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

Filing 99

REPLY to opposition to motion re #69 MOTION for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and Permanent Injunction filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 [Public Redacted] Reply Declaration of Matthew Becker In Further Support of Defendant's Motion for Summary Judgment, #2 [Public Redacted] Defendant's Objections to Plaintiffs' Supplemental Evidence, #3 Supplemental Request for Judicial Notice, #4 [Public Redacted] Objections to Plaintiffs' Supplemental Evidence, #5 Exhibit 75 [Sealed Placeholder], #6 Exhibit 76 [Sealed Placeholder], #7 Exhibit 77 [Sealed Placeholder], #8 Exhibit 78 [Sealed Placeholder], #9 Exhibit 79 [Sealed Placeholder], #10 Exhibit 80 [Sealed Placeholder], #11 Exhibit 81, #12 Exhibit 82, #13 Exhibit 83)(Bridges, Andrew)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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

Case No. 1:14-CV-00857-TSC-DAR
DEFENDANT PUBLIC RESOURCE’S
RESPONSE TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT
PUBLIC RESOURCE’S EVIDENCE
IN SUPPORT OF ITS MOTION FOR
SUMMARY JUDGMENT
[ECF NO. 89-64]
Action Filed: May 23, 2014

TABLE OF CONTENTS
Page
I.

DEFENDANT’S RESPONSE TO PLAINTIFFS’ OBJECTIONS TO THE
DECLARATION OF CARL MALAMUD IN SUPPORT OF
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ............................................1

II.

DEFENDANTS RESPONSE TO PLAINTIFFS’ OBJECTIONS TO THE
CONSOLIDATED EXHIBITS IN SUPPORT OF DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT .......................................................................................30

III.

CONCLUSION ..................................................................................................................80

i

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

DEFENDANT’S RESPONSE TO PLAINTIFFS’ OBJECTIONS TO THE DECLARATION OF CARL MALAMUD
IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant responds to Plaintiffs’ Objections to the Declaration of Carl Malamud as follows:
Defendant’s Evidence

Plaintiffs’ Objections

1. I am over the age of 18 years and
am fully competent to testify to the
matters stated in this declaration.

No objection.

2. This declaration is based on my
personal knowledge. If called to do
so, I would and could testify to the
matters stated herein.

No objection.

1

Defendant’s Reply

Defendant’s Evidence

Plaintiffs’ Objections

3. 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.

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.re
source.articles.html.

No objection.

2

Defendant’s Reply

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

5. 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/Explor
ing_the_Internet.pdf.

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 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.

Relevance. These facts concerning Public
Resource’s history and mission are relevant
because Plaintiffs have put the matter at issue by
falsely claiming in their Motion for Summary
Judgment that Mr. Malamud’s description of his
work with the International Telecommunication
Union in his book Exploring the Internet: a
Technical Travelogue indicated history of posting
standards online without permission, when in fact
that work was performed with the consent of the
organization. Plaintiffs have put this fact at issue to
malign Mr. Malamud’s character and make him
look like a serial infringer, when in fact it instead
shows a dedication to working with organizations
to make standards more accessible online.

3

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

6. 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.

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.

Relevance. These facts concerning Public
Resource’s history and mission are relevant to (1)
the purpose and character of Public Resource’s use
of the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

4

Defendant’s Evidence
7. 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

Defendant’s Reply

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 probable or less probable
than it would be without the evidence.

Relevance. These facts concerning Public
Resource’s history and mission are relevant to (1)
the purpose and character of Public Resource’s use
of the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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.

Hearsay. Public Resource does not rely on a
website to prove the truth of the matters described
in Plaintiffs’ objection, but only states Mr.
Malamud’s personal knowledge of the existence of
radio programs available at that website. In
addition, radio programs from 1993 qualify as
ancient documents under Federal Rule of Evidence
803(16).

5

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

8. 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.”

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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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.

Personal Knowledge. Mr. Malamud has personal
knowledge of the relevant facts and may establish
the foundation for his personal knowledge that the
SEC used of his software for many years at trial.

Fed. R. Evid. 802, Hearsay. Defendant
relies on a letter from the former
Chairman of the SEC 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

Hearsay. The Levitt letter is not offered merely for
the truth of the matter asserted, because it is
relevant to Mr. Malamud’s understanding of his
work. The letter is also from 1995 and is therefore
an ancient document under Federal Rule of

6

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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. 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.

Evidence 803(16).
Best Evidence. Mr. Malamud may provide the
original at trial. In addition, Federal Rule of
Evidence 1004(d) states: “An original is not
required and other evidence of the content of a
writing, recording, or photograph is admissible if
the writing, recording, or photograph is not closely
related to a controlling issue.” Mr. Malamud’s
testimony is not closely related to a controlling
issue. Therefore, his testimony is admissible.

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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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

Personal Knowledge. Mr. Malamud has personal
knowledge that numerous websites provide access
to legal materials originally posted by Public
Resource online. Mr. Malamud can testify as to his

7

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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. Public Resource maintains an
archive of laws and other
government authored materials on
several domains under the
public.resource.org website.

personal knowledge, if necessary, at trial.

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 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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

8

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

11. 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/.

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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

9

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

12. 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/Publ
icResourceOrg and
https://archive.org/details/FedFlix.

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 action more
probable or less probable than it would be
without the evidence.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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-ofcourt statement that is offered to prove the
truth of the matter asserted.

Hearsay.

10

Not Hearsay: Mr. Malamud does not introduce this
evidence only for the truth of the matter asserted,
but also to show his intent and the intent of Public
Resource.
Business Record: Mr. Malamud relies on records
that Public Resource obtained about the YouTube
view counts, which are records of a regularly
conducted activity, made at the time by someone
with knowledge, in the course of a regularly
conducted activity, as a regular practice. Mr.
Malamud can testify to these facts at trial, if
necessary.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

Residual Exception: This testimony is also
admissible under the residual exception in Federal
Rule of Evidence 807 because (1) YouTube view
counts are trustworthy because they are used by
YouTube to determine advertising revenue; (2) the
view count is offered as evidence of the
significance of Mr. Malamud’s projects to make
government records publicly accessible, which is
relevant to the material facts of his intent in posting
the 1999 Standards; (3) the view count is more
probative on the point of how many people viewed
the videos than any other evidence that is
reasonably accessible; and (4) admitting this
evidence will serve the purposes of the Federal
Rules of Evidence and the interests of justice
because it is relevant to Public Resource’s
defenses.

