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

Filing 70

LARGE ADDITIONAL ATTACHMENT(S) Index of Consolidated Exhibits In Support of Public.Resource.Org's Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction by PUBLIC.RESOURCE.ORG, INC. #69 MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 Exhibit 1, #2 Exhibit 2 [Sealed], #3 Exhibit 3 [Sealed], #4 Exhibit 4 [Sealed], #5 Exhibit 5 [Sealed], #6 Exhibit 6 [Sealed], #7 Exhibit 7, #8 Exhibit 8 [Sealed], #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11 [Sealed], #12 Exhibit 12 [Sealed], #13 Exhibit 13 [Sealed], #14 Exhibit 14 [Sealed], #15 Exhibit 15 [Sealed], #16 Exhibit 17 [Sealed], #17 Exhibit 18 [Sealed], #18 Exhibit 19 [Sealed], #19 Exhibit 20 [Sealed], #20 Exhibit 21 [Sealed], #21 Exhibit 22 [Sealed], #22 Exhibit 23 [Sealed], #23 Exhibit 24 [Sealed], #24 Exhibit 25 [Sealed], #25 Exhibit 26 [Sealed], #26 Exhibit 27 [Sealed], #27 Exhibit 28 [Sealed], #28 Exhibit 29 [Sealed], #29 Exhibit 30 [Sealed], #30 Exhibit 31, #31 Exhibit 32 [Sealed], #32 Exhibit 33 [Sealed], #33 Exhibit 34 [Sealed], #34 Exhibit 35, #35 Exhibit 36, #36 Exhibit 37, #37 Exhibit 38 [Sealed], #38 Exhibit 39, #39 Exhibit 40, #40 Exhibit 41 [Sealed], #41 Exhibit 42 [Sealed], #42 Exhibit 43 [Sealed], #43 Exhibit 44, #44 Exhibit 45, #45 Exhibit 46, #46 Exhibit 47, #47 Exhibit 48, #48 Exhibit 49, #49 Exhibit 50 [Sealed], #50 Exhibit 51, #51 Exhibit 52, #52 Exhibit 53, #53 Exhibit 54, #54 Exhibit 55, #55 Exhibit 56, #56 Exhibit 57, #57 Exhibit 58, #58 Exhibit 59, #59 Exhibit 60, #60 Exhibit 61, #61 Exhibit 62, #62 Exhibit 63, #63 Exhibit 64 [Sealed], #64 Exhibit 65, #65 Exhibit 66, #66 Exhibit 67, #67 Exhibit 68, #68 Exhibit 69, #69 Exhibit 70, #70 Exhibit 71, #71 Exhibit 72, #72 Exhibit 73, #73 Exhibit 74)(Bridges, Andrew)

EXHIBIT 62

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
PLAINTIFFS/COUNTERCLAIMDEFENDANTS’ OBJECTIONS AND
ANSWERS TO
DEFENDANT/COUNTERCLAIMPLAINTIFF’S FIRST SET OF
INTERROGATORIES (NOS. 1-10)

INTRODUCTION
Pursuant

to

Fed.R.Civ.P.

33,

Plaintiffs/Counterclaim-Defendants,

AMERICAN

EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC., and NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION,
INC. (“Plaintiffs”), provide the following objections and answers to Defendant/CounterclaimPlaintiff’s (“Defendant’s”) First Set of Interrogatories (“Defendant’s Interrogatories”).
These objections and answers are based upon the best relevant information presently
available to Plaintiffs and are made without prejudice to the right of Plaintiffs to provide
additional or modified objections and answers should better or further information or belief
subsequently become available to Plaintiffs. These answers also are provided without prejudice
to any right of Plaintiffs to offer evidence on their behalf or to object to the relevance,
competence or admissibility on any ground of any evidence or witness offered by Defendant; and
these answers do not constitute an admission of competence, or admissibility of evidence, or a
waiver of objection on any grounds.

