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

Filing 67

MOTION to Strike #60 the declaration of Kurt P. Geisinger by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Memorandum in Support of Defendant-Counterclaimant Public.Resource.Orgs Motion to Strike [PUBLIC], #2 Declaration of Matthew Becker [PUBLIC], #3 Exhibit 1 (Filed Under Seal), #4 Exhibit 2 (Filed Under Seal), #5 Exhibit 3, #6 Exhibit 4, #7 Exhibit 5, #8 Exhibit 6 (Filed Under Seal), #9 Exhibit 7 (Filed Under Seal), #10 Exhibit 8, #11 Exhibit 9, #12 Exhibit 10, #13 Exhibit 11, #14 Exhibit 12, #15 Exhibit 13, #16 Exhibit 14, #17 Exhibit 15, #18 Exhibit 16, #19 Text of Proposed Order, #20 Certificate of Service)(Bridges, Andrew) Modified on 1/21/2016 linkage and text(td).

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,
Defendant.

Case No. 1:14-CV-00857-TSC-DAR
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG’S MOTION
TO STRIKE ECF NO. 60-88, THE
DECLARATION OF KURT F.
GEISINGER IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND
PERMANENT INJUNCTION
Action Filed: May 23, 2014

[PUBLIC VERSION]

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................1
I.

LEGAL STANDARD..........................................................................................................1

II.

GEISINGER IS NOT QUALIFIED TO OPINE AS AN EXPERT ON THE
ECONOMICS OF PUBLISHING OR PLAINTIFFS’ ORGANIZATIONAL
PRIORITIES. .......................................................................................................................4

III.

NONE OF GEISINGER’S OPINIONS SATISFY FEDERAL RULE OF
EVIDENCE 702 AND MOST ARE UNTIMELY. .............................................................6
A.

Geisinger’s Opinion That Public Resource Caused a Decrease in
Plaintiffs’ Revenues Should Be Stricken. ................................................................6

B.

Geisinger’s Opinion Concerning Plaintiffs’ Inability to Reasonably
Calculate Lost Revenues Should Be Stricken. .......................................................11

C.

Geisinger’s Opinion Concerning Plaintiffs’ Use of Revenues Should
Be Stricken. ............................................................................................................12

D.

Geisinger’s Opinion Concerning the Plaintiffs’ Likelihood of
Developing Future Updates to the Standards Should Be Stricken. .......................14

E.

Geisinger’s Remaining Opinions Should Be Stricken. ..........................................17

CONCLUSION ..............................................................................................................................18

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TABLE OF AUTHORITIES
Page(s)
CASES 
Aguilar v. Int’l Longshoremen’s Union Local No. 10,
966 F.2d 443 (9th Cir. 1992) .....................................................................................................4
Aventis Envt’l Science USA LP v. Scotts Co.,
383 F. Supp. 2d 488 (S.D.N.Y. 2005)........................................................................................2
Baker v. Urban Outfitters, Inc.,
254 F. Supp. 2d 346 (S.D.N.Y. 2003)....................................................................................3, 5
Brainard v. American Skandia Life Assur. Corp.,
432 F.3d 655 (6th Cir. 2005) .....................................................................................................2
Ciomber v. Co-op. Plus, Inc.,
527 F.3d 635 (7th Cir. 2008) .................................................................................................2, 6
Cooper v. Brown,
510 F.3d 870 (9th Cir. 2007) .....................................................................................................3
Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993) ...................................................................................................................3
In re APA Assessment Fee Litig.,
766 F.3d 39 (D.C. Cir. 2014) ...................................................................................................10
In re TMI Litig.,
193 F.3d 613 (3d Cir. 1999), as amended, 199 F.3d 158 (3d Cir. 2000).............................3, 13
Interplan Architects, Inc. v. C.L. Thomas, Inc.,
No. 4:08-CV-03181, 2010 WL 4065465 (S.D. Tex. Oct. 9, 2010) .......................................2, 5
Kozak v. Medtronic, Inc.,
512 F. Supp. 2d 913 (S.D. Tex. 2007) .................................................................................4, 14
Kron v. Moravia Cent. Sch. Dist.,
5 Fed. Appx. 60 (2d Cir. 2001) ..................................................................................................7
Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999) ...............................................................................................................2, 3
LifeWise Master Funding v. Telebank,
374 F.3d 917 (10th Cir. 2004) ...................................................................................................2

