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

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,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant.

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Civil Action No. 1:14-cv-00857-CRC
PLAINTIFFS’ INITIAL
DISCLOSURES PURSUANT TO
FED. R. CIV. P. 26(a)(1)

Plaintiffs, American Educational Research Association, Inc. (“AERA”), American
Psychological Association, Inc. (“APA”), and National Council on Measurement in Education,
Inc. (“NCME”) (collectively, “Plaintiffs”), by and through their attorneys, hereby submit the
following initial disclosures to Defendant, Public.Resource.Org, Inc. (“Public Resource”),
pursuant to Fed. R. Civ. P. 26(a)(1). Plaintiffs submit these Initial Disclosures based upon
information they have acquired to date. Plaintiffs reserve their right, consistent with Fed. R. Civ.
P. 26(e), to modify, amend, and/or supplement these disclosures as additional evidence and
information becomes available.
I.

Identities of Individuals Likely To Have Knowledge Of Discoverable Information
Who May Be Used To Support The Disclosing Party’s Claims Or Defenses1
Plaintiffs submit the following names of individuals likely to have discoverable

information that Plaintiffs may use to support their claims and/or defenses, and the subjects of
the information believed to be known by these individuals:

1

For purposes of this proceeding, all individuals identified in these Disclosures are being represented by counsel for
Plaintiffs and may be contacted only through Plaintiffs’ counsel.

1. Person: Felice Levine, Ph.D., Executive Director
Company: AERA
Address: 1430 K Street, NW, Suite 1200, Washington, D.C. 20005
Telephone: [phone]
Dr. Levine is expected to testify regarding the publication, marketing, sales, and
Plaintiffs’ copyright ownership in the Standards for Educational and Psychological Testing
(1999 ed.) (the “1999 Standards”).
2. Person: Marianne Ernesto, Director for Testing and Assessment
Company: APA
Address: 750 First Street, NE, Washington, D.C. 20002
Telephone: [phone]
Ms. Ernesto is expected to testify regarding the availability of the 1999 Standards and the
use of those Standards by practicing psychologists relating to matters of testing and assessments.
3. Person: Lauress L. Wise, Ph.D., President
Company: NCME
Address: 20 Ragsdale Drive, Suite 260, Monterey, CA 93940
Telephone: [phone]
Dr. Wise is expected to testify regarding the availability of the 1999 Standards and the
use of those Standards by individuals involved in aspects of educational measurement relating to
matters of testing and assessments.
4. Person: Diane L. Schneider, Ph.D., Senior Human Capital Consultant
Company: pdri
Address: 3000 Wilson Boulevard, Suite 250, Arlington, VA 22201
Telephone: [phone]
Dr. Schneider is expected to testify regarding the process of creating the 1999 Standards,
including the selection of the members of the Joint Committee and the role of the Joint
Committee in preparing the 1999 Standards.
5. Person: Wayne J. Camara, Ph.D., Senior Vice President, Research
Company: ACT, Inc.
Address: 101 ACT Drive, Iowa City, IA 52243
Telephone: [phone]
Dr. Camara is expected to testify regarding the development of the 1999 Standards, the
availability of the 1999 Standards and the use of those Standards by practicing psychologists
relating to matters of testing and assessments.

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6. Person: Carl Malamud, President and Founder
Company: Public.Resource.Org, Inc.
Address: 1005 Gravenstein Highway. North, Sebastapol, CA 95472
Telephone:[phone]
Mr. Malamud is expected to testify regarding Public Resource’s knowledge that the 1999
Standards were and are subject to copyright protection. Mr. Malamud also is expected to testify
regarding Public Resource’s knowledge that the 1999 Standards were replicated in digital format
for the purpose of publishing them online. Mr. Malamud further is expected to testify regarding
Public
Resource’s
publishing
of
the
1999
Standards
online
at
https://law.resource.org/pub/us/cfr/ibr/001/aera.standards.1999.pdf, as well as Public Resource’s
knowledge that The Internet Archive had published the 1999 Standards online at
https://archive.org/details/gov.law.aera.standards.1999.
7. Person: Corporate Representative from The Internet Archive
Company: The Internet Archive (Archive.Org)
Address: 300 Funston Avenue, San Francisco, CA 94118
Telephone: [phone]
The Corporate Representative from The Internet Archive is expected to testify regarding
The Internet Archive’s knowledge that the 1999 Standards were and are subject to copyright
protection. The Corporate Representative is also expected to testify regarding The Internet
Archive’s knowledge that the 1999 Standards were available at a website under Public
Resource’s control and that The Internet Archive obtained the 1999 Standards from Public
Resource’s
website
and
published
them
at
https://archive.org/details/gov.law.aera.standards.1999.
II.

