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

November 10, 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:
Pursuant to LCivR 7(m), we wish to schedule a telephone conference to discuss the
discovery matters noted below. The purpose of the phone call is to hopefully narrow the areas of
disagreement before bringing these matters to the Court’s attention for resolution.
Public Resource’s Purported
General Discovery Objections
Preceding each of Public Resource’s interrogatory answers, responses to production
requests and responses to admissions’ requests are several pages of so-called “General
Objections.” These asserted General Objections are non-specific, in that they do not uniquely
reference the specific discovery requests, or portions thereof, which Public Resource believes are
problematic. The General Objections are then “incorporated by reference,” in scattershot
fashion, into each and every discovery request without identifying the specific infirmity(ies) of
the discovery request(s).
Courts “will not consider ‘boilerplate’ objections like this.” Pleasants v. Allbaugh, 208
F.R.D. 7, 12 (D.D.C. 2002). “General objections are not useful to the court ruling on a discovery
motion. Nor does a general objection fulfill [a party’s] … burden to explain its objections.”
Chubb Integrated Sys. v. Nat’l Bank of Washington, 103 F.R.D. 52, 59 (D.D.C. 1984). “[T]he
party resisting discovery must explain and support its objections.” In re Vitamins Antitrust
Litig., No. 99-197, 2002 U.S. Dist. LEXIS 25813, at *27 (D.D.C. Aug. 6, 2002).

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
“[Standard, boilerplate ‘general objections’ … which include[] blanket objections … do
not comply with [the Federal Rules of Civil Procedure] and courts disfavor them.” Athridge v.
Aetna Cas. & Sur. Co., 184 F.R.D. 181, 190 (D.D.C. 1998). In short, discovery objections must
be asserted with specificity as to each discovery question posed, and the failure to do so results in
a waiver of the objections. Id., at 191. Therefore, unless Public Resource asserted an objection
or objections specifically addressing the alleged drawback(s) of each discovery request, Public
Resource’s objections are waived.
Public Resource’s
Asserted Privilege Objections
Public Resource, in a rather vague and unclear fashion, appears to have asserted
unspecified “privilege(s)” as grounds for incomplete answers to Plaintiffs’ Interrogatories Nos.
5-7, and withholding unspecified documents in responding to Plaintiffs’ Production Requests
Nos. 1-8.
“A general objection to a request for production of documents on the basis of privilege is
insufficient. (citations omitted). There must be a description of the documents tailored to that
assertion.” Dage v. Leavitt, No. 04-0221, 2005 U.S. Dist. LEXIS 17958, at *6-*7 (D.D.C. Aug.
18, 2005). “This is best accomplished in the production of a privilege log.” Id., at *7. “[A]
‘privilege log’ … has become, by now, the universally accepted means of asserting privileges in
discovery in the federal courts; [and] the general objection that, for example, a request for
production of documents calls for the production of documents which are privileged is
condemned as insufficient.” Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1 (D.D.C. 1999).
Providing such a log also is a means of compliance with Fed. R. Civ. P. 26(b)(5). Washington v.
Thurgood Marshall Acad., 232 F.R.D. 6, 10-11 (D.D.C. 2005), and a failure to do so can result
in a waiver of the various privileges as grounds for non-production. Dage v. Leavitt, 2005 U.S.
Dist. LEXIS 17958, at *8.
Kindly advise when 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.
Specific Discovery Requests to Which
Public Resource has not Completely Responded
INTERROGATORY NO. 1:
Identify and describe how Public Resource obtained any printed version or versions of
the 1999 Standards.