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TABLE OF AUTHORITIES
(Continued)
Page(s)
Meister v. Med. Eng’g Corp.,
267 F.3d 1123 (D.C. Cir. 2001) .................................................................................................2
Mukhtar v. Cal. State Univ.,
299 F.3d 1053 (9th Cir. 2002), as amended 319 F.3d 1073 (9th Cir. 2003) .............................3
Safeco Ins. Co. of Am. v. S & T Bank,
No. 2:07-cv-01086, 2010 WL 786257 (W.D. Pa. Mar. 3, 2010) ...............................................7
Unger v. Amedisys Inc.,
401 F.3d 316 (5th Cir. 2005) .....................................................................................................7
Wannall v. Honeywell Intern., Inc.,
292 F.R.D. 26 (D.D.C. 2013).....................................................................................................6
Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc.,
254 F.3d 706 (8th Cir. 2001) .....................................................................................................2
Wilder Enters., Inc. v. Allied Artists Pictures Corp.,
632 F.2d 1135 (4th Cir. 1980) ...................................................................................................7
Young v. Burton,
567 F. Supp. 2d 121 (D.D.C. 2008) aff’d, 354 Fed. Appx. 432 (D.C. Cir.
2009) ..........................................................................................................................................7
Zaremba v. GMC,
360 F.3d 355 (2d Cir. 2004).......................................................................................................2
RULES
Fed. R. Civ. P. 26 .........................................................................................................................1, 2
Fed. R. Civ. P. 37 .............................................................................................................1, 2, 11, 12
Fed. R. Civ. P. 56(c) ........................................................................................................................1
Fed. R. Evid. 702 ...............................................................................................................1, 2, 3, 12
OTHER AUTHORITIES
Robert L. Dunn, RECOVERY OF DAMAGES FOR LOST PROFITS, § 1.6 (6th ed. 2005) .....................11

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INTRODUCTION
Public Resource objects and moves to strike the Declaration of Kurt F. Geisinger in
support of Plaintiffs’ motion for summary judgment (ECF No. 60-88) (“G. Decl.”) and the
opinions and facts within it upon which Plaintiffs rely for their Motion for Summary Judgment
and Permanent Injunction, or any other purpose in this action.
Geisinger represents himself as an expert on psychometric testing. In his Expert Report,
Geisinger focused his opinions on the quality and importance of the standards to the testing
community. Plaintiffs did not, however, rely on Geisinger’s expert report to support their motion
for summary judgment, but a new declaration that raises facts and opinions that were not
disclosed in his report, that fall outside of Geisinger’s area of qualification, and lack any reliable
foundation. The testimony in his declaration, in contrast to his report, focuses on the effect that
Public Resource’s posting of the 1999 Standards had on Plaintiffs’ revenue and on Plaintiffs’
need for revenue to continue updating the standards. Geisinger is not an economist and lacks the
qualifications to analyze Plaintiffs’ sales data. His opinion that Plaintiffs will cease updating the
standards rests on the self-serving statements of Plaintiffs’ executives and his own unqualified
and unreliable assumptions about Plaintiffs’ future revenue.
Geisinger’s testimony should be stricken as inadmissible under Federal Rules of Civil
Procedure 26 and 37 and Federal Rule of Evidence 702.
ARGUMENT
I.

LEGAL STANDARD
On summary judgment, the Court must only consider admissible evidence. Fed. R. Civ.

P. 56(c). Geisinger’s declaration is not based on his percipient knowledge and therefore must
satisfy the requirements of Federal Rule of Evidence 702, which requires that he be qualified,
that his testimony is helpful to the trier of fact, that his testimony is based on sufficient facts or

