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.,

Case No. 1:14-CV-00857-TSC-DAR
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG’S
OBJECTIONS TO PLAINTIFFS’
SUPPLEMENTAL EVIDENCE

Plaintiffs,
Action Filed: May 23, 2014
v.
PUBLIC.RESOURCE.ORG,
Defendant.

[REDACTED VERSION]

TABLE OF CONTENTS
Page
I.

OBJECTION TO PLAINTIFFS’ UNAUTHORIZED RESPONSE TO
PUBLIC RESOURCE’S STATEMENT OF DISPUTED FACTS .....................................1

II.

STANDARDS FOR ADMISSIBLE EVIDENCE ON A MOTION FOR
SUMMARY JUDGMENT ..................................................................................................1
A.
B.

Lack of Personal Knowledge/Foundation ................................................................2

C.

Improper Lay Testimony on Legal Conclusions or Expert Subject
Matter .......................................................................................................................3

D.

Hearsay ....................................................................................................................4

E.

Unauthenticated Documents ....................................................................................5

F.
III.

Irrelevant Evidence ..................................................................................................2

Secondary Evidence Rule ........................................................................................5

OBJECTIONS TO THE REPLY DECLARATIONS AND EXHIBITS FILED
IN FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY
JUDGMENT AND PERMANENT INJUNCTION AND IN OPPOSITION
TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT......................................5
A.

Expert Report of S. E. Phillips, Plaintiffs’ Exhibit VVVVV...................................5
1.

Plaintiffs’ improper designation of Dr. Phillips ...........................................6

2.

Dr. Phillips improperly opines beyond the areas of her
expertise and is unreliable under Federal Rule of Evidence 702 .................7
a.

Dr. Phillips lacks expertise necessary to opine on issues
of copyright law, and her opinions on matters of law are
inappropriate subjects for an expert report ......................................8

b.

Dr. Phillips lacks expertise necessary to opine on screen
reading software and the implementation of
accommodations for people with visual disabilities ........................9

c.

Dr. Phillips lacks expertise necessary to opine on
financial harms and market substitution ........................................12

d.

Dr. Phillips did not perform any expert analysis and is
not well versed with the facts of the case ......................................14

i

TABLE OF CONTENTS
(Continued)
Page
B.

Reply Declaration of Wayne Camara In Further Support of Plaintiffs’
Motion For Summary Judgment-Permanent Injunction ........................................15

C.

Declaration of Nikia L. Gray In Further Support of Plaintiffs’ Reply In
Support of Its Motion for Summary Judgment-Permanent Injunction ..................25

ii

TABLE OF AUTHORITIES
Page(s)
CASES 
Aguilar v. Int’l Longshoremen’s Union Local No. 10,
966 F.2d 443 (9th Cir. 1992) .....................................................................................................9
Anheuser-Busch, Inc. v. Natural Beverage Distribs.,
69 F.3d 337 (9th Cir. 1995) .......................................................................................................4
Barthelemy v. Air Lines Pilots Ass’n,
897 F.2d 999 (9th Cir. 1990) .....................................................................................................2
Blair Foods, Inc. v. Ranchers Cotton Oil,
610 F.2d 665 (9th Cir. 1980) .....................................................................................................4
Blake v. Securitas Security Servs., Inc.,
292 F.R.D. 15 (D.D.C. 2013).....................................................................................................6
Block v. City of Los Angeles,
253 F.3d 410 (9th Cir. 2001) .....................................................................................................1
Boyd v. City of Oakland,
458 F. Supp. 2d 1015 (N.D. Cal. 2006) .....................................................................................2
Cambridge Elecs. Corp. v. MGA Elecs., Inc.,
227 F.R.D. 313 (C.D. Cal. 2004) ...............................................................................................4
Dura Automotive Systems of Indiana, Inc. v. CTS Corp.,
285 F.3d 609 (7th Cir. 2002) .............................................................................................10, 12
Elion v. Jackson,
No. 1:05-cv-00992, 2006 WL 2583694 (D.D.C. Sept. 8, 2006) ................................................6
Evangelista v. Inlandboatmen’s Union of Pac.,
777 F.2d 1390 (9th Cir. 1985) ...................................................................................................3
Express, LLC v. Fetish Grp., Inc.,
464 F. Supp. 2d 965 (C.D. Cal. 2006) .......................................................................................2
Gable v. Nat’l Broad. Co.,
727 F. Supp. 2d 815 (C.D. Cal. 2010), aff’d, 438 F. App’x 587 (9th Cir. 2011) ......................3
In re Cypress Semiconductor Sec. Litig.,
891 F. Supp. 1369 (N.D. Cal. 1995), aff’d, 113 F.3d 1240 (9th Cir. 1997) ..............................4
Int’l Church of Foursquare Gospel v. City of San Leandro,
902 F. Supp. 2d 1286 (N.D. Cal. 2012) .....................................................................................4
iii

TABLE OF AUTHORITIES
(Continued)
Page(s)
Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999) ...............................................................................................................4, 7
LifeWise Master Funding v. Telebank,
374 F.3d 917 (10th Cir. 2004) ...................................................................................................7
Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871 (1990) ...................................................................................................................4
Meister v. Med. Eng’g Corp.,
267 F.3d 1123 (D.C. Cir. 2001) .................................................................................................8
Orr v. Bank of America,
285 F.3d 764 (9th Cir. 2002) .............................................................................................1, 2, 4
Pierce v. Kaiser Found. Hosp.,
No. 3:09-cv-03837-WHA, 2010 WL 4590930 (N.D. Cal. Nov. 4, 2010),
aff’d, 470 F. App’x 649 (9th Cir. 2012).....................................................................................3
Riggsbee v. Diversity Servs., Inc.,
637 F. Supp. 2d 39 (D.D.C. 2009) .............................................................................................4
Smith v. Hughes Aircraft Co.,
22 F.3d 1432 (9th Cir. 1993) .....................................................................................................2
Soremekun v. Thrifty Payless, Inc.,
509 F.3d 978 (9th Cir. 2007) .....................................................................................................4
U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc.,
296 F. Supp. 2d 1322 (S.D. Ala. 2003)......................................................................................3
U.S. ex rel. Miller v. Bill Harbert Int’l Constr., Inc.,
608 F.3d 871 (D.C. Cir. 2010) ...................................................................................................2
U.S. v. Davis,
596 F.3d 852 (D.C. Cir. 2010) ...................................................................................................2
Uche-Uwakwe v. Shinseki,
972 F. Supp. 2d 1159 (C.D. Cal. 2013) .....................................................................................2
United States v. 87.98 Acres of Land More or Less in the County of Merced,
530 F.3d 899 (9th Cir. 2008) .....................................................................................................3

