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

Filing 33

WITHDRAWN PURSUANT TO ENTRY NO.: #41 . . . . . MOTION to Consolidate Cases Defendant-Counterclaim Public.Resource.Org, Inc.'s Motion to Consolidate for the Purposes of Discovery by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Text of Proposed Order [Proposed] Order Granting Defendant's Motion to Consolidate for Purposes of Discovery (Dkt. No. 33))(Bridges, Andrew) Modified on 3/2/2015 (td, ).

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 MOTION
TO CONSOLIDATE FOR THE PURPOSES OF DISCOVERY

TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1 
ARGUMENT .................................................................................................................................. 2 
A. 

  This Court has Broad Discretion to Consolidate Both Cases for the Purposes of

Discovery. ........................................................................................................................... 2 
B. 

Consolidation for the Purposes of Discovery is Appropriate in this Instance. .................... 3 

C. 

  If Both Cases Are Consolidated for the Purpose of Discovery, the Court Should Revisit

the Total Number of Depositions Allowed to Defendants.................................................. 7 
CONCLUSION ............................................................................................................................... 8 

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TABLE OF AUTHORITIES
Page(s)
CASES
Blasko v. Washington Metropolitan Area Transit Authority,
243 F.R.D. 13 (D.D.C. 2007).............................................................................................3, 5, 6
Clayton v. District of Columbia,
No. 13-1316 (RWR), 2014 WL 1395057 (D.D.C. April 10, 2014) ...................................2, 3, 7
Royer v. Fed. Bureau of Prisons,
292 F.R.D. 60 (D.D.C. 2013).....................................................................................................4
Santucci v. Pignatello,
188 F.2d 643 (D.C. Cir. 1951) ...................................................................................................3
RULES
Rule 42(a) of the Federal Rules of Civil Procedure .....................................................................2, 3
Local Rule 7(m) ...............................................................................................................................2

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INTRODUCTION
Defendant-counterclaimant Public.Resource.Org, Inc. (“Public Resource”) is a nonprofit
organization dedicated to open access to government documents, laws, and regulations. It has
digitized judicial opinions, the Code of Federal Regulations, and state codes. As part of its open
access efforts, it regularly posts standards that the government has incorporated into law by
reference.
Public Resource is a defendant before this Court in two separate lawsuits that involve
substantially the same issues of law, and many of the same issues of fact. On August 6, 2013,
plaintiffs American Society for Testing and Materials (“ASTM”), National Fire Protection
Association (“NFPA”), and American Society of Heating, Refrigerating, and Air-Conditioning
Engineers (“ASHRAE”) (collectively the “ASTM Plaintiffs”) sued Public Resource for
copyright infringement and trademark infringement, Case No. 1:13-cv-01215-TSC-DAR (the
“ASTM Plaintiffs’ case”). Nine months later, on May 23, 2014 plaintiffs American Educational
Research Association (“AERA”), American Psychological Association (“APA”), and National
Council on Measurement in Education (“NCME”) (collectively the “AERA Plaintiffs”) sued
Public Resource, also for copyright infringement, Case No. 1:14-cv-00857-TSC-DAR (the
“AERA Plaintiffs’ case”).
Both cases involve the same fundamental legal issues and stem from the same basic facts:
Public Resource, a non-profit advocate for public access to the law, posted on the Internet
standards that have been incorporated by reference into the law and that have the force of law.
Plaintiffs in both cases claim exclusive copyright ownership over particular standards that the
federal government has incorporated by reference into the law, and which Public Resource has
then posted online for citizens to access. The fundamental legal issues for decision, such as

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whether standards incorporated by reference into the law have the same non-copyright status as
law, whether posting the standards to the public is therefore not a violation of copyright law, and
whether Public Resource’s actions in any event would constitute fair use, are the same in both
cases. All six plaintiffs sue Public Resource in the same capacity, and the relief they seek is
substantively identical.
Pursuant to Local Rule 7(m), on January 28, 2015 Public Resource conferred by phone
with the ASTM Plaintiffs regarding this motion to consolidate for the purposes of discovery, and
the ASTM Plaintiffs said they would not consent to the motion. Becker Decl. ¶ 2. The AERA
Plaintiffs stated at the hearing on January 22 that they also oppose a motion to consolidate for the
purposes of discovery. At the same time as this motion to consolidate, Public Resource files a
motion to extend the discovery cutoff in the ASTM Plaintiffs’ case to April 15, 2014. Given
some of the discovery challenges in the AERA Plaintiffs’ case, the same date would be
appropriate.
ARGUMENT
A. This Court has Broad Discretion to Consolidate Both Cases for the
Purposes of Discovery.
Rule 42(a) of the Federal Rules of Civil Procedure provides that “[i]f actions before the
court involve a common question of law or fact, the court may: (1) join for hearing or trial any or
all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to
avoid unnecessary cost or delay.” By its terms, Rule 42(a) grants the Court the option to
consolidate cases as it sees fit. “The court has broad discretion in deciding whether to
consolidate actions before it that involve ‘common question[s] of law or fact.’” Clayton v.
District of Columbia, No. 13-1316 (RWR), 2014 WL 1395057 at *1 (D.D.C. April 10, 2014)