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data, that his testimony be the product of reliable principles and methods, and that he reliably
applied the principles and methods to the facts of this case. The party offering the expert’s
testimony must establish by a preponderance of the evidence that the expert testimony is
admissible and that the expert is qualified. Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1127 n.
9 (D.C. Cir. 2001); Zaremba v. GMC, 360 F.3d 355, 358 (2d Cir. 2004); Aventis Envt’l Science
USA LP v. Scotts Co., 383 F. Supp. 2d 488, 513 (S.D.N.Y. 2005).
Under Federal Rule of Civil Procedure 26, parties must disclose the identity of specially
retained witnesses and a complete report of all the witness’s opinions and the basis and reasons
therefore. Opinions, facts, and data not included in the report are automatically excluded under
Federal Rule of Civil Procedure 37. See Ciomber v. Co-op. Plus, Inc., 527 F.3d 635 (7th Cir.
2008) (affirming exclusion of expert testimony opposing a motion for summary judgment that
exceeded the scope of the expert’s report). Brainard v. American Skandia Life Assur. Corp., 432
F.3d 655 (6th Cir. 2005) (excluding expert affidavit that was substantially different than report).
Concerning the substance of testimony under Federal Rule of Evidence 702, an important
part of a district court’s “gatekeeping role” is “ensuring that the actual testimony does not exceed
the scope of the expert’s expertise, which if not done can render expert testimony unreliable
under Rule 702, Kumho Tire, and related precedents.” Wheeling Pittsburgh Steel Corp. v.
Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001). (finding trial court abused its
discretion is allowing expert to opine outside his area of expertise). LifeWise Master Funding v.
Telebank, 374 F.3d 917, 928 (10th Cir. 2004) (expert excluded for lacking familiarity with
methods to model damages). Similarly, a small number of personal experiences does not qualify
a witness to render expert opinions. See Interplan Architects, Inc. v. C.L. Thomas, Inc., No. 4:08CV-03181, 2010 WL 4065465, at *13 (S.D. Tex. Oct. 9, 2010) (excluding opinion on industry

2

custom based on experience with only two architects); Baker v. Urban Outfitters, Inc., 254 F.
Supp. 2d 346, 354 (S.D.N.Y. 2003) (excluding agent as expert on licensing where agent’s
experience was primarily in commissions and agent had experience with only four licensing
transactions).
To be admissible, expert testimony must “rest[] on a reliable foundation.” Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 580 (1993); see also Kumho Tire Co. v. Carmichael,
526 U.S. 137, 147 (1999) (applying the requirements of Daubert to all expert testimony). Among
the factors to consider are “(1) whether a scientific theory or technique can be (and has been)
tested; (2) whether the theory or technique has been subjected to peer review and publication; (3)
the known or potential rate of error and the existence and maintenance of standards controlling
the technique’s operation; and (4) whether the technique is generally accepted.” Cooper v.
Brown, 510 F.3d 870, 943 (9th Cir. 2007), citing Daubert, 509 U.S. at 593–94. “Maintaining
Daubert’s standards is particularly important considering the aura of authority experts often
exude[.]” Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063 (9th Cir. 2002), as amended 319
F.3d 1073 (9th Cir. 2003), overruled in irrelevant part by Estate of Barabin v. AstenJohnson,
Inc., 740 F.3d 457, 467 (9th Cir. 2014) (en banc)).
Finally, an expert must reliably apply the foundational principles and methods to the facts
of the case. “Whether the situation is a proper one for the use of expert testimony is to be
determined on the basis of assisting the trier.” Fed. R. Evid. 702, Adv. Comm. Notes. “The
expert’s testimony must ‘fit,’ and admissibility depends, in part, on a connection between the
expert opinion offered and the particular disputed factual issues in the case. Fit is not always
obvious, and scientific validity for one purpose is not necessarily validity for other unrelated
purposes.” In re TMI Litig., 193 F.3d 613, 670 (3d Cir. 1999), as amended, 199 F.3d 158 (3d Cir.

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III.

NONE OF GEISINGER’S OPINIONS SATISFY FEDERAL RULE OF
EVIDENCE 702 AND MOST ARE UNTIMELY.
A.

Geisinger’s Opinion That Public Resource Caused a Decrease in Plaintiffs’
Revenues Should Be Stricken.

Geisinger opines: “For a publication with the longevity of the 1999 Standards, one
otherwise would expect to see a gradual decline in sales year-over-year; not the precipitous drop
in sales experienced by the 1999 Standards in 2012 and 2013.” G. Decl. ¶ 25. He attributes at
least some of that decline to Public Resource posting the 1999 Standards online in 2012. G. Decl.
¶ 24.
First, these facts and opinions do not appear in Geisinger’s expert report.