11

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

13. 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 high-quality 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 efile 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.

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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

12

Defendant’s Evidence
14. 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 closedcaptioning of those videos based on
the official transcripts. The letter
from Speaker Boehner may be
found at
https://law.resource.org/rfcs/gov.ho
use.20110105.pdf.

Plaintiffs’ Objections

Defendant’s Reply

Fed R. Evid. 401 & 402, Relevance. Carl
Malamud’s correspondence with
Congress 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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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.

Hearsay. The letter from Speaker Boehner and
Rep. Issa is not offered for the truth of the matter
asserted but to show Mr. Malamud’s belief that he
was asked to assist the federal government make
information available to the public.

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.

Best Evidence: Federal Rule of Evidence 1004(d)
states: “An original is not required and other
evidence of the content of a writing, recording, or
photograph is admissible if the writing, recording,
or photograph is not closely related to a controlling
issue.” Mr. Malamud’s testimony is not closely
related to a controlling issue. Therefore, his
testimony is admissible.

13

Defendant’s Evidence

Plaintiffs’ Objections

15. Also in 2008, I examined the
issue of availability of statemandated 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.

Fed. R. Evid. 602, Lack of Personal
Knowledge. Whether any state-mandated
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.

Personal Knowledge: Mr. Malamud’s testimony
shows his personal knowledge of the lack of
availability of state-mandated safety codes online
in 2008.

16. 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.

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 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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

14

Defendant’s Reply

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

17. 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.

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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

15

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

18. 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.g
ov/reboot.register.pdf.

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
determination of this action more
probable or less probable than it would be
without the evidence.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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.

Personal Knowledge: The testimony is based on
Mr. Malamud’s personal knowledge and he can
testify to sufficient facts to show his personal
knowledge at trial, if necessary.

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

Lay Opinion: Mr. Malamud’s percipient knowledge
of changes in the federal register and opinion on
that transformation do not require scientific,
technical, or specialized knowledge under Federal

16

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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.

Rule of Evidence 702.

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.

Hearsay. Public Resource does not rely on the
memorandum solely for the truth of the matter
asserted, because it also goes to Mr. Malamud’s
state of mind and intent in posting the 1999
Standards.

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.

Best Evidence: Federal Rule of Evidence 1004(d)
states: “An original is not required and other
evidence of the content of a writing, recording, or
photograph is admissible if the writing, recording,
or photograph is not closely related to a controlling
issue.” Mr. Malamud’s testimony is not closely
related to a controlling issue. Therefore, his
testimony is admissible.
In addition, Mr. Malamud can introduce the
original on request.

17

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

19. 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.

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 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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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.

Prejudice. There is no risk that the likelihood that
the Court will be prejudiced by this testimony
substantially outweighs its probative value. Indeed,
the risk of any prejudice is non-existent and
Plaintiffs’ contention that Mr. Malamud does not
have “special expertise or authority” is a nonsequitur; Public Resource has not argued that the
Court should defer to Mr. Malamud’s legal
conclusions.

18

Defendant’s Evidence

Plaintiffs’ Objections

20. 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.

No objection.

21. 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

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.

Defendant’s Reply

Best Evidence. Federal Rule of Evidence 1004(d)
states: “An original is not required and other
evidence of the content of a writing, recording, or
photograph is admissible if the writing, recording,
or photograph is not closely related to a controlling
issue.” Mr. Malamud’s testimony is not closely
related to a controlling issue. Therefore, his
testimony is admissible.
In addition, Mr. Malamud can provide a copy of
the challenged documents on request, as necessary.

19

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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

Hearsay. Public Resource does not offer this
testimony for the truth of the matter asserted, but
only to show Mr. Malamud and Public Resource’s
intent in posting the 1999 Standards.

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.
22. 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.

20

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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. 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

No objection.

21

Best Evidence. Federal Rule of Evidence 1004(d)
states: “An original is not required and other
evidence of the content of a writing, recording, or
photograph is admissible if the writing, recording,
or photograph is not closely related to a controlling
issue.” Mr. Malamud’s testimony is not closely
related to a controlling issue. Therefore, his
testimony is admissible.
In addition, Mr. Malamud can provide a copy of
the challenged documents on request, as necessary.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

obtain on the used book market.
24. 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 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.

No objection.

25. 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

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.

22

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

Fed R. Evid. 401 & 402, Relevance.
Public Resource’s alleged development of
techniques for making documents more
usable 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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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
26. Public Resource has continued
to develop techniques for making
the documents that we post more
usable, including double-keying
and adding markup to HTML and
SVG versions of the documents.
Double-keying 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.

23

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

27. 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.

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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

28. We have made several

Fed R. Evid. 401 & 402, Relevance.

Relevance. These facts concerning Mr. Malamud’s

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.

24

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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.

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.

experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

29. 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/).

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.

Lay Opinion. Mr. Malamud’s opinion concerning
the structure of Public Resource’s website is
rationally based on his perception of how he
designed the Public Resource website and is not
based on scientific, technical, or other specialized
knowledge within the scope of Rule 702. “Lay
opinion testimony is admissible if ‘the specialized
knowledge at issue was gained though experience
rather than though scientific or technical training,’
so long as the witness testified ‘based solely on
personal experience with the case at issue.’” Barnes
v. D.C., 924 F. Supp. 2d 74, 83 (D.D.C. 2013)
(admitting lay testimony of prisoner overdetention).
Mr. Malamud’s testimony is based on his personal
knowledge of Public Resource’s website.
Therefore, it is admissible.

