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

Filing 89

REPLY to opposition to motion re #69 MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction, #60 MOTION for Summary Judgment Filed MOTION for Permanent Injunction (Plaintiffs' Reply in Further Support of Plaintiffs' Motion for Summary Judgment and Permanent Injunction and Opposition to Defendant's Motion for Summary Judgment) filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC.. (Attachments: #1 Plaintiffs' Statement of Material Facts in Opposition to Defendant's Motion for Summary Judgment, #2 Plaintiffs' Reply to Defendants' Statement of Disputed Facts, #3 Plaintiffs' Response to Defendant's Objections to Plaintiffs' Evidence, #4 Declaration of Nikia L. Gray, #5 Exhibit VVV, #6 Exhibit WWW, #7 Exhibit XXX, #8 Exhibit YYY, #9 Exhibit ZZZ, #10 Exhibit AAAA, #11 Exhibit BBBB, #12 Exhibit CCCC, #13 Exhibit DDDD, #14 Exhibit EEEE, #15 Exhibit FFFF, #16 Exhibit GGGG, #17 Exhibit HHHH, #18 Exhibit IIII, #19 Exhibit JJJJ, #20 Exhibit KKKK, #21 Exhibit LLLL, #22 Exhibit MMMM, #23 Exhibit NNNN, #24 Exhibit OOOO, #25 Exhibit PPPP, #26 Exhibit QQQQ, #27 Exhibit RRRR, #28 Exhibit SSSS, #29 Exhibit TTTT, #30 Exhibit UUUU, #31 Exhibit VVVV, #32 Exhibit WWWW, #33 Exhibit XXXX, #34 Exhibit YYYY, #35 Exhibit ZZZZ, #36 Exhibit AAAAA, #37 Exhibit BBBBB, #38 Exhibit CCCCC, #39 Exhibit DDDDD, #40 Exhibit EEEEE, #41 Exhibit FFFFF, #42 Exhibit GGGGG, #43 Exhibit HHHHH, #44 Exhibit IIIII, #45 Exhibit JJJJJ, #46 Exhibit KKKKK, #47 Exhibit LLLLL, #48 Exhibit MMMMM, #49 Exhibit NNNNN, #50 Exhibit OOOOO, #51 Exhibit PPPPP, #52 Exhibit QQQQQ, #53 Exhibit RRRRR, #54 Exhibit SSSSS, #55 Exhibit TTTTT, #56 Exhibit UUUUU, #57 Exhibit VVVVV, #58 Exhibit WWWWW, #59 Exhibit XXXXX, #60 Exhibit YYYYY, #61 Exhibit ZZZZZ, #62 Exhibit AAAAAA, #63 Declaration of Wayne Camara, #64 Plaintiffs' Objections to Defendant's Evidence, #65 Certificate of Service)(Hudis, Jonathan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiffs/Counterclaim-Defendants,
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v.
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PUBLIC.RESOURCE.ORG,
INC., )
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Defendant/Counterclaim-Plaintiff.
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AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC.,
and NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.,

Civil Action No. 1:14-cv-00857-TSC-DAR
PLAINTIFFS’ OBJECTIONS TO
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
EVIDENCE IN SUPPORT OF
DEFENDANTCOUNTERCLAIMANT’S
MOTION FOR SUMMARY
JUDGMENT

Respectfully submitted,
Jonathan Hudis (DC Bar # 418872)
Nikia L. Gray (pro hac vice)
Jonathan P. Labukas (DC Bar # 998662)
QUARLES & BRADY LLP
1700 K Street NW, Suite 825
Washington, DC 20006-3825
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail Nikia [e-mail]
E-Mail [e-mail]
Counsel for Plaintiffs American Educational
Research Association, Inc., American
Psychological Association, Inc., and
National Council on Measurement in
Education, Inc.

TABLE OF CONTENTS

I.

STANDARDS FOR ADMISSIBLE EVIDENCE IN RULING ON A MOTION FOR
SUMMARY JUDGMENT ..................................................................................................1

II.

OBJECTIONS TO THE DECLARATION OF CARL MALAMUD IN SUPPORT OF
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ............................................2

III.

OBJECTIONS TO THE CONSOLIDATED EXHIBITS IN SUPPORT OF
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ..........................................19

IV.

CONCLUSION ..................................................................................................................49

Exhibit 1:

Defendant-Counterclaimant Public.Resource.Org, Inc.’s Amended Initial
Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1)

i

TABLE OF AUTHORITIES
Cases
Brooks v. Kerry,
37 F. Supp. 3d 187 (D.D.C. 2014) ............................................................................................................. 2
Elion v. Jackson,
544 F. Supp. 2d 1 (D.D.C. 2008) ..................................................................................................... Passim
Gleklen v. Democratic Cong. Campaign Comm., Inc.,
199 F.3d 1365 (D.C. Cir. 2000) ............................................................................................................. 1, 2
Jones v. United States,
934 F. Supp. 284 (D.D.C. 2013) ................................................................................................................ 1
Ozark Auto. Distributors, Inc. v. Nat’l Labor Relations Bd.,
779 F.3d 576 at n. 11 (D.C. Cir. 2015) ...................................................................................................... 1
U.S. ex rel. Miller v. Bill Harbert Int'l Const., Inc.,
608 F.3d 871 (D.C. Cir. 2010) ................................................................................................................... 1
United States v. Foster,
986 F.2d 541 (D.C. Cir. 1993) ................................................................................................................... 1
United States v. Hampton,
718 F.3d 978 (D.C. Cir. 2013) ................................................................................................................... 2

Rules
Fed. R. Civ. P. 26(a)(1) ....................................................................................................................... Passim
Fed. R. Civ. P. 26(a)(1)(A)(ii) ............................................................................................................ Passim
Fed. R. Civ. P. 26(e) ........................................................................................................................... Passim
Fed. R. Civ. P. 37(c) ........................................................................................................................... Passim
Fed. R. Civ. P. 37(c)(1) ....................................................................................................................... Passim
Fed. R. Civ. P. 56 .......................................................................................................................................... 1
Fed. R. Civ. P. 56(c)(2) ................................................................................................................................. 1

ii

Fed. R. Evid. 1001 ........................................................................................................................................ 2
Fed. R. Evid. 1002 .............................................................................................................................. Passim
Fed. R. Evid. 1003 ........................................................................................................................................ 2
Fed. R. Evid. 401 ................................................................................................................................ Passim
Fed. R. Evid. 402 .......................................................................................................................................... 1
Fed. R. Evid. 403 .................................................................................................................................. 12, 18
Fed. R. Evid. 602 ............................................................................................................................ 5, 6, 9, 11
Fed. R. Evid. 701 ........................................................................................................................ 2, 11, 16, 17
Fed. R. Evid. 702 ........................................................................................................................ 2, 11, 16, 17
Fed. R. Evid. 801 ............................................................................................................................ 23, 28, 48
Fed. R. Evid. 802 ................................................................................................................................ Passim
Fed. R. Evid. 803(6) .................................................................................................................................... 23

iii

Plaintiffs, American Educational Research Association, Inc. (“AERA”), American
Psychological Association, Inc. (“APA”) and National Council on Measurement in Education,
Inc. (“NCME”) (collectively, “Plaintiffs” or the “Sponsoring Organizations”) submit the
following objections to the Declaration of Carl Malamud and various Consolidated Exhibits
submitted in support of Defendant/Counterclaim-Plaintiff, Public.Resource.Org, Inc.’s
(“Defendant” or “Public Resource”)’s Motion for Summary Judgment.
I.

STANDARDS FOR ADMISSIBLE EVIDENCE IN RULING ON A MOTION FOR
SUMMARY JUDGMENT
Fed. R. Civ. P. 56 permits a party to “object that the material cited to support ... a fact

cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2)
(emphasis added). “At the summary judgment stage, a party is not required to produce evidence
in a form that is admissible, but the evidence must be capable of being converted into admissible
evidence at trial.” Jones v. United States, 934 F. Supp. 284, 289 (D.D.C. 2013) (citing Gleklen v.
Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000)) (citations
omitted). Plaintiffs therefore limit their objections below to evidence that is not capable of being
converted into in a form that would be admissible in evidence at trial.
Although the standard for relevant evidence is lenient, the evidence must have a
“tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401;
U.S. ex rel. Miller v. Bill Harbert Int'l Const., Inc., 608 F.3d 871, 897 (D.C. Cir. 2010). Under
Federal Rule of Evidence 401, there are no degrees of relevancy. “Evidence is either relevant or
it is not.” Ozark Auto. Distributors, Inc. v. Nat’l Labor Relations Bd., 779 F.3d 576, 584 at n. 11
(D.C. Cir. 2015) (citing United States v. Foster, 986 F.2d 541, 545 (D.C. Cir. 1993)). Irrelevant
evidence is not admissible. Fed. R. Evid. 402. To the extent Defendant proffers evidence that
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does not have the tendency to make the existence of any fact that is of consequence to the
determination of this action more probable or less probable, Plaintiffs object.
Statements that are impermissible hearsay are precluded from consideration by the Court
on summary judgment. Brooks v. Kerry, 37 F. Supp. 3d 187, 201 (D.D.C. 2014); see also
Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000)
(holding that “[v]erdicts cannot rest on inadmissible evidence” and “sheer hearsay ... therefore
counts for nothing” at summary judgment). To the extent that any testimony relies on an out-ofcourt statement that is offered to prove the truth of the matter asserted, and no plausible
exceptions to the rule against hearsay apply, Plaintiffs object.
Testimony requiring scientific, technical, or other specialized knowledge may be given
only by an expert witness with the requisite knowledge, skill, experience, training, or education,
and opinion testimony is not permitted of a lay person. Fed. R. Evid. 701, 702; see also United
States v. Hampton, 718 F.3d 978, 981–82 (D.C. Cir. 2013) (finding error when district court
allowed FBI agent to testify as a lay witness in the form of an opinion without an applicable
exception in Rule 701). To the extent that Defendant proffers lay witness testimony that requires
scientific, technical, or other specialized knowledge, Plaintiffs object.
The “best evidence rule” requires that contents of documents must be proved by
producing the document itself. Fed. R. Evid. 1001, 1002, 1003. To the extent that Defendant
proffers testimony concerning the contents of a document but fails to admit the document,
Plaintiffs object.