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
RESPONSE TO INTERROGATORY NO. 1:
Public Resource incorporates its general objections as if fully set forth here. Public
Resource objects to this interrogatory to the extent it purports to impose upon Public Resource
obligations broader than, or inconsistent with, the Federal Rules of Civil Procedure, local rules,
Court Orders for this proceeding, or any applicable regulations and case law.
Subject to and without waiving the foregoing objections, Public Resource responds as
follows:
Public Resource purchased a printed copy from “thebookgrove,” a used book seller, on
May 17, 2012. Pursuant to Federal Rule of Civil Procedure 33(d), Public Resource will produce
the invoice or invoices for such orders that are in its custody, possession, or control. Public
Resource believes that to the extent details such as dates, payment amounts, and product names
are available, they may be derived from this invoice or invoices.
REQUEST FOR PRODUCTION NO. 3:
Produce those documents, things and/or items of ESI regarding Public Resource
obtaining a printed version or versions of the 1999 Standards.
RESPONSE TO REQUEST FOR PRODUCTION NO. 3:
Public Resource incorporates here each of the General Objections. Public Resource
objects to the request to the extent it seeks information protected by attorney-client privilege,
attorney work product doctrine, or any other applicable privileges or protections. Public Resource
objects to the Request to the extent that it purports to require production of documents not in
Public Resource’s possession, custody, or control. Public Resource objects to the request as
oppressive and unduly burdensome to the extent that it seeks documents that are equally available
to Plaintiffs from public and other sources. Public Resource objects to this request as unreasonably
duplicative of other requests.
Subject to, and without waiving, the foregoing objections, Public Resource responds as
follows: Public Resource will produce responsive, non-privileged documents that refer to Public
Resource obtaining a printed version or versions of the 1999 Standard, to the extent such
documents exist and can be located after a reasonable search for documents in Public Resource’s
possession, custody, or control.

Kindly advise when Public Resource will produce the invoice or invoices it identified in
responding to Interrogatory No. 1 and Production Request No. 3.
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.

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 4
RESPONSE TO INTERROGATORY NO. 5:
Public Resource incorporates its general objections as if fully set forth here. Public
Resource objects to this interrogatory to the extent it purports to impose upon Public Resource
obligations broader than, or inconsistent with, the Federal Rules of Civil Procedure, local rules,
Court Orders for this proceeding, or any applicable regulations and case law. Public Resource
objects to this interrogatory and to the term “viewed and/or accessed” as vague and ambiguous.
Public Resource objects to this interrogatory as seeking information not relevant to any party’s
claims or defenses and not reasonably calculated to lead to the discovery of admissible evidence to
the extent that the term “accessed” means “viewed.” Public Resource objects to this interrogatory
to the extent that the scope of the information sought is not limited to a relevant and reasonable
period of time.
Subject to and without waiving the foregoing objections, to the extent the information
sought is available, Public Resource will produce and identify non-privileged documents that exist
within its possession, custody, and control from which the response to this interrogatory may be
derived.

Public Resource quibbles with the terms “viewed” and “accessed,” common terms found
in dictionaries and also regularly used to describe an Internet user’s interaction with a website or
web page. Additionally, contrary to Public Resource’s objection, Interrogatory No. 5 is limited
to a relevant and reasonable time period. Kindly provide a supplemental response to
Interrogatory No. 5, and advise when Public Resource will produce the documents it identified in
responding to this Interrogatory.
INTERROGATORY NO. 6:
Identify the number of times the 1999 Standards were downloaded from a Public
Resource Website or Public Resources Websites, and identify the particular Public Resource
Website(s) from which the 1999 Standards were downloaded.
RESPONSE TO INTERROGATORY NO. 6:
Public Resource incorporates its general objections as if fully set forth here. Public
Resource objects to this interrogatory to the extent it purports to impose upon Public Resource
obligations broader than, or inconsistent with, the Federal Rules of Civil Procedure, local rules,
Court Orders for this proceeding, or any applicable regulations and case law. Public Resource
objects to this interrogatory and to the term “downloaded” as vague and ambiguous. Public
Resource objects to this interrogatory as seeking information not relevant to any party’s claims or
defenses and not reasonably calculated to lead to the discovery of admissible evidence to the
extent that the term “downloaded” means “viewed.” Public Resource objects to this interrogatory
to the extent that the scope of the information sought is not limited to a relevant and reasonable
period of time.
Subject to and without waiving the foregoing objections, to the extent the information
sought is available, Public Resource will produce and identify non-privileged documents that exist