GENERAL OBJECTIONS
Plaintiffs object to the Definitions and Instructions forming a part of Defendant’s First
Set of Interrogatories as overly broad, harassing, unduly burdensome and as imposing greater
obligations than those required by the Federal Rules of Civil Procedure.
OBJECTIONS AND ANSWERS TO INTERROGATORIES
INTERROGATORY NO. 1:

Identify every Legal Authority that you know or believe to have incorporated, in whole
or in part, either expressly or by reference, any part of the Works-At-Issue.
ANSWER:
Plaintiffs object to Defendant’s use of the phrases “every Legal Authority…” and “any
part of the Works-At-Issue…” as overly broad, harassing and unduly burdensome. Plaintiffs
also object to this Interrogatory as it is unclear by its use of the phrase “incorporated, in whole or
in part, either expressly or be reference …”. To the extent that this Interrogatory is understood,
Plaintiffs further object to this Interrogatory as irrelevant to the claims or defenses of any party in
this action and as not reasonably calculated to lead to the discovery of admissible evidence, to
the extent that it inquires about any publications other than the 1999 Standards. Plaintiffs
additionally object to this Interrogatory to the extent that it calls for information outside of
Plaintiffs’ possession, custody or control. Subject to, and without waiver of the foregoing
objections, Defendant has identified, in ¶¶ 5, 6, 56, 83 and 84 of its Answer and Counterclaim(s),
entities that Defendant believes have incorporated the 1999 Standards by reference.

This

Interrogatory calls for a legal conclusion pertaining to an issue on which the parties disagree.
Further, a mere referral or listing of the 1999 Standards by an entity does not constitute
incorporation by reference or incorporation into law.

To the extent that Plaintiffs locate

materials within their possession, custody or control that are responsive to this Interrogatory,

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pursuant to Fed.R.Civ.P. 33(d), they will produce copies of same from which an answer to this
Interrogatory may be derived.
INTERROGATORY NO. 2:
Identify every Legal Authority that you know or believe to have incorporated, in whole
or in part, either expressly or by reference, any part of the 1999 Standard.
ANSWER:
Plaintiffs object to Defendant’s use of the phrases “every legal Authority…” and “any
part of the 1999 Standard…” as overly broad, harassing and unduly burdensome. Plaintiffs also
object to this Interrogatory as it is unclear by its use of the phrase “incorporated, in whole or in
part, either expressly or by reference …”. Plaintiffs additionally object to this Interrogatory to
the extent that it calls for information outside of Plaintiffs’ possession, custody or control.
Subject to, and without waiver of the foregoing objections, Defendant has identified, in ¶¶ 5, 6,
56, 83 and 84 of its Answer and Counterclaim(s), entities that Defendant believes have
incorporated the 1999 Standards by reference. This Interrogatory calls for a legal conclusion
pertaining to an issue on which the parties disagree. Further, a mere referral or listing of the
1999 Standards by an entity does not constitute incorporation by reference or incorporation into
law. To the extent that Plaintiffs locate materials within their possession, custody or control that
are responsive to this Interrogatory, pursuant to Fed.R.Civ.P. 33(d), they will produce copies of
same from which an answer to this Interrogatory may be derived.
INTERROGATORY NO. 3:
Identify all Persons who have participated in, or have been members of, the Joint
Committee(s).
ANSWER:
Plaintiffs object to Defendant’s use of the term “participated …” and the phrase “all

