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)

EXHIBIT S
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/Counterdefendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

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Civil Action No. 1:14-cv-00857-TSC-DAR

DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
AMENDED RESPONSES TO
PLAINTIFFSCOUNTERDEFENDANTS’ FIRST SET
OF INTERROGATORIES (NOS 1-8)

Pursuant to Rules 26 and 33 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 Plaintiffs’ American Educational Research Association, Inc., American
Psychological Association, Inc., and National Council on Measurement in Education, Inc., First
Set of Interrogatories.
GENERAL OBJECTIONS
1.

Public Resource objects to the interrogatories to the extent that they are overly

broad, unduly burdensome, or 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 interrogatories to the extent that they seek

documents and information that are neither relevant to the Action nor reasonably calculated to
lead to the discovery of admissible evidence. Public Resource objects to the interrogatories 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 interrogatories on the ground that they seek to
impose obligations on Public Resource that are unduly burdensome, especially to the extent that
requested information is publicly available or burdensome to search for or obtain. Public
Resource further objects to the extent that the interrogatories are overbroad and that their number
exceeds the number that the Federal Rules of Civil Procedure authorize.
3.

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

definition, to the extent that Plaintiffs seek information that is not limited to a relevant and
reasonable period of time.
5.

Public Resource objects to the interrogatories to the extent they are

argumentative.
6.

Public Resource objects to the interrogatories to the extent they are cumulative

and/or duplicative of any other of Plaintiffs’ discovery requests.
7.

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.
8.

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
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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.
9.

Public Resource objects to the definition of “communication” to the extent it

includes information protected by the attorney-client privilege, the attorney work product
doctrine, or any other applicable privilege or protection as provided by law. Public Resource
further objects to the definitions of this term as seeking to impose obligations broader than, or
inconsistent with, the Federal Rules, the Local Rules, and/or the law of this Circuit. Public
Resource will respond to the interrogatories using the ordinary meaning of “communications”
and the scope of this term given by Fed. R. Civ. P. 33 and 34.
10.

Public Resource objects to the definition of “identify” to the extent it seeks to

impose obligations broader than, or inconsistent with, the Federal Rules, the Local Rules, and/or
the law of this Circuit. Public Resource will respond to the interrogatories using the ordinary
meaning of “identify” and the scope of this term given by Fed. R. Civ. P. 33.
11.

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

right to amend or supplement its responses as the Action proceeds.
12.

Public Resource’s responses to these interrogatories are made without waiving, or

intending to waive, but on the contrary, preserving and intending to preserve: (a) the right to
object, on the grounds of competency, privilege, relevance or materiality, or any other proper
grounds, to the use of any documents or other information for any purpose in whole or in part, in
any subsequent proceeding in this action or in any other action; (b) the right to object on any and
all grounds, at any time, to other requests for production, interrogatories, or other discovery
procedures involving or relating to the subject matter of the interrogatory to which Defendants
have responded here; and (c) the right at any time to revise, correct, add to, or clarify any of the
responses made here.

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RESPONSES TO INTERROGATORIES
INTERROGATORY NO. 1:
Identify and describe how Public Resource obtained any printed version or versions of
the 1999 Standards.
RESPONSE TO INTERROGATORY NO. 1:
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.
Subject to and without waiving the foregoing objections, Public Resource responds as
follows:
Public Resource purchased a printed copy from “thebookgrove,” a used book seller, on
May 17, 2012. Pursuant to Federal Rule of Civil Procedure 33(d), Public Resource will produce
the invoice or invoices for such orders that are in its custody, possession, or control. Public
Resource believes that to the extent details such as dates, payment amounts, and product names
are available, they may be derived from this invoice or invoices.
INTERROGATORY NO. 2:
Identify when the 1999 Standards were first and last posted or published to a Public
Resource Website, and identify the particular Public Resource Website(s) to which the 1999
Standards were posted or published.
RESPONSE TO INTERROGATORY NO. 2:
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 request to the extent that it seeks information that is equally available to Plaintiffs

