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

Filing 30

REPLY to opposition to motion re #27 Amended MOTION to Compel filed on December 15, 2014, filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC.. (Attachments: #1 Declaration in Reply of Jonathan Hudis, #2 Exhibit S to Hudis Reply Decl, #3 Exhibit T to Hudis Reply Decl, #4 Exhibit U to Hudis Reply Decl, #5 Exhibit V to Hudis Reply Decl, #6 Exhibit W to Hudis Reply Decl, #7 Exhibit X to Hudis Reply Decl, #8 Exhibit Y to Hudis Reply Decl, #9 Exhibit Z to Hudis Reply Decl, #10 Exhibit AA to Hudis Reply Decl, #11 Exhibit BB to Hudis Reply Decl, #12 Exhibit CC to Hudis Reply Decl, #13 Exhibit DD to Hudis Reply Decl, #14 Exhibit EE to Hudis Reply Decl, #15 Text of Proposed Order -Revised)(Hudis, Jonathan)

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
REPLY MEMORANDUM
IN FURTHER SUPPORT OF
PLAINTIFFS’ AMENDED MOTION
TO COMPEL DISCOVERY,
PRIVILEGE LOG, AND FURTHER
INITIAL DISCLOSURES
ORAL ARGUMENT REQUESTED

Plaintiffs/Counterclaim Defendants, American Educational Research Association, Inc.
(“AERA”), American Psychological Association, Inc. (“APA”), and National Council on
Measurement in Education, Inc. (“NCME”) (collectively, “Plaintiffs”), submit this Reply
Memorandum in further support of their Amended Motion to Compel Discovery, Privilege Log,
and Further Initial Disclosures (Dkt. No. 27).
PRELIMINARY STATEMENT
Defendant/Counterclaimaint’s, Public.Resource.Org, Inc.’s (“Defendant” or “Public
Resource”) opposition papers evince a continued pattern of discovery obstruction and evasion.
Defendant’s failure to produce a single discovery document for almost three months (until after
Plaintiffs filed their discovery motion) indeed constitutes Public Resource dragging its feet.
Public Resource blames its delays upon Plaintiffs’ use (in its discovery questions) of
common dictionary terms – such as “view,” “access,” “download” and “publish” – as being
somehow misleading. The parties, however, agreed to Public Resource’s definitions of all but
one of these terms on November 25, 2014 (Dkt. No. 27-16). Even then, Public Resource took

another 2½ weeks to serve Amended Interrogatory Responses and Amended Production
Responses (collectively, “Amended Discovery Responses,” Hudis Reply Decl., ¶¶ 4-5, Exhs. S,
T).

These Amended Discovery Responses still fail to cure all of Defendant’s inadequate

discovery responses as noted in Plaintiffs’ original discovery motion.
Public Resource also failed to produce a single discovery document until well over a
month following the parties’ November 25, 2014 agreement-upon-terms, and almost three
months after Plaintiffs served their First Set of Interrogatories, First Production Requests, and
First Admission Requests (collectively, “Plaintiffs’ Discovery Requests”) (Dkt. Nos. 27-2–274).
Public Resource’s opposition papers moreover twist the facts regarding Plaintiffs’ good
faith efforts to resolve outstanding discovery issues.

Except where absolutely necessary,

Plaintiffs will not address in this Reply Public Resource’s self-serving, undignified and
untruthful ad hominem attacks on Plaintiffs’ counsel.
Plaintiffs have made consistent good faith efforts to resolve the deficiencies in Public
Resource’s Discovery Responses (Dkt. Nos. 27-9, 27-11, 27-12, 27-14 and 27-16). On the other
hand, Public Resource has consistently dragged its feet and engaged in dilatory tactics to delay
discovery in this case. Accordingly, Plaintiffs respectfully request that Public Resource be
directed to:
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Supplement (Again) its Response to Interrogatory No. 5;
Produce Documents Relied Upon in Its Amended Response to Interrogatory No. 5;
Produce Documents Responsive to Production Request No. 7;

Produce materials responsive to Plaintiffs’ Production Requests Nos. 1, 2, 5, and 9;
Supplement its response to Plaintiffs’ Interrogatory Nos. 6 and 8;
Supplement its responses to Plaintiffs’ Admission Requests Nos. 3 and 6; and
Supplement its Initial Disclosures required under Fed. R. Civ. P. 26(a)(1)(a)(ii).