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Persons…” as overly broad, harassing and unduly burdensome. Plaintiffs further object to this
Interrogatory as irrelevant to the claims or defenses of any party in this action and as not
reasonably calculated to lead to the discovery of admissible evidence, to the extent that it
inquires about any publications other than the 1999 Standards. Subject to, and without waiver of
the foregoing objections, pursuant to Fed.R.Civ.P. 33(d), Plaintiffs refer Defendant to pp. v - vii
of the Preface to the 1999 Standards, a copy of which Plaintiffs will produce and from which the
answer to this Interrogatory may be derived.
INTERROGATORY NO. 4:
Identify all Persons who participated in the development, creation, drafting, revision,
editing, transmission, publication, distribution, display, or dissemination of the Works-At-Issue
other than persons whom you have identified in ANSWER to Interrogatory No. 3.
ANSWER:
Plaintiffs object to Defendant’s use of the phrase “all Persons…” and the term
“participated …” as overly broad, harassing, and unduly burdensome. Plaintiffs also object to
this Interrogatory as irrelevant to the claims or defenses of any party in this action and as not
reasonably calculated to lead to the discovery of admissible evidence, to the extent that it
inquires about any publications other than the 1999 Standards. Subject to, and without waiver of
the foregoing objections, pursuant to Fed.R.Civ.P. 33(d), Plaintiffs refer Defendant to pp. v - vii
of the Preface to the 1999 Standards, a copy of which Plaintiffs will produce and from which the
answer to this Interrogatory may be derived.
INTERROGATORY NO. 5:
Identify all communications in which You, or anyone acting on Your behalf, Promoted
the incorporation of any of the Works-At-Issue, in whole or in part, either expressly or by
reference, in any Legal Authority.

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ANSWER:
Plaintiffs object to Defendant’s use of the phrases “all communications…”, “anyone
acting on Your behalf…” and “any of the Works-At-Issue…” as overly broad, harassing and
unduly burdensome. Plaintiffs also object to this Interrogatory as it is unclear by its use of the
phrase “incorporation … in whole or in part, either expressly or by reference ...”. To the extent
that this Interrogatory is understood, Plaintiffs further object to this Interrogatory as irrelevant to
the claims or defenses of any party in this action and as not reasonably calculated to lead to the
discovery of admissible evidence, to the extent that it inquires about any publications other than
the 1999 Standards. Plaintiffs additionally object to this Interrogatory to the extent that it calls
for information outside of Plaintiffs’ possession, custody or control. To the extent that Plaintiffs
locate materials within their possession, custody or control that are responsive to this
Interrogatory, pursuant to Fed.R.Civ.P. 33(d), they will produce copies of same from which an
answer to this Interrogatory may be derived.
INTERROGATORY NO. 6:
Identify all Contributions that any Person made to the Standards Process of the WorksAt-Issue.
ANSWER:
Plaintiffs object to Defendant’s use of the phrases “all Contributions…” and “any
Person…” as overly broad, harassing and unduly burdensome. Plaintiffs also object to this
Interrogatory as it is unclear by its use of the terms “Contributions” and “Standards Process”,
particularly as defined by Defendant. To the extent this Interrogatory is understood, Plaintiffs
further object to this Interrogatory as irrelevant to the claims or defenses of any party in this
action and as not reasonably calculated to lead to the discovery of admissible evidence, to the
extent that it inquires about any publications other than the 1999 Standards. Subject to, and

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without waiver of the foregoing objections, activities associated with the 1999 Standards include
development, creation, drafting, review, revision, editing, circulation of discussion drafts,
publication, advertising, distribution and sales.
INTERROGATORY NO. 7:
Identify all means by which the general public may Access the Works-At-Issue.
ANSWER:
Plaintiffs object to Defendant’s use of the phrase “all means…” as overly broad,
harassing and unduly burdensome. Plaintiffs also object to this Interrogatory as it is unclear by
its use of the term “Access”, particularly as defined by Defendant.