30. Public Resource has one

Fed R. Evid. 401 & 402, Relevance.

Relevance. These facts concerning Mr. Malamud’s

25

Defendant’s Evidence
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
the 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

Defendant’s Reply

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.

experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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 on an out-of-court
statement that is offered to prove the truth
of the matter asserted.

Hearsay. Mr. Malamud does not rely on his
financials to prove the truth of the matter asserted,
to which he testifies based on his personal
knowledge.

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.

Best Evidence. Federal Rule of Evidence 1004(d)
states: “An original is not required and other
evidence of the content of a writing, recording, or
photograph is admissible if the writing, recording,
or photograph is not closely related to a controlling
issue.” Mr. Malamud’s testimony is not closely
related to a controlling issue. Therefore, his
testimony is admissible.
In addition, Mr. Malamud can provide a copy of

26

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply
the challenged documents on request, as necessary.

31. Public Resource has never
sought benefit or compensation
from its posting of the 1999
Standards. We have never used the
1999 Standards for marketing.

No objection.

32. 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.

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.

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use
defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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

Lay Opinion. Mr. Malamud’s opinion concerning
his attention to quality control and responses to
reports of errors is rationally based on his own
conduct and is not based on scientific, technical, or

27

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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.

other specialized knowledge within the scope of
Rule 702. “Lay opinion testimony is admissible if
‘the specialized knowledge at issue was gained
though experience rather than though scientific or
technical training,’ so long as the witness testified
‘based solely on personal experience with the case
at issue.’” Barnes v. D.C., 924 F. Supp. 2d 74, 83
(D.D.C. 2013) (admitting lay testimony of prisoner
overdetention). Mr. Malamud’s testimony is based
on his personal knowledge of his quality control
and response times to reports of errors. Therefore,
it is admissible.

33. 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.

No objection.

34. 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

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’

28

Relevance. These facts concerning Mr. Malamud’s
experience making government information
available to the public are relevant to (1) the
purpose and character of Public Resource’s use of
the 1999 Standards, which is probative and
consequential for Public Resource’s fair use

Defendant’s Evidence
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

Defendant’s Reply

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.

defense; (2) Public Resource’s intent in posting the
1999 Standards and maintaining its website, which
is relevant to Plaintiffs’ contributory infringement
claim; and (3) balancing the hardships and the
public interest factor in assessing Plaintiffs’
demand for permanent injunctive relief.

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.

Prejudice. Plaintiffs’ objection merely restates their
relevance objection without identifying any
potential unfair prejudice or confusion. There is
nothing potentially prejudicial or confusing about
this testimony.

29

II.

DEFENDANTS RESPONSE TO PLAINTIFFS’ OBJECTIONS TO THE CONSOLIDATED EXHIBITS IN
SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant responds to Plaintiffs’ Objections to the Consolidated Exhibits In Support of Defendant’s Motion for Summary

Judgment as follows:
Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Exhibit No. 1: Public
Resource’s Articles of Incorporation, at
https://public.resource.org/public.resource.
articles.html.

No objection.

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

No objection.

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

No objection.

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

No objection.

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

No objection.

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

No objection.

30

Defendant’s Reply

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Exhibit No. 7: Excerpts of
No objection.
the deposition of Carl Malamud, dated May
12, 2015
Defendant’s Exhibit No. 8: Excerpts of
the deposition of Kurt F. Geisinger, dated
September 10, 2015

No objection.

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

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.

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.

No objection.

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

31

Defendant’s Reply

Defendant’s Evidence

Plaintiffs’ Objections

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

No objection.

Defendant’s Exhibit No. 14: Exhibit 1070
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0031803806.

No objection.

Defendant’s Exhibit No. 15: Exhibit 1071 No objection.
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0031459-60.
Defendant’s Exhibit No. 16: Exhibit 1072
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0004710.

No objection.

Defendant’s Exhibit No. 17: Exhibit 1075 No objection.
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0031139-40.
Defendant’s Exhibit No. 18: Exhibit 1078 No objection.
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0031116-19.

32

Defendant’s Reply

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Exhibit No. 19: Exhibit 1082 No objection.
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0004719-20.
Defendant’s Exhibit No. 20: Exhibit 1085 No objection.
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0031456-58.
Defendant’s Exhibit No. 21: Exhibit 1086 No objection.
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0004713-14.
Defendant’s Exhibit No. 22: Exhibit 1089 No objection.
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0031461-62.
Defendant’s Exhibit No. 23: Exhibit 1090 No objection.
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0031430-31.
Defendant’s Exhibit No. 24: Exhibit 1091 No objection.
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0004715-16.
Defendant’s Exhibit No. 25: Exhibit 1094
in the deposition of Marianne Ernesto,

No objection.

33

Defendant’s Reply

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

produced by Plaintiffs bearing control
number AERA_APA_NCME_0004717-18.
Defendant’s Exhibit No. 26: Exhibit 1097 No objection.
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0031414-16.
Defendant’s Exhibit No. 27: Exhibit 1099
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0026988–
89.

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
34

Exhibit No. 27 is a letter from P.R. Jeanneret,
Managing Principle of Jeanneret & Associates
Inc., management consultants, to Norman
Abeles, then the President of Plaintiffs
American Psychological Association, dated
July 11, 1997. The letter sets forth the
author’s request to provide additional
revisions to the draft 1999 Standards and
discusses the author’s previous suggestions
that were incorporated into the draft 1999
Standards.
Public Resource cited this exhibit in support
of its dispute of Plaintiffs’ Statement of
Material Facts ¶ 15 that the “final language of
the 1999 Standards was a product of the Joint
Committee members.
Exhibit No. 27 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Adequate Disclosure: On May 18, 2015,
Public Resource served disclosures that
identified six categories of documents under

