Skip to main content

Full text of "AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC."

See other formats


Case l:14-cv-00857-TSC Document 133 Filed 03/12/19 Page 1 of 7 


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. l:14-cv-00857-TSC 


Plaintiffs/ 

Counter-Defendants, 


v. 

PUBLIC.RESOURCE.ORG, INC., 

Defendant/ 

Counter-Plaintiff. 


JOINT SCHEDULING SUBMISSION 

The Parties jointly submit their respective proposed schedules pursuant to the Court’s 
February 26, 2019 Minute Order (the “Order”). 

The Parties agree that Defendant may take additional discovery in accordance with the 
Order and Defendant’s February 14, 2009 submission to the Court (doc #131). The Parties agree 
to have objections to written discovery requests due fifteen days after service, rather than the 
ordinary thirty days. While the Parties disagree about when to brief the summary judgment 
motions, the Parties acknowledge that the Court may ultimately decide that it wishes to entertain 
argument on the motions at the same time as motions are argued in the American Society for 
Testing and Materials v. Public.Resource.Org, Inc. case, No. l:13-cv-01215-TSC-DAR 
(“ ASTM ”). 


1 




Case l:14-cv-00857-TSC Document 133 Filed 03/12/19 Page 2 of 7 


In addition, the Parties present their respective proposals for scheduling discovery and 
summary judgment briefing. 

PLAINTIFFS’ SCHEDULING PROPOSAL 

This case involves a single instance of copyright infringement by Defendant’s online 
posting of the 1999 Standards for Educational and Psychological Testing. 

Plaintiffs do not expect to take any discovery. 

In its February 14, 2019 submission (doc. # 131), Defendant told the Court exactly what 
remand discovery it sought: (1) documents in the form of updated sales data and other items 
previously requested; (2) a Rule 30(b)(6) deposition on the updated sales data; and (3) 
depositions of unspecified government officials. 

Given the very limited discovery at issue, and the fact that this case involves none of the 
complexity and factual and contextual variation associated with the ASTM case, discovery (and 
briefing) here certainly cannot require the same amount of time as in ASTM. And given the 
narrow requests, it is unlikely there will be disputes. 1 For those reasons, discovery here could 
easily be completed in 60 days. Plaintiffs have stretched the deadlines to 90 days primarily to 
accommodate Defendant’s desire to try to depose government officials. 

With respect to summary judgment briefing, the Parties can conclude discovery and 
begin briefing within 120 days (or less) and Defendant’s proposal to stretch this remand out for 
nearly a year is extreme. This case involves a single instance of copying, incorporation only in 
Department of Education regulations, and involves none of the numerous fact patterns and 

1 As previously noted, the document requests will be easy to answer by virtue of the fact that, 
because Plaintiffs do not engage in the activities in question, there will be no responsive 
documents. See e.g Pis.’ Reply to Def.’s Opposition, Doc. # 132, at 3 (Plaintiffs do not operate 
online reading rooms for the 1999 Standards). 


2 



Case l:14-cv-00857-TSC Document 133 Filed 03/12/19 Page 3 of 7 


groupings, variations among types of standards and types of incorporation, ownership and 
trademark issues, that will be at issue in the ASTM case. It assuredly does not require the three 
separate rounds of summary judgment briefs that Defendant proposes. Two rounds — 
simultaneous opening followed by response briefs, with limited pages — should be more than 
enough. 

While the fair use issues here should be separately briefed, and be separately decided, the 
decision whether to hear argument concurrent with the ASTM case is a matter for the Court to 
decide in its discretion and convenience, to be determined later, based on the record. It is, of 
course, up to the Court whether to decide the cases together. However, Plaintiffs urge that the 
Court not decide the two cases in a single opinion because the result the last time was that the 
fair use issues in this case got entirely lost in the shuffle when the case reached the Court of 
Appeals. 

With that in mind, Plaintiffs propose the following schedule on the understanding that all 
dates may be extended for good cause, and the parties will meet and agree to extend dates where 
good cause exists. 


Event 

Date 

Defendant may request Plaintiffs to update prior 
document production, or issue new requests, for 
documents or answers to the questions identified 
in Defendant’ Opposition February 14, 2019 
(doc. #131). 

April 1, 2019 (or 15 days from the date of this 
Court’s order setting the schedule). 

Plaintiffs shall state any objections to the request. 

April 15, 2019 (or 30 days from the date of this 
Court’s order) 

Plaintiffs will provide responses. 

May 1, 2019 (or 45 days from the date of this 
Court’s order) 

Rule 30(b)(6) deposition on updated sales data, if 
such deposition is necessary and cannot be 
addressed by alternative means. 

May 1-May 15, 2019 (or 45-60 days from the 
date of this Court’s order) 

Defendant will depose any government 
witnesses, and discovery concludes. 

Until June 15, 2019 (90 days from the date of 
the order) 


3 




Case l:14-cv-00857-TSC Document 133 Filed 03/12/19 Page 4 of 7 


The parties to simultaneously submit opening 
briefs addressing the fair use remand issues. 

Response briefs. 

July 15, 2019. (120 days from the date of this 
Court’s order. 

