AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.
Filing
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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 E
Case No. 1:14-cv-00857-TSC -DAR
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/Counterclaim Plaintiff.
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Civil Action No. 1:14-cv-00857-CRC
DEFENDANT
PUBLIC.RESOURCE.ORG, INC.’S
RESPONSES TO PLAINTIFFS’ FIRST
REQUESTS FOR PRODUCTION OF
DOCUMENTS, THINGS, AND
ELECTRONICALLY STORED
INFORMATION, SET ONE (NOS. 1-9)
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure and the Local Civil
Rules of Civil Procedure of this Court, Defendant-Counterclaimant Public.Resource.Org, Inc.
(“Public Resource”) hereby responds to Plaintiffs-Counterdefendants American Educational
Research Association, Inc., American Psychological Association, Inc., and National Council on
Measurement in Education, Inc.’s (collectively “Plaintiffs”) Requests for Production of
Documents, Things, And, Electronically Stored Information, Set One (Nos. 1-9) dated October 1,
2014 as follows:
GENERAL OBJECTIONS
Public Resource makes the following General Objections to each of Plaintiffs’ Requests:
1.
Public Resource objects to the requests to the extent that they are overly broad,
unduly burdensome, or oppressive, and to the extent they are inconsistent with, or purport to
impose obligations on Public Resource beyond those set forth by the Federal Rules of Civil
Procedure, particularly Rule 34(b)(2)(D)-(E), the Local Rules of the U.S. District Court for the
District of Columbia, the Federal Rules of Evidence, or any applicable regulations and case law,
particularly to the extent that compliance would force Public Resource to incur a substantial
expense that outweighs any likely benefit of the discovery. Public Resource’s responses,
regardless of whether they include a specific objection, do not constitute an adoption or
acceptance of the definitions and instructions that Plaintiffs seek to impose.
2.
Public Resource objects to each individual request to the extent that it seeks
documents and information that are neither relevant to the Litigation nor reasonably calculated to
lead to the discovery of admissible evidence. Such objections may be made applicable to
requests in the short form “irrelevant.”
3.
Public Resource objects to the requests to the extent that they seek documents and
information that are not in Public Resource’s possession, custody, or control. Public Resource
objects to the requests on the grounds that they seek to impose obligations on Public Resource
that are unduly burdensome, especially to the extent that the requested materials are publicly
available or otherwise equally available to Plaintiffs, or are burdensome to search for or obtain.
Public Resource further objects to the extent that the requests are overbroad. To the extent that
Public Resource agrees to produce any documents, Public Resource will produce only
documents in its possession, custody, or control.
4.
Public Resource objects to the extent that they seek documents and information
that are protected by the attorney-client privilege, work-product doctrine, common interest
privilege, or other applicable privileges or protections. Public Resource will not produce such
documents or information, and any inadvertent production is not a waiver of any applicable
privilege or production.
5.
Public Resource objects to the requests to the extent they purport to require Public
Resource to provide more information than the rules and laws of the court require in claiming
attorney-client privilege, work product protection, or other privileges or protections.
Furthermore, Public Resource will neither produce nor log privileged communications made
between Public Resource and outside counsel, or any documents protected by the work product
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doctrine after commencement of the Litigation. All such communications or other documents
were intended to be confidential or privileged, and they have been treated as such. In light of the
voluminous nature of such communications, including them in Public Resource’s privilege log
would be unduly burdensome and not reasonably calculated to lead to the discovery of
admissible evidence.
6.
Public Resource objects to the requests on the grounds that they seek documents
and information that contain or reflect sensitive private, financial, or other non-public
information of third parties. Public Resource will not provide such documents or information
until entry of an appropriate protective order.
7.
Public Resource objects to the requests to the extent that they purport to require
Public Resource to produce documents or communications containing any information received
from a third party under a nondisclosure agreement or other confidentiality obligation, or to the
extent they seek documents containing confidential information that would impinge on any right
to privacy and free speech of individuals, including, but not limited to, rights conferred by the
federal or California state constitutions. Public Resource also objects to producing the contents
of any part of any agreement between it and a third party, which, by its terms, is subject to
confidentiality. Public Resource will provide confidential information only after entry of an
appropriate protective order, and only to the extent Public Resource can do so consistently with
its legal and confidentiality obligations.