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 5
within its possession, custody, and control from which the response to this interrogatory may be
derived.
REQUEST FOR PRODUCTION NO. 6:
Produce those documents, things and/or items of ESI showing the number of times the
1999 Standards were downloaded from a Public Resource Website.
RESPONSE TO REQUEST FOR PRODUCTION NO. 6:
Public Resource incorporates here each of the General Objections. Public Resource
objects to the request to the extent it seeks information protected by the attorney-client privilege,
attorney work-product doctrine, or any other applicable privileges or protections. Public Resource
objects to the request to the extent it seeks information whose disclosure would impinge on any
right of privacy or free speech or free association, including, but not limited to, rights conferred by
the Constitution. Public Resource objects to the request as overbroad and unduly burdensome to
the extent it purports to require Public Resource to furnish website statistics not reasonably
available to it. Public Resource objects to the request to the extent that it assumes facts not yet
adjudicated.
Subject to, and without waiving, the foregoing objections, Public Resource responds as
follows: Public Resource will produce a report specifying the numbers of times the 1999 Standard
was downloaded from the Public.Resource.Org website. Because the Standard at issue was
removed from public view on the Internet Archive, statistics as to the total downloads from the
Internet Archive are likewise not visible either.

In its response to Interrogatory No. 6, Public Resource unreasonably objects to the term
“download”, a common term used to describe the act of copying data and/or data files from one
computer system to another, typically over the Internet. Plaintiffs did not use “download” to
mean the equivalent of “viewed.” Otherwise, the Interrogatory would have said so.
Additionally, contrary to Public Resource’s objection, Interrogatory No. 6 is limited to a relevant
and reasonable time period. If Public Resource did not provide a complete answer to
Interrogatory No. 6 in view of the unreasonable objection to use of the term “download,” then
kindly provide a supplemental response to Interrogatory No. 6; and in any event please advise
when Public Resource will produce the documents it identified in responding to this
Interrogatory.
Public Resource’s response to Production Request No. 6 is unintelligible. A
supplemental response is required; and in any event, kindly advise when Public Resource will
produce the report it identified in responding to this Production Request.

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 6

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.
RESPONSE TO INTERROGATORY NO. 7:
Public Resource incorporates its general objections as if fully set forth here. Public
Resource objects to this interrogatory to the extent it purports to impose upon Public Resource
obligations broader than, or inconsistent with, the Federal Rules of Civil Procedure, local rules,
Court Orders for this proceeding, or any applicable regulations and case law. Public Resource
objects to this interrogatory and to the term “downloading” as vague and ambiguous. Public
Resource objects to this interrogatory to the extent that the scope of the information sought is not
limited to a relevant and reasonable period of time.
Subject to and without waiving the foregoing objections, Public Resource responds that it
is not aware of any information responsive to this interrogatory. Public Resource’s investigation is
ongoing, and to the extent it locates any non-privileged documents from which responsive
information may be derived, it will produce them pursuant to Federal Rule of Civil Procedure
33(d).
REQUEST FOR PRODUCTION NO. 8:
Produce those documents, things and/or items of ESI regarding any instance of which
you are aware in which a third party, after downloading the 1999 Standards from a Public
Resource Website, posted or published 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.
RESPONSE TO REQUEST FOR PRODUCTION NO. 8:
Public Resource incorporates here each of the General Objections. Public Resource
objects to the request to the extent it seeks information protected by the attorney-client privilege,
attorney work-product doctrine, or any other applicable privileges or protections. Public Resource
objects to the request to the extent it seeks information whose disclosure would impinge on any
right of privacy or free speech or free association, including, but not limited to, rights conferred by
the Constitution. Public Resource objects to the request to the extent that it assumes facts or legal
conclusions not yet adjudicated.
Subject to, and without waiving, the foregoing objections, Public Resource responds as
follows: Public Resource will produce responsive, non-privileged documents that refer to
instances in which a third party, after downloading the 1999 Standard from a Public Resource
Website, posted or published the 1999 Standard elsewhere online or created a derivative work, to
the extent such documents exist and can be located after a reasonable search for documents in
Public Resource’s possession, custody, or control.