II.

OBJECTIONS TO THE DECLARATION OF CARL MALAMUD IN SUPPORT
OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1. Declaration of Carl Malamud: I am over the age of 18 years and am fully
competent to testify to the matters stated in this declaration.
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Plaintiffs’ Objections: No objection.

2. Declaration of Carl Malamud: This declaration is based on my personal knowledge.
If called to do so, I would and could testify to the matters stated herein.
Plaintiffs’ Objections: No objection.

3. Declaration of Carl Malamud: I am the President and sole employee of
Public.Resource.Org, Inc. (“Public Resource”), which is a 501(c)(3) non-profit
corporation headquartered in Sebastopol, California. I have worked at Public
Resource since I founded the organization in 2007. It is my only source of
employment.
Plaintiffs’ Objections: No objection.

4. Declaration of Carl Malamud: Public Resource’s core mission is to make the law
and other government materials more widely available so that people, businesses, and
organizations can easily read and discuss our laws and the operations of government.
Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 1 is a true
and correct copy of Public Resource’s Articles of Incorporation from our website at
https://public.resource.org/public.resource.articles.html.
Plaintiffs’ Objections: No objection.

5. Declaration of Carl Malamud: That mission grows out of my longtime professional
commitment to improving public access to essential documents that shape our
fundamental activities. In 1991, I convinced the Secretary-General of the
International Telecommunication Union that the Blue Book, the specification for how
telephone networks operate, should be freely available on the Internet. Working with
Dr. Michael Schwartz, I transformed and posted the Blue Book into formats
compatible with modern publication technologies and made it available on the
Internet. The service was extremely popular, and the ITU today makes all of its
standards documents freely available on the Internet. I wrote a book about this
experience called “Exploring the Internet” (Prentice Hall, 1993).That book can be
viewed and read at http://museum.media.org/eti/Exploring_the_Internet.pdf.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. The allegation that Public Resource
previously posted publications with the permission of the Secretary-General of the International
Telecommunications Union has no bearing on whether Public Resource directly and
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contributorily infringed Plaintiffs’ copyright in the “Standards for Educational and Psychological
Testing (1999 ed.)” (the “1999 Standards”). This evidence does not have the tendency to make
the existence of any fact that is of consequence to the determination of this action more probable
or less probable than it would be without the evidence.

6. Declaration of Carl Malamud: I was privileged to be able to participate in the
Internet Engineering Task Force, the standards body that has developed most of the
standards that specify the functioning of the Internet, during the early 1990s, a period
of very rapid development, both in the functionality of the Internet and its scope.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. That Carl Malamud participated in
the Internet Engineering Task Force, as well as the background of the organization, have no
bearing on whether Public Resource directly and contributorily infringed Plaintiffs’ copyright in
the 1999 Standards. This evidence does not have the tendency to make the existence of any fact
that is of consequence to the determination of this action more probable or less probable than it
would be without the evidence.

7. Declaration of Carl Malamud: In 1993, when the Internet was beginning to grow
explosively, I created the first radio station on the Internet, operating as a nonprofit
corporation called the Internet Multicasting Service. In addition to transmitting audio
and video programming, the service also provided the first high-speed Internet link
into the White House, using a temporary infrared connection from our studios in the
National Press Building. The radio service, which I dubbed “Internet Talk Radio,”
became a member of the Public Radio Satellite System, received accreditation from
the U.S. House and Senate Radio & Television Correspondents Galleries, sent out
live audio from the floors of the House and Senate, streamed all National Press Club
luncheons, and transmitted original programming. Many of those programs can still
be listened to at http://museum.media.org/radio/.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Carl Malamud’s background with
an Internet radio station has no bearing on whether Public Resource directly and contributorily
infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have the tendency
to make the existence of any fact that is of consequence to the determination of this action more
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probable or less probable than it would be without the evidence. Fed. R. Evid. 802, Hearsay.
Defendant relies on a website to prove the allegation that that the radio service, which Mr.
Malamud dubbed “Internet Talk Radio,” became a member of the Public Radio Satellite System,
received accreditation from the U.S. House and Senate Radio & Television Correspondents
Galleries, sent out live audio from the floors of the House and Senate, streamed all National
Press Club luncheons, and transmitted original programming, and are still available. The
proffered testimony relies on an out-of-court statement that is offered to prove the truth of the
matter asserted.

8. Declaration of Carl Malamud: At the Internet Multicasting Service, I also put a
number of important government databases online, including the Securities and
Exchange Commission EDGAR database and the U.S. Patent database. When the
SEC took the EDGAR service over from me, I loaned it computers and donated all of
our source code so they could be up and running quickly. The SEC ran the system on
our software for several years. On October 10, 1995, the Hon. Arthur Levitt,
Chairman of the SEC, wrote to me thanking us for our efforts and calling the project
an “extraordinary achievement.”
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. The proffered testimony concerning
Carl Malamud’s background in working with the Securities and Exchange Commission EDGAR
database has no bearing on whether Public Resource directly and contributorily infringed
Plaintiffs’ copyright in the 1999 Standards. This evidence does not have the tendency to make
the existence of any fact that is of consequence to the determination of this action more probable
or less probable than it would be without the evidence. Fed. R. Evid. 602, Lack of Personal
Knowledge. The proffered testimony concerning whether the SEC ran a system on their software
is not based on the witness’s personal knowledge of the matter and the proffering party has not
introduced sufficient evidence to show the witness has personal knowledge of this matter. Fed.
R. Evid. 802, Hearsay. Defendant relies on a letter from the former Chairman of the SEC to

5

prove the truth of the contents of the letter. The proffered testimony relies on an out-of-court
statement that is offered to prove the truth of the matter asserted. Fed. R. Evid. 1002, Best
Evidence. Defendant offers a summary and quotation from a letter without providing the original
document as an exhibit. However, under Federal Rules of Evidence 1002 and 1003, an original
writing or duplicate is required to prove its content.

9. Declaration of Carl Malamud: After I started Public Resource in 2007, one of our first
efforts was to place online the historical opinions of the U.S. Courts of Appeals, material
that was not previously available on the Internet. Public Resource also converted all of
the opinions in the first 40 volumes of the Federal Reporter as well as the Federal Cases
into Hypertext Markup Language (HTML) and placed those online. These materials are
now used by numerous websites that provide access to legal materials.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. That Public Resource previously
posted historical opinions of the U.S. Courts of Appeals on the Internet has no bearing on
whether Public Resource directly and contributorily infringed Plaintiffs’ copyright in the 1999
Standards. This evidence does not have the tendency to make the existence of any fact that is of
consequence to the determination of this action more probable or less probable than it would be
without the evidence. Fed. R. Evid. 602, Lack of Personal Knowledge. The proffered testimony
concerning whether numerous websites provide access to the legal materials allegedly originally
posted by Public Resource is not based on the witness’s personal knowledge of the matter and
the proffering party has not introduced sufficient evidence to show the witness has personal
knowledge of this matter.

10. Declaration of Carl Malamud: Public Resource maintains an archive of laws and
other government authored materials on several domains under the
public.resource.org website.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. The proffered testimony concerning
the maintenance of an archive of laws and government materials has no bearing on whether
6

Public Resource directly and contributorily infringed Plaintiffs’ copyright in the 1999 Standards.
This evidence does not have the tendency to make the existence of any fact that is of
consequence to the determination of this action more probable or less probable than it would be
without the evidence.

11. Declaration of Carl Malamud: Public Resource has helped increase access to many
other court documents. We scanned approximately 3 million pages of briefs
submitted to the U.S. Court of Appeals for the Ninth Circuit dating back to the
creation of that court and have placed those materials online. The materials may be
downloaded from https://law.resource.org/pub/us/case/ca9/.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance.

Whether Public Resource

previously posted briefs submitted to the U.S. Court of Appeals for the Ninth Circuit has no
bearing on whether Public Resource directly and contributorily infringed Plaintiffs’ copyright in
the 1999 Standards. This evidence does not have the tendency to make the existence of any fact
that is of consequence to the determination of this action more probable or less probable than it
would be without the evidence.

