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 - (860) 464-1083
brs-ct@ sbcglobal.net
35
1
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
11
strenuous objection to such process.
12
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
15
consolidate the cases does not mean that this Court
16
could not consolidate for purposes of discovery, so
17
that is what I'll ask you to address, with that
18
background in mind.
19
MR. BECKER:
20
THE COURT:
21
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
36
1
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
13
ownership issue applies to the -- or your argument
14
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
17
number, but we will call it the “ASTM case” as opposed
18
to this one.
19
MR. BECKER:
20
THE COURT:
21
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
23
yet had the opportunity to delve into this.
24
yet received any documents, and we have only just
25
received discovery responses in this case, this past
We had not
37
1
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
16
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
20
collected and efficient manner.
21
THE COURT:
Is there authority -- Are you
22
aware of authority at this time, which would -- which
23
stands for the proposition that the burden of
24
responding to competing or conflicting requests is a
25
basis for consolidating cases for discovery?
38
1
MR. BECKER:
Not at the moment, Your Honor,
2
but I can look into that if that's something that you
3
would request.
4
THE COURT:
The Court's concern, of course,
5
is that if there is a basis in support of your request,
6
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.
15
imperative that the Court understand the full basis of
16
the Defendant’s request.
So it is
17
In other words, is it a request based solely
18
on the logistical problems associated with responding
19
to requests in two separate cases, or is there
20
something else --
21
MR. BECKER:
22
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
39
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
16
that, and will note that many of the same parties are
17
being deposed in both cases, and this may also affect
18
the particular requests for production of documents and
19
the discovery that we proceed with in that matter.
20
THE COURT:
Do you believe that the
21
Defendant’s request will be to consolidate both cases
22
for all purposes, or only for the purpose of discovery?
23
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
40
1
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.
6
MR. BECKER:
7
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:
14
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
20
these -- the points that are noted here.
21
In the process of that, we also -- there were
22
ambiguities in the particular terms that Plaintiffs’
23
had used in a discovery request, and we sought to
24
clarify those ambiguities and set definitions.
25
Public.Resource that put forward the definitions that
It was
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