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 7

Public Resource unreasonably objects to the term “downloading”, a common term used
to describe the act of copying data and/or data files from one computer system to another,
typically over the Internet. Additionally, contrary to Public Resource’s objection, Interrogatory
No. 7 is limited to a relevant and reasonable time period. If Public Resource did not provide a
complete answer to Interrogatory No. 7 in view of the unreasonable objection to use of the term
“downloading,” then kindly provide a supplemental response to Interrogatory No. 7.
Additionally, Public Resource’s response to this Interrogatory is ambiguous as to whether it is or
is not in possession of documents from which an answer to the Interrogatory may be derived. A
clearer supplemental response is required.
It also is unclear whether or not Public Resource is in possession of documents or other
materials responsive to Production Request No. 8. Kindly advise when Public Resource will
produce the items responsive to this Production Request, or confirm in writing that Public
Resource has no such documents.
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.
RESPONSE TO INTERROGATORY NO. 8:
Public Resource incorporates its general objections as if fully set forth here. Public
Resource objects to this interrogatory to the extent it purports to impose upon Public Resource
obligations broader than, or inconsistent with, the Federal Rules of Civil Procedure, local rules,
Court Orders for this proceeding, or any applicable regulations and case law. Public Resource
objects to this interrogatory to the extent it seeks disclosure of information that falls under the
work product doctrine. Public Resource objects to this interrogatory because it is argumentative.
Public Resource objects to this interrogatory because it seeks information that is publicly
available, already known, or equally available to Plaintiffs. Public Resource objects to this
interrogatory as it seeks “factual and legal basis” at an early stage of the litigation.
REQUEST FOR PRODUCTION NO. 9:
Produce those documents, things and/or items of ESI supporting and/or disputing 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.
RESPONSE TO REQUEST FOR PRODUCTION NO. 9:
Public Resource incorporates here each of the General Objections. Public Resource
objects to the request as overbroad, oppressive, and unduly burdensome. Public Resource objects
to the request to the extent it seeks information protected by the attorney-client privilege, attorney

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 8
work product doctrine, or any other applicable privileges or protections. Public Resource objects
to the request to the extent that it purports to require production of documents not in Public
Resource’s possession, custody, or control. Public Resource objects to the request as oppressive
and unduly burdensome to the extent that it seeks documents that are equally available to Plaintiffs
from public and other sources. Public Resource objects to the request to the extent that it purports
to require production of documents that have not yet been created or are the subject of ongoing
discovery by Public Resource. Public Resource objects that the request is compound, complex,
and unintelligible. Public Resource objects to this request as unreasonably duplicative of each and
every other request.
Subject to, and without waiving, the foregoing objections, and to the extent Public
Resource understands the request, Public Resource responds that it will not produce any
documents in response to this request, except to the extent such documents are responsive to other
requests.

There simply is no reason, and none of Public Resources asserted objections justify, why
Public Resource refuses to answer Interrogatory No. 8 or respond to Production Request No. 9.
When Public Resource filed its Answer, Counterclaim and Affirmative Defenses to Plaintiffs’
Complaint, it was required to have a good faith basis under Fed. R. Civ. P. 11 for asserting each
Affirmative and Other Defenses contained therein. If Public Resource continues its refusal to
answer Interrogatory No. 8 and/or respond to Production Request No. 9, Plaintiffs’ request for
relief will include an Order dismissing Public Resource’s Affirmative and Other Defenses.
REQUEST FOR PRODUCTION NO. 1:
Produce each document, thing and/or item of ESI that is identified in Public Resource’s
answers to Plaintiffs’ First Set of Interrogatories.
RESPONSE TO REQUEST FOR PRODUCTION NO. 1:
Public Resource incorporates here each of the General Objections. Public Resource
objects to the request to the extent it seeks information protected by attorney-client privilege,
attorney work product doctrine, or any other applicable privileges or protections. Public Resource
objects to the Request to the extent that it purports to require production of documents not in
Public Resource’s possession, custody, or control. Public Resource objects to the request as
oppressive and unduly burdensome to the extent that it seeks documents that are equally available
to Plaintiffs from public and other sources. Public Resource objects to this request as unreasonably
duplicative of other requests.
Subject to, and without waiving, the foregoing objections, Public Resource responds as
follows: Public Resource will produce responsive, non-privileged documents specifically
identified in its responses to interrogatories in this Litigation, to the extent such documents exist
and can be located after a reasonable search for documents in Public Resource’s possession,
custody, or control.

