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 B
1:14-cv-00857-TSC-DAR

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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American Society for Testing, )
Materials, et al.
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Plaintiffs,
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vs.
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Public.Resource.Org, Inc.,
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Defendant.
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File No:
Date:
Time:

CV 13-1215

December 4, 2014
11:30 a.m.

MOTION HEARING

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American Educational
Research Association,
Inc., et al.
Plaintiffs,
vs.
Public.Resource.Org, Inc.,
Defendant.

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File No:
Date:
Time:

CV 14-857

December 4, 2014
11:30 a.m.

MOTION HEARING

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TRANSCRIPT OF MOTION HEARING
HELD BEFORE
THE HONORABLE TANYA S. CHUTKAN
UNITED STATES DISTRICT JUDGE

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____________________________________________________________

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APPEARANCES:
For the Plaintiff:

J. Kevin Fee (ASTM)
Morgan, Lewis
1111 Pennsylvania Avenue N.W.
Washington, D.C. 20004

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Kelly Klaus (NFPA)
Munger, Tolles & Olson, LLP
560 Mission Street
27th Floor
San Francisco, CA 94105-2907

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Jonathan Hudis (AERA, APA, NCME)
Kathleen Cooney-Porter
Oblon, Spivak
1940 duke Street
Alexandria, VA 22314

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Kenneth Steinthal (ASHRAE)
King & Spalding, LLP
101 Second Street
Suite 2300
San Francisco, CA 94105

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For the Defendant:

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Court Reporter:

Mitchell Stoltz
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
Janice Dickman, RMR, CRR
Official Court Reporter
U.S. Courthouse, Room 6523
333 Constitution Avenue, NW
Washington, DC 20001
202-354-3267

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THE COURT:

Please come forward.

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MR. HUDIS:

Good morning, Your Honor.

Jonathan

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Hudis for the plaintiffs in the 857 case, AERA, APA, and

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NCME.

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MS. COONEY-PORTER:

Kathleen Cooney-Porter from

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Oblon, Spivak, same plaintiffs.

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THE COURT:

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Mr. Stoltz, are you here on that case

as well?
MR. STOLTZ:
THE COURT:

Yes, I am, Your Honor.
We have Miss Cooney-Porter and Mr.

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Hudis for the 857, we have Mr. Fee, Mr. Klaus.

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somebody else?

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MR. STEINTHAL:

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THE COURT:

And is there

Mr. Steinthal.

Your name wasn't on the list.

Okay.

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I can't promise I'm going to remember all of this, but I'm

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going to do my best.

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First question I need to ask is, obviously, these

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cases have not been consolidated.

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doesn't appear that they have to be.

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the parties if they want them consolidated?

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MR. HUDIS:

And under the rules, it

No, Your Honor.

But I'm going to ask

On behalf of the

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plaintiffs in the 857 case, no, we do not want

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consolidation.

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THE COURT:

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MR. STOLTZ:

Okay.

That's fine.

Your Honor, on behalf of Public

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Resource, we also do not want them consolidated.
THE COURT:

Great.

We're a consensus.

We will

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not consolidate the cases.

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motion for a jury -- motion to strike the jury demand.

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arguments are similar in the case.

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from -- who wants to go first?

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MR. HUDIS:

We settled on Mr. Fee.

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THE COURT:

All right.

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But we are here on the joint
The

And so let me hear

Maybe I'll do it that way.

Mr. Fee, you drew the

short straw.
MR. FEE:

Thank you, Your Honor.

As you know,

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this case involves three not-for-profit standards

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development organizations that write standards to encourage

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consistent practices among private actors, with the goals of

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advancing public safety, ensuring compatibility, and

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spurring innovation.

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are underwritten, at least in part, by the licensing and

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sale of the standards that are written by these SDOs, as

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they're called.

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The cost of creating these standards

From time to time government entities incorporate

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by reference some of these standards.

You know, any

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government throughout the United States.

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circumstances, the SDOs make sure that these standards are

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reasonably available to the public.

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ASTM provides access to all standards that are incorporated

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by reference by the federal government on a free online

And in those

Just by way of example,