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In order to reduce the number of discovery issues requiring resolution by the Court,
Plaintiffs withdraw their motion with respect to Interrogatory No. 7, Admission Requests Nos. 6
and 7, Production Requests Nos. 3-4 and 8, and the requirement that Public Resource produce a
privilege log.
Plaintiffs will take at face value Public Resource’s claim that it does not have access to
the third party information requested in Interrogatory No. 7, Admission Requests Nos. 6 and 7 or
Production Request No. 8. On December 29, 2014, Public Resource produced documents
responsive to Production Requests Nos. 2-4, and produced a privilege log corresponding to this
production on January 4, 2015.
ARGUMENT
I.

PUBLIC RESOURCE’S GENERAL DISCOVERY OBJECTIONS ARE
IMPROPER, AND SHOULD THEREFORE RESULT IN A WAIVER OF THOSE
OBJECTIONS
By failing to address Plaintiffs’ arguments regarding Public Resource’s improper general
discovery objections in its opposition papers, Public Resource concedes that its general
discovery objections are improper. Stephenson v. Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002)
(“when a [party] … files a response to a motion … but fails to address certain arguments made
by the [movant], the court may treat those arguments as conceded …..”). While Public Resource
provided Plaintiffs with Amended Discovery Responses, Public Resource did not amend any of
its responses to withdraw its improper General Objections to Plaintiffs’ Discovery Requests
(Hudis Reply Decl. ¶¶ 4-5, Exhs. S, T).
Public Resource’s asserted “General Objections” are still “incorporated by reference” in
scattershot fashion into each and every one of its discovery responses without identifying the
specific infirmity(ies) of Plaintiffs’ discovery request(s). Public Resource then simply states that
it does not waive its objections and will produce only those documents that are relevant and non3

privileged after reviewing its documents. Courts have found that this “type of answer hides the
ball” and is “of no more usefulness to the plaintiffs or to the Court than the objections lodged in
the general section.” Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D. 181, 190 (D.D.C. 1998),
aff’d in part, rev’d in part, and remanded on other gnds., 351 F.3d 1166 (D.C. Cir. 2003).
Simply agreeing to produce relevant, non-privileged documents without withdrawing the
General Objections “serves only to obscure potentially discoverable information and provides no
mechanism for either [P]laintiffs or the Court to review [Public Resource’s] decisions.” Id.
(finding that because the defendant agreed to produce documents and did not lodge specific
objections to the discovery requests it had waived its right to object).
Because Public Resource’s General Objections do not specifically address the alleged
drawback(s) of each discovery request, Plaintiffs’ respectfully request that the Court find Public
Resource’s so-called General Objections to have been waived.
II.

SPECIFIC DISCOVERY REQUESTS TO WHICH PUBLIC RESOURCE STILL
SHOULD BE DIRECTED TO RESPOND
A.

Public Resource Should Be Directed to Supplement (Again) its Answer to
Interrogatory No. 5, Produce Documents Relied Upon in Its Amended
Response to Interrogatory No. 5, and Produce Documents Responsive to
Production Request No. 7