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(citing Biochem. Pharma., Inc. v. Emory Univ., 148 F.Supp.2d 11, 13 (D.D.C. 2001). The
Court’s determination concerning consolidation can only be disturbed on appeal by a showing of
abuse of discretion. See Santucci v. Pignatello, 188 F.2d 643, 645 (D.C. Cir. 1951) (upholding
the district court’s determination to consolidate cases under Rule 42(a)).
The broad discretion under Rule 42(a) includes the discretion to consolidate cases for the
purposes of discovery only, leaving open without deciding the possibility of consolidation for the
purposes of trial. See, e.g. Blasko v. Washington Metropolitan Area Transit Authority, 243
F.R.D. 13 (D.D.C. 2007) (consolidating two cases for the purposes of discovery, and leaving
open the possibility of consolidation for trial at a later date). Moreover, consolidation is not
precluded simply because cases are at different stages of discovery. See Blasko at 16 (citing
Monzo v. Am Airlines, Inc., 94 F.R.D. 672, 673 (S.D.N.Y. 1982) and 9 Fed. Prac. & Proc.
§ 2383). Accordingly, this Court has discretion to consolidate the ASTM Plaintiffs’ case and the
AERA Plaintiffs’ case for the purposes of discovery, if it determines that consolidation is
appropriate.
B. Consolidation for the Purposes of Discovery is Appropriate in this
Instance.
When deciding whether to consolidate, courts are instructed to balance the benefits of
consolidation with any potential harm.
In considering whether to consolidate actions[] [t]he court should consider whether
judicial efficiency is best served by consolidation. The court generally weighs the saving
of time and effort that consolidation would produce against any inconvenience, delay, or
expense that consolidation would cause. Courts also consider (1) whether the relief
sought varies substantially between the two actions; (2) whether defendants are being
sued in different capacities; and (3) what would be gained by consolidation and what
injury would be suffered by failure to consolidate.
Clayton v. District of Columbia, No. 13-1316 (RWR), 2014 WL 1395057 at *1 (D.D.C. April 10,
2014) (quoting Frederick v. S. Star Cent. Gas Pipeline, Inc., No. 10-1063-JARDJW, 2010 WL
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4386911, at *2 (D.Kan. Oct. 29, 2010)) (quotation marks omitted). A similar formulation states
that courts should “weigh the risk of prejudice and confusion wrought by consolidation against
the risk of inconsistent rulings on common factual and legal questions, the burden on the parties
and the court, the length of time, and the relative expense of proceeding with separate lawsuits if
they are not consolidated.” Royer v. Fed. Bureau of Prisons, 292 F.R.D. 60, 61 (D.D.C. 2013)
(quoting Nat’l Ass’n of Mort. Brokers v. Bd. of Governors of the Fed. Reserve Sys., 770
F.Supp.2d 283, 286 (D.D.C. 2011)) (internal quotations omitted).
Here, the benefits from consolidating these two cases for the purposes of discovery in
terms of efficiency and limiting burden on parties and witnesses would outweigh whatever
minimal prejudice and confusion that might result. Public Resource faces suit in the same
capacity in both cases, and plaintiffs seek substantively identical relief (an injunction on posting
standards that have been incorporated into the law). Similarly, Public Resource seeks
substantively identical declaratory judgment relief as to all plaintiffs in both cases.
Public Resource is a small non-profit, one-man operation, which depends upon pro bono
representation in two separate lawsuits by six large, well-funded plaintiffs. Public Resource and
its counsel have strived to proceed diligently with discovery, but disparate requests and
obligations in two uncoordinated cases have placed Public Resource in a difficult position. If
these cases are consolidated for the purposes of discovery, the coordination of dates, hearings,
and obligations would ensure more organized and efficient dealings with both sets of plaintiffs.
Public Resource’s non-profit status and pro-bono representation are especially important in this
context. Public Resource has limited funds for flying counsel to Washington D.C. for frequent
court appearances and depositions, and the plaintiffs have indicated that they want depositions to