Testimony not disclosed in an expert’s report is
excluded automatically. Wannall v. Honeywell Intern., Inc., 292 F.R.D. 26 (D.D.C. 2013);
Ciomber, 527 F.3d at 642.
Second, he is not qualified to render that opinion. See Section II, above.

Absent familiarity with accepted
principles and methodologies for analyzing the substitution effect of Public Resource’s posting

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Further, Geisinger did not consider any other alternative causes for the decline in sales,
despite numerous possibilities.

There is no
suggestion Geisinger considered the effect of changes in Plaintiffs’ membership. APA
membership has been in decline since 2009 and the rate of membership decline accelerated in
2011. Becker Decl. ¶ 12, Ex. 8 (APA Membership Records). APA members receive a discount
on purchasing the Standards. Becker Decl. ¶ 13, Ex. 9 (Purchase Page for 1999 Standards).
Fewer available discounts effectively increase the price of the Standards, which could decrease
sales. In addition, in late 2010, APA members filed two class actions against the APA for
deceptive membership dues. In re APA Assessment Fee Litig., 766 F.3d 39, 44 (D.C. Cir. 2014).
Those lawsuits may have alienated consumers from APA products. Finally, Geisinger did not
consider changes in education policy in the relevant timeframe. In 2012, President Obama
featured education reform in his State of the Union Address and began offering States waivers
from the No Child Left Behind Act requirements, which focused on high-stakes testing. Becker
Decl. ¶ 14, Ex. 10 (President Obama’s Address stating “stop teaching to the test”); ¶ 15, Ex. 11
(Waiver announcement stated: “No Child Left Behind has serious flaws . . . it determines
whether schools are falling behind based on test scores.”). At the same time, a brewing campaign
against high-stakes testing fomented into multiple resolutions and press articles. Id. ¶ 16–17,

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Exs. 12–13. Geisinger acknowledged that this movement has dampened AERA’s institutional
commitment to the Standards. G. Dep. 190:19–22. The changes in federal government policy and
growing antagonism towards high-stakes testing may have depressed demand for the Standards.
Geisinger also did not consider comparable events to validate his opinions concerning the
cause of Plaintiffs’ decrease in sales revenue.

As this Court is aware, ASTM, NFPA, and ASHRAE have made
many of their standards freely available online and have not shown any causal relationship with a
decline in sales revenue. Case 1:13-cv-01215-TSC (D.D.C.) ECF No. 118-1 at 1 (“Plaintiffs even
make read-only versions of these standards available for free on their websites.”).
Therefore, Geisinger’s untimely testimony on the cause of Plaintiffs’ decline in sales
revenue should be excluded.
B.

Geisinger’s Opinion Concerning Plaintiffs’ Inability to Reasonably Calculate
Lost Revenues Should Be Stricken.

Geisinger opines that Plaintiffs cannot calculate their lost revenues with “any degree of
certainty.” G. Decl. ¶ 24. That opinion does not appear in his expert report and thus must be
excluded. See G. Rep. ¶¶ 55–63; Fed. R. Civ. P. 37. Further, Geisinger is not qualified to make
that opinion because he has not demonstrated any familiarity with, or expertise in, calculating
lost revenue. This opinion intrudes on the province of the court to determine whether Plaintiffs’
alleged harm is irreparable because it is not feasible to calculate. Geisinger’s opinion is also
unreliable because economists and other qualified experts routinely calculate lost revenues from
infringement with some degree of certainty, and often do so with reasonable certainty. Robert L.
Dunn, RECOVERY OF DAMAGES FOR LOST PROFITS, § 1.6 (6th ed. 2005) (noting that most courts

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have adopted “reasonable certainty” as the standard for proving lost profits). Finally, Geisinger’s
opinion is inconsistent with his other opinion that Public Resource caused Plaintiffs to lose sales.
C.

Geisinger’s Opinion Concerning Plaintiffs’ Use of Revenues Should Be
Stricken.