INTERROGATORY NO. 5:
Identify and describe, by month and year starting from the date that the
1999 Standards were first posted on or published to a Public Resource
Website or Public Resource Websites, the number of visitors who viewed
and/or accessed the 1999 Standards on that website or those websites.
(Dkt. No. 29-2)
AMENDED RESPONSE TO INTERROGATORY NO. 5:
Public Resource incorporates its general objections as if fully set forth
here. Public Resource objects to this interrogatory to the extent it purports
to impose upon Public Resource obligations broader than, or inconsistent
with, the Federal Rules of Civil Procedure, local rules, Court Orders for
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this proceeding, or any applicable regulations and case law. Public
Resource objects to this interrogatory and to the term “viewed and/or
accessed” as vague and ambiguous. Public Resource objects to this
interrogatory as seeking information not relevant to any party’s claims or
defenses and not reasonably calculated to lead to the discovery of
admissible evidence to the extent that the term “accessed” means
“viewed.” Public Resource objects to this interrogatory to the extent that
the scope of the information sought is not limited to a relevant and
reasonable period of time.
After conference, the parties agree as follows:
- “Accessed” means to digitally retrieve or open an electronic file or data.
- “View(ed)” means the act of seeing or examining.
- “Downloaded” means a user reproducing an electronic file by saving a
reproduction of the file to a location on the user’s device with the intent
to facilitate permanent ready access until the user deletes the file. This
definition of “download” includes use of functions such as “Save” and
“Save As,” but does not include printing physical hardcopies, taking
screenshots, or cache reproductions such as “Temporary Internet files.”
Based on the parties’ agreement on the definitions of “viewed” and
“accessed,” Public Resource responds as follows:
Public Resource recorded on the Public.Resource.org website the
following number of HyperText Transfer Protocol (HTTP) requests for the
filename “aera.standards.1999.pdf” for each month and date below. In
calculating the number of HTTP requests, Public Resource counted each
successful full retrieval request (“status code 200”) as one request and all
partial retrieval requests (“status code 206”) within the same hour as one
request (under the assumption that each set was one device making a
series of partial retrieval requests that added up to one full retrieval).
2013-08: 18
2013-09: 58
2013-10: 259
2013-11: 260
2013-12: 331
2014-01: 564
2014-02: 471
2014-03: 536
2014-04: 633
2014-05: 741
2014-06: 293
2014-07: 69
2014-08: 48
2014-09: 30
2014-10: 50

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Public Resource recorded on the Public.Resource.org website the
following number of File Transfer Protocol (FTP) requests for the
filename “aera.standards.1999.pdf” for each month and date below.
2013-06: 1
2013-07: 2
2013-08: 1
2013-09: 3
2013-10: 3
2013-11: 4
2013-12: 8
2014-03: 6
2014-04: 5
2014-05: 4
2014-06: 1
2014-08: 1
2014-09: 2
2014-10: 1
Public Resource recorded on the Public.Resource.org website the
following number of Rsync (remote sync) protocol requests for the
filename “aera.standards.1999.pdf” for each month and date below.
2013-04: 1
2013-11: 1
On June 10, 2014, at Plaintiffs’ request, Public Resource replaced on its
website the document which had the filename “aera.standards.1999.pdf”
with a stub document explaining this litigation. Because the stub
document has the same filename, retrievals of that document also appear
in this set of records.
(Hudis Reply Decl., ¶ 4, Exh. S).
PRODUCTION REQUEST 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.
(Dkt. No. 29-3)
AMENDED RESPONSE TO PRODUCTION REQUEST 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