iv

TABLE OF AUTHORITIES
(Continued)
Page(s)
United States v. Dibble,
429 F.2d 598 (9th Cir. 1970) .....................................................................................................5
United States v. Hampton,
718 F.3d 978 (D.C. Cir. 2013) ...................................................................................................3
Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc.,
254 F.3d 706 (8th Cir. 2001) .....................................................................................................7
RULES
D.C. LCvR 7(h)................................................................................................................................1
Fed. R. Civ. P. 37(c)(1) ....................................................................................................................6
Fed. R. Civ. P. 56 .........................................................................................................................2, 5
Fed. R. Civ. P. 56(c) ....................................................................................................................1, 2
Fed. R. Civ. P. 56(e) ........................................................................................................................4
Fed. R. Evid. 101 .............................................................................................................................1
Fed. R. Evid. 402 ................................................................................................................... passim
Fed. R. Evid. 403 ................................................................................................................... passim
Fed. R. Evid. 602 ................................................................................................................... passim
Fed. R. Evid. 701 ................................................................................................................... passim
Fed. R. Evid. 702 ................................................................................................................... passim
Fed. R. Evid. 802 ................................................................................................................... passim
Fed. R. Evid. 901 .............................................................................................................................5
Fed. R. Evid. 1001 ...........................................................................................................................5
Fed. R. Evid. 1002 ...........................................................................................................................5
Fed. R. Evid. 1101 ...........................................................................................................................1

v

Defendant-Counterclaimant Public.Resource.Org, Inc. (“Defendant” or “Public
Resource”) hereby submits the following objections to Plaintiffs’ supplemental declarations and
evidence in support of Plaintiffs’ Reply in Further Support of Its Motion for Summary Judgment
and for Permanent Injunction and Opposition to Defendant’s Motion for Summary Judgment,
ECF No. 89.
I.

OBJECTION TO PLAINTIFFS’ UNAUTHORIZED RESPONSE TO PUBLIC
RESOURCE’S STATEMENT OF DISPUTED FACTS
As a threshold matter, Public Resource hereby objects to and moves to strike Plaintiffs’

Response to Public Resource’s Statement of Disputed Facts (ECF No. 89-2) as outside the scope
of documents permitted under LCvR 7(h), which allows only a Statement of Material Facts and a
Statement of Disputed Facts.
II.

STANDARDS FOR ADMISSIBLE EVIDENCE ON A MOTION FOR SUMMARY
JUDGMENT
It is fundamental that trial courts “can only consider admissible evidence in ruling on a

motion for summary judgment.” Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002)
(emphasis added); see also Fed. R. Civ. P. 56(c); Fed. R. Evid. 101 (Rules of Evidence apply to
all proceedings in the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to
Rule 101). Hearsay, documents that cannot be authenticated, out-of-context excerpts, and
evidence with no foundation will not suffice, and are not to be considered by the court in ruling
on motions for summary judgment or adjudication. See Block v. City of Los Angeles, 253 F.3d
410, 418-19 (9th Cir. 2001) (deciding that consideration of a declaration’s facts not based on
personal knowledge was an abuse of discretion because such facts were inadmissible). Much of
the evidence on which Plaintiffs attempt to rely fails to meet the minimum threshold
requirements of admissibility, as set forth below:

1

A.

Irrelevant Evidence

Irrelevant evidence cannot be considered in summary judgment proceedings. See Fed. R.
Evid. 402; see also U.S. ex rel. Miller v. Bill Harbert Int’l Constr., Inc., 608 F.3d 871, 897 (D.C.
Cir. 2010) (“To be admitted, evidence must be relevant.”); Smith v. Hughes Aircraft Co., 22 F.3d
1432, 1439 (9th Cir. 1993) (affirming trial court’s refusal to consider irrelevant evidence on
summary judgment); Uche-Uwakwe v. Shinseki, 972 F. Supp. 2d 1159, 1165 (C.D. Cal. 2013)
(sustaining objection that statement filed in support of motion for summary judgment was
inadmissible for lack of relevance and foundation).
B.

Lack of Personal Knowledge/Foundation

A fact witness may not testify to a matter unless the witness has personal knowledge of
the matter. Fed. R. Evid. 602; Fed. R. Civ. P. 56(c) (“declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated”); U.S. v.
Davis, 596 F.3d 852, 856 (D.C. Cir. 2010) (“The Rules also prohibit a witness from testifying
unless he has personal knowledge of the subject of his testimony.”); Orr, 285 F.3d at 774 , n.9;
Express, LLC v. Fetish Grp., Inc., 464 F. Supp. 2d 965, 973 (C.D. Cal. 2006) (“Declarations
submitted in conjunction with summary judgment proceedings must . . . be based on personal
knowledge”). Further, “[a] declarant’s mere assertions that he or she possesses personal
knowledge and competency to testify are not sufficient.” Boyd v. City of Oakland, 458 F. Supp.
2d 1015, 1023 (N.D. Cal. 2006). A declarant must show personal knowledge and competency
“affirmatively,” under Rule 56, for example, by “the nature of the declarant’s position and nature
of participation in matter.” Id.; see also Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018
(9th Cir. 1990) (inferring personal knowledge from affiants’ “positions and the nature of their
participation in the matters to which they swore . . .”). The fact that Public Resource does not
2

object to the witnesses’ testimony that they have personal knowledge of the facts stated in their
declarations and are competent to testify thereto does not in any way signal Public Resource’s
agreement with those assertions; Public Resource merely does not contend those statements
about personal knowledge are inadmissible, but they may be wrong.
C.

Improper Lay Testimony on Legal Conclusions or Expert Subject Matter

Legal conclusions and characterizations are not admissible evidence. See Pierce v. Kaiser
Found. Hosp., No. 3:09-cv-03837-WHA, 2010 WL 4590930, at *8 (N.D. Cal. Nov. 4, 2010),
aff’d, 470 F. App’x 649 (9th Cir. 2012) (excluding numerous declarant statements containing
inadmissible legal conclusions). The Declarants, without any legal expertise, repeatedly purport
to state legal conclusions or characterizations and the legal effects of documents supposedly
relevant to this dispute. See Fed. R. Evid. 701; see also Evangelista v. Inlandboatmen’s Union of
Pac., 777 F.2d 1390, 1398 n.3 (9th Cir. 1985) (lay opinion construing contract provisions is
inadmissible); Pierce, 2010 WL 4590930, at *8 (declaration that opponent “breached” agreement
or “violated” laws is inadmissible legal conclusion).
Testimony requiring scientific, technical, or other specialized knowledge may be given
only by an expert witness with the requisite knowledge, skill, experience, training, or education,
and opinion testimony is not permitted of a lay person. Fed. R. Evid. 701, 702; see also United
States v. Hampton, 718 F.3d 978, 981–82 (D.C. Cir. 2013) (finding error when district court
allowed FBI agent to testify as a lay witness in the form of an opinion without an applicable
exception in Rule 701); U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F.
Supp. 2d 1322, 1331 (S.D. Ala. 2003) (unqualified expert opinions inadmissible at summary
judgment). The “proponent of the expert bears the burden of demonstrating that the expert is
qualified.” Gable v. Nat’l Broad. Co., 727 F. Supp. 2d 815, 833 (C.D. Cal. 2010), aff’d, 438 F.
App’x 587 (9th Cir. 2011) (citing United States v. 87.98 Acres of Land More or Less in the
3

