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)

EXHIBIT A
1:14-cv-00857-TSC-DAR

1

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
AMERICAN EDUCATIONAL

.
.
RESEARCH ASSOCIATION, INC., .
.
ET AL.,
.
.
Plaintiffs,
.
.
v.
.
.
PUBLIC.RESOURCE.ORG., INC., .
.
Defendant.
.
. . . . . . . . . . . . . . .

Case No. 1:14-CV-00857
(TSC/DAR)
Washington, D.C.
January 22, 2015

HEARING ON PLAINTIFFS’ AMENDED MOTION TO COMPEL
(DOC. #27)
BEFORE THE HONORABLE DEBORAH A. ROBINSON
UNITED STATES MAGISTRATE JUDGE
APPEARANCES:
For the Plaintiffs:

Oblon, McClelland, Maier
& Neustadt, LLP
By: JONATHAN HUDIS, ESQ.
KATHLEEN COONEY-PORTER,
ESQ.
1940 Duke Street
Alexandria, VA 22314

For the Defendant:

Fenwick & West, LLP
By: MATTHEW B. BECKER, ESQ.
801 California Street
Mountain View, CA 94041

_ _ _ _ __ _ _ _ __ _ _ _ __ _ _ _ ____________________________________________________
B O W LE S R EP O R T IN G S E R V IC E
255 R oute 12, S uite 1
G A L ES FE R R Y , C O N N E C T IC U T 06335 - [phone]
brs-ct@ sbcglobal.net

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Public.Resource.Org.

2

THE COURT:

3

MR. BECKER:

Very well.

Please, proceed.

So as an initial matter, Your

4

Honor, we do believe that the cases should be

5

consolidated for the purposes of discovery.

6
7

THE COURT:

And let me ask you to please

articulate the basis of that request.

8

MR. BECKER:

9

THE COURT:

Yes.
I've heard from counsel for

10

Plaintiffs regarding, I think we can call it their

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strenuous objection to such process.

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the state of the record is that the cases are assigned

13

to the same District Judge as related cases; that is,

14

the mere fact that the District Judge did not

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consolidate the cases does not mean that this Court

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could not consolidate for purposes of discovery, so

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that is what I'll ask you to address, with that

18

background in mind.

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MR. BECKER:

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THE COURT:

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MR. BECKER:

We recognize that

Yes, Your Honor.
Now, please continue.
As you are aware, we have a

22

parallel case going on, the ASTM case, and that case

23

has produced -- has, in itself, been a great deal of

24

work.

25

about getting a discovery extension in that case, until

We are actually about to approach Judge Chutkan

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April 15th, and their -- we've encountered significant

2

issues in that case which, as have been noted, have

3

parallel legal issues to this one.

4

In that case we’ve discovered that where we

5

thought that the case would be decided on just a narrow

6

issue, we’ve instead found that there's significant

7

reason to believe that the Plaintiffs do not actually

8

own the copyright for the works that they claim and --

9

but in doing so, this has been a very document-

10

intensive process, and has required a great deal of

11

effort on our part --

12

THE COURT:

Just so the record is clear, the

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ownership issue applies to the -- or your argument

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regarding the ownership issue is with respect, not to

15

this case, but the one we will call the “ASTM case,”

16

and I apologize, I do not have immediate recall of the

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number, but we will call it the “ASTM case” as opposed

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to this one.

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MR. BECKER:

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THE COURT:

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MR. BECKER:

Correct, Your Honor.
Very well.
However, we believe that similar

22

issues could be at play in this case, and we have not

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yet had the opportunity to delve into this.

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yet received any documents, and we have only just

25

received discovery responses in this case, this past

We had not

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Tuesday.

2
3
4

THE COURT:

All right.

Let me interrupt you

again.
What do you believe the Defendant would need

5

to know by way of discovery or other procedures, in

6

order to determine whether consolidation of the two

7

cases, either for discovery or for some broader

8

purpose, would be something that would be requested?

