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, ).

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/Counterclaim Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

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Civil Action No. 1:14-cv-00857-TSC-DAR
[PROPOSED] ORDER GRANTING
PLAINTIFFS’ AMENDED MOTION
TO COMPEL DISCOVERY,
PRIVILEGE LOG, AND FURTHER
INITIAL DISCLOSURES

THIS MATTER comes before the Court on Plaintiffs’ Amended Motion to Compel
Discovery, Privilege Log, and Further Initial Disclosures.
This is an action by three non-profit organizations: the American Educational Research
Association, Inc., the American Psychological Association, Inc., and the National Council on
Measurement in Education, Inc. (collectively, “Plaintiffs”), creators of the work entitled
“Standards for Educational and Psychological Testing” (1999 ed.) (the “Standards”). Pursuant to
the Copyright Act, 17 U.S.C. §§ 101, et seq., Plaintiffs seek injunctive relief against
Public.Resource.Org, Inc. (“Defendant”) for infringement and contributory infringement of
Plaintiffs’ copyright in the Standards. Defendant filed an answer and counterclaim asserting
certain defenses and seeking declaratory relief.
Plaintiffs served their First Set of Interrogatories, First Production Requests, and First
Admission Requests (collectively, “Discovery Requests”) on Defendant on October 1, 2014.
Defendant served its responses to the Discovery Requests on November 3, 2014.

Despite the passage of nearly two and half months and repeated follow-up efforts by
Plaintiffs, Defendant has not produced any responsive, non-privileged materials, committed to a
date by which any such materials will be produced, or supplemented its deficient responses to
Plaintiffs’ Discovery Requests. Defendant further has not provided a log sufficient to preserve
its privilege objections.

The Court additionally finds that the recitation of documents in

Defendant’s Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1)(A)(ii) is deficient.
Having fully considered the moving and opposition papers, and all other matters
presented to the Court, it is hereby
ORDERED that Plaintiffs’ Amended Motion is GRANTED, and it is further
ORDERED that Defendant supplement its responses to Plaintiffs’ Interrogatories Nos.
5–8; and it is further
ORDERED that Defendant produce materials it already has identified in responding to
Plaintiffs’ Interrogatories Nos. 1, 3, and 5–7; and it is further
ORDERED that Defendant supplement its responses to Plaintiffs’ Production Requests
Nos. 6–7, and 9; and it is further
ORDERED that Defendant Produce materials responsive to Plaintiffs’ Production
Requests Nos. 1–9; and it is further
ORDERED that Defendant produce a privilege log specifically identifying materials
being withheld on privilege grounds, and the reasons therefor; and it is further
ORDERED that Defendant supplement its responses to Plaintiffs’ Admission Requests
Nos. 3, and 6–8; and it is further
ORDERED that Defendant supplement its Initial Disclosures required under Fed. R. Civ.
P. 26(a)(1)(a)(ii); and it is further

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ORDERED that Defendant shall serve the above-noted items, documents and
supplementation on Plaintiffs’ counsel no later than ___________ __, 20__.

IT IS SO ORDERED:
Dated: ________________, 20__

__________________________________
Hon. Deborah A. Robinson
United States District Magistrate Judge

{431384US, 11395787_1.DOCX}

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Attorneys to be notified of the entry of this Order:
Counsel for Plaintiffs:
Jonathan Hudis
Kathleen Cooney-Porter
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]
Counsel for Defendant:
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
Corynne McSherry
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
[e-mail]
[e-mail]