Geisinger testifies that Plaintiffs do not keep revenues from sales of the Standards and
instead use those revenues to offset development and production costs and to generate funds for
subsequent revisions. Neither his declaration nor his report state what those development or
production costs have been or how those revenues generate additional funds, although Public
Resource assumes he means that the revenues are invested. He then opines that Plaintiffs’
“strategy” of using income from the sales of the Standards to offset their development and
production costs “allows the Sponsoring Organizations to develop up-to-date, high quality
Standards that otherwise would not be developed due to the time and effort that goes into
producing them.” G. Decl. ¶ 22. There are two opinions embedded in that statement. First, that
offsetting for development and production costs from sales revenue and generating additional
funds “allows” Plaintiffs to develop standards. Second, no other approach would permit
Plaintiffs to develop up-to-date, high quality standards.
Again, these opinions do not appear in Geisinger’s expert report. See G. Rep. ¶¶ 55–63.
They must therefore be excluded. Fed. R. Civ. P. 37.
These opinions should also be excluded under Federal Rule of Evidence 702. First,
Geisinger is not qualified to render an opinion on the necessity of Plaintiffs’ “strategy.” His
qualifications concerning design and evaluation of psychometric testing are not relevant to
evaluating the business justification for Plaintiffs’ use of sales revenue to pay for development
costs and generate investment returns. Nor has he provided any reason to suspect his personal
experience as an academic administrator and member of the Plaintiff organizations provides him

12

with specialized knowledge about optimal or necessary methods for financing projects generally,
or standards specifically.
Second, Geisinger has not based his opinion on sufficient facts or data. His opinion relies
on two unsupported assumptions: (1) Plaintiffs’ development and production costs are necessary;
and (2) no other funding source is available. As to the first assumption, Geisinger’s declaration
offers no facts or data about those costs whatsoever.

He has not offered an opinion on whether those expenses were necessary. As to
the second assumption, he does opine that Plaintiffs would not fund the development of the
standards from a budget reallocation or by raising membership dues. See G. Decl. ¶ 23. But he
does not consider alternative sources of funding,

He also offers no facts or data about the “time and effort that goes into
producing [the Standards].” G. Decl. ¶ 22.
Third, Geisinger did not use reliable principles or methodology to render his opinion.

Geisinger’s
uncritical acceptance of Plaintiffs’ information justifies excluding his opinions. Where the data
comes from representatives of a party and were made for purposes of litigation, “[c]ommon
sense alone suggests that such evidence is based on an unreliable source of information.” In re
TMI Litig., 193 F.3d at 698 (internal quotation marks omitted) (excluding opinion based on

13

plaintiffs’ counsel’s summaries of interviews with plaintiffs instead of review of records or
personal examination). A qualified expert using reliable principles would have at least
considered alternative financing options. Geisinger did not. Thus his opinion concerning
Plaintiffs’ “strategy” should be excluded.
D.

Geisinger’s Opinion Concerning the Plaintiffs’ Likelihood of Developing
Future Updates to the Standards Should Be Stricken.

Geisinger testifies that “Without the sales revenue from prior Standards versions (because
– if Public Resource succeeds in this litigation – this publication will be made freely available
online), it is extremely unlikely that future updates to the Standards will be undertaken.” G. Decl.
¶ 23.

Moreover, Geisinger is not qualified to render an opinion whether Plaintiffs will continue
to update the Standards. Geisinger is not an economist, an accountant, or a sales executive. Nor
is he an expert in the politics of professional organizations or corporate entities. His opinions do
not rest on his qualifications concerning the design and evaluation of psychometric testing. See
Kozak, 512 F. Supp. 2d at 919 (excluding orthopedic surgeon’s testimony concerning future sales
of orthopedic surgery products for lack of qualifications). He has no background in evaluating
market forces and therefore cannot analyze whether the market forces fueling demand for the
current development of updates to the Standards would overcome a decline in revenue for sales
of future standards. He further has no qualifications to determine the effect of online availability
of versions of the Standards incorporated by reference into law on Plaintiffs’ revenue. And he