9

MR. BECKER:

So, as an initial matter, Your

10

Honor, we don't believe that we would need to know

11

anything at this point, simply because of the -- the

12

burdens of responding to and participating in the

13

discovery process, for both the parallel case and this

14

case, I believe, warrant that they should be treated in

15

tandem and consolidated for discovery purposes, as

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there's a great deal of work being put on us, and we

17

are being essentially pulled in opposite directions

18

whereas if the cases were consolidated for discovery

19

purposes, that would allow us to move forward in a more

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collected and efficient manner.

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THE COURT:

Is there authority -- Are you

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aware of authority at this time, which would -- which

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stands for the proposition that the burden of

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responding to competing or conflicting requests is a

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basis for consolidating cases for discovery?

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MR. BECKER:

Not at the moment, Your Honor,

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but I can look into that if that's something that you

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would request.

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THE COURT:

The Court's concern, of course,

5

is that if there is a basis in support of your request,

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certainly the Court must consider it.

7

have no basis to order such a consolidation because I

8

haven't been presented with authority.

9

one that I posed to both sides, believing there might

At this time I

My question was

10

be some agreement that that would be appropriate.

If

11

there had been an agreement, perhaps we would not need

12

further discussion, at least at the moment, regarding

13

how to resolve this conflict, there would be an

14

agreement, but there is no agreement.

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imperative that the Court understand the full basis of

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the Defendant’s request.

So it is

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In other words, is it a request based solely

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on the logistical problems associated with responding

19

to requests in two separate cases, or is there

20

something else --

21

MR. BECKER:

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THE COURT:

23
24
25

No, --- concerning an overlap of

issues?
MR. BECKER:

No, Your Honor.

We believe

there's also an overlap in terms of the issues from a

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1

legal perspective, most immediately the issues that are

2

being dealt with in both cases are similar, if not

3

identical.

4

We disagree with the Plaintiffs’

5

characterization that there's a difference between

6

standards and codes, or that the standards and codes

7

have been treated differently with regards to

8

incorporation by reference into law for the ASTM case

9

verses the present case, Your Honor.

10
11
12

THE COURT:

How does that affect the issues

with respect to the conduct of discovery?
MR. BECKER:

Well, with regards to the

13

conduct of discovery, Your Honor, we would -- this

14

would influence the way in which we would go forward

15

with depositions and other things, such as that -- like

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that, and will note that many of the same parties are

17

being deposed in both cases, and this may also affect

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the particular requests for production of documents and

19

the discovery that we proceed with in that matter.

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THE COURT:

Do you believe that the

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Defendant’s request will be to consolidate both cases

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for all purposes, or only for the purpose of discovery?

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MR. BECKER:

Your Honor, we are only just

24

contemplating that issue.

It may be the case that we

25

would ask for the cases to be consolidated for all

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purposes, though I can't answer specifically on that

2

point yet.

3

THE COURT:

Very well.

4

I'll ask you to please continue with your

5

discussion of the background.

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MR. BECKER:

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THE COURT:

Thank you, Your Honor.
If you are ready to address the

8

merits of the -- or the substantive issues, the

9

remaining issues that the Plaintiffs have identified,

10
11
12

you may do that.
MR. BECKER:

address the matter of the status of the litigation --

13

THE COURT:

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MR. BECKER:

15

Your Honor, if I may first

Of course.
-- and our efforts, in terms of

meeting and conferring?

16

THE COURT:

17

MR. BECKER:

Yes.
As the Plaintiffs have noted, we

18

have met and conferred many times over the past few

19

months regarding this case, and specifically regarding

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these -- the points that are noted here.

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In the process of that, we also -- there were

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ambiguities in the particular terms that Plaintiffs’

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had used in a discovery request, and we sought to

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clarify those ambiguities and set definitions.

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Public.Resource that put forward the definitions that

It was