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

Rule 26(a)(1)(A)(ii). The third category was:
“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.”
Defendant served its Amended Initial
The Exhibit memorializes standard
Disclosures pursuant to Fed. R. Civ. P.
development activities of Plaintiff
26(a)(1) on May 18, 2015, in which
Organizations and third parties concerning the
Defendant identified six categories of
Standards for Education and Psychological
documents that it may use to support its
Testing. Therefore, it has been properly
claims or defenses. However, Defendant
disclosed.
failed to identify Exhibit 27 (Exhibit
Possession. Under Federal Rule of Civil
1099 to the deposition of Marianne
Procedure 26(a)(1)(A)(ii), Public Resource
Ernesto) as a possible item in its initial
Rule 26(a) disclosures. Exhibit 27 does was required to disclose documents that
Public Resource “has in its possession,
not fall under any of the identified six
categories of documents in Defendant’s custody, or control.” Documents produced by
Plaintiffs are not in Public Resource’s
Amended Initial Disclosures. As a
possession, custody, or control. Therefore,
result, pursuant to the self-executing
Public Resource was not required to
sanction provided in Fed. R. Civ. P.
disclosure them under Rule 26(a).
37(c)(1), Defendant is not allowed to
use Exhibit 27 to support its Motion for Made Available. Under Federal Rule of Civil
Summary Judgment.
Procedure 26(e)(1)(A), Public Resource must
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 selfexecuting sanction, and the motive or
reason for the failure is irrelevant. Id.

supplement its disclosures only “if the
additional or corrective information has not
otherwise been made known to the other
parties during the discovery process or in
writing.” Public Resource made the Exhibit
known to Plaintiffs during a deposition.
Therefore, Public Resource has not violated
35

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply
Federal Rule of Civil Procedure 26 and
exclusion under Federal Rule of Civil
Procedure 37 is not warranted.
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
document that Plaintiffs produced in
discovery and that Public Resource identified
and used as an exhibit during a deposition of
Plaintiffs’ employee and designated corporate
representative. Therefore, this exhibit should
not be excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

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.
36

Hearsay.
Preliminary Question. Public Resource
introduces this exhibit to establish the
relevance of Plaintiffs’ failure to adduce a
copyright assignment from P.R. Jeanneret.
Therefore, this evidence goes to a preliminary
question of admissibility under Federal Rule

Defendant’s Evidence

Plaintiffs’ Objections
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 Reply
104. The Court is not bound by the rules of
evidence in determining preliminary
questions. Fed. R. Ev. 104(a).
Business Record. This exhibit qualifies as a
business record under Federal Rule of
Evidence 803(6). Plaintiffs have admitted that
they solicited and recorded comments and
suggestions for the revisions to the 1985
Standards. This documents was made and
kept in the course of that regularly conducted
activity.
Residual Exception. The statements in Exhibit
No. 27 that P.R. Jeanneret made suggestions
for the text of the 1999 Standards that were
incorporated by Plaintiffs have guarantees of
trustworthiness because the declarant has no
incentive to lie and Plaintiffs have admitted
they solicited and relied upon comments from
nonparties. The Exhibit is offered as evidence
concerning Plaintiffs’ ownership of a
copyright interest in the 1999 Standards,
which is a material fact. This letter is more
probative on the fact of P.R. Jeanneret’s
authorship than any other evidence Public
Resource can obtain through reasonable
efforts. Admitting this evidence will serve the
purposes of the Federal Rules of Evidence
and the interests of justice by enabling the
Court to better ascertain whether Plaintiffs
can establish a copyright interest, and the
nature of that interest, in the 1999 Standards.

37

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply
Finally, Plaintiffs have had notice of this
Exhibit and a fair opportunity to meet it
because it was in their custody, the subject of
deposition testimony, and raised in Public
Resource’s Motion for Summary Judgment in
advance of any hearing.

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

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.

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.

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.

No Objection.

Defendant’s Exhibit No. 32: Exhibit 1116
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control

No Objection.

38

Defendant’s Evidence

Plaintiffs’ Objections

number AERA_APA_NCME_003 1 5 1 8–
20.
Defendant’s Exhibit No. 33: Exhibit 1121
in the deposition of Marianne Ernesto,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0004820–
23.

No Objection.

Defendant’s Exhibit No. 34: Exhibit 1157 No Objection.
in the deposition of Wayne Camara,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0004946-56.
Defendant’s Exhibit No. 35: Exhibit 1197 No Objection.
in the deposition of Felice Levine,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0004519-20.
Defendant’s Exhibit No. 36: Exhibit 1198 No Objection.
in the deposition of Felice Levine,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0004542-43.
Defendant’s Exhibit No. 37: Exhibit 1200 No Objection.
in the deposition of Felice Levine,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0004546-48.
Defendant’s Exhibit No. 38: Exhibit 1205
in the deposition of Felice Levine,
produced by Plaintiffs bearing control

No Objection.

39

Defendant’s Reply

Defendant’s Evidence

Plaintiffs’ Objections

number AERA_APA_NCME_0004818.
Defendant’s Exhibit No. 39: Exhibit 1207
in the deposition of Felice Levine,
produced by Plaintiffs bearing control
number AERA_APA_NCME_0031848.

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.

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.

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.

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.

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.

No Objection.

40

Defendant’s Reply

Defendant’s Evidence

Plaintiffs’ Objections

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

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.

No Objection.

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

No Objection.

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

No Objection.

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

No Objection.

Defendant’s Exhibit No. 50: Account
No Objection.
statement, Exhibit 1263 in the deposition of
Kurt Geisinger.
Defendant’s Exhibit No. 51: Expert
Report of James R. Fruchterman, dated
June 13, 2015.

No Objection.

41

Defendant’s Reply

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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/tipocto9
9/22Camara.aspx

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 selfexecuting sanction, and the motive or
reason for the failure is irrelevant. Id.