8.
Public Resource objects to the requests, and each and every instruction and
definition, to the extent that the scope of materials Plaintiffs seeks is not limited to a relevant and
reasonable period of time.
9.
Public Resource objects to each request to the extent it is vague, ambiguous, or
fails to describe the requested documents with reasonable particularity, on the grounds that such
request requires Public Resource to speculate as to the documents Plaintiffs seek.
10.
Public Resource objects to each request to the extent that it is unreasonably
cumulative and/or redundant of another document request.
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11.
Public Resource objects to each request to the extent that it is compound,
complex, or otherwise unintelligible.
12.
Public Resource objects to each request to the extent that it calls for a legal
conclusion in connection with the identification of potentially responsive documents. Public
Resource’s responses and/or production of documents pursuant to Plaintiffs’ requests shall not be
construed as agreement with or the provision of any legal conclusion concerning the meaning or
application of any terms used in such requests.
13.
Public Resource’s statement that it will produce documents in response to any
request for production is not a representation that any such documents exist, but rather that
responsive, non-privileged documents will be produced if such documents are discovered in the
course of a reasonably diligent search, consistent with the General Objections and based upon
Public Resource’s understanding of the request.
14.
Without waiving any of the foregoing General Objections, each of which is
expressly incorporated into each of Public Resource’s objections and responses below as if fully
stated there, Public Resource responds to each request subject to the following additional express
reservation of rights:
a)
The right to object on any applicable ground to the admission into
evidence or other use of any of the documents produced in response to any request at the
trial of this matter, at any other proceeding in this matter or in any other action; and
b)
The right to object on any applicable ground at any time to any demand
for further responses to any request or to any other discovery procedures involving or
relating to the subject matter of any request.
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RESPONSES TO REQUESTS FOR PRODUCTION
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.
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
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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.
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
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documents exist and can be located after a reasonable search for documents in Public Resource’s
possession, custody, or control.
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.
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.
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.
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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.
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
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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.
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 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
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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.
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.
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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 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.
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Date: November 3, 2014
Respectfully submitted,
FENWICK & WEST LLP
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
abridges@fenwick.com
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: (415) 875-2300
Facsimile: (415) 281-1350
David Halperin (D.C. Bar No. 426078)
davidhalperindc@gmail.com
1530 P Street NW
Washington, DC 20005
Telephone: (202) 905-3434
Mitchell L. Stoltz (D.C. Bar No. 978149)
mitch@eff.org
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: (415) 436-9333
Facsimile: (415) 436-9993
Attorneys for Defendant-Counterclaimant
PUBLIC.RESOURCE.ORG, INC.
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The undersigned declares as follows:
I am a citizen of the United States and employed in San Francisco County, State of
California. I am over the age of eighteen years and not a party to the within-entitled action. My
business address is Fenwick & West LLP, 555 California Street, 12th Floor, San Francisco, CA
94014.
On the date set forth below, I served a copy of the following document(s):
DEFENDANT PUBLIC.RESOURCE.ORG, INC.’S RESPONSES TO
PLAINTIFFS’ FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS,
THINGS, AND ELECTRONICALLY STORED INFORMATION, SET ONE
(NOS. 1-9)
on the interested parties in the subject action by placing a true copy thereof as indicated below,
addressed as follows:
BY E-MAIL: by causing to be transmitted via e-mail the documents listed above to the
addressees at the e-mail addresses listed above.
BY US MAIL: by placing the documents listed above in a sealed envelope for collection
and mailing following our ordinary business practices. I am readily familiar with our
ordinary business practices for collecting and processing mail for the United States Postal
Service, and mail that I place for collection and processing is regularly deposited with the
United States Postal Service that same day with postage prepaid.
Jonathan Hudis
Kathleen Cooney-Porter
OBLON, SPIVAK, McCLELLAND, MAIER &
NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
jhudis@oblon.com
kcooney-porter@oblon.com
Counsel for American Educational Research
Association, Inc.
American Psychological Association, Inc.
National Council on Measurement in Education, Inc.
I declare under penalty of perjury under the laws of the State of California and the United
States that the above is true and correct.
Date: November 3, 2014
/s/ Mary Ann Rubalcaba
Mary Ann Rubalcaba
5496837.1
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