County of Merced, 530 F.3d 899, 904-05 (9th Cir. 2008)). See also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147-48 (1999) (expert must have specialized knowledge).
One type of improper lay opinion is unsupported, speculative, and conclusory statements.
These statements, as well as characterizations and arguments by opposing parties and their
attorneys, are not evidence and do not raise a genuine issue of material fact sufficient to preclude
summary judgment. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990) (The purpose of
Rule 56(e) is “not to replace conclusory allegations of the complaint with conclusory allegations
of an affidavit.”). Rather, “[w]here the moving party will have the burden of proof at trial, it
must affirmatively demonstrate that no reasonable trier of fact could find other than for the
moving party.” Int’l Church of Foursquare Gospel v. City of San Leandro, 902 F. Supp. 2d 1286,
1290-91 (N.D. Cal. 2012) (citing Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
2007)) (emphasis added). Cf. Orr, 285 F.3d at 783 (“To defeat summary judgment, [one
opposing summary judgment] ‘must respond with more than mere hearsay and legal
conclusions’”); Cambridge Elecs. Corp. v. MGA Elecs., Inc., 227 F.R.D. 313, 320 (C.D. Cal.
2004) (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise
genuine issues of fact and defeat summary judgment”).
D.

Hearsay

Generally, “inadmissible hearsay evidence may not be considered on a motion for
summary judgment.” Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 n.4
(9th Cir. 1995); see also Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir.
1980) (“hearsay evidence is inadmissible and may not be considered by this court on review of a
summary judgment”); Riggsbee v. Diversity Servs., Inc., 637 F. Supp. 2d 39, 46 (D.D.C. 2009)
(“on summary judgment, statements that are impermissible hearsay or that are not based on
personal knowledge are precluded from consideration by the Court.”); In re Cypress
4

Semiconductor Sec. Litig., 891 F. Supp. 1369, 1374 (N.D. Cal. 1995) (hearsay evidence cannot
be considered in summary judgment proceedings), aff’d, 113 F.3d 1240 (9th Cir. 1997).
E.

Unauthenticated Documents

Authentication or identification is a prerequisite to admissibility of a document. Fed. R.
Evid. 901. Under Rule 56, evidence in support of a motion for summary judgment is
objectionable if it cannot be presented in a form that would be admissible. A document cannot be
authenticated by one who does not have personal knowledge of its authenticity. The foundation
is laid for receiving a document in evidence by the testimony of a witness with personal
knowledge of the facts who attests to the identity and due execution of the document and, where
appropriate, its delivery. United States v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970). If the
Plaintiffs are unable to show that they could authenticate a document at trial, then the document
should not be considered in support of Plaintiffs’ motion for summary judgment.
F.

Secondary Evidence Rule

The “secondary evidence rule” requires that contents of documents must be proved by
producing the document itself. Fed. R. Evid. 1001, 1002.
III.

OBJECTIONS TO THE REPLY DECLARATIONS AND EXHIBITS FILED IN
FURTHER SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY
JUDGMENT AND PERMANENT INJUNCTION AND IN OPPOSITION TO
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
A.

Expert Report of S. E. Phillips, Plaintiffs’ Exhibit VVVVV

For the reasons stated below, Public Resource objects to and moves to strike Plaintiffs’
use of the report of S. E. Phillips for the assertions for which it is cited in their combined
Opposition and Reply Motion (ECF No. 89, pp. 34, 36–37) and Statement of Disputed Facts
(ECF No. 89-1, p. 56). Public Resource additionally reserves the right to challenge Plaintiffs’
proffering of Dr. Phillips as an expert at trial.

5

1.

Plaintiffs’ improper designation of Dr. Phillips

As an initial matter, Dr. Phillips was proffered by Plaintiffs as a rebuttal expert
responding to the expert report of Mr. Fruchterman. The majority of her report, however, does
not address Mr. Fruchterman’s opinions, but instead introduces information for which Plaintiffs
bear the burden of proof. Under Federal Rule of Civil Procedure 37(c)(1), a party that fails to
properly disclose an expert may be precluded from using that expert’s testimony or opinions as
evidence for a motion, hearing, or trial. See Blake v. Securitas Security Servs., Inc., 292 F.R.D.
15, 17–19 (D.D.C. 2013) (striking rebuttal expert testimony because expert should have instead
been disclosed as affirmative expert, due to the content of the report). Where an affirmative
expert is improperly disclosed as a rebuttal expert and the report is therefore untimely, “[t]he
overwhelming weight of authority is that preclusion is required and mandatory absent some
unusual or extenuating circumstances—that is, a substantial justification.” Id. at 19 (citing Elion
v. Jackson, No. 1:05-cv-00992, 2006 WL 2583694, at *1 (D.D.C. Sept. 8, 2006))) (emphasis in
original).
Mr. Fruchterman opined on the accessibility of the 1999 Standards for people with print
disabilities. The paragraphs of Dr. Phillips’ expert report that Plaintiffs cite include extensive
discussion and opinions on issues that are only relevant to Plaintiffs’ affirmative case, such as

6

These assertions address issues central to Plaintiffs’ affirmative case, yet they attempt
pass off their inclusion in the rebuttal report by tacking on statements such as
despite the fact that these opinions are irrelevant to
whether the 1999 Standards are accessible to people with print disabilities. See, e.g., Pls. Ex.
VVVVV, ¶¶ 30, 32, and 34. At deposition, when Dr. Phillips was asked how the alleged harms
to Plaintiffs were relevant to the accessibility issues described in Mr. Fruchterman’s report, Dr.
Phillips stated that the relevance was that “if there are no revenues to revise the Standards, there
will be no Standards for individuals who are blind or print disabled to access.” Phillips Dep.
146:10–21. This is quite a stretch, and not relevant to Mr. Fruchterman’s opinions about the
status quo for the 1999 Standards. Dr. Phillips’ expert report was improperly designated and
should be excluded from the evidence considered at summary judgment, as Plaintiff’s improper
designation was not substantially justified or harmless.
2.