Exhibit No. 52 is a publicly available article
authored by Wayne Camara, one of Plaintiffs’
corporate designees and witnesses, and
published by the Society for Industrial and
Organizational Psychology. In the article, Mr.
Camara discusses the Department of
Education’s Office of Civil Rights (OCR)’s
release of a draft Resource Guide and
Plaintiffs’ efforts to delay the release until
Plaintiffs released the 1999 Standards, so that
the OCR could defer to the revised Standards.
Public Resource relies on Exhibit No. 52 to
show that Plaintiff AERA lobbied the federal
government concerning the 1999 Standards
and to impeach Mr. Camara’s claims to the
contrary. See ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 52;
ECF No. 69-3, Public Resource’s Statement
of Disputed Facts ¶ 22.

Defendant served its Amended Initial
42

Exhibit No. 52 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Adequate Disclosure: On May 18, 2015,
Public Resource served disclosures that
identified six categories of documents under
Rule 26(a)(1)(A)(ii). The second category
was: “Documents reporting on or
memorializing the lobbying activities of
Plaintiff Organizations, including lobbying
activities promoting the incorporation or

Defendant’s Evidence

Plaintiffs’ Objections
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.37(c)(1), Defendant is not allowed to
use Exhibit 52 to support its Motion for
Summary Judgment.

Defendant’s Reply
citation of the 1999 Standards into law or
regulation.” The Exhibit is an article that
reports on Plaintiffs’ lobbying efforts.
Therefore, it has been properly disclosed.
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit was created
by Plaintiffs and available on a publicly
accessible website, which was not in Public
Resource’s possession, custody, or control.
Therefore, Public Resource was not required
to disclose this exhibit under Rule 26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
document that Plaintiffs’ witness authored
and that was publicly available online.
Therefore, this exhibit should not be
excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the

43

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply
non-disclosure.

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/Members
hipBenefits/tabid/10224/Default.aspx;

Hearsay.

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.”

Exhibit No. 53 is Plaintiff AERA’s own
webpage describing its membership benefits.
Public Resource relies on this document to
show that AERA has other means of
generating revenue than sale of the 1999
Standards. ECF No. 69-2, Public Resource’s
Statement of Material Facts ¶ 66.

44

Prior Inconsistent Statement. Under Federal
Rule of Evidence 801(d)(1), a declarant’s
prior inconsistent statement is admissible.
Exhibit 52 contains statements by Mr.
Camara, including about a hearing held by the
House of Representatives, that are
inconsistent with his testimony that Plaintiffs
did not lobby federal legislators. ECF No. 6076, Camara Decl. ¶ 18.
Opposing Party Statement. Under Federal
Rule of Evidence 801(d)(2), an opposing
party’s statement is not hearsay. Exhibit 52 is
an article authored by Wayne Camara and
published in October 1999. At the time, Mr.
Camara was serving on Plaintiff APA’s
Council of Representatives.

Exhibit No. 53 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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 selfexecuting sanction, and the motive or
reason for the failure is irrelevant. Id.

Impeachment: Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource is
not required to disclose documents that it may
use for the purposes of impeachment. Public
Resource relies on this evidence to impeach
Plaintiffs’ claims, and testimony of their
witnesses, that Plaintiffs would be unable to
continue to develop the Standards if Public
Resource prevails in this litigation.

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

Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of one
of Plaintiffs’ own websites that was publicly
available online. Therefore, this exhibit
should not be excluded.

45

Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit was created
by Plaintiffs and available on a publicly
accessible website, which was not in Public
Resource’s possession, custody, or control.
Therefore, Public Resource was not required
to disclose this exhibit under Rule 26(a).

Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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 printout 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/i
ndex.aspx?tab=4.

Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.
Relevance. Exhibit No. 53 is relevant to the
market harm analysis under Public Resource’s
fair use defense and the balance of hardships
analysis under Plaintiffs’ request for a
permanent injunction.

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

Exhibit No. 54 is Plaintiff APA’s own
webpage describing its membership benefits.
Public Resource relies on this document to
show that APA has other means of generating
revenue than sale of the 1999 Standards. ECF
No. 69-2, Public Resource’s Statement of
Material Facts ¶ 66.

46

Exhibit No. 54 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Impeachment: Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource is

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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 selfexecuting sanction, and the motive or
reason for the failure is irrelevant. Id.

not required to disclose documents that it may
use for the purposes of impeachment. Public
Resource relies on this evidence to impeach
Plaintiffs’ claims, and testimony of their
witnesses, that Plaintiffs would be unable to
continue to develop the Standards if Public
Resource prevails in this litigation.

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.

Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of one
of Plaintiffs’ own websites that was publicly
available online. Therefore, this exhibit
should not be excluded.

47

Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit was created
by Plaintiffs and available on a publicly
accessible website, which was not in Public
Resource’s possession, custody, or control.
Therefore, Public Resource was not required
to disclose this exhibit under Rule 26(a).

Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

37(c)(1), Defendant is not allowed to
use Exhibit 54 to support its Motion for
Summary Judgment.
Moreover, the proffered exhibit, a printout 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/bo
oktemplate/productdetail.jsp?pageName=re
latedProducts&catId=364&prodId=prod 19
670410

proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.
Relevance. Exhibit No. 54 is relevant to the
market harm analysis under Public Resource’s
fair use defense and the balance of hardships
analysis under Plaintiffs’ request for a
permanent injunction.

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]

Exhibit No. 55 is a publicly available
webpage offering for sale a book that consists
almost entirely of information in the public
domain. Public Resource relies on this
document to refute Plaintiffs’ claims that they
would not be able to earn revenue from the
1999 Standards if Public Resource prevailed
in this litigation. ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 68–
72.

48

Exhibit No. 55 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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 selfexecuting sanction, and the motive or
reason for the failure is irrelevant. Id.

Impeachment: Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource is
not required to disclose documents that it may
use for the purposes of impeachment. Public
Resource relies on this evidence to impeach
Plaintiffs’ claims, and testimony of their
witnesses, that Plaintiffs would be unable to
continue to develop the Standards for lack of
revenue if Public Resource prevails in this
litigation.

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

49

Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit is a copy of
a publicly accessible website, which was not
in Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
nonparty website that was publicly available
online. Therefore, this exhibit should not be
excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court

Defendant’s Evidence

Plaintiffs’ Objections
use Exhibit 55 to support its Motion for
Summary Judgment.