12. Declaration of Carl Malamud: Public Resource has conducted a number of other
projects that have resulted in more government information being placed online.
Using volunteers in Washington D.C. with the cooperation of the Archivist of the
United States, we put approximately 6,000 government videos on YouTube and the
Internet Archive for people to use with no restriction, a service we call FedFlix. It has
had over 60 million views. The videos may be viewed at
https://www.youtube.com/user/PublicResourceOrg
and
https://archive.org/details/FedFlix.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance.

Whether Public Resource

conducted previous projects in placing government videos on YouTube, including the name of
the service and number of views, has no bearing on whether Public Resource directly and
contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have
the tendency to make the existence of any fact that is of consequence to the determination of this
7

action more probable or less probable than it would be without the evidence. Fed. R. Evid. 802,
Hearsay.

Defendant relies on a website to prove the truth of the allegation that Public

Resource’s service has over 60 million views. The proffered testimony relies on an out-of-court
statement that is offered to prove the truth of the matter asserted.

13. Declaration of Carl Malamud: Public Resource also placed over eight million Form
990 exempt non- profit organization returns obtained from the IRS on the Internet. As
part of that posting, we conducted an intensive privacy audit which led to
fundamental changes in how the IRS deals with privacy violations. Through a
Freedom of Information Act request and litigation, we obtained release of highquality versions of Form 990 filings, which the IRS had refused to make available.
The court decision in that case (Public.Resource.Org v. United States Internal
Revenue Service, No. 3:13-cv-02789- WHO, ECF No. 62 (N.D. Cal. January 29,
2015)) led to a recent announcement by the IRS that all e-file returns will be made
available in bulk in 2016. I am pleased to be working with the IRS as a member of the
test group for this service.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Public Resource’s posting of IRS
990 tax returns has no bearing on whether Public Resource directly and contributorily infringed
Plaintiffs’ copyright in the 1999 Standards. This evidence does not have the tendency to make
the existence of any fact that is of consequence to the determination of this action more probable
or less probable than it would be without the evidence.

14. Declaration of Carl Malamud: In 2007, I wrote a report addressed to Speaker of the
House Nancy Pelosi suggesting that video from Congressional hearings should be
more broadly available on the Internet. On January 5, 2011, Speaker John Boehner
and Representative Darrell Issa wrote to me asking me to assist them in carrying out
that task. In a little over a year, Public Resource was able to put over 14,000 hours of
video from hearings on the Internet, to assist the House Committee on Oversight and
Government Reform in posting a full archive of their committee video and, for the
first time ever for congressional hearings, to provide closed-captioning of those
videos based on the official transcripts. The letter from Speaker Boehner may be
found at https://law.resource.org/rfcs/gov.house.20110105.pdf.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Carl Malamud’s correspondence
with Congress has no bearing on whether Public Resource directly and contributorily infringed
8

Plaintiffs’ copyright in the 1999 Standards. This evidence does not have the tendency to make
the existence of any fact that is of consequence to the determination of this action more probable
or less probable than it would be without the evidence. Fed. R. Evid. 802, Hearsay. Defendant
relies on a letter from Speaker Boehner to prove the truth of the contents of the letter. The
proffered testimony relies on an out-of-court statement that is offered to prove the truth of the
matter asserted. Fed. R. Evid. 1002, Best Evidence. Defendant offers a summary of a report and
letter without providing the original documents as exhibits. However, under Federal Rules of
Evidence 1002 and 1003, an original writing or duplicate is required to prove its content.

15. Declaration of Carl Malamud: Also in 2008, I examined the issue of availability of
state-mandated safety codes, such as building, electric, plumbing, and fire codes. At
the time, none of those documents were available freely on the Internet. I made a
detailed survey of state regulations and statutes, looking for direct and specific
incorporation of particular model codes. Over the next few years, Public Resource
posted many of the incorporated state safety codes for U.S. states.
Plaintiffs’ Objections: Fed. R. Evid. 602, Lack of Personal Knowledge. Whether any statemandated safety codes, such as building, electric, plumbing, and fire codes, were available freely
on the Internet is not based on the witness’s personal knowledge of the matter, and Public
Resource has not introduced sufficient evidence to show Mr. Malamud has personal knowledge
of this matter.

16. Declaration of Carl Malamud: Public Resource’s process of posting these codes has
been deliberate and careful and has grown in sophistication over time. First, we
purchased paper copies of codes that are incorporated into law. Then, we scanned the
documents, applied metadata and optical character recognition (OCR) to the PDF
files, and placed a cover sheet on each document explaining that this was a posting of
the law of a specific jurisdiction.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Public Resource’s alleged process
of posting codes of third parties has no bearing on whether Public Resource directly and

9

contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have
the tendency to make the existence of any fact that is of consequence to the determination of this
action more probable or less probable than it would be without the evidence.

17. Declaration of Carl Malamud: Over time, we also began converting some of these
standards into modern HTML format, including setting the tables, converting
formulas to Mathematics Markup Language (MathML), and converting graphics to
the Scalable Vector Graphics (SVG) format. Coding formulas in MathML makes
them significantly more accessible to people who are visually impaired. Converting
the graphics to SVG means they can be resized smoothly, and can be incorporated
into graphic editing programs and word processing programs. Converting the
documents into standard HTML means the documents can be more readily used on
different platforms, such as tablets and smartphones.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Public Resource’s alleged process
of posting the standards of third parties has no bearing on whether Public Resource directly and
contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have
the tendency to make the existence of any fact that is of consequence to the determination of this
action more probable or less probable than it would be without the evidence.

18. Declaration of Carl Malamud: In late 2008, I was asked by the Obama-Biden
Transition Project to consult on the subject of how the Official Journals of
Government could be made more readily available. Many of my recommendations
were adopted, including removing the subscription fee from bulk access to the
Federal Register. That led to a dramatic transformation of the Federal Register, which
is now based on open source software that was developed by three volunteers in
California and then adopted by the government. That system can be viewed at
https://federalregister.gov/. A copy of my memorandum to the Obama Transition
Project may be viewed at https://public.resource.org/change.gov/reboot.register.pdf.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Whether Mr. Malamud was asked
to consult on the Obama-Biden Transition Project has no bearing on whether Public Resource
directly and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence
does not have the tendency to make the existence of any fact that is of consequence to the

10

determination of this action more probable or less probable than it would be without the
evidence. Fed. R. Evid. 602, Lack of Personal Knowledge. Whether any of Carl Malamud’s
recommendations were adopted by the Obama-Biden Transition Project, and whether that led to
an alleged “dramatic” transformation of the Federal Register, is not based on the witness’s
personal knowledge of the matter, and the Public Resource has not introduced sufficient
evidence to show Mr. Malamud has personal knowledge of this matter. Fed. R. Evid. 701,
Improper Lay Opinion. The proffered testimony is a lay opinion that is not rationally based on
Mr. Malamud’s perception and is not helpful to clearly understanding the witness’s testimony or
to determining any fact in issue. The proffered testimony concerning the cause of an alleged
transformation of the Federal Register requires scientific, technical, or other specialized
knowledge within the scope of Fed. R. Evid. 702 regarding expert witness testimony. Fed. R.
Evid. 802, Hearsay. Defendant relies on memorandum to the Obama Transition Project to prove
the truth of the contents of the letter. The proffered testimony relies on an out-of-court statement
that is offered to prove the truth of the matter asserted. Fed. R. Evid. 1002, Best Evidence.
Defendant offers a summary of his memorandum to the Obama Transition Project without
providing the original document as an exhibit. However, under Federal Rules of Evidence 1002
and 1003, an original writing or duplicate is required to prove its content.

19. Declaration of Carl Malamud: In 2011, I began to look seriously at the federal use
of standards incorporated by reference into the Code of Federal Regulations. I was
participating at the time as an appointed member of the Administrative Conference of
the United States, and I carefully read materials such as the legislative history of the
mechanism of incorporation by reference, the Code of Federal Regulations provisions
for incorporation by reference, and cases such as the Veeck decision.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Whether Mr. Malamud participated
as an appointed member of the Administrative Conference of the Untied States has no bearing on

11

whether Public Resource directly and contributorily infringed Plaintiffs’ copyright in the 1999
Standards. This evidence does not have the tendency to make the existence of any fact that is of
consequence to the determination of this action more probable or less probable than it would be
without the evidence. Fed. R. Evid. 403, Prejudice. The probative value of Carl Malamud’s
alleged participation as an appointed member of the Administrative Conference of the United
States is outweighed by a danger of unfair prejudice or confusing the issues. Mr. Malamud’s
alleged appointment does not qualify Mr. Malamud as an expert witness in this action and does
not confer special expertise or authority to formulate legal conclusions in this matter.

20. Declaration of Carl Malamud: In 2012, I began a new initiative to make standards
incorporated by reference into federal law available on the Internet. I examined the
Code of Federal Regulations carefully and selected 73 standards that spanned a
variety of agencies. I purchased physical copies of each of these standards. I created
25 paper replicas of each of these standards, and placed a cover sheet on each one
indicating which section of the CFR incorporated the document.
Plaintiffs’ Objections: No objection.

