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

Filing 58

PROPOSED BRIEFING SCHEDULE and Joint Report of the Parties, submitted by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC.. (Attachments: #1 Exhibit A - Plaintiffs' Proposed Order, #2 Exhibit B - Defendant's 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/Counterclaim Plaintiff.

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Civil Action No. 1:14-cv-00857-TSC-DAR
JOINT REPORT ON PROPOSED
SUMMARY JUDGMENT BRIEFING
SCHEDULE

Pursuant to the Court’s Order of October 27, 2015, requesting that counsel jointly file
their proposed schedules for summary judgment briefing, 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”), and Defendant, Public.Resource.Org, Inc. (“Defendant” or “Public Resource”)
(collectively, “the Parties”), by and through undersigned counsel, respectfully submit this Joint
Report on Proposed Summary Judgment Briefing Schedule.
PLAINTIFFS’ STATEMENT AND PROPOSED SUMMARY JUDGMENT
BRIEFING SCHEDULE
The AERA Plaintiffs prosecuted this case diligently since filing their Complaint in May of
2014. Due to the AERA Plaintiffs’ diligence, discovery in this case closed on September 11,
2015. Shortly after the close of discovery, the AERA Plaintiffs began negotiations in an attempt
to agree to a reasonable summary judgment briefing schedule with Defendant. Public Resource,
however, contends that the AERA Plaintiffs should have to wait until summary judgment briefing

is complete in American Society for Testing and Materials d/b/a ASTM International et al. v.
Public.Resource.Org, Civil Action No. 1:13-cv-01215-TSC-DAR (“the ASTM case”), before
briefing in this case can begin. Defense counsel expressed concerns about the workload to be
undertaken by briefing both cases simultaneously. Defendant has since agreed to brief both
cases at the same time, on a staggered schedule. However, Defendant’s proposed staggered
schedule spans four months, far exceeding the 21-day briefing schedule provided by the Local
Rules.
The three law firms representing Defendant should be able to litigate this case and the
ASTM case on summary judgment simultaneously, without prejudicing the AERA Plaintiffs or
the ASTM Plaintiffs by delaying summary judgment briefing. This is especially true because the
two cases include similar issues. Since the issues this case and the ASTM case are similar, the
briefing schedules in the two cases should be aligned so that the Court can hear arguments on the
summary judgment motions in both cases simultaneously.
Thus, in order to align the briefing schedules in the two cases and accommodate
Defendant’s concern with concurrent summary judgment briefing, the AERA Plaintiffs proposed
the below schedule to Defendant. This schedule provides defense counsel with sufficient time
for briefing by: (i) staggering the summary judgment briefing in this case and the ASTM case by
at least two weeks, and (ii) providing extended time periods for opposition and reply briefs in
each case. Defendant, rejected this proposal, however, and continues to insist on either a
briefing schedule where opening briefs in the AERA case will not be filed until after summary
judgment in the ASTM case concludes, or a staggered briefing schedule that extends into midMarch.

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As the AERA Plaintiffs have diligently prosecuted this case, the AERA Plaintiffs should
not be prejudiced by waiting until four months after the close of discovery to begin summary
judgment briefing, or by facing an unnecessarily long summary judgment briefing schedule
because Defense counsel contends that the three law firms handling Public Resource’s case
cannot manage briefing in the two, similar, cases within a reasonable time frame. Therefore,
Plaintiffs respectfully request that the Court enter the below briefing schedule for summary
judgment; and that a joint hearing be held on all summary judgment motions filed in this case
and the ASTM case.
The AERA Plaintiffs’ summary judgment briefing schedule below also includes dates for
the filing of amicus briefs. Plaintiffs expect that amici with views on the issues raised by the
parties’ summary judgment briefs will be requesting leave of Court to file briefs. The parties
have agreed that they will not oppose any amicus filing in support of either side.

Due Date
Opening cross motions in the ASTM case

November 19, 2015

Amicus briefs in the ASTM case

December 3, 2015

Opening cross motions in the AERA case

December 3, 2015

Amicus briefs in the AERA case

December 18, 2015

Opposition briefs in the ASTM case

December 18, 2015

Opposition briefs in the AERA case

January 4, 2016

Reply briefs in the ASTM case

January 18, 2016

Reply briefs in the AERA case

February 4, 2016

Plaintiffs’ Proposed Order is attached as Exhibit A.

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DEFENDANT’S STATEMENT AND PROPOSED SUMMARY JUDGMENT
BRIEFING SCHEDULE
Public Resource humbly requests a summary judgment briefing schedule that takes into
account the inequities of these two cases.