Defendant’s Reply
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.
(Plaintiffs’ objections concerning nondisclosure, moreover, are inconsistent with
the fact that they adduced numerous publicly
available documents that they did not
previously disclose in their Reply, particularly
websites showing library catalog entries.
Under Plaintiffs’ interpretation of Rule 26 and
37 here, those websites would have to be
excluded.)

Moreover, the proffered exhibit, a printout 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.
Defendant’s Exhibit No. 56: Matthew

Relevance. Exhibit No. 55 is relevant to the
market harm analysis under Public Resource’s
fair use defense and the balance of hardships
analysis under Plaintiffs’ request for a
permanent injunction because it shows that
other commercial entities offer to sell
information in the public domain.

Fed. R. Civ. P. 26(a)(1)(A)(ii) provides

Exhibit No. 56 is a publicly available

50

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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/bo
oktemplate/productdetail.jsp?pageName=re
lat
edProducts&skuId=SKU44095&catId=128
&prodId=44095

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 selfexecuting sanction, and the motive or
reason for the failure is irrelevant. Id.

webpage offering for sale a book that consists
almost entirely of information in the public
domain. Public Resource relies on this
document to refute Plaintiffs’ claims that it
would not be able to earn revenue from the
1999 Standards if Public Resource prevailed
in this litigation. ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 68–
72.

Defendant served its Amended Initial
Disclosures pursuant to Fed. R. Civ. P.

51

Exhibit No. 56 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Impeachment: Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource is
not required to disclose documents that it may
use for the purposes of impeachment. Public
Resource relies on this evidence to impeach
Plaintiffs’ claims, and testimony of their
witnesses, that Plaintiffs would be unable to
continue to develop the Standards for lack of
revenue if Public Resource prevails in this
litigation.
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit is a copy of
a publicly accessible website, which was not
in Public Resource’s possession, custody, or
control. Therefore, Public Resource was not

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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.

required to disclose this Exhibit under Rule
26(a).

Moreover, the proffered exhibit, a printout 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

Relevance. Exhibit No. 56 is relevant to the
market harm analysis under Public Resource’s
fair use defense and the balance of hardships
analysis under Plaintiffs’ request for a
permanent injunction because it shows that
other commercial entities offer to sell
information in the public domain.

52

Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
nonparty website that was publicly available
online. Therefore, this exhibit should not be
excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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/la
w-products/Court-Rules/District-ofColumbia-Rules-of-Court---District-2016ed-Vol-I-District-of-Columbia-CourtRules/p/101765392.

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 selfexecuting sanction, and the motive or
53

Exhibit No. 57 is a publicly available
webpage offering for sale a book that consists
almost entirely of information in the public
domain. Public Resource relies on this
document to refute Plaintiffs’ claims that it
would not be able to earn revenue from the
1999 Standards if Public Resource prevailed
in this litigation. ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 68–
72.
Exhibit No. 57 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Impeachment: Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource is
not required to disclose documents that it may
use for the purposes of impeachment. Public
Resource relies on this evidence to impeach
Plaintiffs’ claims, and testimony of their
witnesses, that Plaintiffs’ would be unable to
continue to develop the Standards for lack of
revenue if Public Resource prevails in this
litigation.
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,

Defendant’s Evidence

Plaintiffs’ Objections
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 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 printout 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
54

Defendant’s Reply
custody, or control.” This Exhibit is a copy of
a publicly accessible website, which was not
in Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
nonparty website that was publicly available
online. Therefore, this exhibit should not be
excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.
Relevance. Exhibit No. 56 is relevant to the
market harm analysis under Public Resource’s
fair use defense and the balance of hardships
analysis under Plaintiffs’ request for a
permanent injunction because it shows that
other commercial entities offer to sell
information in the public domain.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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-dick-melvilleherman/1110282307?
ean=9781593080181 #productInfoTabs

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
55

Exhibit No. 58 is a publicly available
webpage offering for sale a book that consists
almost entirely of information in the public
domain. Public Resource relies on this
document to refute Plaintiffs’ claims that it
would not be able to earn revenue from the
1999 Standards if Public Resource prevailed
in this litigation. ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 68–
72.
Exhibit No. 58 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Impeachment: Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource is
not required to disclose documents that it may
use for the purposes of impeachment. Public
Resource relies on this evidence to impeach
Plaintiffs’ claims, and testimony of their
witnesses, that Plaintiffs’ would be unable to
continue to develop the Standards for lack of
revenue if Public Resource prevails in this
litigation.
Possession. Under Federal Rule of Civil

Defendant’s Evidence

Plaintiffs’ Objections
the failure was substantially harmless.
Fed. R. Civ. P. 37(c)(1) is a selfexecuting 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 printout of the Barnes & Noble website on
the sale of Moby-Dick by Herman
Melville, has no bearing on whether
Public Resource directly and
56

Defendant’s Reply
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit is a copy of
a publicly accessible website, which was not
in Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
nonparty website that was publicly available
online. Therefore, this exhibit should not be
excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.
Relevance. Exhibit No. 58 is relevant to the
market harm analysis under Public Resource’s
fair use defense and the balance of hardships
analysis under Plaintiffs’ request for a
permanent injunction because it shows that

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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/adventu
res-of-tom-sawyerbarnes-nobleclassicsseries-mark-twain/
1106017534?ean=9781593081393.

other commercial entities offer to sell
information in the public domain.

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

Exhibit No. 59 is a publicly available
webpage offering for sale a book that consists
almost entirely of information in the public
domain. Public Resource relies on this
document to refute Plaintiffs’ claims that it
would not be able to earn revenue from the
1999 Standards if Public Resource prevailed
in this litigation. ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 68–
72.

