, LLP, 1940 Duke
Street, Alexandria, Virginia 22314. Each separately numbered or lettered sub-part of each
Interrogatory requires a separate answer thereto. Public Resource’s attention is further drawn to
its continuing duty to supplement its answers to these Interrogatories in accordance with Fed. R.
Civ. P. 26(e).
DEFINITIONS AND INSTRUCTIONS
Unless otherwise advised, all of Plaintiffs’ Interrogatories and Requests (for Production
of Documents, Things, and Electronically Stored Information, and for Admissions), whether
presently or subsequently propounded, are subject to definitions set forth below:

A.

The term “Public Resource” refers to Public.Resource.Org, Inc., its parent

company, subsidiaries, affiliates, and any persons who are, or at any time to which these
Interrogatories or Requests relate were, controlled by or otherwise acting on behalf of the
foregoing, the present or former officers, directors, partners, employees, agents, and
representatives of any of the foregoing.
B.

The term “AERA” refers to American Educational Research Association, Inc.

C.

The term “APA” refers to American Psychological Association, Inc.

D.

The term “NCME” refers to National Council on Measurement in Education, Inc.

E.

The term “Public Resource Website” refers to any website owned, controlled or

operated by Public Resource, including the website whose homepage is located at
law.resource.org, the website whose homepage is located at house.resource.org, the website
whose homepage is located at bulk.resource.org, and the website whose homepage is located at
public.resource.org.
F.

The term “document” shall be construed in its broadest permissible sense, and

shall include any and all means of conveying, storing, or memorializing information, whether in
paper or other tangible physical form in the possession, custody, or control of Public Resource.
Each comment, or addition to, or deletion from, a document shall constitute a separate document.
G.

The term “electronically stored information” or “ESI” shall be construed in its

broadest permissible sense, and shall include any and all means of conveying, storing, or
memorializing information that has been created, manipulated, communicated, stored, and best
utilized in digital form, requiring the use of computer hardware and software.
H.

The term “thing” shall be construed in its broadest permissible sense, and shall

include any inanimate material object that is capable of conveying, storing, or memorializing

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information, that is not or cannot be specifically designated or precisely described as a document
or item of ESI.
I.

Wherever Public Resource is requested to “identify” or state the identity of a

document, thing or item of ESI, please state the following information:
1.

its date;

2.

its title and/or all identifying numbers or other identifying or categorizing

designations, and if not apparent in the title, a brief description of the general nature and
subject matter;
3.

the name, title, and address of each author, signatory, or preparer;

4.

the name, title, and address of each addressee and each other person

receiving a copy thereof;
5.

its present location and the name and address of its present custodian;

6.

if the document is not an original, the name and address of the original

custodian; and
7.

any other designation necessary to sufficiently identify the document,

thing, or item of ESI so that a copy thereof may be ordered or obtained from the
custodian thereof.
J.

If Public Resource refuses to identify and/or produce any document, thing, item of

ESI, or item of information based upon a claim of confidentiality, privilege, work product
immunity, or some other rule or doctrine, Public Resource shall, in log form: (i) identify each
document, thing, item of ESI, or item of information by its author, intended recipient, the date of
the document, and its general subject matter, (ii) identify the basis for non-disclosure being
claimed and whether it is being asserted in connection with a claim or defense governed by state

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law, (iii) set forth the non-disclosure rule or doctrine being invoked, and (iv) as to the document,
thing, item of ESI, or item requested, set forth whether (a) any responsive materials exist, or (b)
any related oral communications that took place.
K.

The term “person” or “persons” refers to natural persons, corporations, and any

other form of business entity including, without limitation, partnerships, firms, ventures and
associations and shall include divisions, departments, subsidiaries, directors, officers, owners,
members, employees, agents, attorneys, or anyone else acting on the person’s or entity’s behalf.
L.