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occur in numerous cities up and down the east coast. Consolidation would help to limit the
number of dates that counsel would need to fly cross-country.
“[C]onsolidation is particularly appropriate when the actions are likely to involve
substantially the same witnesses and arise from the same series of events or facts.” Blasko v.
Washington Metropolitan Area Transit Authority, 243 F.R.D. 13 (D.D.C. 2007) (citing Davis v.
Buffalo Psychiatric Ctr., Nos. CIV-81-458E, CIV-82-218E, 1988 WL 47355, at *1 (W.D.N.Y.
May 10, 1988)). Where, as here, many of the facts at issue and some of the parties that will be
deposed are common to both cases, consolidation for the purposes of discovery would ensure
the most expeditious resolution and also benefit plaintiffs, defendant, and third parties alike.
Certain persons, such as Carl Malamud, will need to be deposed in both the AERA Plaintiffs’
case and ASTM Plaintiffs’ case, and the subjects they will most likely discuss will be identical
except for particular details. Consolidating the cases would eliminate redundant
depositions.Consolidation for the purposes of discovery would also conserve the Court’s time for
the very same reason. The purpose of consolidation is to advance judicial economy and
efficiency and “relieve the parties[] and the [c]ourt of the burden of the burden of duplicative
pleadings and [c]ourt orders.” Blasko at 15 (citing New York v. Microsoft Corp., 209 F.Supp.2d
132, 148 (D.D.C. 2002)). The Court would avoid having to address similar or identical questions
in both cases during multiple hearings. Moreover, the Court would also avoid the possibility of
inconsistent discovery rulings on common factual or legal questions that might otherwise lead to
disparate results at summary judgment or trial.
Although plaintiffs for both cases oppose consolidation for the purposes of discovery, the
plaintiffs will not suffer prejudice by consolidation. In fact, plaintiffs appear to be coordinating
their cases to some extent already. As counsel for AERA revealed at the hearing on January

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22nd when he addressed the ASTM Plaintiffs’ concern with obtaining a deposition date for Carl
Malamud, the AERA plaintiffs and ASTM plaintiffs are presently communicating with each
other and sharing information about their respective cases. Moreover, on January 26, just four
days after the AERA Plaintiffs informed this Court that they opposed consolidation for the
purposes of discovery on the grounds that the cases lacked sufficient commonalities, they served
Public Resource with a request for production for all discovery responses, deposition transcripts,
and exhibits from the ASTM Plaintiffs’ case. Becker Decl. ¶ 3, Exh. 1. For this reason,
consolidation of these cases for the purposes of discovery should not prejudice plaintiffs.
Consolidation for the purposes of discovery is particularly appropriate in instances such
as this where it is too early to determine whether the factors supporting consolidation for trial
will outweigh any factors against consolidation, and where discovery is likely to clarify whether
consolidation for trial would be beneficial. See Blasko at 14, 16-17. Although both cases share
the potentially determinative legal question as to whether posting standards incorporated by
reference into federal law does not violate copyright law, Public Resource has recently received
documents from the ASTM Plaintiffs that suggest that the case may be determined on the
grounds of lack of copyright ownership and standing. Public Resource believes similar
deficiencies may exist with regard to the AERA Plaintiffs’ copyrights, but it cannot be certain
until it reviews documents that the AERA plaintiffs have yet to produce. This is similar to the
case Blasko v. Washington Metropolitan Area Transit Authority, where the court granted a
motion to consolidate for the purposes of discovery but denied without prejudice a motion to
consolidate for trial, recognizing that although many witnesses and facts were common between
the two cases, the possibility of differences in the damages claims between the two plaintiffs
might require distinct evidentiary support. 243 F.R.D. 13, 16-17 (D.D.C. 2007).

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C. If Both Cases Are Consolidated for the Purpose of Discovery, the Court
Should Revisit the Total Number of Depositions Allowed to Defendants.
Consolidation does not alter the rights that are available to either plaintiffs or defendant.
“[C]onsolidation is a purely ministerial act which . . . relieves the parties and the Court of the
burden of duplicative pleadings and Court orders.” Clayton v. District of Columbia, No. 13-1316
(RWR), 2014 WL 1395057 at *1 (D.D.C. April 10, 2014) (quoting New York v. Microsoft Corp.,
209 F.Supp.2d 132, 148 (D.D.C. 2002)) (quotation marks omitted). “[C]onsolidation is
permitted as a matter of convenience and economy in administration, but does not merge the
suits into a single cause, or change the rights of the parties, or make those who are parties in one
suit parties in another.” Id. (quoting Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97
(1933)) (quotation marks omitted).
Although Public Resource believes that consolidation for the purpose of discovery will
limit the need for duplicative depositions, Public Resource believes that it will nonetheless need
to take more than ten depositions, considering the fact that both cases involve six plaintiff
organizations with large staffs, as well as numerous third parties, and owing to the many
individuals listed on plaintiffs’ initial disclosures. In its motion to extend the discovery deadline
in the ASTM Plaintiffs’ case, Public Resource is also moving for leave to take more than ten
depositions in that case. Defendants ask that the Court take this into account in light of the
motion to extend discovery in the ASTM Plaintiffs’ case. (It is not yet clear how many
depositions the AERA Plaintiffs’ case will need.) Consolidation of both cases for the purposes of
discovery should promote efficiency by eliminating redundant depositions, but the Court should
consider the overall number of depositions in light of the needs of both cases, and revisit the

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question of the total number of depositions upon a determination of the motion for leave to take
additional depositions.
CONCLUSION
For the reasons above, Public Resource respectfully requests the Court consolidate both
the ASTM Plaintiffs’ case and the AERA Plaintiffs’ case for the purposes of discovery and
address the number of overall depositions upon a determination of the motion for leave to take
additional depositions.

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Date: January 29, 2015

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]
Matthew B. Becker (pro hac vice)
[e-mail]
801 California Street
Mountain View, CA 94041
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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