Public Resource is a one-person nonprofit

simultaneously defending against six well-funded plaintiffs in two separate cases. Public
Resource has pro bono representation, while the plaintiffs are collectively represented by five
law firms. Citing the complexity of the case and the number of issues and parties involved, the
plaintiffs in the ASTM case demanded that Public Resource agree to increase the length of
opening and opposition briefs in that case to 60 pages—additional briefing that Public Resource
will have to respond to in limited time and with limited resources.
Public Resource, like the plaintiffs, is eager to proceed to summary judgment. However,
fundamental fairness requires a briefing schedule that allows adequate time to respond to and
advance the myriad issues at play in this case. Accordingly, Public Resource has proposed dates
that ensure the matter can be resolved expeditiously but with a fair opportunity for full
development of the issues. The plaintiffs in the two cases, by contrast, have worked out a
schedule that is convenient for them, but places significant and unfair burdens on the Public
Resource.
Public Resource’s pro bono counsel cannot prepare and respond to summary judgment
briefing in both cases simultaneously. Recognizing this, Public Resource reached out to counsel
for plaintiffs in both cases at the start of October, with the hope of agreeing on a schedule
without the intervention of the Court.
Unfortunately, this gesture of cooperation was taken by the plaintiffs as an opportunity
for gamesmanship. Public Resource originally proposed briefing the ASTM case in November
and December, and then briefing the AERA case beginning in January, but the plaintiffs in the

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AERA case rejected this proposal, stating that they did not want the ASTM case to be decided
first. Public Resource then offered to stipulate to a request for summary judgment hearings to be
held jointly in both cases after the AERA case was fully briefed, but the plaintiffs in the AERA
case rejected this offer as well (with counsel stating that the plaintiffs had “no substantive
reason” why they could not wait until January, but that it was a matter of preference).
Public Resource then offered a third proposal, where the dates for both cases would be
staggered to alternate between each case, but spacing the deadlines apart to allow Public
Resource time to respond. This schedule allowed one month for opening cross motions, one
month for opposition motions, and two weeks for reply motions. Public Resource offered this
proposal on October 14, and the plaintiffs rejected the offer six days later, on October 20. In that
email, the plaintiffs instead offered their joint proposal, which is identical to the dates they list
above. When Public Resource said this proposal did not afford it enough time, counsel for the
ASTM et al. plaintiffs cut off discussion and filed a motion with the Court. Even after the
plaintiffs filed their motion, Public Resource continued to try to reach a resolution, offering yet
another proposed schedule that is two weeks shorter than the one it previously proposed. The
plaintiffs again rejected this proposal.
The plaintiffs’ proposed schedule has overlapping deadlines that do not account for the
fact that Public Resource must meet deadlines in both cases. The plaintiffs’ schedule offers only
two weeks after opening cross motions in the ASTM case for Public Resource to draft and file
the opening cross motions in the AERA case, and these two weeks coincide with Thanksgiving.
Opposition briefs would then be due in the ASTM case just two weeks later (coinciding with
Hanukkah), and opposition briefs in the AERA case would be due just over two weeks later on
the Monday after New Year’s Day (allowing no time to visit with family during any of the

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winter holidays). Reply briefs would then be due two weeks later, on Martin Luther King Jr.
Day. Under the D.C. District Local Civil Rules, parties are allowed at least 17 days between
opening and opposition motions (14 days plus three days for service). FED. R. CIV. P. 6(d);
LCVR 7(b). The schedule that the plaintiffs have proposed therefore does not even provide as
much time as the Local Civil Rules provide between filing deadlines (not even accounting for the
complexity of the issues and the increased length that the plaintiffs in the ASTM case have
requested, which warrant additional time).
The plaintiffs are able to suggest these accelerated deadlines because their schedule gives
them twice as much time to prepare and respond to filings as it provides to Public Resource,
which has to fight battles on two fronts. This problem could be eliminated by having the briefing
for the ASTM case occur first, and then have the briefing for the AERA case commence once
briefing in the ASTM case has concluded. The merit of this approach is that no party would be
acutely disadvantaged (the plaintiffs in the AERA case would actually benefit from being able to
review Public Resource’s motions in the ASTM case when preparing their opening motion). The
only standard at issue in the AERA case has been taken offline by Public Resource after
agreement of the parties pending the outcome of that case, so there is no rush to reach a
judgment, and counsel for the AERA plaintiffs, Mr. Hudis, stated on October 13 that there would
be no substantive harm to them as a result of briefing their case after the ASTM case was fully
briefed.1 Public Resource has previously offered to join the plaintiffs in requesting a joint