Dr. Phillips improperly opines beyond the areas of her expertise and
is unreliable under Federal Rule of Evidence 702

An important part of a district court’s “gatekeeping role” is “ensuring that the actual
testimony does not exceed the scope of the expert’s expertise, which if not done can render
expert testimony unreliable under Rule 702, Kumho Tire, and related precedents.” Wheeling
Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001)
(finding trial court abused its discretion is allowing expert to opine outside his area of expertise);
LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004) (expert excluded for
lacking familiarity with methods to model damages). The party offering expert testimony must

7

establish by a preponderance of the evidence that the expert testimony is admissible and that the
expert is qualified. Meister v. Med. Eng’g Corp., 267 F.3d 1123, 1127 n. 9 (D.C. Cir. 2001).
Dr. Phillips is an expert in psychometrics and assessment law who counsels clients on
how to design legally defensible tests in accordance with the Standards for Educational and
Psychological Testing. Phillips Dep. 19:15–20:14,

In the few

instances where she has testified as an expert witness, Dr. Phillips’ role was to interpret relevant
testing standards and apply them to existing tests. Phillips Dep. 105:13–21,
Although Dr. Phillips may therefore be qualified to interpret and apply the 1999 Standards,
her report addresses entirely different subjects, and she is not qualified to opine on the broad
swath of matters contained in her report:

These subjects are addressed separately below.
a.

Dr. Phillips lacks expertise necessary to opine on issues of
copyright law, and her opinions on matters of law are
inappropriate subjects for an expert report

In her report, Dr. Phillips’ opines at length on legal issues, particularly

This is despite the fact that Dr. Phillips stated emphatically at deposition that she
is not an expert on copyright law (Phillips Dep. 43:19–21; 126:24 (“I am not an expert in
8

copyright law”)), that she is not an expert on the Chafee Amendment (Phillips Dep. 149:11–13),
and professed ignorance as to the applications of fair use and admitted that she had excluded fair
use from her analysis because it was beyond the scope of what Plaintiffs had asked her to
consider (Phillips Dep. 150:21–152:01).
Even if she did have expertise in this area, Dr. Phillips’ opinions on copyright law would
still be improper: “matters of law for the court’s determination . . . [a]re inappropriate subjects
for expert testimony.” Aguilar v. Int'l Longshoremen's Union Local No. 10, 966 F.2d 443, 447
(9th Cir. 1992). Contrary to Federal Rule of Evidence 702, Dr. Phillips’ opinions on copyright
law, the Chafee Amendment, or any matter of law are expert opinions by a witness who is not
qualified as an expert by knowledge, skill, experience, training, or education. The testimony
further will not help the trier of fact to understand the evidence or to determine a fact in issue; is
not based on sufficient facts or data; is not the product of reliable principles and methods; and is
not based on the expert’s reliable application of reliable principles and methods to the facts of the
case. Plaintiffs should be precluded from using Dr. Phillips’ report at summary judgment for
opinions on copyright law, the Chafee Amendment, or any matter of law.
b.

Dr. Phillips lacks expertise necessary to opine on screen
reading software and the implementation of accommodations
for people with visual disabilities

Dr. Phillips admitted at deposition that she has never used any screen reader software and
has not seen screen reader software in operation except for a single informal presentation in
2010. Phillips Dep. 67:19–72:21; 203:12–205:15. Dr. Phillips obtained what limited knowledge
she has of screen reader software from reading the websites for a few screen reader products in
preparation of her report, from the aforementioned informal presentation she witnessed in 2010,
and allegedly from previous discussion with an individual named Dr. Claudia Flowers (a
professor who works on disabilities issues who Dr. Phillips recommended to Plaintiffs as the
9

person they should retain as an expert to rebut Mr. Fruchterman, but who Plaintiffs did not
retain). Phillips Dep. 54:10–57:06.

Perhaps Dr. Claudia Flowers or

might have made

appropriate experts to respond to Mr. Fruchterman on these issues, but Dr. Phillips does not have
the requisite knowledge or experience to opine on screen reading software. To the extent that Dr.
Phillips has relied on the expertise and opinions of other individuals who were not timely
disclosed as experts, Dr. Phillips’ opinions should be struck. See Dura Automotive Systems of
Indiana, Inc. v. CTS Corp., 285 F.3d 609, 612–614 (7th Cir. 2002) (affirming district court’s
decision to strike expert who relied on data models that went beyond his expertise).
Dr. Phillips opines

but at deposition she professed ignorance as to the cost of developing
Braille or audio formats of the 1999 Standards, nor did she know the cost of producing Braille or
audio format editions for a typical novel, and she admitted that she has never inquired with an
organization that creates Braille formats of documents what the cost of that activity is. Phillips
Dep. 196:03–197:25. Dr. Phillips also callously declared at deposition that the paper copies of
the 1999 Standards were already accessible to people who are blind, because they could either
painstakingly attempt to scan the hundreds of pages from the bound volume for use with a screen

10

reader program, or they could have a sighted person read them aloud to them. Phillips Dep.
63:25–64–16. When asked what her basis was for making the statement that the 1999 Standards
were already accessible to people who are blind, Dr. Phillips responded: “It doesn’t require
research. It’s a fact.” Phillips Dep. 66:12–67:05. Under Federal Rule of Evidence 702, an expert
may only testify if the expert has specialized knowledge that will help the trier of fact to
determine a fact in issue or understand the evidence, and if she has reliably applied reliable
principles and methods to the facts of the case. Dr. Phillips’ lacks specialized knowledge in this
domain, and her decision to matter-of-factly deny Mr. Fruchterman’s expert opinion without any
research or analysis flouts the requirement under Rule 702 to reliably apply reliable principles
and methods for the development of an expert opinion.
Similarly, although Dr. Phillips opines at length

she has no knowledge of these verification procedures or the costs involved in implementing
them beyond what she read on a few websites in preparation of her report. At deposition, Dr.
Phillips confessed that she only knows “in a general way” about the process that organizations
like Bookshare use to verify individuals’ disabilities, and she does not know what is involved
beyond what is stated on these organizations’ websites. Phillips Dep. 198:20–202:05. Dr. Phillips
also admitted that she has not inquired as to what costs are involved in implementing verification
systems like these. Phillips Dep. 198:20–199:09. Under Federal Rule of Evidence 702, Dr.
Phillips’ opinions on the implementation and operation of accessibility technologies, as well as
her knowledge of online disability screening procedures for the visually disabled are expert
opinions by a witness who is not qualified as an expert by knowledge, skill, experience, training,

11

or education. The testimony further will not help the trier of fact to understand the evidence or to
determine a fact in issue; is not based on sufficient facts or data; is not the product of reliable
principles and methods; and is not based on the expert’s reliable application of reliable principles
and methods to the facts of the case. Dr. Phillips’ knowledge of these issues is no greater than
what any other person could learn from reading the materials cited in her report, and her opinions
on these subjects should therefore be excluded from consideration at summary judgment.
c.