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 9
Expressly or by implication, Public Resource identified potentially responsive documents
in responding to Plaintiffs’ Interrogatories Nos. 1-3, 5 and 6. Kindly advise when these
documents will be produced.
REQUEST FOR PRODUCTION NO. 2:
Produce 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).
RESPONSE TO REQUEST FOR PRODUCTION NO. 2:
Public Resource incorporates here each of the General Objections. Public Resource
objects to the request to the extent it seeks information protected by attorney-client privilege,
attorney work product doctrine, or any other applicable privileges or protections. Public Resource
objects to the Request to the extent that it purports to require production of documents not in
Public Resource’s possession, custody, or control. Public Resource objects to the request as
oppressive and unduly burdensome to the extent that it seeks documents that are equally available
to Plaintiffs from public and other sources. Public Resource objects to this request as unreasonably
duplicative of other requests.
Subject to, and without waiving, the foregoing objections, Public Resource responds as
follows: Public Resource will produce responsive, non-privileged documents specifically
identified in its responses to Rule 26(a) initial disclosures in this Litigation, to the extent such
documents exist and can be located after a reasonable search for documents in Public Resource’s
possession, custody, or control.

Kindly advise when we can expect to receive the documents and other materials
identified in Public Resource’s mandatory disclosures.
REQUEST FOR PRODUCTION NO. 4:
Produce those documents, things and/or items of ESI regarding Public Resource
digitizing or converting a paper version of the 1999 Standards to digital format.
RESPONSE TO REQUEST FOR PRODUCTION NO. 4:
Public Resource incorporates here each of the General Objections. Public Resource
objects to the request to the extent it seeks information protected by attorney-client privilege,
attorney work product doctrine, or any other applicable privileges or protections. Public Resource
objects to the Request to the extent that it purports to require production of documents not in
Public Resource’s possession, custody, or control. Public Resource objects to the request as
oppressive and unduly burdensome to the extent that it seeks documents that are equally available
to Plaintiffs from public and other sources. Public Resource objects to the request as overbroad
and unduly burdensome, including to the extent it is not limited to a reasonable time period or
scope. Public Resource objects to this request as unreasonably duplicative of other requests.
Public Resource objects that the request is compound, complex, and unintelligible.

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 10
Subject to, and without waiving, the foregoing objections, Public Resource responds as
follows: Public Resource will produce responsive, non-privileged documents that refer to Public
Resource digitizing or converting a paper version of the 1999 Standard to digital format, to the
extent such documents exist and can be located after a reasonable search for documents in Public
Resource’s possession, custody, or control.