57

Exhibit No. 59 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Impeachment: Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource is
not required to disclose documents that it may
use for the purposes of impeachment. Public
Resource relies on this evidence to impeach
Plaintiffs’ claims, and testimony of their
witnesses, that Plaintiffs’ would be unable to
continue to develop the Standards for lack of
revenue if Public Resource prevails in this

Defendant’s Evidence

Plaintiffs’ Objections
(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 selfexecuting 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 printout of the Barnes & Noble website on

58

Defendant’s Reply
litigation.
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit is a copy of
a publicly accessible website, which was not
in Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
nonparty website that was publicly available
online. Therefore, this exhibit should not be
excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.
Relevance. Exhibit No. 59 is relevant to the
market harm analysis under Public Resource’s

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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.
Defendant’s Exhibit No. 60: Barnes &
Noble website link for “Barnes & Noble
Classics” at
http://www.barnesandnoble.com/h/bnclassi
cs/about.

fair use defense and the balance of hardships
analysis under Plaintiffs’ request for a
permanent injunction because it shows that
other commercial entities offer to sell
information in the public domain.

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

Exhibit No. 60 is a publicly available
webpage offering for sale a book that consists
almost entirely of information in the public
domain. Public Resource relies on this
document to refute Plaintiffs’ claims that it
would not be able to earn revenue from the
1999 Standards if Public Resource prevailed
in this litigation. ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 68–
72.

59

Exhibit No. 60 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Impeachment: Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource is
not required to disclose documents that it may
use for the purposes of impeachment. Public
Resource relies on this evidence to impeach
Plaintiffs’ claims, and testimony of their

Defendant’s Evidence

Plaintiffs’ Objections
(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 selfexecuting 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.

60

Defendant’s Reply
witnesses, that Plaintiffs’ would be unable to
continue to develop the Standards for lack of
revenue if Public Resource prevails in this
litigation.
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit is a copy of
a publicly accessible website, which was not
in Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
nonparty website that was publicly available
online. Therefore, this exhibit should not be
excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

Moreover, the proffered exhibit, a printout 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.

Relevance. Exhibit No. 60 is relevant to the
market harm analysis under Public Resource’s
fair use defense and the balance of hardships
analysis under Plaintiffs’ request for a
permanent injunction because it shows that
other commercial entities offer to sell
information in the public domain.

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

No objection.

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

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.

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

61

Exhibit No. 63 is an email between Public
Resource’s counsel and Plaintiffs’ counsel
regarding discovery disputes.
Exhibit No. 63 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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 selfexecuting sanction, and the motive or
reason for the failure is irrelevant. Id.

Other Use: Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource is
only required to disclose documents that it
may use to support its claims and defenses.
Public Resource relies on this Exhibit to
support its objection to Plaintiffs introducing
facts on topics into which it refused to allow
discovery, namely editions of the Standards
other than the 1999 edition.

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)

62

Made Available. Under Federal Rule of Civil
Procedure 26(e)(1), Public Resource was not
required to disclose documents that it made
available during discovery. Public Resource
made this email available to Plaintiffs by
sending it to their counsel during discovery.
Therefore, Public Resource was not required
to disclose this Exhibit under Rule 26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of
correspondence between counsel in this
action. Therefore, this exhibit should not be
excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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_0013446449.

proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

Relevance. The Exhibit is relevant to whether
Plaintiffs may introduce evidence concerning
editions of the Standards other than the 1999
Standards.

No objection.

63

Defendant’s Evidence

Plaintiffs’ Objections

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

No objection.

Defendant’s Exhibit No. 66: “Putting a
Number on Federal Education Spending,”
available at
http://economix.blogs.nytimes.com/2013/0
2/27/putting-a-number-onfederaleducation-spending/?_r=0.

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

Defendant’s Reply

64

Exhibit 66 is a publicly available article
concerning the value of federal student aid in
a given year. Public Resource relies on this
exhibit to support its claim that failure to
comply with the Standards may result in
penalties. ECF No. 69-2, Public Resource’s
Statement of Material Facts ¶ 33.
Exhibit No. 66 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit was created
by a nonparty and made available on a
publicly accessible website, which was not in
Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

motion, at a hearing, or at a trial, unless
the failure was substantially harmless.
Fed. R. Civ. P. 37(c)(1) is a selfexecuting sanction, and the motive or
reason for the failure is irrelevant. Id.

harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
publicly available article discussing the
context in which the Standards have been
incorporated by reference into law. Therefore,
this exhibit should not be excluded.

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 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

65

Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

Relevance. This Exhibit is relevant to whether
the Standards are incorporated by reference
into law and to the proper interpretation of the
Copyright Act. See ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 33.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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.

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
66

Exhibit 67 is a publicly available article
concerning federal student aid. Public
Resource relies on this exhibit to support its
claim that failure to comply with the
Standards may result in penalties. ECF No.
69-2, Public Resource’s Statement of Material
Facts ¶ 33.
Exhibit No. 67 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit was created
by a nonparty and made available on a
publicly accessible website, which was not in
Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was

Defendant’s Evidence

Plaintiffs’ Objections
the failure was substantially harmless.
Fed. R. Civ. P. 37(c)(1) is a selfexecuting 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 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 printout 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

67

Defendant’s Reply
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
publicly available article discussing the
context in which the Standards have been
incorporated by reference into law. Therefore,
this exhibit should not be excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

Relevance. This Exhibit is relevant to whether
the Standards are incorporated by reference
into law and to the proper interpretation of the
Copyright Act. See ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 33.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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/front2b
ack/programs/programs/fb_03_01_0030.ht
m

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.
68

Exhibit 68 is a publicly available article
concerning federal student aid. Public
Resource relies on this exhibit to support its
claim that failure to comply with the
Standards may result in penalties. ECF No.
69-2, Public Resource’s Statement of Material
Facts ¶ 33.
Exhibit No. 68 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit was created
by a nonparty and made available on a
publicly accessible website, which was not in
Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm

Defendant’s Evidence

Plaintiffs’ Objections
Fed. R. Civ. P. 37(c)(1) is a selfexecuting 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 printout 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