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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.
After conference, the parties agree as follows:
- “Accessed” means to digitally retrieve or open an electronic file or data.
- “View(ed)” means the act of seeing or examining.
- “Downloaded” means a user reproducing an electronic file by saving a
reproduction of the file to a location on the user’s device with the intent
to facilitate permanent ready access until the user deletes the file. This
definition of “download” includes use of functions such as “Save” and
“Save As,” but does not include printing physical hardcopies, taking
screenshots, or cache reproductions such as “Temporary Internet files.”
Based on the parties’ agreement on the definitions of “accessed,” and
“viewed” Public Resource responds as follows:
Subject to, and without waiving, the foregoing objections, Public Resource
responds as follows: Public Resource has provided a report specifying the
numbers of times the 1999 Standard was accessed from the
Public.Resource.Org website (see Public Resource’s response to
Plaintiffs’ Interrogatory No. 5). To the best of its knowledge at this time,
Public Resource has no documents responsive to this request specific to
the act of viewing (as opposed to the act of accessing). Public Resource’s
investigation is ongoing, and to the extent it locates any responsive nonprivileged documents that refer to instances in which a third party viewed
the 1999 Standard using the Public.Resource.org website after a
reasonable search for documents in Public Resource’s possession, custody,
or control, it will produce such documents.
Furthermore, because the 1999 Standard at issue was removed from public
view on the Internet Archive, Public Resource has no access to statistics
from the Internet Archive website as to the total number of accesses or
views the 1999 Standard received, but it is Public Resource’s
understanding that the Internet Archive has produced documents on this
topic in response to Plaintiffs’ subpoena.
(Hudis Reply Decl., ¶ 5, Exh. T).
On December 15, 2014, two days after Plaintiffs’ filed their initial Motion to Compel
(Dkt. No. 25), Public Resource served its Amended Discovery Responses, which included an
amended response to Interrogatory No. 5 (Hudis Reply Decl., ¶ 4, Exh. S). In its amended
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response to Interrogatory No. 5, Public Resource provided the number of recorded HyperText
Transfer Protocol (HTTP) requests, File Transfer Protocol (FTP) requests, and Rsync (remote
sync) protocol requests recorded on the Public.Resource.Org website from April 2013 until
October 2014.
Each of these protocol requests allow for the transfer of data between computer systems.
HTTP is a “request/response” protocol where a client sends a request to a server and the server
returns a response message to the client containing information about the request as well as
requested content (Hudis Reply Decl., ¶ 6, Exh. U). FTP is a network protocol used to transfer
files from one system to another over a TCP-based network, such as the Internet (Hudis Reply
Decl., ¶ 7, Exh. V). Rsync allows copies of a file to be kept on multiple computer systems at the
same time, allowing for synchronization of the files between the two systems (Hudis Reply
Decl., ¶ 8, Exh W).
This “techno-jargon” does not provide, in plain English, “the number of visitors who
viewed and/or accessed the 1999 Standards on” Public Resource’s Website(s) or state whether
documentation will be provided showing “the number of times a digitized or digital version of
the 1999 Standards were viewed on or accessed from a Public Resource Website” (as requested
in Interrogatory No. 5 and Production Request No. 7).
In its amended response to Production Request No. 8 (Hudis Reply Decl., ¶ 5, Exh. T),
Public Resource referred to its amended response to Interrogatory No. 5 as “a report specifying
the number of times the 1999 Standard was accessed from the Public.Resource.Org website.”
(Hudis Reply Decl., ¶ 5, Exh. T at 11). Public Resource, however, provided no documents to
verify the number of HTTP, FTP, or Rsync requests listed in its amended response to

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Interrogatory No. 5. Without supporting documentation, Plaintiffs are unable to verify the
accuracy of Public Resource’s reported numbers, much less what they mean.
Plaintiffs asked Public Resource for this information on multiple occasions (Hudis Reply
Decl., ¶¶ 9, 10, Exhs. X, Y), but Public Resource refuses to provide Plaintiffs with the requested
documentation (Hudis Reply Decl., ¶ 11, Exh. Z). Accordingly, Public Resource should be
directed to provide a supplemental answer to Interrogatory No. 5, produce the materials relied on
in responding to Interrogatory No. 5, and produce documents responsive to Production Request
No. 7.
B.

Public Resource Should be Directed to Supplement Its Amended Responses
to Discovery Requests Including the Word “Downloaded” or “Downloading”
(Interrogatory No. 6 and Admission Request No. 6)

Public Resource’s Amended Discovery Responses include amended answers to
Interrogatories Nos. 6 and 7. Public Resource did not amend its Responses to Admission
Requests Nos. 6-8. Plaintiffs’ Interrogatory No. 7, and Admission Requests Nos. 7 and 8,
require Public Resource to provide information activities taken by third parties after
downloading the Standards from a Public Resource website. Plaintiffs acknowledge that third
party activities are outside the scope of Public Resource’s knowledge and therefore withdraw
this motion with respect to Interrogatory No. 7 and Admission Request Nos. 7 and 8.
However, Public Resource should be required to supplement its responses to
Interrogatory No. 6 and Admission Request No. 6:
INTERROGATORY NO. 6 (Emphasis Added):
Identify the number of times the 1999 Standards were downloaded from a
Public Resource Website or Public Resources Websites, and identify the
particular Public Resource Website(s) from which the 1999 Standards
were downloaded.
(Dkt. No. 29-2).

