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 F
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 ADMISSIONS, SET
ONE (NOS. 1-8)

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure and the Local Civil
Rules of Civil Procedure of this Court, Defendant Public.Resource.Org, Inc. (“Public Resource”)
hereby responds to Plaintiff’s American Educational Research Association, Inc., American
Psychological Association, Inc., and National Council on Measurement in Education, Inc.,
Requests for Admissions, Set One (Nos. 1-8).
GENERAL OBJECTIONS
1.

Public Resource objects to the requests to the extent that they are overly broad,

unduly burdensome, oppressive, or 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,
the Local Rules of the United States 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 the requests to the extent that they seek information

that is neither relevant to this Action nor reasonably calculated to lead to the discovery of
admissible evidence. Public Resource objects to the requests to the extent that they seek
information that is not in Public Resource’s possession, custody or control. Public Resource
objects to the requests to the extent that they seek to impose obligations on Public Resource that
are unduly burdensome, especially to the extent that the requested information is publicly
available or burdensome to search for or obtain.
3.

Public Resource objects to the requests to the extent that they seek information

that falls under the attorney-client privilege, work-product doctrine, common interest privilege,
or other applicable privileges or protections. Public Resource will not provide such information,
and any inadvertent production is not a waiver of any applicable privilege or protection.
4.

Public Resource objects to the requests, and each and every instruction and

definition, to the extent that Plaintiffs seek information outside a relevant and reasonable period
of time.
5.

Public Resource objects to the requests to the extent they are argumentative.

6.

Public Resource objects to the definition of “Public Resource” on the grounds that

it is vague, ambiguous, overbroad, and unduly burdensome, particularly to the extent that it
purports to include any affiliates or other persons when such persons are acting outside of a
capacity of representing Public Resource.
7.

Public Resource objects to the term “Public Resource Website” on the grounds

that it is vague, ambiguous, overbroad, and unduly burdensome, particularly to the extent it fails
to identify which websites Plaintiffs consider “owned, controlled or operated” by Public
Resource, other than law.resource.org, public.resource.org, house.resource.org, and
bulk.resource.org.
8.

Public Resource objects to the extent the requests are premature. It reserves the

right to amend or supplement its responses as the Action proceeds.

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RESPONSES TO REQUESTS FOR ADMISSIONS
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.
REQUEST FOR ADMISSION NO. 2:
Admit that Public Resource posted the 1999 Standards, in their entirety, to a Public
Resource website.
RESPONSE TO REQUEST FOR ADMISSION NO. 2:
Public Resource incorporates its general objections as if fully set forth here.
Subject to and without waiving the foregoing objections, Public Resource admits that it
posted the 1999 Standard in its entirety to a Public Resource website upon learning that the 1999
Standard had been incorporated by reference into law in its entirety. Public Resource denies the
remainder of the request.
REQUEST FOR ADMISSION NO. 3:

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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.
REQUEST FOR ADMISSION NO. 4:
Admit that none of the Plaintiffs authorized Public Resource to post the 1999 Standards
to a Public Resource Website.
RESPONSE TO REQUEST FOR ADMISSION NO. 4:
Public Resource incorporates its general objections as if fully set forth here.
Subject to and without waiving the foregoing objections, Public Resource admits that
Plaintiffs have not furnished to Public Resource any express authorization to post the 1999
Standard to a Public Resource Website. Public Resource denies the remainder of the request.
REQUEST FOR ADMISSION NO. 5:
Admit that none of the Plaintiffs authorized Public Resource to publish the 1999
Standards on a Public Resource Website.
RESPONSE TO REQUEST FOR ADMISSION NO. 5:
Public Resource incorporates its general objections as if fully set forth here.Subject to
and without waiving the foregoing objections, Public Resource admits that Plaintiffs have not
furnished to Public Resource any express authorization to publish the 1999 Standard on a Public
Resource Website. Public Resource denies the remainder of the request.
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
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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.
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.
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
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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.
Date: November 3, 2014

Respectfully submitted,
FENWICK & WEST LLP

/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
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 ADMISSIONS, SET ONE (NOS. 1-8)
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
[e-mail]
[e-mail]
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