August 15, 2019. 

Defendant reserves the right to request, and the 
Court (of course) reserves the right, to hear, 
argument concurrent with the ASTM matter. 

Hearing date to be set by the Court 


PUBLIC RESOURCE’S PROPOSAL 

To allow for document discovery, interrogatories, and depositions, including depositions 
of government officials that may take additional time to schedule, Public Resource proposes the 
following schedule: 


Event 

Deadline 

Deadline for serving additional document requests and 
interrogatories 

May 16, 2019 

Deadline for substantial completion of document production 

June 20, 2019 

Close of fact discovery 

August 1, 2019 


Public Resource requests a longer interval before the deadline for serving discovery 
requests to allow for follow up requests that may be required due to objections and responses to 

earlier rounds of discovery requests. Public Resource will work diligently and in good faith to 

2 

resolve any disagreements, but disputes may arise. 


2 

For example, while meeting and conferring on this joint filing, Plaintiffs argued that their 
document production will be limited because “Plaintiffs do not communicate with government 
officials to solicit incorporation in regulations or enforcement of 1999 Standards,” and therefore 
no such documents exist. Based on documents Plaintiffs filed in their prior summary judgment 
motion, Public Resource believes this is incorrect. See, e.g., Dkts. 60-53, 60-54, and 60-55 
(letters to United States senators encouraging them to cosponsor a bill that “would require that 


4 





Case l:14-cv-00857-TSC Document 133 Filed 03/12/19 Page 5 of 7 


After the close of discovery, Public Resource urges the Court to consolidate briefing in 
this case with briefing in the ASTM case (with a short hiatus in this case). If these cases return to 
the D.C. Circuit, both cases (and their respective standards) will be evaluated together; it is in the 
best interests of all parties and the Court to attempt to analyze and categorize all standards 
together when conducting the fair use analysis, rather than allowing one case to proceed ahead of 
the other. If the Court chooses to consolidate, Public Resource proposes the following: 


Event 

Deadline 

Consolidated opening cross-motions for summary judgment 

October 17, 2019 

Amicus briefs 

November 14, 2019 

Consolidated opposition briefs 

December 5, 2019 

Consolidated reply briefs 

December 19, 2019 


If the Court does not believe that consolidation for the purposes of summary judgment is 
appropriate, Public Resource requests a staggered briefing schedule, similar to the schedule for 
the first summary judgment briefing, to help ensure that it has an adequate opportunity to 
respond to each Plaintiff without overwhelming its pro bono resources. 


Event 

Deadline 

[ASTM] ASTM Plaintiffs’ opening motion for summary judgment 

October 17, 2019 

[ASTM] Public Resource’s joint opening motion for summary 
judgment/opposition to ASTM Plaintiffs’ motion 

November 14, 2019 

[AERA] AERA Plaintiffs’ opening motion for summary judgment 

November 14, 2019 


assessments meet The Standards for Educational and Psychological Testing { 1999) . . . .) (italics 
in original). 


5 






Case l:14-cv-00857-TSC Document 133 Filed 03/12/19 Page 6 of 7 


Event 

Deadline 

[ASTM] Amicus briefs due 

December 5, 2019 

[ASTM] Plaintiffs’ joint reply/opposition to Public Resource’s 
motion for summary judgment 

December 12, 2019 

[AERA] Public Resource’s joint opening motion for summary 
judgment/opposition to AERA Plaintiffs’ motion 

December 12, 2019 

[ASTM] Public Resource’s reply 

December 30, 2019 

[AERA] Amicus briefs due 

January 9, 2020 

[AERA] Plaintiffs’ joint reply/opposition to Public Resource’s 
motion for summary judgment 

January 16, 2020 

[AERA] Public Resource’s reply 

January 30, 2020 


6 




Case l:14-cv-00857-TSC Document 133 Filed 03/12/19 Page 7 of 7 


is/ Andrew P. Bridges 

Corynne McSherry (pro hac vice) 

corynne@eff.org 

Mitchell L. Stoltz (D.C. Bar No. 978149) 
mitch@eff.org 

Electronic Frontier Foundation 
815 Eddy Street 
San Francisco, CA 94109 
Telephone: (415) 436-9333 

Andrew P. Bridges (D.C. Bar No. AR0002) 

abridges@fenwick.com 

Matthews B. Becker (pro hac vice) 

mbecker@fenwick.com 

Fenwick & West FFP 

555 California Street, 12 th Floor 

San Francisco, CA 94104 

Telephone: (415) 875-2300 

David Halperin (D.C. Bar No. 426078) 
davidhalperindc@gmail.com 
1530 P Street NW 
Washington, DC 20005 
Telephone: (202) 90-3434 

Attorneys for Defendant/Counterclaim- 
Plaintiff Public.Resource. Org, Inc. 


Respectfully submitted, 

/s/ Clifton S. Elgarten _ 

Clifton S. Elgarten (D.C. Bar # 366898) 

celgarten@crowell.com 

Crowell & Moring FFP 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Telephone: (202) 624-2523 

Counsel for Plaintiffs 


Dated: March 12, 2019 


7