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AMENDED RESPONSE TO INTERROGATORY NO. 6 (Emphasis Added):
Public Resource incorporates its general objections as if fully set forth
here. Public Resource objects to this interrogatory to the extent it purports
to impose upon Public Resource obligations broader than, or inconsistent
with, the Federal Rules of Civil Procedure, local rules, Court Orders for
this proceeding, or any applicable regulations and case law. Public
Resource objects to this interrogatory and to the term “viewed and/or
accessed” as vague and ambiguous. Public Resource objects to this
interrogatory as seeking information not relevant to any party’s claims or
defenses and not reasonably calculated to lead to the discovery of
admissible evidence to the extent that the term “accessed” means
“viewed.” Public Resource objects to this interrogatory to the extent that
the scope of the information sought is not limited to a relevant and
reasonable period of time.
After conference, the parties agree as follows:
- “Accessed” means to digitally retrieve or open an electronic file or data.
- “View(ed)” means the act of seeing or examining.
- “Downloaded” means a user reproducing an electronic file by saving a
reproduction of the file to a location on the user’s device with the intent
to facilitate permanent ready access until the user deletes the file. This
definition of “download” includes use of functions such as “Save” and
“Save As,” but does not include printing physical hardcopies, taking
screenshots, or cache reproductions such as “Temporary Internet files.”
Based on the parties’ agreement on the definitions of “viewed” and
“accessed,” Public Resource responds as follows:
Subject to and without waiving the foregoing objections, to the best of its
knowledge at this time, Public Resource has no information responsive
to this request specific to the act of downloading (as opposed to the act
of accessing, which Public Resource addresses in its response to
Interrogatory No. 5). Public Resource’s investigation is ongoing, and to
the extent it locates any non-privileged documents from which responsive
information may be derived, it will produce them pursuant to Federal Rule
of Civil Procedure 33(d).
(Hudis Reply Decl., ¶ 4, Exh. S).
REQUEST FOR ADMISSION NO. 6 (Emphasis Added):
Admit that visitors to a Public Resource Website have downloaded the
1999 Standards from that website.
(Dkt. No. 27-4).

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RESPONSE TO REQUEST FOR ADMISSION NO. 6 (Emphasis Added):
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
“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.
(Dkt. No. 27-7).
Both Interrogatory No. 6 and Admission Request No. 6 relate to Plaintiffs’ Standards
being downloaded from a Public Resource Website by third parties. Plaintiffs and Public
Resource agreed to a definition of the term “download” (Dkt. No. 27-16).
In its amended response to Interrogatory No. 6, Public Resource states that it “has no
information responsive to this request specific to the act of downloading.” Public Resource,
however, produced a spreadsheet that explicitly lists the number of times the Standards were
“downloaded” from its website (Hudis Reply Decl., ¶ 12, Exh. AA). Public Resource’s amended
response to Interrogatory No. 6 is in direct conflict with its document production. Accordingly,
Plaintiffs request that Public Resource supplement its response to Interrogatory No. 6.
Public Resource has not supplemented its response to Admission Request No. 6, despite
agreeing to “provide amended written discovery responses based on [this] definition” (Dkt. No.
29-15).

Accordingly, Public Resource should be directed to supplement its response to

Admission Request No. 6.

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C.

Public Resource Should be Directed to Supplement Its Response to Request
for Admission No. 3

REQUEST FOR ADMISSION NO. 3 (Emphasis Added):
Admit that Public Resource published the 1999 Standards, in their
entirety, on a Public Resource Website.
(Dkt. No. 27-4.)
RESPONSE TO REQUEST FOR ADMISSION NO. 3:
Public Resource incorporates its general objections as if fully set forth
here. Public Resource denies the request.
(Dkt. No. 27-7.)
Public Resource continues to argue that the term “publication” should be defined by the
Copyright Act and not the plain meaning of the word. (Dkt. No. 29 at 6-7.) Public Resource
thus claims that the terms “post” and “publish” carry different meanings. Relying on this
argument, Public Resource refuses to amend its Response to Admission Request No. 3, thus
refusing to admit that the Standards were “published” on a Public Resource website. Public
Resource does admit that the Standards were “posted” on a Public Resource website.
In his initial letter to Carl Malamud (Public Resource’s President), John Neikirk, the
Director of Publications at AERA, informed Mr. Malamud that the Standards were improperly
“posted” on a Public Resource website and requested that Mr. Malamud remove the “posting”
immediately (Hudis Reply Decl., ¶ 13, Exh. BB). In response, Mr. Malamud acknowledged “the
publication of the [Standards]” on a Public Resource Website and admitted responsibility for
uploading the Standards. (Hudis Reply Decl., Ex. CC.)
Public Resource cannot deny being aware of these communications as both of them were
included multiple times in Public Resource’s December 29, 2014 document production. Public
Resource’s arguments about the meaning of the term “publish” do not change the facts. Public