Wherever Public Resource is requested to “identify” or to state the identity of a

natural person, please state, as to such person, the following information:
1.

name;

2.

present or last known residence, address, and telephone number;

3.

present or last known business title and business address and telephone

number;
4.

business title and business address during the time period to which the

interrogatory or request relates;
5.

whether there is or ever has been an employer/employee relationship,

principal/agent relationship, or licensor/licensee or other relationship between such
person and Public Resource and, if so, the nature of the relationship and the dates during
which it existed.
M.

Wherever Public Resource is requested to “identify” or state the identity of a

person other than a natural person, please state the following concerning such entity:
1.

its full, legal name;

2.

its form of organization;

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3.

its address and principal place of business; and

4.

whether there is or has ever been an employer/employee relationship,

principal/agent relationship, or licensor/licensee or other relationship between such
person and Public Resource and, if so, the nature of the relationship and the dates during
which it existed.
N.

The term “the 1999 Standards” shall mean the Standards for Educational and

Psychological Testing (1999 ed.).
O.

The term “communication” shall mean the exchange of thoughts, messages, or

information in written form, whether by transmission of a document, thing, or item of ESI.
P.

The term “digitize” shall mean the conversion of a document in print form to a

digital form that can be processed by a computer.
Q.

The term “regarding” means relating or referring to, incorporating, comprising,

touching upon, applicable to, indicating, evidencing, affirming, denying, concerning, relevant to,
or likely to lead to admissible evidence.
R.

The term “each” includes “each” and “every.”

S.

The term “and/or” is to be read in both the conjunctive and disjunctive and shall

serve as a request for information which would be responsive under a conjunctive reading in
addition to all information which would be responsive under a disjunctive reading.
INTERROGATORIES
INTERROGATORY NO. 1.
Identify and describe how Public Resource obtained any printed version or versions of
the 1999 Standards.

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INTERROGATORY NO. 2.
Identify when the 1999 Standards were first and last posted or published to a Public
Resource Website, and identify the particular Public Resource Website(s) to which the 1999
Standards were posted or published.
INTERROGATORY NO. 3.
Identify and describe the process Public Resource used to digitize or convert to digital
format the 1999 Standards from paper format, including any quality control measures Public
Resource used to prevent the content of the 1999 Standards from being altered.
INTERROGATORY NO. 4
Identify all persons who and companies that participated on Public Resource’s behalf
(including Public Resource itself) in digitizing or converting a paper version of the 1999
Standards to digital format, and describe the nature of each person’s and/or company’s
participation.
INTERROGATORY NO. 5.
Identify and describe, by month and year starting from the date that the 1999 Standards
were first posted on or published to a Public Resource Website or Public Resource Websites, the
number of visitors who viewed and/or accessed the 1999 Standards on that website or those
websites.
INTERROGATORY NO. 6.
Identify the number of times the 1999 Standards were downloaded from a Public
Resource Website or Public Resource Websites, and identify the particular Public Resource
Website(s) from which the 1999 Standards were downloaded.

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INTERROGATORY NO. 7.
Identify and describe all instances of which you are aware in which a third party, after
downloading the 1999 Standards from a Public Resource Website, posted the 1999 Standards
online to a website other than a Public Resource Website, made further reproductions of the 1999
Standards, or created derivative works based on the 1999 Standards.
INTERROGATORY NO. 8.
State the factual and legal basis of each Affirmative and Other Defense to Plaintiffs’
Complaint, as asserted in Public Resource’s Counterclaim and Answer filed with the Court on
July 14, 2014.
Respectfully submitted,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT,LLP
/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Kathleen Cooney-Porter (DC Bar # 434526)
1940 Duke Street
Alexandria, VA 22314
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]

Dated: October 1, 2014
{431834US; 11005724_1.DOCX}

Attorneys for Plaintiffs
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC.
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC.
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.

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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing PLAINTIFFS’ FIRST SET OF
INTERROGATORIES was served on counsel for Defendant, this 1st day of October by sending
same 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
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
[e-mail]
Counsel for Defendant
PUBLIC.RESOURCE.ORG, INC.
/s/ Jonathan Hudis
Jonathan Hudis