21. Declaration of Carl Malamud: To accompany the 73 standards, I also created a
detailed cover memo, titled “Notice of Incorporation,” which included letters
addressed to seven senior government officials. The memo included a request for
comments from each of the ten standards development organizations (SDOs) named
in the document by May 1, 2012. The plaintiffs in this case were not among the ten
SDOs named in the document. I packaged the 73 standards, the Notice of
Incorporation, two posters, and other materials in 29-pound boxes and sent the boxes
to the seven government officials and the ten SDOs. I sent the boxes by Federal
Express on March 15, 2012. A copy of the Notice of Incorporation memo may be
found at https://law.resource.org/pub/us/cfr/notice.sdo.20120315_to.pdf.
Plaintiffs’ Objections: Fed. R. Evid. 1002, Best Evidence. Defendant offers the summary of a
memo without providing the original document as an exhibit. However, under Federal Rules of
Evidence 1002 and 1003, an original writing or duplicate is required to prove its content.

12

22. Declaration of Carl Malamud: After sending the standards, I received
acknowledgements from several government addressees, including personal notes
from the Chairman of the Federal Trade Commission, the Archivist of the United
States, and the Chairman of the House Committee on Oversight and Government
Reform. I did not receive any response from the SDOs.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Whether Mr. Malamud received
acknowledgments from several government addressees has no bearing on whether Public
Resource directly and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This
evidence does not have the tendency to make the existence of any fact that is of consequence to
the determination of this action more probable or less probable than it would be without the
evidence. Fed. R. Evid. 802, Hearsay. Defendant relies on writings from several government
addressees to prove that the authors acknowledged Mr. Malamud’s Notice of Incorporation. The
proffered testimony relies on an out-of-court statement that is offered to prove the truth of the
matter asserted. Fed. R. Evid. 1002, Best Evidence. Defendant states that he received several
notes from government addressees that acknowledged his Notice of Incorporation, but Defendant
does not provide the original documents as exhibits. However, under Federal Rules of Evidence
1002 and 1003, an original writing or duplicate is required to prove its content.

23. Declaration of Carl Malamud: On May 1, 2012, I posted the 73 documents on the
Public Resource web site. I also began a process of examining the Code of Federal
Regulations, the National Institute of Standards and Technology (NIST) database of
Standards Incorporated by Reference (SIBR), and the Office of the Federal Register’s
incorporation by reference listings to put together a list of documents that are
incorporated into the CFR. I then began the process of trying to procure these
documents, many of which are unavailable for purchase from the SDOs and which I
had to obtain on the used book market.
Plaintiffs’ Objections: No objection.

24. Declaration of Carl Malamud: Every standard that I have posted on my website has
been incorporated into law by a governmental authority. Public Resource does not
impose any restrictions on the use of the standards. Public Resource has never
13

charged for access to the standards or other legal materials, and has never asserted
any intellectual property rights in them. We do not require people to log in or register
before accessing content from Public Resource.
Plaintiffs’ Objections: No objection.

25. Declaration of Carl Malamud: Public Resource posted a PDF version of the 1999
Standards on its website. The PDF version accurately appeared as a scan of a physical
version of the incorporated standard. Public Resource’s regular practice is to perform
OCR on the incorporated standards that it posts and to convert them further into
standard Hypertext Markup Language (HTML) to make them still more accessible. I
intended to do so for the 1999 Standards, but I suspended further work on the 1999
Standards when this lawsuit was filed. In May 2014, Plaintiffs sued Public Resource
for posting on its website and the Internet Archive website the 1999 Standards.
Subsequently, so as to ensure that this lawsuit would be decided on a full record, in
June 2014 Public Resource agreed to take down the versions of the 1999 Standards
that it had posted on its website and on the Internet Archive website, pending the
resolution of this case
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Public Resource’s alleged regular
practice in performing OCR has no bearing on whether Public Resource directly and
contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have
the tendency to make the existence of any fact that is of consequence to the determination of this
action more probable or less probable than it would be without the evidence.

26. Declaration of Carl Malamud: Public Resource has continued to develop
techniques for making the documents that we post more usable, including doublekeying and adding markup to HTML and SVG versions of the documents. Doublekeying means having two separate typists copy the text of the incorporated standard;
the results are then compared in order to eliminate any errors. We have also
developed new markup techniques that increase the accessibility of the documents to
people with visual impairments and print disabilities. We have also made significant
advances in adding metadata to the documents, so each section, table, figure, and
formula can be bookmarked and linked to, making internal navigation within the
documents significantly friendlier for the user.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance.

Public Resource’s alleged

development of techniques for making documents more usable has no bearing on whether Public

14

Resource directly and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This
evidence does not have the tendency to make the existence of any fact that is of consequence to
the determination of this action more probable or less probable than it would be without the
evidence.

27. Declaration of Carl Malamud: We have applied these markup techniques to a
number of standards incorporated by reference, though not to the 1999 Standards.
Public Resource’s goal is to have the entire CFR, including all documents
incorporated by reference, available in this new format so that users can seamlessly
and transparently navigate the entire CFR. I believe this will be useful for employees
of affected business enterprises, researchers and journalists covering public policy
issues, government workers at the federal, state, and local levels who must interact
with the code as part of their daily activities, and for interested citizens.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Except as applied to the 1999
Standards, Public Resource’s markup techniques and Public Resource’s corporate mission and
goals have no bearing on whether Public Resource directly and contributorily infringed
Plaintiffs’ copyright in the 1999 Standards. This evidence does not have the tendency to make
the existence of any fact that is of consequence to the determination of this action more probable
or less probable than it would be without the evidence.

28. Declaration of Carl Malamud: We have made several examples of our new
approach available on the Internet and submitted them as examples of how the law
can be made better in formal comments to Notices of Proposed Rulemaking that
propose to incorporate standards by reference.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Public Resource’s posting of
examples of its new approach to the Internet has no bearing on whether Public Resource directly
and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not
have the tendency to make the existence of any fact that is of consequence to the determination
of this action more probable or less probable than it would be without the evidence.

15

29. Declaration of Carl Malamud: Public Resource’s website is structured for
navigation by search engines and for bulk access. Data are organized by country
(e.g., /pub/us/) then by type of data, such as standards incorporated by reference
(/pub/us/cfr/ibr/).
Plaintiffs’ Objections: Fed. R. Evid. 701, Improper Lay Opinion. The proffered testimony is a
lay opinion that is not rationally based on Mr. Malamud’s perception and is not helpful to clearly
understanding the witness’s testimony or to determining a fact in issue. The proffered testimony
concerning the structure for navigation and organization of data requires scientific, technical, or
other specialized knowledge within the scope of Fed. R. Evid. 702 regarding expert witness
testimony.

30. Declaration of Carl Malamud: Public Resource has one employee, myself, and
three contractors who assist me in systems administration, conversion of graphics and
formulas, and legal advice. Our core operating costs are under $500,000 per year, and
we are funded entirely by donations, contributions and grants. Rather than adding
staff, I have prioritized capital expenses, such as the purchase of the U.S. Court of
Appeals backfile for $600,000 and he scanning of 3 million pages of Ninth Circuit
briefs. Public Resource does not accept donations that are tied to the posting of
specific standards or groups of standards. Public Resource’s operating income is not
based on the amount of traffic its websites receive. Though we are a small
organization, we observe all current best practices of corporate governance and
transparency. I am proud that we have been awarded the GuideStar Gold Seal for
nonprofit transparency. A full repository of our financials and other disclosures is
maintained at https://public.resource.org/about.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Public Resource’s operating costs,
income, and corporate governance practices have no bearing on whether Public Resource
directly and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence
does not have the tendency to make the existence of any fact that is of consequence to the
determination of this action more probable or less probable than it would be without the
evidence. Fed. R. Evid. 802, Hearsay. Defendant relies on its financials posted online to prove
the truth of its statements regarding operating costs and income. The proffered testimony relies
16

on an out-of-court statement that is offered to prove the truth of the matter asserted. Fed. R. Evid.
1002, Best Evidence. Defendant offers a summary of its financials without providing the original
document as an exhibit. However, under Federal Rules of Evidence 1002 and 1003, an original
writing or duplicate is required to prove its content.

31. Declaration of Carl Malamud: Public Resource has never sought benefit or
compensation from its posting of the 1999 Standards. We have never used the 1999
Standards for marketing.
Plaintiffs’ Objections: No objection.

32. Declaration of Carl Malamud: I pay a great deal of attention to quality control,
including verifying the validity of the HTML, SVG, and MathML that I post. I
respond immediately to any reports of errors from the public.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. As noted in paragraph 27 in Carl
Malamud’s Declaration, Public Resource applied markup techniques, such as HTML and SVG to
a number of standards incorporated by reference, though not to the 1999 Standards.
Consequently, the alleged fact that Mr. Malamud pays a great deal of attention to quality control,
including verifying the markup techniques to other standards incorporated by reference is not
relevant in this action. This evidence does not have the tendency to make the existence of any
fact that is of consequence to the determination of this action more probable or less probable than
it would be without the evidence. Fed. R. Evid. 701, Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally based on Mr. Malamud’s perception and is not
helpful to clearly understanding the witness’s testimony or to determining a fact in issue. The
proffered testimony concerning verifying the validity of the HTML, SVG, and MathML requires
scientific, technical, or other specialized knowledge within the scope of Fed. R. Evid. 702
regarding expert witness testimony.