To the extent this

Interrogatory is understood, Plaintiffs further object to this Interrogatory as irrelevant to the
claims or defenses of any party in this action and as not reasonably calculated to lead to the
discovery of admissible evidence, to the extent that it inquires about any publications other than
the 1999 Standards. Subject to, and without waiver of the foregoing objections, members of the
general public may purchase copies of the 1999 Standards for individual use. Plaintiff AERA
occasionally provides promotional complementary print copies of the 1999 Standards primarily
to students or professors.
INTERROGATORY NO. 8:
Identify all communications by You to the general public to identify or explain the means
by which the general public may Access the Works-At-Issue.
ANSWER:
Plaintiffs object to Defendant’s use of the phrase “all communications by…” as overly
broad, harassing and unduly burdensome. Plaintiffs also object to this Interrogatory as it is
unclear by its use of the term “Access”, particularly as defined by Defendant. Plaintiffs further
object to this Interrogatory as irrelevant to the claims or defenses of any party in this action and

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as not reasonably calculated to lead to the discovery of admissible evidence, to the extent that it
inquires about any publications other than the 1999 Standards. Subject to, and without waiver of
the foregoing objections, the availability of the 1999 Standards has been made known through
print advertising, printed marketing materials, website promotion and at AERA, APA and
NCME meetings and/or events.
INTERROGATORY NO. 9:
Identify all payments (including but not limited to payments for purchases or payments in
the nature of a subvention) concerning the Works-At-Issue, any copies of the Works-At-Issue, or
any licenses for or including a Work-At-Issue, by a federal, state, local, or municipal government
entity or agency, including but not limited to the Work(s)-At-Issue, the amount paid, and the
paying agency or entity.
ANSWER:
Plaintiffs object to Defendant’s use of the phrases “all payments…” and “any copies…”
and “any licenses…” as overly broad, harassing and unduly burdensome. Plaintiffs also object to
this Interrogatory as irrelevant to the claims or defenses of any party in this action and as not
reasonably calculated to lead to the discovery of admissible evidence, to the extent that it
inquires about any publications other than the 1999 Standards. Plaintiffs further object to this
Interrogatory as calling for the production of confidential and proprietary information. Subject
to, and without waiver of the foregoing objections, pursuant to Fed.R.Civ.P. 33(d), Plaintiffs will
produce summary sales records from which the answer to this Interrogatory may be derived,
pursuant to the Protective Order issued by the Court. However, these summary sales records do
not distinguish the types of persons who or entities that purchased the 1999 Standards.
INTERROGATORY NO. 10:
Identify all payments, donations, monetary contributions, or contributions-in-kind to the
Joint Committee(s) by a federal, state, local, or municipal government entity or agency.

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ANSWER:
Plaintiffs object to Defendant’s use of the phrase “all payments, donations, monetary
contributions, or contributions-in-kind…” as overly broad, harassing and unduly burdensome.
Plaintiffs further object to this Interrogatory as irrelevant to the claims or defenses of any party in
this action and as not reasonably calculated to lead to the discovery of admissible evidence, to
the extent that it inquires about any publications other than the 1999 Standards. Subject to, and
without waiver of the foregoing objections, there are no such payments, donations, monetary
contributions or contributions-in-kind responsive to this Interrogatory.
Respectfully submitted,
OBLON, McCLELLAND, MAIER &
NEUSTADT, LLP
Dated: January 20, 2015
/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-Counterclaim Defendants
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC.,
NATIONAL COUNCIL ON MEASUREMENT IN
EDUCATION, INC.
{431384US, 11553761_1.DOCX}

8

CERTIFICATE OF SERVICE
Pursuant to Fed.R.Civ.P. 5(B)(2)(E) and by agreement of the parties, I hereby certify that
a

true

copy

of

the

foregoing

PLAINTIFFS/COUNTERCLAIM-DEFENDANTS’

OBJECTIONS AND ANSWERS TO DEFENDANT/COUNTERCLAIM-PLAINTIFF’S
FIRST SET OF INTERROGATORIES (NOS. 1-10) was served on counsel for
Defendant/Counterclaim-Defendant, this 20th day of January, 2015, by sending same via e-mail,
to:
Andrew P. Bridges
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
[e-mail]
Corynne McSherry
Mitchell L. Stoltz
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
[e-mail]
[e-mail]
David Halperin
1530 P Street, N.W.
Washington, D.C. 20005
[e-mail]
/s/ Jonathan Hudis
Jonathan Hudis