Documents And Things In The Possession Of Counsel Or The Party That May Be
Used To Support The Disclosing Party’s Claims Or Defenses
Plaintiffs identify the following categories of documents and tangible things in its

possession, custody, or control that Plaintiffs may use to support their claims and/or defenses:
1. Standards for Educational and Psychological Testing (1999 ed.);
2. 1999 Copyright Certificate of Registration for Registration Number TX 5-100-196;
3. 2014 Corrected Copyright Certificate of Registration for Registration Number
TX 6-484-609;
4. Select documents pertaining to the preparation of the 1999 Standards;
5. Select documents pertaining to the advertisement of the 1999 Standards;
6. Select documents pertaining to the revenue generated from sales of the 1999
Standards;
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7. Portions
of
Public
Resource’s
website
https://law.resource.org/pub/us/cfr/ibr/001/aera.standards.1999.pdf, when a full copy
of the 1999 Standards was available online.
8. Portions of https://archive.org/details/gov.law.aera.standards.1999, when a full copy
of the 1999 Standards was available online.
9. Select documents establishing Plaintiffs’ ownership of the Standards.
These categories of documents are located at the offices of Oblon, Spivak, McClelland,
Maier & Neustadt, L.L.P., counsel for Plaintiffs, and/or at the facilities of Plaintiffs. Plaintiffs
also believe that documents in the possession, custody, or control of Public Resource, and/or
third parties, such as The Internet Archive, may be relevant to the facts and issues in this case.
The identification of the documents above is without any waiver of any right to object to
the production of any document or item pursuant to privilege, work product, or any other rule or
law that limits the discoverability of documents and physical materials.
Plaintiffs will either (1) subject to a reciprocal agreement with Public Resource, provide
Public Resource with copies of the above-identified documents, or (2) make the above-identified
documents available for inspection and/or copying at a time and place that is mutually agreeable
between Plaintiffs and Public Resource.
Plaintiffs reserve the right to identify and/or produce additional materials in the future.
Plaintiffs expressly reserve the right to identify and to rely upon additional materials if, during
the course of discovery and investigation relating to this case, Plaintiffs learn that such additional
materials are relevant to Plaintiffs’ claims.
III.

Statement of Basis for Any Damages Claimed
Plaintiffs have not made a claim for damages in this action; however, Plaintiffs reserve

the right to seek recovery of attorneys’ fees and costs incurred in connection with this action.

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IV.

Insurance Agreements
Plaintiffs are unaware of any insurance agreement under which any person carrying on an

insurance business may be liable to satisfy part or all of any judgment which may be entered in
this action against Plaintiffs or to indemnify or reimburse Plaintiffs for payments made to satisfy
said judgment. Plaintiffs reserve the right to supplement this response if additional information
becomes available.
Respectfully submitted,
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT,LLP
/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Kathleen Cooney-Porter (DC Bar # 434526)
1940 Duke Street
Alexandria, VA 22314
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]
Attorneys for Plaintiffs
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC.
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC.
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.
Dated: October 1, 2014
{431384US, 11006079_1.DOCX}

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CERTIFICATE OF SERVICE
I hereby certify that, on October 1, 2014 a copy of the foregoing PLAINTIFFS’
INITIAL DISCLOSURES PURSUANT TO FED. R. CIV. P. 26(a)(1) was served via e-mail
on the following counsel for Defendant:
Andrew P. Bridges
FENWICK & WEST LLP
555 California Street, 112th Floor
San Francisco, CA 94104
[e-mail]
David Halperin
1530 P Street NW
Washington, DC 20005
[e-mail]
Mitchell L. Stoltz
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
[e-mail]
Counsel for Defendant
PUBLIC.RESOURCE.ORG, INC.
/s/ Jonathan Hudis
Jonathan Hudis