17

33. Declaration of Carl Malamud: To Public Resource's knowledge, the 2014 edition of
the Standards For Educational and Psychological Testing has not been incorporated
by reference into law. Public Resource posts only those standards that have become
law. Consistent with this policy, Public Resource has no plans to post the 2014
Standards on the Internet.
Plaintiffs’ Objections: No objection.

34. Declaration of Carl Malamud: My work at Public Resource, including the posting
of standards incorporated by reference into federal and state law and my efforts to
post briefs, opinions, regulations, statutes, and other materials that are edicts of
government, are based on a long-held belief that the primary legal materials of our
country must be available to all, especially those who lack the means to access the
law in the status quo, because an informed citizenry is the key to the functioning of
our democracy.
Plaintiffs’ Objections: Fed R. Evid. 401 & 402, Relevance. Carl Malamud’s belief that an
informed citizenry is the key to the functioning of a democracy has no bearing on whether Public
Resource directly and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This
evidence does not have the tendency to make the existence of any fact that is of consequence to
the determination of this action more probable or less probable than it would be without the
evidence. Fed. R. Evid. 403, Prejudice. The probative value of Carl Malamud’s statements
regarding his long-held beliefs is outweighed by a danger of unfair prejudice or confusing the
issues. Mr. Malamud’s belief system is not an element of any claim or defense in this case,
which turns on whether Public Resource directly and contributorily infringed Plaintiffs’
copyright in the 1999 Standards.

18

III.

OBJECTIONS TO THE CONSOLIDATED EXHIBITS IN SUPPORT OF
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant’s Exhibit No. 1: Public Resource’s Articles of Incorporation, at
https://public.resource.org/public.resource.articles.html.

Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 2: Excerpts of the deposition of Diane L. Schneider, dated
April 23, 2015
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 3: Excerpts of the deposition of Marianne Ernesto, dated April
29, 2015
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 4: Excerpts of the deposition of Wayne Camara, dated May 1,
2015.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 5: Excerpts of the deposition of Felice Levine, dated May 4,
2015
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 6: Excerpts of the deposition of Lauress Wise, dated May 11,
2015
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 7: Excerpts of the deposition of Carl Malamud, dated May 12,
2015
Plaintiffs’ Objections: No objection.

19

Defendant’s Exhibit No. 8: Excerpts of the deposition of Kurt F. Geisinger, dated
September 10, 2015
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 9: Exhibit 43 from the deposition of Carl Malamud.
Memorandum from C. Malamud dated June 12, 2014.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 10: Exhibit 1064 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NOME_0031521–22.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 11: Exhibit 1065 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0004708–09.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 12: Exhibit was marked as Exhibit 1068 in the deposition of
Marianne Ernesto, produced by Plaintiffs bearing control number
AERA_APA_NCME_0014887–93.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 13: Exhibit 1069 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031486–87.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 14: Exhibit 1070 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031803-806.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 15: Exhibit 1071 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031459-60.

20

Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 16: Exhibit 1072 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0004710.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 17: Exhibit 1075 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031139-40.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 18: Exhibit 1078 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031116-19.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 19: Exhibit 1082 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0004719-20.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 20: Exhibit 1085 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031456-58.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 21: Exhibit 1086 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0004713-14.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 22: Exhibit 1089 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031461-62.
Plaintiffs’ Objections: No objection.

21

Defendant’s Exhibit No. 23: Exhibit 1090 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031430-31.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 24: Exhibit 1091 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0004715-16.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 25: Exhibit 1094 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0004717-18.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 26: Exhibit 1097 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031414-16.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 27: Exhibit 1099 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0026988–89.
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
22

that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 27 (Exhibit 1099 to
the deposition of Marianne Ernesto) as a possible item in its initial Rule 26(a) disclosures.
Exhibit 27 does not fall under any of the identified six categories of documents in Defendant’s
Amended Initial Disclosures. As a result, pursuant to the self-executing sanction provided in Fed.
R. Civ. P. 37(c)(1), Defendant is not allowed to use Exhibit 27 to support its Motion for
Summary Judgment.
Moreover, the proffered exhibit relies on an out-of-court statement that is offered to
prove the truth of the matter asserted. See Fed. R. Evid. 801, 802. It is a letter from P.R.
Jeanneret, Ph.D. to Normal Abeles, Ph.D. at American Psychological Association, and it is not a
record of regularly conducted activity. See Fed. R. Evid. 803(6). Statements that are
impermissible hearsay are precluded from consideration by the Court on summary judgment.
Because no exceptions to the rule against hearsay apply, the exhibit is not admissible to support
Defendant’s Motion for Summary Judgment. See Fed. R. Evid. 802.

Defendant’s Exhibit No. 28: Exhibit 1104 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031478–79.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 29: Exhibit 1105 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME0031885–92.

23

Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 30: Exhibit 1112 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031463–65.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 31: Exhibit 1114 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031523.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 32: Exhibit 1116 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0031518–20.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 33: Exhibit 1121 in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control number AERA_APA_NCME_0004820–23.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 34: Exhibit 1157 in the deposition of Wayne Camara, produced
by Plaintiffs bearing control number AERA_APA_NCME_0004946-56.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 35: Exhibit 1197 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0004519-20.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 36: Exhibit 1198 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0004542-43.
Plaintiffs’ Objections: No objection.

24

Defendant’s Exhibit No. 37: Exhibit 1200 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0004546-48.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 38: Exhibit 1205 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0004818.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 39: Exhibit 1207 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0031848.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 40: Exhibit 1208 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0005137.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 41: Exhibit 1211 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0032527.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 42: Exhibit 1212 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0032526.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 43: Exhibit 1214 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0032520–23.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 44: Exhibit 1217 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0004706.
Plaintiffs’ Objections: No objection.
25

Defendant’s Exhibit No. 45: Exhibit 1218 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0004746–55.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 46: Exhibit 1219 in the deposition of Felice Levine, produced
by Plaintiffs bearing control number AERA_APA_NCME_0013137–39.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 47: Webpages from www.aera.net, Exhibit 1220 in the
deposition of Felice Levine.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 48: Webpages from www.aera.net, Exhibit 1221 in the
deposition of Felice Levine.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 49: Photograph, Exhibit 1222 in the deposition of Felice
Levine.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 50: Account statement, Exhibit 1263 in the deposition of Kurt
Geisinger.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 51: Expert Report of James R. Fruchterman, dated June 13,
2015.
Plaintiffs’ Objections: No objection.

26

Defendant’s Exhibit No. 52: “OCR Issues Draft Guide on Disparate Impact in
Educational Testing,” Society for Industrial and Organizational Psychology, October
1999, at http://www.siop.org/tip/backissues/tipocto99/22Camara.aspx
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 52, a print-out of an
article entitled “OCR Issues Draft Guide on Disparate Impact in Educational Testing” dated
October 1999 as a possible item in its initial Rule 26(a) disclosures. Exhibit 52 does not fall
under any of the identified six categories of documents in Defendant’s Amended Initial
Disclosures. As a result, pursuant to the self-executing sanction provided in Fed. R. Civ. P.

27

37(c)(1), Defendant is not allowed to use Exhibit 52 to support its Motion for Summary
Judgment.
Moreover, the proffered exhibit, an online article, is an out-of-court statement that is
offered to prove the truth of the matter asserted. See Fed. R. Evid. 801, 802. Statements that are
impermissible hearsay are precluded from consideration by the Court on summary judgment.
Because no exceptions to the rule against hearsay apply, the exhibit is not admissible to support
Defendant’s Motion for Summary Judgment. See Fed. R. Evid. 802.

Defendant’s Exhibit No. 53: AERA Membership Benefits, at
http://www.aera.net/Membership/MembershipBenefits/tabid/10224/Default.aspx;
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.

28

Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 53 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 53 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 53 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, a print-out of AERA membership benefits, has no
bearing on whether Public Resource directly and contributorily infringed Plaintiffs’ copyright in
the 1999 Standards. This evidence does not have the tendency to make the existence of any fact
that is of consequence to the determination of this action more probable or less probable than it
would be without the evidence. See Fed. R. Evid. 401, 402.

Defendant’s Exhibit No. 54: American Psychological Association Member information
at http://www.apa.org/membership/member/index.aspx?tab=4.
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a

29

party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 54 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 54 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 54 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, a print-out of the American Psychological Association
website on member information, has no bearing on whether Public Resource directly and
contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have
the tendency to make the existence of any fact that is of consequence to the determination of this
action more probable or less probable than it would be without the evidence. See Fed. R. Evid.
401, 402.

Defendant’s Exhibit No. 55: Matthew Bender/LexisNexis store sales link for the
“District of Columbia Official Code” for $849.00, at
http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relat
edProducts&catId=364&prodId=prod19670410
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things

30

that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 55 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 55 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 55 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, a print-out of the LexisNexis website on the sale of the
District of Columbia Official Code, has no bearing on whether Public Resource directly and
contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have
the tendency to make the existence of any fact that is of consequence to the determination of this
action more probable or less probable than it would be without the evidence. See Fed. R. Evid.
401, 402.

31

Defendant’s Exhibit No. 56: Matthew Bender/LexisNexis store sales link for the
“Criminal Jury Instructions for the District of Columbia, Fifth Edition” for $186.00 at
http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relat
edProducts&skuId=SKU44095&catId=128&prodId=44095
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 56 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 56 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 56 to support its Motion for Summary Judgment.