Dr. Phillips lacks expertise necessary to opine on financial
harms and market substitution

Dr. Phillips is not an expert on economics, damages, or market substitution. At
deposition, Dr. Phillips confirmed that the areas of expertise that she drew on for her report were
“psychometrics and assessment law,” and indicated that she did not draw on any other areas of
expertise. Phillips Dep. 19:15–20:14.
Dr. Phillips did not
independently verify the statements in Dr. Geisinger’s report. Phillips Dep. 129:07–130:04,
168:19–170:12. She therefore has no basis for adopting these as her own opinions. An expert
may apply to her own domain of expertise the information provided by another disclosed expert,
but may not testify to the truth of what the other expert has stated if it is outside of her own
domain. See Dura Automotive Systems of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 613–614
(7th Cir. 2002). Dr. Phillips readily admits that she did not view any of Plaintiffs’ financial
documents. Phillips Dep. 139:12–16; 169:01–02 (“I have made no independent inspection of the
financial records.”). Moreover, Dr. Phillips’ misstates or misinterprets Dr. Geisinger’s
conclusions, such as where she credits Dr. Geisinger’s report for her (mistaken) opinion

when in fact the budget for the 2014

12

Standards was set years before Public Resource posted the 1999 Standards. Phillips Dep.
158:09–168:18.
Dr. Phillips stated that the expertise she brings to bear on the question of financial harms
is simply her familiarity with the Standards for Educational and Psychological Testing. Phillips
Dep. 140:03–144:20. Dr. Phillips added that she could not say that she has any greater expertise
in that regard than other employees of Plaintiffs, nor greater expertise than Wayne Camara, one
of Plaintiffs’ lay witnesses. Phillips Dep. 143:09–145:24. At deposition Dr. Phillips described
her opinion that
as based not on expertise, but
instead her opinion was based on “common sense” and said that rather than bringing any
expertise to that question, she “think[s] it’s basically a fact” and did not do any research on the
question beyond reading the case materials provided to her by Plaintiffs’ counsel. Phillips Dep.
181:10–183:04; 188:10–189:21. Using “common sense” under the guise of expertise is not the
proper role of an expert witness. Under Federal Rule of Evidence 702 Dr. Phillips’ opinions on
financial harms to Plaintiffs are expert opinions by a witness who is not qualified as an expert by
knowledge, skill, experience, training, or education. The testimony further will not help the trier
of fact to understand the evidence or to determine a fact in issue; is not based on sufficient facts
or data; is not the product of reliable principles and methods; and is not based on the expert’s
reliable application of reliable principles and methods to the facts of the case. Dr. Phillips’
opinions on financial harms to Plaintiffs should therefore be excluded from consideration at
summary judgment.

13

d.

Dr. Phillips did not perform any expert analysis and is not well
versed with the facts of the case

As a general matter, Dr. Phillips also does not show familiarity with the facts of the case,
as she admitted she did not know that Public Resource pled fair use in its Answer and
Counterclaim, even though Dr. Phillips’ said that she read that document and despite the fact that
fair use is an important alternative to the Chafee Amendment on which she opines. Phillips Dep.
154:08–23. This is also despite her own belief that

Dr. Phillips also did not do any research for her report beyond reviewing the information
provided to her by Plaintiffs’ counsel: she did not conduct any surveys (Phillips Dep. 99:06–17;
124:19–24;141:10–142:09; 178:14–20), she did not interview or speak to anyone other than
Plaintiffs’ counsel about the substance of this case

(Phillips Dep. 224:25–225:16), and she did not perform any studies
(Phillips Dep. 99:06–10; 123:02–25; 140:24–141:09; 173:04–175:06).1 Contrary to the
requirements of Federal Rule of Evidence 702, Dr. Phillips’ opinions are not based on sufficient
facts or data and are not the product of reliable principles and methods, and should therefore be
excluded from consideration at summary judgment.

1

At deposition, when Dr. Phillips was asked if she performed any studies for the purposes of her
expert report, she identified nothing other than reading the case material provided to her by
Plaintiffs’ counsel and the websites for a few screen reader programs. Familiarizing oneself with
the case prior to writing a report for it could hardly be considered a “study” for an expert report.
14

B.

Reply Declaration of Wayne Camara In Further Support of Plaintiffs’
Motion For Summary Judgment-Permanent Injunction

Declaration of Wayne Camara In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

1. I submit this Reply Declaration in further
support of Plaintiffs’ Motion for Summary
Judgment, and in Opposition to
Public.Resource.Org, Inc.’s (“Defendant” or
“Public Resource”) Cross-Motion for Summary
Judgment. Unless otherwise noted, I have
knowledge of all facts set forth in this
Declaration and I would, and could, testify
competently thereto if called upon to do so.

No objection.

2. I am currently the Senior Vice President,
Research at ACT, Inc. ACT produces and
publishes the ACT® college readiness
assessment — a college admissions and
placement test taken by millions of high school
graduates every year. ACT also offers
comprehensive assessment, research,
information, and program management services
to support education and workforce
development. As the Senior Vice President of
Research, I am responsible for all research and
evidence related to the design, development,
use, and validation of our assessments and
programs. In my position, I serve on the Senior
Leadership Team and manage over 110
researchers.

No objection.

3. Prior to working at ACT, I worked at The
College Board, where I held the positions of
Vice President, Research and Development
(July, 2000 – September, 2013), Executive
Director, Office of Research and Development
(March, 1997 – June, 2000), and Research
Scientist (September, 1994 – February, 1997).

No objection.

4. Before working at The College Board, I
worked for the American Psychological
Association, Inc. (“APA”), in the positions of
Assistant Executive Director for Scientific

No objection.