69

Defendant’s Reply
from Public Resource’s non-disclosure of a
publicly available article discussing the
context in which the Standards have been
incorporated by reference into law. Therefore,
this exhibit should not be excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

Relevance. This Exhibit is relevant to whether
the Standards are incorporated by reference
into law and to the proper interpretation of the
Copyright Act. See ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 33.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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

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 self70

Exhibit 69 is a publicly available document
concerning federal student aid and for-profit
universities. Public Resource relies on this
exhibit to support its claim that failure to
comply with the Standards may result in
penalties. ECF No. 69-2, Public Resource’s
Statement of Material Facts ¶ 33.
Exhibit No. 69 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit was created
by a nonparty and made available on a
publicly accessible website, which was not in
Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a

Defendant’s Evidence

Plaintiffs’ Objections
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

71

Defendant’s Reply
publicly available article discussing the
context in which the Standards have been
incorporated by reference into law. Therefore,
this exhibit should not be excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

Relevance. This Exhibit is relevant to whether
the Standards are incorporated by reference
into law and to the proper interpretation of the
Copyright Act. See ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 33.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

be without the evidence. See Fed. R.
Evid. 401, 402.
Defendant’s Exhibit No. 70: U.S.
Department of Education, DCL ID: GEN15-09, “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.ht
ml

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,
72

Exhibit 70 is a publicly available document
concerning federal student aid and for-profit
universities. Public Resource relies on this
exhibit to show a particular effect of the
incorporation of the 1999 Standards into law.
ECF No. 69-2, Public Resource’s Statement
of Material Facts ¶ 34.
Exhibit No. 70 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit was created
by a nonparty and made available on a
publicly accessible website, which was not in
Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
publicly available article discussing the

Defendant’s Evidence

Plaintiffs’ Objections
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.
Moreover, the proffered exhibit, a printout 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

73

Defendant’s Reply
context in which the Standards have been
incorporated by reference into law. Therefore,
this exhibit should not be excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

Relevance. This Exhibit is relevant to whether
the Standards are incorporated by reference
into law and to the proper interpretation of the
Copyright Act. See ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 34.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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,
74

Exhibit 71 is a publicly available document
concerning federal student aid and for-profit
universities. Public Resource relies on this
exhibit to show a particular effect of the
incorporation of the 1999 Standards into law.
ECF No. 69-2, Public Resource’s Statement
of Material Facts ¶ 34.
Exhibit No. 71 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit was created
by the government and made available on a
publicly accessible website, which was not in
Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).
Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
publicly available article discussing the

Defendant’s Evidence

Plaintiffs’ Objections
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 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.

75

Defendant’s Reply
context in which the Standards have been
incorporated by reference into law. Therefore,
this exhibit should not be excluded.
Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

Relevance. This Exhibit is relevant to whether
the Standards are incorporated by reference
into law and to the proper interpretation of the
Copyright Act. See ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 34.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

See Fed. R. Evid. 401, 402.
Defendant’s Exhibit No. 72: “Program
Integrity Issues,” Federal Register,
available at:
https://www.federalregister.gov/articles/20
10/10/29/201026531/programintegrityissues#h-4

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).

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
76

Exhibit No. 73 is a publicly available
document describing how the internet works.
Public Resource relies on this document to
show that it “has no way of knowing whether
any access to data resulted in a reproduction
being made.” ECF No. 69-2, Public
Resource’s Statement of Material Facts ¶ 100.
Exhibit No. 73 should not be excluded under
Federal Rule of Civil Procedure 37 for the
following reasons:
Possession. Under Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), Public Resource
was required to disclose documents that
Public Resource “has in its possession,
custody, or control.” This Exhibit was created
by a nonparty and made available on a
publicly accessible website, which was not in
Public Resource’s possession, custody, or
control. Therefore, Public Resource was not
required to disclose this Exhibit under Rule
26(a).

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

(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 selfexecuting sanction, and the motive or
reason for the failure is irrelevant. Id.

Harmless. Under Federal Rule of Civil
Procedure 37(c)(1), undisclosed evidence is
not excluded if the failure to disclose was
harmless. Plaintiffs cannot identify any harm
from Public Resource’s non-disclosure of a
document that was publicly available and not
from a source whose accuracy cannot
reasonably be questioned. Therefore, this
exhibit should not be excluded.

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

77

Lesser Sanction. Under Federal Rule of Civil
Procedure 37(c)(1), if and only if the Court
finds this Exhibit should be excluded, Public
Resource asks leave to move for the court to
impose a lesser sanction of staying the
proceedings so that Plaintiffs can cure any
reasonable harm they can identify from the
non-disclosure.

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply

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.

Hearsay. The Court may take judicial notice
of the facts stated in Exhibit 73 under Federal
Rule of Evidence 201. Plaintiffs offer no
authority for their contention that the Court
cannot judicially notice facts accurately and
readily determined by hearsay sources whose
accuracy cannot reasonably be questioned.
Plaintiffs have not opposed Public Resource’s
Request for Judicial Notice. See ECF No. 697, Public Resource’s Request for Judicial
Notice. Therefore, the Court may judicially
notice this document, regardless of the fact
that it may contain hearsay statements.
The Internet Engineering Task Force is the
standards development organization for the
basic protocols that govern all communication
via the Internet, and “Request for Comments”
(RFC) is IETF's name for standards. Every
computer and software program that uses the
World Wide Web is by definition
implementing RFC 7231 or its predecessor
standards. Its contents “can be accurately and
readily determined from sources whose
accuracy cannot reasonably be questioned.”
Federal Rule of Evidence 201(b)(2). Thus, the
court should take judicial notice, and whether

78

Defendant’s Evidence

Plaintiffs’ Objections

Defendant’s Reply
the document is hearsay is irrelevant.

Defendant’s Exhibit No. 74: Brief of
No objection.
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.

79

III.

CONCLUSION
WHEREFORE, Public Resource respectfully requests that this Court deny Plaintiffs’

evidentiary objections at the hearing on the Parties’ Cross-Motions for Summary Judgment.
Dated: March 3, 2016

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

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