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from other sources that are more convenient, less burdensome and/or less expensive, particularly
to the extent the information sought is publicly available.
Subject to and without waiving the foregoing objections, Public Resource responds as
follows:
The 1999 Standard was first posted to the law.resource.org website on July 11, 2012. On
that date, the 1999 Standard was also posted by Public Resource on the Public Safety collection
on the Internet Archive.
The 1999 Standard was last posted to a Public Resource Website on June 10, 2014. The
1999 Standard was also removed from public view on the Internet Archive on that date.
INTERROGATORY NO. 3:
Identify and describe the process Public Resource used to digitize or convert to digital
format the 1999 Standards from paper format, including any quality control measures Public
Resource used to prevent the content of the 1999 Standards from being altered.
RESPONSE TO INTERROGATORY NO. 3:
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 “digitize” as vague and ambiguous.
Subject to and without waiving the foregoing objections, Public Resource responds as
follows:
Public Resource procures standards, including the 1999 Standard, as paper documents. It
then disassembles them, removing any spines, stuffing, staples, or other extraneous materials. If
necessary, it trims the documents to give them an even border. It then scans the documents on a
Xerox 4250 scanner at 300 or 400 dots per inch. It names each file in a standard manner,
including the standard setting organization, the standard number, and the date. For example, one
name is “aera.standards.1999.pdf.”
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Public Resource appends a cover sheet to each file consisting of the name of the standard
setting organization, the date, the title, and (most importantly) the specific section of law that
incorporates this specific standard into law. This is an important part of the quality check
process. If Public Resource is unable to find a specific incorporation, it does nothing further
with the standard and does not post it.
The scanning process produces files in PDF format. The files are post-processed to
optimize the scans and to generate Optical Character Recognition (OCR) on the text. Public
Resource then double-checks the IBR reference(s), puts a cover sheet on the files, and stamps
metadata into the headers. Public Resource then posts these files on its website as well as the
Internet Archive using the HTTPS (secure HTTP) protocol. Public Resource also makes the files
available using FTP and Rsync.
INTERROGATORY NO. 4:
Identify all persons who and companies that participated on Public Resource’s behalf
(including Public Resource itself) in digitizing or converting a paper version of the 1999
Standards to digital format, and describe the nature of each person’s and/or company’s
participation.
RESPONSE TO INTERROGATORY NO. 4:
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 as outside the scope of discovery to the extent it calls for information
that is not within Public Resource’s knowledge. Public Resource objects to this interrogatory as
overly broad and unduly burdensome to the extent it seeks information about entities other than
Public Resource. Public Resource objects to this interrogatory to the extent it calls for the
disclosure of information that is protected by any individual’s right of privacy.

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Subject to and without waiving the foregoing objections, Public Resource responds as
follows:
Public Resource incorporates by reference its response to Interrogatory No. 3.

Contact information for each entity is as follows:

Carl Malamud
Public.Resource.Org
1005 Gravenstein Hwy N
Sebastopol, CA 95472
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.
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 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.

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Subject to and without waiving the foregoing objections, to the extent the information
sought is available, Public Resource will produce and identify non-privileged documents that
exist within its possession, custody, and control from which the response to this interrogatory
may be derived.
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 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
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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:
2013-09:
2013-10:
2013-11:
2013-12:
2014-01:
2014-02:
2014-03:
2014-04:
2014-05:
2014-06:
2014-07:
2014-08:
2014-09:
2014-10:

18
58
259
260
331
564
471
536
633
741
293
69
48
30
50

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:
2013-07:
2013-08:
2013-09:
2013-10:
2013-11:
2013-12:
2014-03:
2014-04:
2014-05:
2014-06:
2014-08:
2014-09:
2014-10:

1
2
1
3
3
4
8
6
5
4
1
1
2
1

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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:
2013-11:

1
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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.
INTERROGATORY NO. 6:
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.
RESPONSE TO INTERROGATORY NO.6:
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 “downloaded” 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 “downloaded” 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.
Subject to and without waiving the foregoing objections, to the extent the information
sought is available, Public Resource will produce and identify non-privileged documents that

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exist within its possession, custody, and control from which the response to this interrogatory
may be derived.
AMENDED RESPONSE TO INTERROGATORY NO.6:
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 “downloaded” 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 “downloaded” 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 “accessed,” “viewed” and

“downloaded,” 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
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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).
INTERROGATORY NO. 7:
Identify and describe all instances of which you are aware in which a third party, after
downloading the 1999 Standards from a Public Resource Website, posted 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 INTERROGATORY NO. 7:
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 “downloading” as vague and ambiguous. 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.
Subject to and without waiving the foregoing objections, Public Resource responds that it
is not aware of any information responsive to this interrogatory. 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).
AMENDED RESPONSE TO INTERROGATORY NO.7:
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 “downloading” as vague and ambiguous. Public

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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 “accessed,” “viewed” and

“downloaded,” Public Resource responds as follows:
Subject to and without waiving the foregoing objections, Public Resource responds that it
is not aware of any information responsive to this interrogatory. 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).
INTERROGATORY NO. 8:
State the factual and legal basis of 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 INTERROGATORY NO.8:
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 to the extent it seeks disclosure of information that falls under the
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work product doctrine. Public Resource objects to this interrogatory because it is argumentative.
Public Resource objects to this interrogatory because it seeks information that is publicly
available, already known, or equally available to Plaintiffs. Public Resource objects to this
interrogatory as it seeks “factual and legal basis” at an early stage of the litigation.

Date: December 15, 2014

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]
Corynne McSherry (pro hac vice)
[e-mail]
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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VERIFICATION
I, Carl Malamud, declare:
I am President of Public.Resource.Org, a nonprofit corporation organized and existing
under the laws of California, which is the defendant in the above-entitled action, and I have been
authorized to make this verification on its behalf.
I have read the foregoing DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S AMENDED RESPONSES TO PLAINTIFFCOUNTERDEFENDANTS’ FIRST SET OF INTERROGATORIES and know its contents.
They are true, except as to those matters identified as on information and belief, and, as to those
matters, I believe them to be true.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 15th day of December, 2014.

________________________________
Carl Malamud

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