15

Declaration of Wayne Camara In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

Affairs and Executive Director of Science
(1992-1994), Director, Scientific Affairs
(February, 1989 – August, 1992), and Testing
and Assessment Officer (November, 1987 –
January, 1989). During my employment at
APA, I served as the Project Director for the
revision of the 1985 version of the Standards
for Educational and Psychological Testing, the
new product of which was published in 1999
(the “1999 Standards”). In 1997, I was elected
to APA’s Council of Representatives, and I
served on the Council from 1997-2003. In
April, 2012, I was elected to the Council of the
American Educational Research Association,
Inc. (“AERA”), serving from April, 2012 to
April, 2015 as Vice President for Division D. I
also was elected to the Board of Directors of
National Council On Measurement In
Education, Inc. (“NCME”), serving on the
Board from 2002-2005 and 2009-2012, and
served as NCME’s President from 2010-2011.
Additionally, I served on the Management
Committee for the Standards from 2005-2015.
5. I have written extensively on the Standards
for Educational and Psychological Testing, as
well as other professional and technical
guidelines which relate to educational and
industrial testing and assessment, including
journal articles, book chapters, and paper
presentations at national conferences.

No objection.

6. I was asked to rephrase several of the
standards recited in the 1999 Standards, without
changing their meaning.

No objection.

16

Declaration of Wayne Camara In Support of
Plaintiffs’ Motion for Summary Judgment
7. Standard 3.3, as recited in the 1999
Standards, states:

Defendant-Counterclaimant
Public Resource’s Objections
No objection.

Those responsible for test development
should include relevant subgroups in
validity, reliability/precision, and other
preliminary
studies
used
when
constructing the test.
FRE 402 Relevance. Mr. Camara has not been
presented as an expert and his lay opinion is
not relevant. The proffered testimony does not
have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

8. One of the many ways in which Standard 3.3
could be rephrased without changing its
meaning is as follows:
Studies collecting evidence for the
interpretation and use of test scores,
quantifying the inconsistency in
examinee performance, and of other
topics should be conducted during test
construction
by
individuals
and
organizations who mandate, sponsor,
prepare and design, and market tests so
that study results will inform the
discussion of the comparability of
subgroup scores.

FRE 403 Prejudice. Plaintiffs assert that the
1999 Standards were written by “a select group
of the leading minds in educational and
psychological testing of their time” (ECF No.
60-1, Pls. Mem. at 1), and that the Joint
Committee members that Plaintiffs credit with
authorship of the 1999 Standards represent a
diverse range of fields including “admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation.” (Pls. Mem. at 5). Mr.
Camara stated in his prior declaration in
support of Plaintiffs’ Motion for Summary
Judgment that the Joint Committee members
were “the leading authorities in psychological
and educational assessments.” (ECF No. 6076, ¶ 11). Mr. Camara was not part of this elite
group of experts. Plaintiffs have not
demonstrated that Mr. Camara has the breadth
of knowledge to evaluate whether his
rephrasing of individual standards from the
1999 Standards is accurate and does not
change the meaning of the standard, nor that he
is qualified to know why the Joint Committee
members or other authors chose the wording
that they did (rather than wording that Mr.
Camara now proposes). Therefore the
probative value of the proffered testimony is

17

Declaration of Wayne Camara In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.
FRE 702 Unreliable Expert Opinion. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

9. Standard 4.4, as recited in the 1999
Standards, states:

No objection.

If test developers prepare different
versions of a test with some change to
the test specifications, they should
document the content and psychometric
specifications of each version. The
documentation should describe the
impact of differences among versions on
the validity of score interpretations for
intended uses and on the precision and
comparability of scores.
FRE 402 Relevance. Mr. Camara has not been
presented as an expert and his lay opinion is
not relevant. The proffered testimony does not
have any tendency to make a fact of

10. One of the many ways in which Standard
4.4 could be rephrased without changing its
meaning is as follows:

18

Declaration of Wayne Camara In Support of
Plaintiffs’ Motion for Summary Judgment
Changes
or
augmentations
to
assessments which impact content,
constructs, or statistical properties of a
test should be documented and made
available to test users. Documentation
should address any effect on the overall
reliability of the test, the accuracy of
scores, or the inferences which can be
made from scores, as well as the extent
that scores across different versions are
comparable.

Defendant-Counterclaimant
Public Resource’s Objections
consequence more or less probable than it
would be without the evidence.
FRE 403 Prejudice. Plaintiffs assert that the
1999 Standards were written by “a select group
of the leading minds in educational and
psychological testing of their time” (ECF No.
60-1, Pls. Mem. at 1), and that the Joint
Committee members that Plaintiffs credit with
authorship of the 1999 Standards represent a
diverse range of fields including “admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation.” (Pls. Mem. at 5). Mr.
Camara stated in his prior declaration in
support of Plaintiffs’ Motion for Summary
Judgment that the Joint Committee members
were “the leading authorities in psychological
and educational assessments.” (ECF No. 6076, ¶ 11). Mr. Camara was not part of this elite
group of experts. Plaintiffs have not
demonstrated that Mr. Camara has the breadth
of knowledge to evaluate whether his
rephrasing of individual standards from the
1999 Standards is accurate and does not
change the meaning of the standard, nor that he
is qualified to know why the Joint Committee
members or other authors chose the wording
that they did (rather than wording that Mr.
Camara now proposes). Therefore the
probative value of the proffered testimony is
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.

19

Declaration of Wayne Camara In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
FRE 702 Unreliable Expert Opinion. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

11. Standard 5.2, as recited in the 1999
Standards, states:

No objection.

The procedures for constructing scales
used for reporting scores and the
rationale for these procedures should be
described clearly.
FRE 402 Relevance. Mr. Camara has not been
presented as an expert and his lay opinion is
not relevant. The proffered testimony does not
have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

12. One of the many ways in which Standard
5.2 could be rephrased without changing its
meaning is as follows:
Testing programs that use derived scale
scores to enhance interpretation of
assessment results must report the
justification and procedures used to
create the derived scores.

FRE 403 Prejudice. Plaintiffs assert that the
1999 Standards were written by “a select group
of the leading minds in educational and
psychological testing of their time” (ECF No.
60-1, Pls. Mem. at 1), and that the Joint
Committee members that Plaintiffs credit with
authorship of the 1999 Standards represent a
diverse range of fields including “admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation.” (Pls. Mem. at 5). Mr.
Camara stated in his prior declaration in
support of Plaintiffs’ Motion for Summary
Judgment that the Joint Committee members
were “the leading authorities in psychological
and educational assessments.” (ECF No. 60-

20

Declaration of Wayne Camara In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
76, ¶ 11). Mr. Camara was not part of this elite
group of experts. Plaintiffs have not
demonstrated that Mr. Camara has the breadth
of knowledge to evaluate whether his
rephrasing of individual standards from the
1999 Standards is accurate and does not
change the meaning of the standard, nor that he
is qualified to know why the Joint Committee
members or other authors chose the wording
that they did (rather than wording that Mr.
Camara now proposes). Therefore the
probative value of the proffered testimony is
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.
FRE 702 Unreliable Expert Opinion. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

21

Declaration of Wayne Camara In Support of
Plaintiffs’ Motion for Summary Judgment
13. Standard 5.3, as recited in the 1999
Standards, states:

Defendant-Counterclaimant
Public Resource’s Objections
No objection.

