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

Filing 27

Amended MOTION to Compel discovery, privilege log, and further initial disclosures 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 Declaration, #3 Exhibit B to Hudis Declaration, #4 Exhibit C to Hudis Declaration, #5 Exhibit D to Hudis Declaration, #6 Exhibit E to Hudis Declaration, #7 Exhibit F to Hudis Declaration, #8 Exhibit G to Hudis Declaration, #9 Exhibit H to Hudis Declaration, #10 Exhibit I to Hudis Declaration, #11 Exhibit J to Hudis Declaration, #12 Exhibit K to Hudis Declaration, #13 Exhibit L to Hudis Declaration, #14 Exhibit M to Hudis Declaration, #15 Exhibit N to Hudis Declaration, #16 Exhibit O to Hudis Declaration, #17 Exhibit P to Hudis Declaration, #18 Exhibit Q to Hudis Declaration, #19 Exhibit R to Hudis Declaration, #20 Text of Proposed Order)(Hudis, Jonathan) Modified on 12/16/2014 (td, ).

EXHIBIT I
Case No. 1:14-cv-00857-TSC -DAR

November 13, 2014

ANDREW P. BRIDGES

EMAIL [e-mail]
Direct Dial [phone]

VIA E-MAIL
Jonathan Hudis
Kathleen Cooney-Porter
OBLON SPIVAK McCLELLAND MAIER &
NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
[e-mail]
[e-mail]
Re:

American Education Research Association, Inc., et al. v. Public.Resource.Org, Inc.,
Case No.: 1:14-cv-00857-TSC (D.D.C.)

Dear Jonathan and Kathleen:
I respond to your letter of November 10, 2014.
1. Public Resource’s Privilege Objections
Public Resource plans on producing a privilege log as it identifies privileged documents.
For efficiency, Public Resource proposes that both parties omit from the privilege logs any
communications with counsel of record from after the filing of the complaint. Please let us know
if Plaintiffs agree to this proposal.
2. Public Resource’s Responses to Interrogatories 1, 5, 6, and Requests for
Production 1, 2, 3, 4, 5, 6, and 7
Public Resource plans on producing documents on a rolling basis as it identifies
responsive and nonprivileged documents. If Plaintiffs would like us to prioritize production of
particular documents, such as the invoice, we can discuss specifics on our call.
3. Public Resource’s Responses to Interrogatory 7 and Request for Production 8
Public Resource is currently unaware of any responsive documents, but Public Resource
will produce nonprivileged responsive documents if it locates any.
4. Public Resource’s Responses to Interrogatory 8 and Request for Production 9

Jonathan Hudis
Kathleen Cooney Porter
November 13, 2014
Page 2
Public Resource reiterates its objections to these requests, and it believes no further
response is necessary at this stage of the litigation.
5. Difference between “post” and “publish”
Plaintiffs appear to take the position that “posting” has an identical meaning to
“publishing.” Public Resource disagrees. “To publish” has a specific legal meaning under
copyright law. Section 101 of Title 17 defines “publication” as “the distribution of copies or
phone records of a work to the public by sale or other transfer of ownership, or by rental, lease,
or lending,” or an offer to make such a distribution. Public Resource need not provide a legal
analysis of the term “publication,” and thus it will not provide further responses to Requests for
Admission 2 and 3.
6. Difference between “viewed” and “downloaded”
Plaintiffs contend that Public Resource wrongly treats “viewed” and “downloaded” as
equivalent. In your letter, you provided a definition for the term “download” (“the act of
copying data and/or data files from one computer system to another, typically over the Internet”)
which was not in the written discovery requests. This definition does not elucidate the difference
between “viewed” and “downloaded,” as we assumed the requests’ use of “viewed” referred to
electronic access (as opposed to viewing in person a physical copy).
Technologically, there is no difference between your definition of “downloaded” and
“accessed electronically.” To the extent that Plaintiffs are seeking a count of instances where a
third party purposefully saved the 1999 standards onto its machine for future access, for
example, by selecting “Save As” in a web browser—perhaps a more common definition of
“download”—Public Resource does not have access to, or the ability to determine, this type of
information. Public Resource has access to a record of how many times a particular URL was
accessed covering a time period from before this litigation began until Public Resource replaced
the document at issue at Plaintiffs’ request, but it has no further information on what third parties
did (or did not do) with the file after the access.
We can discuss these matters further in a telephone conference on Thursday, November
20, at 11 am Eastern Time. Please confirm that you are available then.
Yours very truly,
FENWICK & WEST LLP
s/ Andrew P. Bridges
Andrew P. Bridges
APB:mra
5497523.4