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Resource already (in correspondence) acknowledged the publication of Plaintiffs’ Standards on a
Public Resource website. Plaintiffs therefore request that Public Resource be directed to
supplement its response to Admission Request No. 3.
D.

Public Resource Should be Directed to Supplement Its Responses Regarding
the Factual and Legal Bases of Its Affirmative and Other Defenses
(Interrogatory No. 8 and Production Request No. 9)

Interrogatory No. 8 and Production Request No. 9 relate to the factual and legal bases of
each Affirmative and Other Defenses to Plaintiffs’ Complaint asserted in Public Resource’s
Counterclaim and Answer (Dkt. Nos. 29-2, 29-3).

Public Resource persistently refuses to

respond to these discovery requests (Dkt. Nos. 27-10, 27-13, 29). In its opposition, Public
Resource argues that Plaintiffs’ contention interrogatories and production requests are premature
– citing Everett v. USAir Grp., Inc., 165 F.R.D. 1, 3 (D.D.C. 1995) in support.
Everett, however, relying on In re Convergent Techs., 108 F.R.D. 328, 336 (N. D. Cal.
1985), establishes a test for when contention interrogatories should be deferred and when early
answers can be secured.

Everett, 165 F.R.D. at 3.

Postponing responses to contention

interrogatories is improper when the proponent of the contention interrogatories demonstrates
why they are necessary earlier in the proceeding. For example, when answering a few specific
contention interrogatories will materially contribute to the goals of the Federal Rules of Civil
Procedure the “responding party must answer those questions.” In re Convergent Techs., 108
F.R.D. at 339-40.
Fed. R. Civ. P. 1 provides for the “just, speedy, inexpensive determination of every action
and proceeding.” Fact discovery opened on September 25, 2014, after the parties’ Fed. R. Civ.
P. 26(f) meet-and-confer telephone discussion (Hudis Reply Decl., ¶ 2.) Fact discovery is set to
close on March 16, 2014, just over two months from now (Hudis Reply Decl., ¶ 3.) Yet, Public
Resource claims that discovery is still necessary to flesh out a number of its affirmative defenses
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(Dkt. No. 29 at 9). However, Public Resource chose not to serve Plaintiffs with any written
discovery until December 15, 2014. Plaintiffs’ access to discovery and right to a just and speedy
resolution of this case should not be hindered by Public Resource’s continued delays. Plaintiffs
are entitled to know Public Resource’s positions on, and support for, its Affirmative and Other
Defenses so that Plaintiffs can take follow-up discovery. Accordingly, Public Resource should
be directed to respond to Plaintiffs’ Interrogatory No. 8 and Production Request No. 9 –
providing support for Defendant’s asserted Affirmative and other Defenses.
E.

Plaintiffs Withdraw that Part of Their Motion Seeking Supplemental
Responses to Production Requests Nos. 6 and 7. However, Documents
Responsive to Production Request No. 7 Still Must be Produced.

In their Amended Motion to Compel (Dkt. No. 27), Plaintiffs requested that Public
Resource supplement its responses to Production Requests Nos. 6 and 7, as they were
unintelligible. Public Resource’s Amended Responses to Production Requests Nos. 6 and 7
(Hudis Decl., ¶ 4, Exh. T) can now be understood.
As previously noted, Public Resource produced a spreadsheet that lists the number of
times the Standards were “downloaded” (Hudis Reply Decl., ¶ 12, Exh. AA), which is
responsive to Production Request No. 6. On the other hand, as argued above, Public Resource
still has not produced documents responsive to Production Request No. 7, and should be directed
to do so.
F.

