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 J
Case No. 1:14-cv-00857-TSC -DAR

November 14, 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 respond to your letter of November 13, 2014.
As an initial matter, we note that Public Resource did not address our comments
regarding Defendant’s non-specific “General Objections,” which are “incorporated by reference”
into each of Public Resource’s interrogatory answers. We take this as a concession that all of
Public Resource’s objections which do not specifically address the alleged drawback(s) of each
discovery request are waived.
1. Public Resource’s Privilege Objections
We agree with your proposal that the parties omit from their respective privilege logs any
communications with counsel of record commencing with the filing of the Complaint.
Accordingly, please provide us with Public Resource’s privilege log of withheld documents by
close of business on Friday, November 21, 2014.
2. Public Resource’s Responses to Interrogatories 1, 5, 6, and Requests for
Production 1, 2, 3, 4, 5, 6, and 7
We do not agree with Public Resource’s plan of producing documents on “a rolling
basis”. As of today, Public Resource has had over six weeks to search for and produce
responsive documents. We request, therefore, that Public Resource produce responsive, nonprivileged documents by the close of business on Friday, November 21, 2014.

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

3. Public Resource’s Responses to Interrogatory 7 and Request for Production 8
We note that Public Resource is currently unaware of any information or documents
responsive to these discovery requests, but will produce non-privileged responsive documents if
any are located.
4. Public Resource’s Responses to Interrogatory 8 and Request for Production 9
We reiterate that there is no justifiable reason for Public Resource’s refusal to answer
Interrogatory No. 8 or respond to Production Request No. 9. As stated in our letter of November
10, 2014, 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.
5. Difference between “post” and “publish” (Admission Request No. 3)
While Section 101 of Title 17 provides a definition of “publication,” if Plaintiffs wanted
to limit the term “publish” to the copyright law definition we would have defined it as such in
Plaintiffs’ discovery requests. The word “publish” also is defined by the Merriam-Webster
dictionary to mean “to make generally known,” and “to disseminate to the public.” Public
Resource has not provided an acceptable explanation as to why it admitted to Plaintiffs’
Admission Request No. 2, yet denied Admission Request No. 3. Accordingly, a further response
to Admission Request No. 3 is required.
6. Difference between “viewed” and “downloaded” (Admission Requests No. 6-8)
Public Resource continues to quibble with the terms “viewed” and “accessed.” As stated
in our letter of November 10, 2014, the term “download” refers to “the act of copying data
and/or data files from one computer system to another, typically over the Internet.” The term
“viewed”, however, refers to the “act of seeing or examining,” which in this case relates to
seeing the 1999 Standards on Public Resource’s website. While “downloading” requires that
data and/or data files be transferred from one computer system to another, “viewing” only
requires seeing the data and or data files. The terms are not equivalent.
Public Resource contends it does not have access to information reflecting the number of
times the 1999 Standards were downloaded from its site. This information, however, should be
attainable from Public Resource’s Internet Service Provider (“ISP”). As this information falls
within Public Resource’s custody or control, Plaintiffs request that Public Resource provide this
information in supplemental discovery responses.

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

7. Other Outstanding Items
a. Public Resource’s Responses to Production Requests No. 6 and 7
In our letter of November 10, 2014, we noted that Public Resource’s responses to
Production Requests No. 6 and No. 7 were unintelligible. Please provide supplemental responses
to these Requests.
b. Public Resource’s Response to Admission Request No. 1
Also in our letter of November 10, 2014 we reminded Public Resource that copies of the
copyright registrations referenced in Admission Request No. 1 were attached to the Complaint.
We additionally noted that abstract information relative to these copyright registrations is of
public record on the Copyright Office’s website at http://www.copyright.gov. It therefore
remains 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.
We are available to discuss these matters with you during a telephone conference on
Thursday, November 20, 2014 at 11 a.m. Eastern Time.
Very truly yours,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT, L.L.P.

Jonathan Hudis

Kathleen Cooney-Porter
JH/jh {11247309_1.DOCX }

cc:

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