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

Filing 40

Memorandum in opposition to re #33 MOTION to Consolidate Cases Defendant-Counterclaim Public.Resource.Org, Inc.'s Motion to Consolidate for the Purposes of Discovery 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 Text of Proposed Order)(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
DECLARATION OF JONATHAN
HUDIS IN OPPOSITION TO
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
MOTION TO CONSOLIDATE FOR
DISCOVERY PURPOSES

I, JONATHAN HUDIS, declare:
1.

I am a partner with Oblon, McClelland, Maier & Neustadt, LLP, and lead counsel

to Plaintiffs, AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. (“AERA”),
AMERICAN PSYCHOLOGICAL ASSOCIATION, INC. (“APA”) and NATIONAL COUNCIL
ON MEASUREMENT IN EDUCATION, INC. (“NCME”) (collectively, the “AERA Plaintiffs”)
in the captioned action. I submit this Declaration in support of the AERA Plaintiffs’ Opposition
to Defendant-Counterclaimant Public.Resource.Org, Inc.’s (“Public Resource”) Motion to
Consolidate for discovery purposes.
2.

The parties’ counsel in the captioned action (the “AERA Case”) had their meet-

and-confer telephone conference pursuant to Fed. R. Civ. P. 26(f) on September 25, 2014, thus
triggering the opening of discovery.
3.

The Court’s scheduling Order in the AERA Case [Dkt. No. 22] set the close of

fact discovery for March 16, 2015.

4.

Public Resource first expressed possible interest in consolidating the captioned

action with American Society for Testing Materials, et al. v. Public.Resource.Org, Inc., No. 13cv-1215 (the “ASTM Case”), for discovery purposes, at the January 22, 2015 hearing on
Plaintiffs’ Motion to Compel Discovery. At no time after the January 22nd hearing did Public
Resource’s counsel inform the AERA Plaintiffs’ counsel of Public Resource’s intent to file a
motion to consolidate the captioned action with the ASTM Case for discovery prior to filing its
motion.
5.

Accompanying this Declaration as Exhibit A is a true copy of the cover page and

pages 35−39 from the transcript of the January 22, 2015 hearing on the AERA Plaintiffs’ motion
to compel discovery in the captioned action.
6.

Accompanying this Declaration as Exhibit B is a true copy of the cover page and

pages 4–5 of the transcript from the December 4, 2014 hearing on the Plaintiffs’ motion to strike
Public Resource’s Jury Demand in American Society for Testing Materials, et al. v.
Public.Resource.Org, Inc., No. 13-cv-1215 and American Educational Research Association,
Inc., et al. v. Public.Resource.Org, Inc., No. 14-cv-857.
7.

Attached as Exhibit C is a true copy of the Joint LCvR 16.3 Report [Dkt. No. 20]

filed in the AERA Case on October 9, 2014.
8.

In the AERA Case Public Resource is being represented by five attorneys of

record—Andrew P. Bridges, Mitchell L. Stoltz, Corynne McSherry, David E. Halperin, and
Matthew B. Becker. In the ASTM Case the same five attorneys are also of record—as well as a
sixth attorney, Kathleen Lu. Although not of record in the AERA Case, Ms. Lu has participated
in the AERA case on Public Resource’s behalf.
9.

David E. Halperin has an office at 1530 P Street, NW, Washington, DC 20005.

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10.

Accompanying this Declaration as Exhibit D is a true copy of the “About Us”

page of Public Resource’s website located at https://public.resource.org/about/index.html.
11.

AERA, APA, and NCME are all non-profit organizations that collaborated in the

development of the 1999 edition of the Standards for Educational and Psychological Testing (the
“1999 Standards”) at issue in this case (Complaint, AERA Case, Dkt. No. 1, ¶ 1).
12.

Accompanying this Declaration as Exhibit E is a true copy of Plaintiffs’ Initial

Disclosures in the AERA Case pursuant to Fed. R. Civ. P. 26(a)(1).
13.

The AERA Plaintiffs served their Second Set of Interrogatories and Second

Production Requests by e-mail on Defendant’s counsel on January 26, 2015. Public Resource’s
answers and responses are due on March 2, 2015.
I DECLARE, under penalty of perjury, that the foregoing is true and correct.
Dated: February 18, 2015

/s/ Jonathan Hudis
Jonathan Hudis

JH:KCP:kc {431384US, 11725475_1.DOCX}

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