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

Filing 29

Memorandum in opposition to re #27 Amended MOTION to Compel filed filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 Declaration of Andrew P. Bridges in Support of Defendant-Counterclaimant Public.Resource.Org, Inc.'s Opposition to Plaintiffs-Counterdefendants' Amended Motion to Compel, #2 Exhibit 1 to Declaration of Andrew P. Bridges, #3 Exhibit 2 to Declaration of Andrew P. Bridges, #4 Exhibit 3 to Declaration of Andrew P. Bridges, #5 Exhibit 4 to Declaration of Andrew P. Bridges, #6 Exhibit 5 to Declaration of Andrew P. Bridges, #7 Exhibit 6 to Declaration of Andrew P. Bridges, #8 Exhibit 7 to Declaration of Andrew P. Bridges)(Bridges, Andrew)

EXHIBIT 6

December 30, 2014
Via E-Mail
Andrew P. Bridges, Esq.
FENWICK & WEST LLP
555 California Street, 112th Fl.
San Francisco, CA 94104

JONATHAN HUDIS
[phone]
[e-mail]
KATHLEEN COONEY-PORTER
[phone]
[e-mail]
*BAR OTHER THAN VIRGINIA

Re: 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
Dear Andrew:
We respond to your letter of December 22, 2014, pertaining to Public Resource’s
Amended Responses to Plaintiffs’ Interrogatories and Production Requests (collectively,
“Amended Responses”)
1. Numbering
Thank you for providing us with revised versions of Public Resource’s Amended
Responses with the proper numbering.
2. Amended Responses to Interrogatory No. 5 and Production Request No. 7
In our letter of December 18, 2014, we were critical of Public Resource’s Amended
Response to Interrogatory No. 5 because it “simply lists the number of HTTP, FTP, and Rsync
requests by month without providing any additional information or documentation regarding
how those numbers were calculated or generated.” The explanation provided in your letter of
December 22, 2014 (quoting the interrogatory response) demonstrates that the stated
methodology behind the calculation / generation of those numbers is at best incomplete, at worst
unresponsive.
The numbers Public Resource provided do not distinguish between “views” and instances
of “access,” as the parties agreed to define these terms. Public Resource’s effort to explain its
calculation of HTTP requests answers a question that was not asked. Generically, an HTTP
request is a message sent by the Internet user to a web server. The server, in turn, provides
resources such as HTML files and other content, or performs other functions on behalf of the
user, and returns a response message to the user. The response contains completion status
information about the request and may also contain requested content in its message body.
When the visitors came upon the Public Resource Website(s) to which the 1999
Standards were posted or published, did the visitors simply “view” (see or examine) the content
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.
Our Ref. 431384US-332060-332060-69-L DMS
Page 2
or further “access” it (by digitally retrieving or opening an electronic file or data)? Public
Resource’s amended interrogatory response does not answer this question for the HTTP requests.
“FTP,” a file transfer protocol, by its very name and definition “may” answer the view vs. access
question, but since no explanation is provided we do not know for certain.
Rsync, as we understand, is a file copying tool used with Linux or Unix systems. Rsync
is noted for its delta-transfer algorithm, which reduces the amount of data sent over a network by
sending only the differences between the source files and the existing files at the destination
point. Rsync can be used for backups and mirroring, and as an improved copy command. For
example, do the rsync protocol requests provided in Public Resource’s amended interrogatory
response refer to partial or total copies of the 1999 Standards? No explanation is provided.
We suspect that much of this guesswork could be avoided if Public Resource would
provide the documentation from which it made the calculations in its amended interrogatory
response. Unfortunately, as noted in your December 22nd letter, Public Resource refuses to do
so. We will address this with Magistrate Judge Robinson within the context of our discovery
motion.
Finally, we note your explanation that Public Resource does not have any server logs
regarding visits to the Public Resource Website(s) at which the 1999 Standards were posted or
published prior to April 2013. A letter from counsel, however, is not evidence. Public
Resource’s amended interrogatory response should have said that it does not have the requested
information for the period July 2012 to April 2013. This too will have to be discussed with
Magistrate Judge Robinson.
Very truly yours,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT, L.L.P.

Jonathan Hudis

Kathleen Cooney-Porter
JH/jh {11299299_1.DOCX }

Andrew P. Bridges, Esq.
Our Ref. 431384US-332060-332060-69-L DMS
Page 3
cc:

Mitchell L. Stoltz, Esq.
Corynne McSherry, Esq.
David Halperin, Esq.
American Educational Research Association, Inc.
American Psychological Association, Inc.
National Council on Measurement in Education, Inc.
Katherine D. Cappaert, Esq.