Kindly advise when we can expect to receive the documents and other materials referred
to in Public Resource’s response to Production Request No. 4.
REQUEST FOR PRODUCTION NO. 5:
Produce those documents, things and/or items of ESI regarding Public Resource posting
or publishing the 1999 Standards to a Public Resource Website.
RESPONSE TO REQUEST FOR PRODUCTION NO. 5:
Public Resource incorporates here each of the General Objections. Public Resource
objects to the request as overbroad and unduly burdensome, including to the extent it is not limited
to a reasonable time period or scope. Public Resource objects to the request it seeks information
protected by the attorney-client privilege, attorney work product doctrine, or any other applicable
privileges or protections. Public Resource objects to the request as oppressive and unduly
burdensome to the extent that it seeks documents that are equally available to Plaintiffs from
public sources, including but not limited the Public Resource Website and the Internet Archive
Website. Public Resource objects to the request to the extent it purports to require production of
documents not in Public Resource’s possession, custody, or control.
Subject to, and without waiving, the foregoing objections, Public Resource responds as
follows: Public Resource will produce responsive, non-privileged documents that refer to Public
Resource posting or publishing the 1999 Standard to a Public Resource Website, including the
archived version of the Public Resource Website available on the Internet Archive Website, to the
extent such documents exist and can be located after a reasonable search for documents in Public
Resource’s possession, custody, or control.

Kindly advise when we can expect to receive the website materials referred to in Public
Resource’s response to Production Request No. 5.
REQUEST FOR PRODUCTION NO. 7:
Produce those documents, things and/or items of ESI showing the number of times a
digitized or digital version of the 1999 Standards were viewed on or accessed from a Public
Resource Website.
RESPONSE TO REQUEST FOR PRODUCTION NO. 7:
Public Resource incorporates here each of the General Objections. Public Resource
objects to the request to the extent it seeks information protected by the attorney-client privilege,
attorney work-product doctrine, or any other applicable privileges or protections. Public Resource

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 11
objects to the request to the extent it seeks information whose disclosure would impinge on any
right of privacy or free speech or free association, including, but not limited to, rights conferred by
the Constitution. Public Resource objects to the request as overbroad and unduly burdensome to
the extent it purports to require Public Resource to furnish website statistics not reasonably
available to it. Public Resource objects to the request to the extent that it assumes facts not yet
adjudicated.
Subject to, and without waiving, the foregoing objections, Public Resource responds as
follows: Public Resource will produce a report specifying the numbers of times the 1999 Standard
was viewed on or accessed from the Public.Resource.Org website. Because the Standard at issue
was removed from public view on the Internet Archive, statistics as to the total views from the
Internet Archive are likewise not visible either.

Public Resource’s response to Production Request No. 7 is unintelligible. A
supplemental response is required; and in any event, kindly advise when Public Resource will
produce the report it identified in responding to this Production Request.
REQUEST FOR ADMISSION NO. 1:
Admit that the United States Copyright Office issued U.S. Copyright Registration Nos.
TX 5-100-196 and TX 6-484-609 for the work entitled Standards for Educational and
Psychological Testing, published in 1999 (the “1999 Standards”).
RESPONSE TO REQUEST FOR ADMISSION NO. 1:
Public Resource incorporates its general objections as if fully set forth here. Public
Resource objects to this request because it seeks information that is publicly available, already
known, or equally available to Plaintiffs. Public Resource objects to this request as overly broad
and unduly burdensome to the extent it seeks information about entities other than Public
Resource. Public Resource objects to this request as outside the scope of discovery to the extent it
calls for information regarding the actions of the United States Copyright Office that is not within
Public Resource’s knowledge.
Subject to and without waiving the foregoing objections, Public Resource responds that it
lacks information or belief as to the issuance of copyright registrations to parties other than itself
sufficient to admit or deny, and therefore denies the request.

Copies of the copyright registrations referenced in Admission Request No. 1 were
attached to the Complaint. Abstract information relative to these copyright registrations also is
of public record on the Copyright Office’s website at http://www.copyright.gov. It therefore is
unreasonable for Public Resource to assert that “it lacks information or belief as to the issuance
of copyright registrations to parties other than itself sufficient to admit or deny….” A further
response to Admission Request No. 1 is required.

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 12
REQUEST FOR ADMISSION NO. 3:
Admit that Public Resource published the 1999 Standards, in their entirety, on a Public
Resource Website.
RESPONSE TO REQUEST FOR ADMISSION NO. 3:
Public Resource incorporates its general objections as if fully set forth here. Public
Resource denies the request.