If there is sound reason to believe that
specific misinterpretation of a score
scale are likely, test users should be
explicitly cautioned.
FRE 402 Relevance. Mr. Camara has not been
presented as an expert and his lay opinion is
not relevant. The proffered testimony does not
have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

14. One of the many ways in which Standard
5.3 could be rephrased without changing its
meaning is as follows:
When inaccurate interpretations of
reported scores by users can be
anticipated, Test Publishers have the
responsibility to articulate both the
correct and the possible incorrect
interpretations for users.

FRE 403 Prejudice. Plaintiffs assert that the
1999 Standards were written by “a select group
of the leading minds in educational and
psychological testing of their time” (ECF No.
60-1, Pls. Mem. at 1), and that the Joint
Committee members that Plaintiffs credit with
authorship of the 1999 Standards represent a
diverse range of fields including “admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation.” (Pls. Mem. at 5). Mr.
Camara stated in his prior declaration in
support of Plaintiffs’ Motion for Summary
Judgment that the Joint Committee members
were “the leading authorities in psychological
and educational assessments.” (ECF No. 6076, ¶ 11). Mr. Camara was not part of this elite
group of experts. Plaintiffs have not
demonstrated that Mr. Camara has the breadth
of knowledge to evaluate whether his
rephrasing of individual standards from the
1999 Standards is accurate and does not
change the meaning of the standard, nor that he
is qualified to know why the Joint Committee
members or other authors chose the wording
that they did (rather than wording that Mr.
Camara now proposes). Therefore the
probative value of the proffered testimony is
substantially outweighed by a danger of unfair

22

Declaration of Wayne Camara In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
prejudice, confusing the issues, and misleading
the factfinder.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.
FRE 702 Unreliable Expert Opinion. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.
FRE 402 Relevance. Mr. Camara has not been
presented as an expert and his lay opinion is
not relevant. The proffered testimony does not
have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

15. I believe the forgoing exercise could be
done with any of the standards recited in the
1999 Standards by a person who is sufficiently
knowledgeable in psychometrics and/or
educational testing as well as the meaning and
import of the standards contained within the
1999 Standards.

FRE 403 Prejudice. Plaintiffs assert that the
1999 Standards were written by “a select group
of the leading minds in educational and
psychological testing of their time” (ECF No.
60-1, Pls. Mem. at 1), and that the Joint
Committee members that Plaintiffs credit with
authorship of the 1999 Standards represent a
diverse range of fields including “admissions,
achievement, clinical counseling, educational,
licensing-credentialing, employment, policy,
and program evaluation.” (Pls. Mem. at 5). Mr.
Camara stated in his prior declaration in

23

Declaration of Wayne Camara In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
support of Plaintiffs’ Motion for Summary
Judgment that the Joint Committee members
were “the leading authorities in psychological
and educational assessments.” (ECF No. 6076, ¶ 11). Mr. Camara was not part of this elite
group of experts. Plaintiffs have not
demonstrated that Mr. Camara has the breadth
of knowledge to evaluate whether his
rephrasing of individual standards from the
1999 Standards is accurate and does not
change the meaning of the standard, nor that he
is qualified to know why the Joint Committee
members or other authors chose the wording
that they did (rather than wording that Mr.
Camara now proposes). Therefore the
probative value of the proffered testimony is
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.
FRE 702 Unreliable Expert Opinion. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

24

C.

Declaration of Nikia L. Gray In Further Support of Plaintiffs’ Reply In
Support of Its Motion for Summary Judgment-Permanent Injunction

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

1. I am an attorney with Quarles & Brady LLP,
attorneys for Plaintiffs, American Educational
Research Association, Inc., American
Psychological Association, Inc. and National
Council on Measurement in Education, Inc.
Unless otherwise stated, I have knowledge of
all facts set forth in this declaration, and I
would, and could, testify competently thereto if
called upon to do so.

No Objection.

2. I submit this Declaration in support of
Plaintiffs’ Reply in Support of its Motion for
Summary Judgment and Permanent Injunction
and Opposition to Defendant’s Motion for
Summary Judgment.

No Objection.

3. Attached as Exhibit VVV is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) on the WorldCat website.

FRE 403 Prejudice. This website printout
includes results for all 69 different editions of
the Standards for Educational and
Psychological Testing, the majority of which
are not the 1999 edition at issue in this
litigation, and many of which are translations
into foreign languages. Therefore this
statement and the related exhibit is misleading
and does not accurately portray instances in
which the English version of the 1999
Standards may or may not be available in
libraries. The probative value of the proffered
exhibit is substantially outweighed by a danger
of unfair prejudice, confusing the issues,
misleading the factfinder, and needlessly
presenting cumulative evidence.
FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in libraries, but the witness has no personal
knowledge to this effect and the proffering
party has not introduced sufficient evidence to

25

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
show the witness has personal knowledge of
this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.
To the extent that the exhibit contains records
of the contents of individual third-party library
catalogs that WorldCat ostensibly obtains
information from, this constitutes hearsay
within hearsay.

4. Attached as Exhibit WWW is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Arizona State University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

5. Attached as Exhibit XXX is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Baylor University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

26

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

6. Attached as Exhibit YYY is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Boston College Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

7. Attached as Exhibit ZZZ is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Boston University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

8. Attached as Exhibit AAAA is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the California State University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

27

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

9. Attached as Exhibit BBBB is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Columbia University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

10. Attached as Exhibit CCCC is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Cornell University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

11. Attached as Exhibit DDDD is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Dartmouth College Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

28

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

12. Attached as Exhibit EEEE is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Duke University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

13. Attached as Exhibit FFFF is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Emory University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

14. Attached as Exhibit GGGG is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Florida Atlanta University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

29

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

15. Attached as Exhibit HHHH is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Florida International University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

16. Attached as Exhibit IIII is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the George Mason University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

17. Attached as Exhibit JJJJ is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the George Washington University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

30

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

18. Attached as Exhibit KKKK is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Harvard University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

19. Attached as Exhibit LLLL is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Indiana University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

20. Attached as Exhibit MMMM is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Lehigh University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

31

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

21. Attached as Exhibit NNNN is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Lewis and Clark College Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

22. Attached as Exhibit OOOO is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Louisiana State University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