32

Moreover, the proffered exhibit, a print-out of the LexisNexis website on the sale of the
Criminal Jury Instructions for the District of Columbia, Fifth Edition, has no bearing on whether
Public Resource directly and contributorily infringed Plaintiffs’ copyright in the 1999 Standards.
This evidence does not have the tendency to make the existence of any fact that is of
consequence to the determination of this action more probable or less probable than it would be
without the evidence. See Fed. R. Evid. 401, 402.

Defendant’s Exhibit No. 57: Thomson Reuters/WestLaw sales link for “District of
Columbia Rules of Court – District, 2015 ed. (Vol. 1, District of Columbia Court Rules)”
for $182.00 at http://legalsolutions.thomsonreuters.com/law-products/CourtRules/District-of-Columbia-Rules-of-Court---District-2016-ed-Vol-I-District-ofColumbia-Court-Rules/p/101765392.
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.

33

Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 57 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 57 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 57 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, a print-out of the Thomson Reuters website on the sale
of the District of Columbia Rules of Court, has no bearing on whether Public Resource directly
and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not
have the tendency to make the existence of any fact that is of consequence to the determination
of this action more probable or less probable than it would be without the evidence. See Fed. R.
Evid. 401, 402.

Defendant’s Exhibit No. 58: Barnes & Noble sales link for “Moby Dick” for $8.99 at
http://www.barnesandnoble.com/w/moby-dickmelvilleherman/1110282307?ean=9781593080181#productInfoTabs
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
34

Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 58 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 58 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 58 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, a print-out of the Barnes & Noble website on the sale of
Moby-Dick by Herman Melville, has no bearing on whether Public Resource directly and
contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have
the tendency to make the existence of any fact that is of consequence to the determination of this
action more probable or less probable than it would be without the evidence. See Fed. R. Evid.
401, 402.

Defendant’s Exhibit No. 59: Barnes & Noble sales link for “The Adventures of Tom
Sawyer” for $6.25 at http://www.barnesandnoble.com/w/adventures-of-tom-sawyerbarnes-nobleclassics-series-mark-twain/1106017534?ean=9781593081393.
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
35

that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 59 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 59 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 59 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, a print-out of the Barnes & Noble website on the sale of
the Adventures of Tom Sawyer by Mark Twain, has no bearing on whether Public Resource
directly and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence
does not have the tendency to make the existence of any fact that is of consequence to the
determination of this action more probable or less probable than it would be without the
evidence. See Fed. R. Evid. 401, 402.

36

Defendant’s Exhibit No. 60: Barnes & Noble website link for “Barnes & Noble
Classics” at http://www.barnesandnoble.com/h/bnclassics/about.
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 60 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 60 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 60 to support its Motion for Summary Judgment.

37

Moreover, the proffered exhibit, a print-out of the Barnes & Noble website providing
background on Barnes & Noble Classics, has no bearing on whether Public Resource directly
and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not
have the tendency to make the existence of any fact that is of consequence to the determination
of this action more probable or less probable than it would be without the evidence. See Fed. R.
Evid. 401, 402.

Defendant’s Exhibit No. 61: Excerpts of the deposition of Christopher Butler, dated
December 2, 2014.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 62: Plaintiff’s Objections and Answers to
Defendant/Counterclaim Plaintiff’s First Set of Interrogatories (Nos. 1-10), dated January
20, 2015.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 63: Email correspondence from Mitch Stoltz to Jonathan Hudis
et al., re: “AERA, APA, NCME v. Public Resource – Discovery Issues Followup,” dated
March 17, 2015.
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”

38

Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 63 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 63 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 63 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, e-mail correspondence between counsel for Plaintiffs
and counsel for Defendant regarding discovery issues, has no bearing on whether Public
Resource directly and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This
evidence does not have the tendency to make the existence of any fact that is of consequence to
the determination of this action more probable or less probable than it would be without the
evidence. See Fed. R. Evid. 401, 402.

Defendant’s Exhibit No. 64: Exhibit 1012 in the deposition of Diane Schneider,
produced by Plaintiffs bearing control number AERA_APA_NCME_0013446-449.
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 65: Federal Register “Incorporation by Reference”, available at
http://www.archives.gov/federal-register/cfr/ibr-locations.html.

39

Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 66: “Putting a Number on Federal Education Spending,”
available at http://economix.blogs.nytimes.com/2013/02/27/putting-a-number-onfederaleducation-spending/?_r=0.
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 66 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 66 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the

40

self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 66 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, an article entitled “Putting a Number on Federal
Education Spending,” has no bearing on whether Public Resource directly and contributorily
infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have the tendency
to make the existence of any fact that is of consequence to the determination of this action more
probable or less probable than it would be without the evidence. See Fed. R. Evid. 401, 402.

Defendant’s Exhibit No. 67: U.S. Department of Education, Federal Pell Grant Program
information, available at http://www2.ed.gov/programs/fpg/funding.html.
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.

41

Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 67 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 67 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 67 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, a print-out of the U.S. Department of Education website
regarding the Federal Pell Grant Program funding status, has no bearing on whether Public
Resource directly and contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This
evidence does not have the tendency to make the existence of any fact that is of consequence to
the determination of this action more probable or less probable than it would be without the
evidence. See Fed. R. Evid. 401, 402.

Defendant’s Exhibit No. 68: “Federal Programs: What are Title IV Programs?,”
available at
http://federalstudentaid.ed.gov/site/front2back/programs/programs/fb_03_01_0030.htm
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
42

Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 68 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 68 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 68 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, a print-out of the Federal Student Aid website regarding
Title IV federal student aid, has no bearing on whether Public Resource directly and
contributorily infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have
the tendency to make the existence of any fact that is of consequence to the determination of this
action more probable or less probable than it would be without the evidence. See Fed. R. Evid.
401, 402.

Defendant’s Exhibit No. 69: “For Profit Higher Education: The Failure to Safeguard the
Federal Investment and Ensure Student Success,” Executive Summary, available at
https://www.help.senate.gov/imo/media/for_profit_report/ExecutiveSummary.pdf
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
43

that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 69 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 69 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 69 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, a document entitled “Executive Summary” from no
identifiable author, has no bearing on whether Public Resource directly and contributorily
infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have the tendency
to make the existence of any fact that is of consequence to the determination of this action more
probable or less probable than it would be without the evidence. See Fed. R. Evid. 401, 402.

44

Defendant’s Exhibit No. 70: U.S. Department of Education, DCL ID: GEN-15-09,
“Title IV Eligibility for Students Without a Valid High School Diploma Who Are
Enrolled in Eligible Career Pathway Programs,” dated May 22, 2015, available at
https://ifap.ed.gov/dpcletters/GEN1509.html
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 70 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 70 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 70 to support its Motion for Summary Judgment.

45

Moreover, the proffered exhibit, a print-out of the Federal Student Aid website regarding
Title IV eligibility, has no bearing on whether Public Resource directly and contributorily
infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have the tendency
to make the existence of any fact that is of consequence to the determination of this action more
probable or less probable than it would be without the evidence. See Fed. R. Evid. 401, 402.

Defendant’s Exhibit No. 71: “PROPRIETARY SCHOOLS: Stronger Department of
Education Oversight Needed to Help Ensure Only Eligible Students Receive Federal
Student Aid,” available at http://www.gao.gov/new.items/d09600.pdf
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”
Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 71 as a possible
46

item in its initial Rule 26(a) disclosures. Exhibit 71 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 71 to support its Motion for Summary Judgment.
Moreover, the proffered exhibit, a report from the United States Government
Accountability Office has no bearing on whether Public Resource directly and contributorily
infringed Plaintiffs’ copyright in the 1999 Standards. This evidence does not have the tendency
to make the existence of any fact that is of consequence to the determination of this action more
probable or less probable than it would be without the evidence. See Fed. R. Evid. 401, 402.

Defendant’s Exhibit No. 72: “Program Integrity Issues,” Federal Register, available at:
https://www.federalregister.gov/articles/2010/10/29/2010-26531/programintegrityissues#h-4
Plaintiffs’ Objections: No objection.

Defendant’s Exhibit No. 73: Internet Engineering Task Force Request for Comments
7231, "Hypertext Transfer Protocol (HTTP/1.1): Semantics and Content" § 4.3 (June
2014).
Plaintiffs’ Objections: Fed. R. Civ. P. 26(a)(1)(A)(ii) provides that “a party must, without
awaiting a discovery request, provide to the other parties . . . a copy—or a description by
category and location—of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(e)
provides that parties “who [have made] a disclosure under Rule 26(a)—or who [have] responded
to an interrogatory, request for production, or request for admission [as part of formal
discovery]—must supplement or correct [their] disclosure or response . . . in a timely manner.”