14

revenue drops to zero is unreliable, his opinion should be excluded entirely, even if the Court
accepts that there would be a decline in the amount of sales revenue.
Geisinger has not identified any reliable principles or methodology for evaluating
Plaintiffs’ probable responses to the free, online availability of the Standards. Those responses
could include decreasing the price of the Standards, including explanatory material that is not
incorporated by reference into law, issuing updates more frequently, or seeking alternative
sources of funding. Geisinger cherry-picks two funding alternative strawmen—budget
reallocations and raising membership dues—to knock down, but offers no explanation for why
he considered those potential responses over others.
As to his opinions concerning why Plaintiffs would not fund future development of the
Standards from other sources, his opinions do not flow from any accepted principles or
methodology. It appears he once again relied, uncritically, on information from Plaintiff’s senior
executives. G. Dep. 255:23–256:25. He has not identified any principles for how multiple
organizations address the introduction of free or lower-cost substitutes to the market. He also
appears to assume that the Plaintiffs will not cooperate to find an acceptable solution. Instead, he
presents reasons why each organization cannot, individually, pay for the standards. G. Decl. ¶ 23.
Moreover, Geisinger ignores that Plaintiffs currently have sufficient funding to update the
standards for decades.

Plaintiffs update the Standards
approximately every 15 years. G. Rep. ¶ 39. Even assuming that development costs marginally
increase over time, Plaintiffs already have enough money to pay for two or three revisions of the

16

standards, spanning the next 45 years. Moreover, Plaintiffs will continue to earn revenue from
sales of the 2014 Standards both before and after they are incorporated into law (if that actually
happens), adding further to Plaintiffs’ fund for future revisions.
E.

Geisinger’s Remaining Opinions Should Be Stricken.

Geisinger’s opines that Plaintiffs suffered past harm from Public Resource’s “misuse of
Plaintiffs’ intellectual property.” G. Decl. ¶ 26. It is unclear if he means anything by this that is
distinct from his opinions concerning allegedly lost revenue. If he does mean something distinct,
he has failed to provide sufficient facts or data to illustrate and non-economic harm.
Geisinger further opines that if Public Resource prevails, the public will be harmed by
“uncontrolled publication of the 1999 Standards without any notice that those guidelines have
been replaced by the 2014 Standards.” G. Decl. ¶ 27. Although it is not entirely clear from the
declaration, in Geisinger’s report he claimed that because “unsuspecting people” might
incorrectly believe the 1999 Standards are the current standards, making the 1999 Standards
available at all would harm the public. G. Rep. ¶ 62. Yet Geisinger’s declaration and report both
lack any reliable foundation for that conclusion. Geisinger admits that he is not aware of any
instance where a member of the public encountered the 1999 Standards after the 2014 Standards
were published and believed the 1999 Standards were the current standards. G. Dep. 250:24. He
has no evidence that anyone has ever detrimentally relied upon that error, despite versions of the
standards being available in libraries and on the secondary market. G. Dep. 244:4–13 (libraries);
244:21–245:5 (used books). And he has no qualifications to make assumptions about what
people will or will not assume if they happen upon the 1999 Standards online.
Finally, Geisinger testifies as to facts and his opinions concerning the advantages of the
Standards. G. Decl. ¶ 17–21. This testimony is not relevant to this matter and therefore not
helpful to the trier of fact. The advantages of the currently published Standards do not determine
17

whether Plaintiffs can hold and assert copyright in the 1999 Standards, whether Plaintiffs were
harmed by Public Resource posting the 1999 Standards online, or even whether an injunction
would be in the public interest. To the extent that the advantages of the standards have any
relevance, it would be conditional on a showing that Public Resource will cause them to cease to
exist. Given the shortfalls in Geisinger’s testimony on that causal link, his remaining testimony is
unhelpful and therefore is inadmissible.
CONCLUSION
Nearly all of Geisinger’s testimony in his declaration supporting Plaintiffs’ motion for
summary judgment exceeds the scope of his expert report and his domain of expertise. The
remaining testimony—concerning the advantages of the standards—is not relevant without
credible evidence that Public Resource’s acts will cause Plaintiffs to stop developing the
Standards. Geisinger’s new testimony on that issue, however, is entirely unreliable. For those
reasons, Geisinger’s declaration should be stricken in its entirety, as well as all portions of
Plaintiffs’ memorandum in support of their motion for summary judgment that cite to or rely on
his testimony.

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Dated: January 21, 2016

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Sebastian E. Kaplan (pro hac vice pending)
[e-mail]
Matthew Becker (admitted)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

SF/5546706.6

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