23. Attached as Exhibit PPPP is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Loyola Marymount University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

32

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

24. Attached as Exhibit QQQQ is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Marian University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

25. Attached as Exhibit RRRR is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Northwestern University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

26. Attached as Exhibit SSSS is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Oregon State University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

33

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

27. Attached as Exhibit TTTT is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Pepperdine University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

28. Attached as Exhibit UUUU is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Purdue University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

29. Attached as Exhibit VVVV is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Rutgers University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

34

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

30. Attached as Exhibit WWWW is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the San Diego State University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

31. Attached as Exhibit XXXX is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Seattle Pacific University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

32. Attached as Exhibit YYYY is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Southern Utah University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

35

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

33. Attached as Exhibit ZZZZ is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Stanford University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

34. Attached as Exhibit AAAAA is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Suffolk University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

35. Attached as Exhibit BBBBB is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Trinity International University
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

36

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

36. Attached as Exhibit CCCCC is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Alabama Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

37. Attached as Exhibit DDDDD is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of California Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

38. Attached as Exhibit EEEEE is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Chicago Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

37

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

39. Attached as Exhibit FFFFF is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Connecticut Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

40. Attached as Exhibit GGGGG is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Florida Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

41. Attached as Exhibit HHHHH is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Maryland Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

38

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

42. Attached as Exhibit IIIII is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Miami Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

43. Attached as Exhibit JJJJJ is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Minnesota Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

44. Attached as Exhibit KKKKK is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Mississippi Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

39

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

45. Attached as Exhibit LLLLL is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Nevada Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

46. Attached as Exhibit MMMMM is a true
and correct copy of the catalog record for
Standards for Educational and Psychological
Testing (1999) at the University of New Mexico
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

47. Attached as Exhibit NNNNN is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of North Carolina
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

40

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

48. Attached as Exhibit OOOOO is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Oregon Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

49. Attached as Exhibit PPPPP is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Pittsburgh Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

50. Attached as Exhibit QQQQQ is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of South Carolina
Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

41

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

51. Attached as Exhibit RRRRR is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the University of Washington Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

52. Attached as Exhibit SSSSS is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Vanderbilt University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

53. Attached as Exhibit TTTTT is a true and
correct copy of the catalog record for Standards
for Educational and Psychological Testing
(1999) at the Yale University Library.

FRE 602 Lack of Personal Knowledge. This
exhibit is introduced to support the assertion
that the 1999 Standards at issue are available
in a particular library, but the witness has no
personal knowledge to this effect and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted. Statements
within the exhibit are hearsay and Plaintiffs
have no means of curing that hearsay at trial.

42

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

54. Attached as Exhibit UUUUU is a true and
correct copy of the Stipulation of Facts filed on
January 15, 2016 in Code Revision
Commission, et al. v. Public.Resource.Org, Inc.,
Case No. 1:15-cv-02594-MHC, N.D. Ga.

FRE 402 Relevance. Plaintiffs selectively
quote portions of sentences from the
Stipulation of Facts filed in Code Revision
Commission, et al. v. Public.Resource.Org,
Inc. to make the statements sound as if they are
relevant to issues in the present litigation with
AERA et al., when in fact these statements are
explicitly confined to only the Code Revision
Commission case, and specifically concern
only the Official Code of Georgia Annotated
(abbreviated as “O.C.G.A.”). Plaintiffs have no
evidence, and there is no indication, that the
same facts and statements that apply to Public
Resource’s posting of the Official Code of
Georgia Annotated also apply to Public
Resource’s posting of the 1999 Standards. The
proffered exhibit therefore is irrelevant and
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.
FRE 403 Prejudice. Plaintiffs selectively quote
portions of sentences from the Stipulation of
Facts filed in Code Revision Commission, et al.
v. Public.Resource.Org, Inc. to make the
statements sound as if they are relevant to
issues in the present litigation with AERA et
al., when in fact these statements are explicitly
confined to only the Code Revision
Commission case, and specifically concern
only the Official Code of Georgia Annotated
(abbreviated as “O.C.G. A.”). Plaintiffs have
no evidence, and there is no indication, that the
same facts and statements that apply to Public
Resource’s posting of the Official Code of
Georgia Annotated also apply to Public
Resource’s posting of the 1999 Standards.
Moreover, Plaintiffs fail to inform the Court
that this stipulation of facts concerns a
different matter entirely, and that Plaintiffs’
selective quotation omits the parts of the
quoted sentences that limit the statements to
the Official Code of Georgia Annotated. The
probative value of the proffered exhibit is

43

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading
the factfinder.

55. Attached as Exhibit VVVVV is a true and
correct copy of the Expert Report of S. E.
Phillips, Ph.D., J.D. Pursuant to Fed. R. Civ. P.
26(a)(2)(B).

See Public Resource’s objections to the Expert
Report of S. E. Phillips, above at section III.a.

56. Attached as Exhibit WWWWW is a true
and correct copy of the resume of S. E. Phillips,
Ph.D., J.D.

See Public Resource’s objections to the Expert
Report of S. E. Phillips, above at section III.a.

FRE 802 Hearsay. The proffered exhibit
57. Attached as Exhibit XXXXX is a true and
contains out-of-court statements offered to
correct copy of the deposition transcript of
Wayne J. Camara, Ph.D., taken on May 1, 2015. prove the truth of the matters asserted in the
exhibit.
58. Attached as Exhibit YYYYY is a true and
correct copy of the deposition transcript of
Dianne L. Schneider, Ph.D., taken on April 23,
2015.

FRE 802 Hearsay. The proffered exhibit
contains out-of-court statements offered to
prove the truth of the matters asserted in the
exhibit.

59. Attached as Exhibit ZZZZZ is a true and
correct copy of information from Bookshare’s
website.

FRE 402 Relevance. Plaintiffs introduce this
exhibit to argue that Public Resource does not
comply with the Chafee Amendment, but
Public Resource does not claim to comply with
the Chafee Amendment, and the Chafee
Amendment is not the only provision in the
Copyright Act through which an organization
can provide accessible material to people who
are print disabled. The proffered exhibit does
not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted (the procedures
used by Bookshare.org). This exhibit was used
at deposition to ask Mr. Fruchterman

44

Declaration of Nikia L. Gray In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
questions, but Mr. Fruchterman did not say
that he wrote the content, and the exhibit does
not fall into any hearsay exceptions.

60. Attached as Exhibit AAAAAA is a true and
correct copy of the deposition transcript of
Marianne Ernesto, taken on April 29, 2015.

45

FRE 802 Hearsay. The proffered exhibit
contains out-of-court statements offered to
prove the truth of the matters asserted in the
exhibit.

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.

46