The only difference between Admission Requests Nos. 2 and 3 is the use of “posted” in
the former versus “published” in the latter. Unless Public Resource can provide an acceptable
explanation why it admitted to Plaintiffs’ Admission Request No. 2, yet denied Admission
Request No. 3, a further response to Admission Request No. 3 is required. In this regard, we
refer you to Public Resource’s responses to Admission Requests Nos. 4 and 5, in which Public
Resource was fully capable of understanding the definitions of “post” and “publish.”
REQUEST FOR ADMISSION NO. 6:
Admit that visitors to a Public Resource Website have downloaded the 1999 Standards
from that website.
RESPONSE TO REQUEST FOR ADMISSION NO. 6:
Public Resource incorporates its general objections as if fully set forth here. Public
Resource objects to this request as outside the scope of discovery to the extent it calls for
information regarding the actions of visitors to Public Resource’s website that is not within Public
Resource’s knowledge. Public Resource objects to this request and to the term “downloaded” as
vague and ambiguous. To the extent Plaintiffs use “download” to mean intentionally saved as a
file on a visitor’s computer, Public Resource lacks knowledge as to whether visitors (other than
counsel and the parties for the purposes of this litigation) engaged in such conduct.
Subject to and without waiving the foregoing objections, Public Resource admits that
visitors to Public Resource’s website have accessed the 1999 Standard.

Public Resource unreasonably objects to the term “downloaded”, a common term used to
describe the act of copying data and/or data files from one computer system to another, typically
over the Internet. Public Resource avoided responding to Admission Request No. 6 as posed, in
view of the unreasonable objection to use of the term “downloaded.” Kindly provide a
supplemental response to Admission Request No. 6.
REQUEST FOR ADMISSION NO. 7:
Admit that Public Resource is aware that third parties, after downloading the 1999
Standards from a Public Resource Website, have posted the 1999 Standards online to one or more
websites other than a Public Resource Website.

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 13

RESPONSE TO REQUEST FOR ADMISSION NO. 7:
Public Resource incorporates its general objections as if fully set forth here. Public
Resource objects to this request as outside the scope of discovery to the extent it calls for
information regarding the actions of visitors to Public Resource’s website that is not within Public
Resource’s knowledge. Public Resource objects to this request and to the term “downloading” as
vague and ambiguous.
Subject to and without waiving the foregoing objections, Public Resource denies the
request.
REQUEST FOR ADMISSION NO. 8:
Admit that Public Resource is aware that third parties, after downloading the 1999
Standards from a Public Resource Website, have published the 1999 Standards online on one or
more websites other than a Public Resource Website.
RESPONSE TO REQUEST FOR ADMISSION NO. 8:
Public Resource incorporates its general objections as if fully set forth here. Public
Resource objects to this request because it is argumentative. Public Resource objects to this
request as outside the scope of discovery to the extent it calls for information regarding the
actions of visitors to Public Resource’s website that is not within Public Resource’s knowledge.
Public Resource objects to this request and to the term “downloading” as vague and ambiguous.
Subject to and without waiving the foregoing objections, Public Resource denies the request.

Public Resource unreasonably objects to the term “downloading”, a common term used
to describe the act of copying data and/or data files from one computer system to another,
typically over the Internet. We also find incredulous Public Resource’s claim that it is unaware
of the actions of visitors to Public Resource’s website, in view of Defendant’s responses to
Production Requests Nos. 5-6 indicating that it has (and will produce) “reports” indicating as
such. We also fail to understand Public Resource’s denial of Admission Requests Nos. 7 and 8,
in view of the activities of the Internet Archive discussed in the Complaint, of which Public
Resource clearly is aware. Further responses to Admission Requests Nos. 7 and 8 are required.

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 14
Kindly advise when you are available later this week to discuss the discovery matters
raised in this letter.
Very truly yours,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT, L.L.P.

Jonathan Hudis

Kathleen Cooney-Porter
JH/jh {11216077_1.DOCX }

cc:

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