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The plaintiffs in the ASTM case would also not be prejudiced by any delay in the decision on
the summary judgment motions, because those plaintiffs had discussed suing Public Resource
and strategized this litigation for years prior to filing suit, showing that they did not consider
there to be any urgency to this matter. While the AERA plaintiffs have admitted that there is no
substantive reason why they want their briefing to commence before January, the ASTM
plaintiffs have refused to answer Public Resource’s repeated inquiry as to why they believe that
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summary judgment hearing in both cases, so that the ASTM case is not decided before the
AERA case, and the plaintiffs appear to be in agreement on that point.2 According to the
proposal, summary briefing could proceed as follows:
Public Resource’s Primary Proposal

Due Date

Opening cross motions in the ASTM case

November 12, 2015

Amicus briefs in the ASTM case

November 19, 2015

Opposition briefs in the ASTM case

December 10, 2015

Reply briefs in the ASTM case

December 28, 2015

Opening cross motions in the AERA case

January 28, 2016

Amicus briefs in the AERA case

February 4, 2016

Opposition briefs in the AERA case

February 25, 2016

Reply briefs in the AERA case

March 10, 2016

Alternatively, Public Resource would also agree to a staggered schedule where the
deadlines for each case alternate, thereby allowing for the briefing in both cases to conclude at a
similar time in early 2016. This alternative schedule is less optimal than the primary proposal
listed above, because all six plaintiffs would benefit from having twice the amount of time that
Public Resource has to read and respond to motions. Nevertheless, Public Resource has made its
peace with the fact that any schedule proposed will necessarily advantage the plaintiffs in one
way or another, and it simply requests a schedule that gives it enough time to prepare and
summary judgment briefing cannot continue for just a month longer than the schedule they
propose.
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Public Resource had initially offered to request a joint summary judgment hearing during a
phone call with the plaintiffs on October 13. When the plaintiffs responded to Public Resource
seven days later on October 20 and rejected its proposed schedules, the counter-proposal that
plaintiffs sent included a demand that “the AERA Plaintiffs only agree to this schedule on the
condition that all parties agree to the request that the Court hold a joint summary judgment
hearing for both cases after all summary judgment motions are fully briefed.”
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respond to briefs in both cases so that there is complete briefing available for the Court’s
decision. This alternative proposed schedule is provided in case the Court finds it helpful:
Public Resource’s Alternative Proposal

Due Date

Opening cross motions in the ASTM case

November 12, 2015

Amicus briefs in the ASTM case

November 19, 2015

Opening cross motions in the AERA case

December 10, 2015

Amicus briefs in the AERA case

December 17, 2015

Opposition briefs in the ASTM case

January 14, 2016

Opposition briefs in the AERA case

February 11, 2016

Reply briefs in the ASTM case

February 25, 2016

Reply briefs in the AERA case

March 10, 2016

Public Resource humbly requests that the Court consider the difference in resources
between the parties, the significant challenges of sufficiently briefing the issues raised in this
case, and counsel’s personal interest in being able to visit with family over the winter holidays.
Public Resource’s proposed Order is attached as Exhibit B.
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Respectfully submitted,
QUARLES & BRADY, LLP
Dated: October 30, 2015

/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
QUARLES & BRADY, LLP
1700 K Street NW, Suite 825
Washington, DC 20006
Tel. [phone]
[e-mail]
Kathleen Cooney-Porter (DC Bar # 434526)
OBLON, McCLELLAND,
MAIER & NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
Tel. [phone]
Fax [phone]
[e-mail]
Attorneys for Plaintiffs-Counterclaim Defendants
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC.
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC.
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.
FENWICK & WEST LLP

Dated: October 30, 2015

/s/ Matthew B. Becker
Andrew P. Bridges (admitted)
Matthew B. Becker (Pro Hac Vice)
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
David Halperin (D.C. Bar No. 426078)
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
[e-mail]

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Mitchell L. Stoltz (D.C. Bar No. 978149)
Corynne McSherry (Pro Hac Vice)
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant-Counterclaimant
PUBLIC.RESOURCE.ORG, INC.

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CERTIFICATE OF SERVICE
I hereby certify that on October 30, 2015 the foregoing JOINT REPORT ON
PROPOSED SUMMARY JUDGMENT BRIEFING SCHEDULE was filed using the
CM/ECF system that sent notice of the filing of these documents to all counsel of record, and
was also served via e-mail to:
Andrew P. Bridges
Matthew B. Becker
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
[e-mail]
[e-mail]
David Halperin
1530 P Street NW
Washington, DC 20005
[e-mail]
Mitchell L. Stoltz
Corynne McSherry
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
[e-mail]
[e-mail]
Counsel for Defendant
PUBLIC.RESOURCE.ORG, INC.
/s/ Jonathan Hudis
Jonathan Hudis