Public Resource Should Be Directed to Produce All Documents Identified In
Its Responses to Production Requests Nos. 1 and 5.

Public Resource produced 78 documents on December 29, 2014 (Hudis Reply Decl., ¶
15, Exh. DD (document production list)). These documents included materials sufficiently
responsive to Plaintiffs’ Production Requests Nos. 3 and 4. Accordingly, Plaintiffs withdraw

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their motion as to Production Requests Nos. 3 and 4. Plaintiffs, however, have not provided
sufficient information in response to Production Request Nos. 1 and 5.
Production Request No. 1 requests the production of all materials “identified in Public
Resource’s answers to Plaintiffs’ First Set of Interrogatories” (Dkt. No. 27-2). As discussed
above, Public Resource has refused to provide Plaintiffs with the materials relied upon in
responding to Interrogatory No. 5.

Public Resource should be directed to produce these

materials. Public Resource also provided an inaccurate response to Interrogatory No. 6. To the
extent additional materials exist referring to the number of times Plaintiffs’ Standards were
“downloaded” from a Public Resource Website, Defendant should be directed to produce these
materials.
Production Request No. 5 requires the production of all materials “regarding Public
Resource posting or publishing the 1999 Standards to a Public Resource Website” (Dkt. No. 272). Public Resource has produced the Standards in the form that they were posted on the Public
Resource Website. Defendant, however, has provided no information regarding the process of
posting the Standards. In response to Interrogatory No. 3, Public Resource explains that the
Standards (after scanning) are post-processed to optimize the scans and to generate Optical
Character Recognition (OCR) on the text, and that metadata is stamped into the headers. Public
Resource’s production does not include any materials relating to this post-processing of the
Standards by Defendant. Accordingly, Public Resource should be directed to produce these
materials.
Public Resource, in its opposition, also states that “the bulk of its production” is complete
(Dkt. No. 29 at 8.) Defendant’s production consisted of 78 documents totaling over 10,000

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pages, with no explanation of which requests the documents were responsive to. See, Fed. R.
Civ. P. 34(b)(2)(E).
Public Resource also plans to produce additional “production as necessary as it locates
any further relevant and responsive documents.”

(Dkt. No. 29 at 5, 8).

The purpose of

discovery, however, is to prevent a “trial by ambush”1– where documents not produced during
discovery will appear for the first time on Public Resource’s exhibit list at trial or as an exhibit to
motion papers during briefing on a dispositive motion.
Public Resource has had over three months to collect, review and produce responsive
discovery materials.

Public Resource should not be allowed to bombard Plaintiffs with

additional discovery documents at the very end of fact discovery, after the completion of
Defendant’s deposition, for the first time at trial, or annexed to dispositive motion papers. Public
Resource therefore should be directed to provide by a date-certain all relevant, non-privileged
discovery materials.
Plaintiffs will take at face value Public Resource’s claim that it does not have access to
the third party documentation requested in Production Request No. 8. On this basis, Plaintiffs
withdraw their motion with respect to this production request.
III.

PUBLIC RESOURCE SHOULD BE DIRECTED TO SUPPLEMENT ITS
INITIAL DISCLOSURES REQUIRED UNDER FED. R. CIV. P. 26(a)(1)(A)(ii),
AND PRODUCE DOCUMENTS IDENTIFIED IN ITS INITIAL DISCLOSURES
Public Resource refuses to amend its overly broad and insufficiently specific Initial

Disclosures of documents that are not tailored to this case. Public Resource also confuses its
Initial Disclosure obligations with its discovery obligations. The purpose of the initial disclosure
requirement is to “accelerate the exchange of basic information about the case and to eliminate
1

Rainer v. Am. Forest & Paper Ass’n, 26 F. Supp. 2d 82, 95 D.D.C. (quoting Ierardi v. Lorillard, Inc., 1991 U.S.
Dist. LEXIS 11320 at *3 (E.D. Pa. Aug. 13, 1991) for the principle that “[t]he very purpose of discovery is to avoid
trial by ambush.”).

