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 63

AERA, APA, NCME v. Public Resource - Discovery Issues Fol...

Subject: AERA, APA, NCME v. Public Resource - Discovery Issues Followup
From: Mitch Stoltz <[e-mail]>
Date: 3/17/15, 11:52 AM
To: Jonathan Hudis <[e-mail]>, Kathleen Cooney-Porter <[e-mail]>
CC: "Katherine D. Cappaert" <[e-mail]>, Corynne McSherry <[e-mail]>,
Andrew Bridges <[e-mail]>, Matthew Becker <[e-mail]>
Dear Jonathan and Kathleen:
Thank you for your summary email of March 12, 2015 and your proposed joint statement on the status of discovery of
March 16.
Public Resource concurs with the joint statement provided that the last sentence is changed. We propose to replace the last
sentence with the following: “Plaintiffs have moved, with the consent and concurrence of Defendant, for an extension of
the fact discovery deadline and subsequent deadlines. The requested extension will allow the parties time to resolve paper
discovery issues and conduct depositions.” Please see the attached draft and let us know if you concur.
We disagree with some of your characterizations of what we discussed in our call on March 12. Here are our recollections,
as well as information we agreed to furnish:
1.

General Objections

Public Resource continues to maintain that it has not waived any general objections to date and does not plan on doing so.
This issue has been fully briefed and argued, and Magistrate Judge Robinson has yet to rule on it.
2.

Public Resource’s Response to Interrogatory No. 12

Public Resource will amend its response to this interrogatory to reflect that there was no time at which Public Resource
was aware that the 1999 Standard was subject to copyright.
3.

Public Resource’s Responses to Production Requests Nos. 10 through 13

Public Resource consents to the disclosure of the transcripts and exhibits from the depositions of Carl Malamud and Public
Resource taken in the ASTM case, so long as the ASTM Plaintiffs do not object and the AERA Plaintiffs purchase copies
of the transcripts and exhibits from the court reporter. Public Resource will produce its responses to the ASTM Plaintiffs’
discovery requests.
4.

Public Resource’s Responses to Production Requests Nos. 14 and 16 through 19

Public Resource will not produce server logs for the reasons already stated.
5.

Public Resource’s Responses to Production Requests Nos. 20 and 21

Public Resource will produce documents responsive to this request, to the extent any such documents exist.
In addition, the following memorializes the parties’ discussion of Plaintiffs’ discovery obligations on the March 12 call:
1.

Production of Documents Regarding Earlier Versions of Testing Standards

As we explained on the call, Public Resource believes that documents related to earlier versions of the testing standards
are relevant because copyright in the 1999 Standard, to the extent there is a copyright, extends only to the changes from

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the 1985 edition of the standard. Similarly, the copyright in the 1985 Standards extends only to the changes from the 1979
edition, and the copyright in the 1979 edition extends only to the changes from the 1954 edition. Because the alleged
copyright protection only covers changes to each new edition of the standard, Public Resource maintains that documents
related to earlier versions of the standard is necessary to determine the scope of copyright protection in the 1999 Standard.
Plaintiffs contend that documents related to earlier versions of the standard are irrelevant and their production would be
unduly burdensome.
2.

Production of Sales Records of 1999 Standards

Public Resource maintains that sales records of the 1999 Standard to government entities is relevant to its theory of
indirect government subsidies, and believes that the privacy concerns implicated in records of sales to private individuals
does not apply to government purchases. As such, Public Resource believes the production of Plaintiffs’ sales records
reflecting government purchases bears no relationship to the issue of Public Resource’s privilege logs. Plaintiffs disagree,
but promised to look into whether they can find documents related to exact purchasers of the 1999 Standard. Please
inform us whether you have located such documents.
3.

Production of Communications with ASTM Plaintiffs

Plaintiffs maintain that Public Resource is not entitled to discover its communications with the ASTM Plaintiffs on the
basis of privilege, and maintained that they have entered into a common interest agreement with the ASTM Plaintiffs.
Plaintiffs declined to tell Public Resource exactly when the agreement went into effect, but Public Resource maintains that
it is entitled to communications that pre-date the agreement. You agreed to tell us by March 16 whether you will produce
your communications with the ASTM Plaintiffs that pre-date the agreement.
4.

Plaintiffs’ Privilege Log

Thank you for sending us an updated privilege log. While we appreciate your efforts to make the log more legible, it is
still unusable in its current form. The current privilege log is formatted to 11 x 17 inch paper. The log should be formatted
to be printable on 8½ x 11 inch paper using a reasonable font size so that it can be submitted in filings to the Court if
necessary. Moreover, some of the entries in the log are still cut off and only partially readable, such as the rows marked
CW062949_01_00000204 and CW064015_01_00001230. Please provide a copy that is both readable and can be
submitted to the Court in whole or part.
In addition, you agreed to provide us with a supplemental privilege log of redacted documents produced in your first two
productions. Please produce that log by Friday, March 20.
5.

Production of Documents Related to Licensing of 1999 Standards

Public Resource requested that you produce all documents related to the licensing of the 1999 Standards. As promised on
our call, we are attaching documents you produced related to requests to translate the 1999 Standards into other
languages. Based on these documents, we believe that AERA may have entered into, or considered entering into, some
licensing agreements with third parties. Please let us know if your client is in possession of any such licensing agreements
or documents pertaining to any such agreements, and if so, when we can expect to receive them.
6.

Plaintiffs’ Responses to Public Resource’s Requests for Production 12-17

Although Plaintiffs stated in response to each of these requests that no responsive documents exist, on our call of March
12, you stated that documents responsive to some of these requests did in fact exist and have been produced.

Best regards,
Mitch
-Mitch Stoltz
Staff Attorney, Electronic Frontier Foundation

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415-436-9333 x142 * https://www.eff.org
815 Eddy Street, San Francisco, CA 94109

Attachments:

Joint Report on Status of Discovery_Draft_3-16-15 Edited.docx
460585__AERA_APA_NCME_0011462_460585_460585.pdf

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460620__AERA_APA_NCME_0011467_460620_460620.pdf

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460668__AERA_APA_NCME_0017104_460668_460668.pdf

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460697__AERA_APA_NCME_0011465_460697_460697.pdf

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