47

Elion v. Jackson, 544 F. Supp. 2d 1, 5 (D.D.C. 2008). Fed. R. Civ. P. 37(c) provides that if a
party fails to provide information as required by Rule 26(a) or (e), the party is not allowed to use
that information to supply evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless. Fed. R. Civ. P. 37(c)(1) is a self-executing sanction, and the motive or
reason for the failure is irrelevant. Id.
Defendant served its Amended Initial Disclosures pursuant to Fed. R. Civ. P. 26(a)(1) on
May 18, 2015, in which Defendant identified six categories of documents that it may use to
support its claims or defenses. However, Defendant failed to identify Exhibit 73 as a possible
item in its initial Rule 26(a) disclosures. Exhibit 73 does not fall under any of the identified six
categories of documents in Defendant’s Amended Initial Disclosures. As a result, pursuant to the
self-executing sanction provided in Fed. R. Civ. P. 37(c)(1), Defendant is not allowed to use
Exhibit 73 to support its Motion for Summary Judgment.
The proffered exhibit, an article by the Internet Engineering Task Force, has no bearing
on whether Public Resource directly and contributorily infringed Plaintiffs’ copyright in the 1999
Standards. This evidence does not have the tendency to make the existence of any fact that is of
consequence to the determination of this action more probable or less probable than it would be
without the evidence. See Fed. R. Evid. 401, 402.
Moreover, the proffered exhibit, an article by the Internet Engineering Task Force, relies
on an out-of-court statement that is offered to prove the truth of the matter asserted. See Fed. R.
Evid. 801, 802. Statements that are impermissible hearsay are precluded from consideration by
the Court on summary judgment. Because no exceptions to the rule against hearsay apply, the
exhibit is not admissible to support Defendant’s Motion for Summary Judgment. See Fed. R.
Evid. 802.

48

Defendant’s Exhibit No. 74: Brief of Amicus Curiae States of Ohio and Ten Other
States and Territories Supporting Appellant Veeck Upon Rehearing En Banc, Case No.
99-40632, dated November 13, 2001.
Plaintiffs’ Objections: No objection.

IV.

CONCLUSION
WHEREFORE, Plaintiffs, American Educational Research Association, Inc., American

Psychological Association, Inc., and National Council on Measurement in Education, Inc.
respectfully request that this Court sustain these evidentiary objections at the hearing on
Defendant’s Motion for Summary Judgment.

Respectfully submitted,
QUARLES & BRADY LLP
Dated: February 18, 2016

By:

/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Nikia L. Gray (Pro Hac Vice)
Jonathan P. Labukas (DC Bar # 998662)
1700 K Street NW, Suite 825
Washington, DC 20006-3825
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]
E-Mail [e-mail]
Counsel for Plaintiffs American Educational
Research Association, Inc., American
Psychological Association, Inc., and
National Council on Measurement in
Education, Inc.

49

EXHIBIT 1

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,

Case No. 1:14-cv-00857-TSC-DAR
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
AMENDED INITIAL DISCLOSURES
PURSUANT TO FED. R. CIV. P.
26(a)(1)

v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant.
PUBLIC.RESOURCE.ORG, INC.,
Counterclaimant,
v.
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC., and
NATIONAL COUNCIL ON MEASUREMENT IN
EDUCATION, INC.,
Counterdefendants.

Filed:

May 23, 2014

Defendant and Counterclaimant Public.Resource.Org, Inc. (“Public Resource”) makes the
following amended initial disclosures to Plaintiff American Educational Research Association,
Inc. (“AERA”), Plaintiff American Psychological Association, Inc. (“APA”), and Plaintiff
National Council on Measurement in Education, Inc. (“NCME”) (collectively “Plaintiff
Organizations” or “Plaintiffs”) pursuant to Federal Rule of Civil Procedure 26(a)(1). Because
Public Resource’s investigation and discovery in this matter are ongoing, it reserves the right to
supplement and amend this disclosure pursuant to Rule 26(e), to identify additional individuals,
to produce additional information it acquires during the course of discovery, and to rely on such
additional information as evidence in this action and include individuals not identified in these
initial disclosures in Public Resource’s list of trial witnesses. Public Resource makes these
disclosures without waiver of, or prejudice to, any objection that Public Resource may have to
the use at trial of any of the information disclosed in this document, this document itself, or any
document or thing produced pursuant to Rule 26.

1

I.

RULE 26(a)(1)(a)(i): INDIVIDUALS LIKELY TO HAVE DISCOVERABLE
INFORMATION THAT PUBLIC RESOURCE MAY USE TO SUPPORT ITS
CLAIMS OR DEFENSES
Name

Contact
Information

Carl Malamud,
President and Founder
of Public.Resource.Org

c/o Public
Resource’s counsel
of record in this
action

Subject(s)
The public domain status of standards that any
governmental entity has incorporated by
reference into law (“Incorporated Standards”) to
which any Plaintiff Organization claims
authorship; Public Resource’s non-infringement
of the 1999 Standards; the absence of
contributory copyright infringement by Public
Resource relating to the 1999 Standards; Public
Resource’s fair use of the 1999 Standards;
Plaintiff Organizations’ activities in lobbying
for and promoting the incorporation by
reference of standards to which they claim
authorship into law; the absence of harm to
Plaintiff Organizations as a result of Public
Resource’s posting of Incorporated Standards.

2

Felice Levine,
Executive Director,
AERA

c/o Plaintiffs’
counsel of record in
this action

The availability and accessibility of the 1999
Standards for reading, study, commentary,
evaluation, criticism, annotation, and
comparison to other standards and documents
by the public; the availability and accessibility
of the 1985 and 2014 Standards to the public;
Plaintiffs’ lobbying activities and operations;
lobbying by Plaintiffs for the incorporation or
citation of the 1999 Standards into law or
regulation; lobbying by Plaintiffs for the
incorporation or citation of any edition of the
Standards into law or regulation;
communication between the Plaintiffs and
government officials or employees concerning
the benefits, creation, revision, approval,
dissemination, distribution, availability, use,
incorporation into laws or regulations, or
citation of the 1999 Standards or any other
edition of the Standards; any harms that
Plaintiffs allege have occurred to them as a
result of Public Resource’s actions; Plaintiffs’
knowledge of uses or potential uses of the 1999
Standards; Plaintiffs’ communications about or
with Public Resource or this litigation; the
benefits to Plaintiffs from the incorporation or
citation of the 1999 Standards into law or
regulation; the restrictions or terms of access to
the 1999 Standards for reading, study,
commentary, evaluation, bookmarking,
annotation, reproduction, or comparison by the
public; all revenue Plaintiffs received from
government entities in connection with the 1999
Standards; Plaintiffs’ revenue in connection
with the 1999 Standards; sales of the 1999
Standards by month and year; sales of the 1985
and 2014 Standards by month and year; all
changes to the sale or development of the
Standards that Plaintiffs have made because of
the alleged activities of Public Resource;
Plaintiffs’ protocols, procedures, and history in
granting licenses to the 1999 Standards; sale or
licenses of the 1999 Standards by third parties;
authorized dissemination of the 1999 Standards
by third parties.

3

Marianne Ernesto,
Director for Testing
and Assessment, APA

c/o Plaintiffs’
counsel of record in
this action

All elements of the chain of title of copyright
ownership of the 1999 Standards; Plaintiffs’
lack of ownership of copyright rights for the
1999 Standards in whole or in part; copyright
authorship of the 1999 Standards; ownership of
component parts of the 1999 Standards;
assignment of copyright for component parts of
the 1999 Standards; the authority (or lack
thereof) of persons executing copyright
assignment forms in favor of Plaintiffs to
convey copyright rights for the 1999 Standards
to Plaintiffs; evidence of authority for
employees to assign copyrights in the 1999
Standards that they do not own individually to
Plaintiffs; the availability and accessibility of
the 1999 Standards for reading, study,
commentary, evaluation, criticism, annotation,
and comparison to other standards and
documents by the public; the availability and
accessibility of the 1985 and 2014 Standards;
Plaintiffs’ lobbying activities and operations;
lobbying by Plaintiffs for the incorporation or
citation of the 1999 Standards into law or
regulation; lobbying by Plaintiffs for the
incorporation or citation of any edition of the
Standards into law or regulation;
communication between the Plaintiffs and
government officials or employees concerning
the benefits, creation, revision, approval,
dissemination, distribution, availability, use,
incorporation into laws or regulations, or
citation of the 1999 Standards or any other
edition of the Standards; any harms that
Plaintiffs allege have occurred to them as a
result of Public Resource’s actions; Plaintiffs’
knowledge of uses or potential uses of the 1999
Standards; Plaintiffs’ communications about or
with Public Resource or this litigation; the
benefits to Plaintiffs from the incorporation or
citation of the 1999 Standards into law or
regulation; Plaintiffs’ preservation, collection,
and production of documents in this litigation.

4

Lauress L. Wise,
President, NCME

c/o Plaintiffs’
counsel of record in
this action

The availability and accessibility of the 1999
Standards for reading, study, commentary,
evaluation, criticism, annotation, and
comparison to other standards and documents
by the public; Plaintiffs’ lobbying activities and
operations; lobbying by Plaintiffs for the
incorporation or citation of the 1999 Standards
into law or regulation; lobbying by Plaintiffs for
the incorporation or citation of any edition of
the Standards into law or regulation;
communication between the Plaintiffs and
government officials or employees concerning
the benefits, creation, revision, approval,
dissemination, distribution, availability, use,
incorporation into laws or regulations, or
citation of the 1999 Standards or any other
edition of the Standards; any harms that
Plaintiffs allege have occurred to them as a
result of Public Resource’s actions; any lost
sales or licenses that Plaintiffs allege to have
occurred as a result of Public Resource’s
actions; Plaintiffs’ knowledge of uses or
potential uses of the 1999 Standards; Plaintiffs’
communications about or with Public Resource
or this litigation; the benefits to Plaintiffs from
the incorporation or citation of the 1999
Standards into law or regulation.