16

the paper work involved in requesting such information.”

Fed. R. Civ. P. 26 Advisory

Committee’s Note (1993). Public Resource’s refusal to amend its initial disclosures is simply
another example of Defendant’s dilatory tactics to delay discovery.
Public Resource chooses to ignore that in this case, unlike in Robinson v. Champaign
Unit 4 Sch. Dist., Plaintiffs clearly explained how Public Resource’s initial document disclosures
are deficient. 412 F. App’x 873, 877 (7th Cir. 2011). Plaintiffs have repeatedly explained to
Public Resource that its initial disclosure of documents it intends to rely upon is overly broad,
not tailored to the facts of this case, and provides no basis for Plaintiff to propound additional
discovery requests. Public Resource simply chooses to bury its head in the sand and obstinately
refuses to amend its initial document disclosures.
Additionally, Plaintiffs’ Production Request No. 2 requires Public Resource to produce
the materials identified in its Initial Disclosures (Dkt. No. 27-3). Public Resource, despite
having completed “the bulk of its production,” (Dkt. No. 29 at 5, 8), has not produced any
materials relating to the majority of document categories it claims will be relied upon in support
of its claims or defenses. Public Resource’s Initial Document Disclosures fail to accelerate the
exchange of basic information in this case. Plaintiffs therefore request that Public Resource be
directed to (i) supplement its Initial Document Disclosures, and (ii) produce the materials cited in
its amended Initial Disclosures.
IV.

PUBLIC RESOURCE’S CONTENTION THAT PLAINTIFFS’ DISCOVERY
MOTION ADDRESSES ISSUES NOT DISCUSSED WITH PUBLIC RESOURCE
IS BASELESS AND UNTRUE
Public Resource makes the baseless and untrue assertion that Plaintiffs’ Motion addresses

issues not previously discussed with defense counsel (Dkt. No. 29 at 11). This assertion is
without merit.

Plaintiffs spoke with Public Resource’s counsel prior to filing their Initial

Discovery Motion (Hudis Reply Decl., ¶ 16), and again before filing their Amended Discovery
17

Motion (Hudis Reply Decl., ¶ 17). During both of these conversations, Plaintiffs explained their
position and asked when Public Resource was planning to amend its Discovery Responses. On
neither occasion did defense counsel state when amended discovery responses, if any, would be
forthcoming or when discovery documents would be produced (Hudis Reply Decl., ¶¶ 16-18,
Exh. EE).
Public Resource’s supplemental discovery responses and document production did not
appear until after Plaintiff moved to compel discovery (Hudis Reply Decl., ¶¶ 4, 5, 19). Even
now, Public Resource has failed to cure the deficiencies in many of its Discovery Responses.
Public Resource’s assertion that Plaintiffs failed to comply with their meet-and-confer
obligations prior to filing their discovery motion is unfounded. Rather, Defendant’s unsupported
arguments are mere attempts to misdirect the Court’s attention away from Public Resource’s
dilatory conduct.
//
//
//
//
//
//
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//
//
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//

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V.

CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to compel discovery, privilege log, and

further initial disclosures, to the extent it has not been withdrawn due to subsequent events,
should be granted.
Respectfully submitted,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT,LLP
Dated: January 12, 2015

By:

/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Kathleen Cooney-Porter (DC Bar # 434526)
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]
Attorneys for Plaintiffs
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC.
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC.
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.

JH/KCP/KDC/kdc {431184US, 11520324_1.DOCX}

19

CERTIFICATE OF SERVICE
I hereby certify that on January 12, 2015, PLAINTIFFS’ REPLY MEMORANDUM
IN FURTHER SUPPORT OF PLAINTIFFS’ AMENDED MOTION TO COMPEL
DISCOVERY, PRIVILEGE LOG, AND FURTHER INITIAL DISCLOSURES in support,
and a REVISED PROPOSED ORDER were filed using the CM/ECF system that sent notice of
the filing of these documents to all counsel of record, and was also served via e-mail to:
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]
Counsel for Defendant
PUBLIC.RESOURCE.ORG, INC.
/s/ Jonathan Hudis
Jonathan Hudis