Diane L. Schneider,
Senior Human Capital
Consultant, PDRI

c/o Plaintiffs’
counsel of record in
this action

Development of the 1999 Standards;
participation of government entities in the
development of the 1999 Standards;
participation of third parties in the development
of the 1999 Standards; authorship of the 1999
Standards by third parties; authorship of the
1999 Standards by government entities; the
nature of any original creative expression in the
1999 Standards; the nature of any creativity
pertaining to the expressions in the 1999
Standards; the availability or unavailability of
the 1985 Standards.

5

Wayne J. Camara,
Senior Vice President,
Research, ACT, Inc.

c/o Plaintiffs’
counsel of record in
this action

Development of the 1999 Standards;
participation of government entities in the
development of the 1999 Standards;
participation of third parties in the development
of the 1999 Standards; authorship of the 1999
Standards by third parties; authorship of the
1999 Standards by government entities; the
nature of any original creative expression in the
1999 Standards; the nature of any creativity
pertaining to the expressions in the 1999
Standards; the availability or unavailability of
the 1985 Standards; any harms that Plaintiffs
allege have occurred to them as a result of
Public Resource’s actions; any lost sales or
licenses that Plaintiffs allege to have occurred
as a result of Public Resource’s actions; the
benefits to Plaintiffs from the incorporation or
citation of the 1999 Standards into law or
regulation.

Ellen Garrison,
Senior Policy Advisor,
APA

c/o Plaintiffs’
counsel of record in
this action

APA’s lobbying activities and operations;
lobbying by APA for the incorporation or
citation of the 1999 Standards into law or
regulation; lobbying by APA for the
incorporation or citation of any edition of the
Standards into law or regulation;
communication between APA and government
officials or employees concerning the benefits,
creation, revision, approval, dissemination,
distribution, availability, use, incorporation into
laws or regulations, or citation of the 1999
Standards; communication between APA and
government officials or employees concerning
the benefits, creation, revision, approval,
dissemination, distribution, availability, use,
incorporation into laws or regulations, or
citation of any edition of the Standards; the
benefits to Plaintiffs from the incorporation or
citation of the 1999 Standards into law or
regulation.

6

Geoffrey Mumford,
Director for Science
and Government
Relations, APA

c/o Plaintiffs’
counsel of record in
this action

APA’s lobbying activities and operations;
lobbying by APA for the incorporation or
citation of the 1999 Standards into law or
regulation; lobbying by APA for the
incorporation or citation of any edition of the
Standards into law or regulation;
communication between APA and government
officials or employees concerning the benefits,
creation, revision, approval, dissemination,
distribution, availability, use, incorporation into
laws or regulations, or citation of the 1999
Standards; communication between APA and
government officials or employees concerning
the benefits, creation, revision, approval,
dissemination, distribution, availability, use,
incorporation into laws or regulations, or
citation of any edition of the Standards; the
benefits to Plaintiffs from the incorporation or
citation of the 1999 Standards into law or
regulation.

Patricia Kobor,
Senior Science Policy
Analyst, APA

c/o Plaintiffs’
counsel of record in
this action

APA’s lobbying activities and operations;
lobbying by APA for the incorporation or
citation of the 1999 Standards into law or
regulation; lobbying by APA for the
incorporation or citation of any edition of the
Standards into law or regulation;
communication between APA and government
officials or employees concerning the benefits,
creation, revision, approval, dissemination,
distribution, availability, use, incorporation into
laws or regulations, or citation of the 1999
Standards; communication between APA and
government officials or employees concerning
the benefits, creation, revision, approval,
dissemination, distribution, availability, use,
incorporation into laws or regulations, or
citation of any edition of the Standards; the
benefits to Plaintiffs from the incorporation or
citation of the 1999 Standards into law or
regulation.

7

Heather Kelly,
Senior Legislative and
Federal Affairs Officer,
APA

c/o Plaintiffs’
counsel of record in
this action

APA’s lobbying activities and operations;
lobbying by APA for the incorporation or
citation of the 1999 Standards into law or
regulation; lobbying by APA for the
incorporation or citation of any edition of the
Standards into law or regulation;
communication between APA and government
officials or employees concerning the benefits,
creation, revision, approval, dissemination,
distribution, availability, use, incorporation into
laws or regulations, or citation of the 1999
Standards; communication between APA and
government officials or employees concerning
the benefits, creation, revision, approval,
dissemination, distribution, availability, use,
incorporation into laws or regulations, or
citation of any edition of the Standards; the
benefits to Plaintiffs from the incorporation or
citation of the 1999 Standards into law or
regulation.

Jennifer Smulson,
Senior Legislative and
Federal Affairs Officer,
APA

c/o Plaintiffs’
counsel of record in
this action

APA’s lobbying activities and operations;
lobbying by APA for the incorporation or
citation of the 1999 Standards into law or
regulation; lobbying by APA for the
incorporation or citation of any edition of the
Standards into law or regulation;
communication between APA and government
officials or employees concerning the benefits,
creation, revision, approval, dissemination,
distribution, availability, use, incorporation into
laws or regulations, or citation of the 1999
Standards; communication between APA and
government officials or employees concerning
the benefits, creation, revision, approval,
dissemination, distribution, availability, use,
incorporation into laws or regulations, or
citation of any edition of the Standards; the
benefits to Plaintiffs from the incorporation or
citation of the 1999 Standards into law or
regulation.

8

Other witnesses
identified now or in the
future in the Plaintiff
Organizations’
disclosures

See Plaintiff
Organizations’
disclosures

See also Plaintiff Organizations’ disclosures.

Public Resource’s investigation, research, and analysis of the issues in this proceeding
are ongoing. If Public Resource identifies additional individuals likely to have discoverable
information that it may use to support its claims or defenses, such as third parties in possession
of information, it will supplement this disclosure pursuant to FED R. CIV. P. 26(e).
II.

RULE 26(a)(1)(a)(ii): DOCUMENTS THAT PUBLIC RESOURCE MAY USE TO
SUPPORT ITS CLAIMS OR DEFENSES

Category

Location

Requests for Information and Notices of Proposed
Rulemaking by the Office of Management and
Budget and the Office of the Federal Register
regarding incorporation by reference,
communications with the Office of the Federal
Register and the National Archives and Records
Administration on the question of incorporation by
reference, communications and prepared statements
for Pipeline and Hazardous Materials Safety
Administration workshop regarding incorporation by
reference.

Public Resource

Documents reporting on or memorializing the
lobbying activities of Plaintiff Organizations,
including lobbying activities promoting the
incorporation or citation of the 1999 Standards into
law or regulation.

Public Resource

Documents reporting on or memorializing the
standard development activities of Plaintiff
Organizations, or standard development activities of
third parties and government entities concerning the
Standards for Educational and Psychological
Testing.

Public Resource

Documents relating to Public Resource’s income and
finances.

Public Resource

9

Category

Location

Documents relating to Public Resource’s processes
for posting standards that various jurisdictions have
incorporated into law.

Public Resource

Documents relating to Public Resource’s fair use of
the 1999 Standards.

Public Resource

Public Resource’s investigation, research, and analysis of the issues in this proceeding are
ongoing. Public Resource expressly reserves the right to supplement its identification of
categories of documents pursuant to FED R. CIV. P. 26(e) as its investigation continues. Public
Resource will produce discoverable, non-privileged documents and things in its possession,
custody, or control for inspection and copying pursuant to a proper inspection demand. Nothing
in this initial disclosure is a representation that any particular document or thing is relevant to
any issue in this action or that any particular document or thing exists or is in Public Resource’s
possession, custody, or control.
III.

RULE 26(a)(1)(A)(iii): COMPUTATION OF DAMAGES CLAIMED BY PUBLIC
RESOURCE
Public Resource does not seek damages at this time. Public Resource will seek attorneys’

fees and costs of this action, in an amount to be determined based on discovery and expert
testimony. Public Resource’s investigation, research and analysis of the issues in this case are
ongoing. Public Resource reserves the right to supplement its disclosures, under FED R. CIV. P.
26(e), as its investigation continues.
IV.

RULE 26(a)(1)(A)(iv): INSURANCE AGREEMENTS
Public Resource does not maintain insurance that is available to satisfy part or all of any

potential judgment, or to indemnify or reimburse payments made to satisfy a judgment.

10

Dated: May 18, 2015
/s/ Andrew Bridges
Andrew P. Bridges (admitted)
[e-mail]
Matthew B. Becker (pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
Corynne McSherry (admitted)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

11

CERTIFICATE OF SERVICE
I hereby certify that on May 18, 2015, a copy of the foregoing DEFENDANTCOUNTERCLAIMANT PUBLIC.RESOURCE.ORG, INC.’S AMENDED INITIAL
DISCLOSURES PURSUANT TO FED. R. CIV. P. 26(a)(1) was served via e-mail to the
following counsel of record for Plaintiffs-Counterdefendants:
Jonathan Hudis
Kathleen Cooney-Porter
OBLON, McCLELLAND, MAIER &
NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

/s/ Matthew B. Becker
Matthew B. Becker

12