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Case l:13-cv-01215-TSC Document 193 Filed 03/12/19 Page 1 of 7 


UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 


AMERICAN SOCIETY FOR TESTING 
AND MATERIALS d/b/a/ ASTM 
INTERNATIONAL; 

NATIONAL FIRE PROTECTION 
ASSOCIATION, INC.; and 


AMERICAN SOCIETY OF HEATING, 
REFRIGERATING, AND AIR 
CONDITIONING ENGINEERS, 


Case No. l:13-cv-01215-TSC 


Plaintiffs/ 

Counter-Defendants, 


v. 


PUBLIC.RESOURCE.ORG, INC., 


Defendant/ 

Counter-Plaintiff. 


JOINT PROPOSED SCHEDULE 


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

The Parties agree to the take the additional discovery in accordance with the 
Order. After the Court granted Public Resource’s request to reopen discovery on the 
limited matters of fair use and copyright ownership, Plaintiffs now indicate that they 
intend to take discovery as well. To allow for document discovery, interrogatories, and 
depositions, including depositions of government officials that may take additional time 
to schedule, the Parties propose the following schedule: 


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Case l:13-cv-01215-TSC Document 193 Filed 03/12/19 Page 2 of 7 


Event 

Deadline 

Deadline for serving additional document requests and 
interrogatories 

May 27, 2019 

Deadline for substantial completion of document production 

July 19,2019 

Close of fact discovery 

September 9, 2019 


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

Plaintiffs’ Proposal: 


Event 

Deadline 

Cross-motions for summary judgment 

October 4, 2019 

Amicus briefs 

October 18, 2019 

Responses to motions for summary judgment 

November 22, 2019 


Plaintiffs respectfully submit that the parties should not require more than one 
month to prepare their cross-motions for summary judgment and one month to prepare 
their responses thereto. The parties already briefed the copyright and trademark fair use 
issues once before this Court and again before the D.C. Circuit. Nevertheless, Plaintiffs’ 
schedule provides the parties with significantly more time to respond to the motions for 
summary judgment than the 14 days contemplated by Local Rule 7(b). As a result, 
Plaintiffs’ proposed briefing schedule fairly balances the parties’ interest in having 
adequate time to brief the remaining issues with the prejudice that Plaintiffs are suffering 
now that PRO has reposted Plaintiffs’ copyrighted works online. 

On the other hand, PRO’S proposed non-consolidated briefing schedule extends 


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Case l:13-cv-01215-TSC Document 193 Filed 03/12/19 Page 3 of 7 


more than four months beyond the close of fact discovery. As the Court recognized the 
last time that PRO sought this type of protracted briefing schedule, “the longer those 
documents are up there, the greater the harm that [Plaintiffs] allege they’re suffering.” 

11/4/15 Tr. at 7:10-12. As a result, the Court asked PRO if it would agree to take the 
standards-at-issue down from the Internet pending a decision on the motion for summary 
judgment if PRO wanted a protracted briefing schedule, and PRO agreed to do so. Id. at 
19:9-18. The same logic applies this time around, and Plaintiffs respectfully request that 
the Court enter a briefing schedule that lasts approximately two months after the close of 
fact discovery unless PRO agrees to remove the works-at-issue from the Internet pending 
a decision on the cross-motions for summary judgment. 

Finally, Plaintiffs object to PRO’S attempt to force them to file a single brief with 
the planitiffs in the AERA case. This is not how the parties previously briefed summary 
judgment, and the parties did not file a consolidated brief on appeal. PRO offers no 
explanation as to why Plaintiffs should be compelled to consolidate their briefs with the 
briefs of numerous plaintiffs in a separate case. It will already be complicated enough for 
the three plaintiffs in this case to coordinate their brief given that the D.C. Circuit has 
made it clear that the parties and the Court will need to develop a “fuller record” 
regarding each of the standards at issue. Requiring Plaintiffs to consolidate the briefing 
that addresses each of their works with the works of the three plaintiffs in the AERA case 
will unnecessarily complicate and lengthen Plaintiffs’ briefs. 

Defendant’s Proposal 


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Case l:13-cv-01215-TSC Document 193 Filed 03/12/19 Page 4 of 7 


After the close of discovery, Public Resource urges the Court to consolidate 
briefing in this case with briefing in the AERA case. 1 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. 


1 While a single, consolidated opening brief by the Plaintiffs in both cases would make the most sense, if 
the cases are consolidated on summary judgment Public Resource does not object to the ASTM case 
Plaintiffs and the AERA case Plaintiffs choosing to file separate briefs, so long as Public Resource has 
adequate opportunity to respond. 


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Case l:13-cv-01215-TSC Document 193 Filed 03/12/19 Page 5 of 7 


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 

[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 


Given that the Court of Appeals dissolved the previous injunction, and that the 
Plaintiffs have not sought a preliminary injunction at this stage, Public Resource does not 
believe it is either appropriate or necessary to take down the standards at issue pending 
summary judgment. Nothing in the current record establishes that the schedule proposed 
by Public Resource will subject Plaintiffs to any additional prejudice as compared to 
Plaintiffs’ proposal. 


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Case l:13-cv-01215-TSC Document 193 Filed 03/12/19 Page 6 of 7 


Dated: March 12, 2019 Respectfully submitted, 

/s/ J. Kevin Fee _ 

J. Kevin Fee (D.C. Bar: 494016) 

Jane W. Wise (D.C. Bar: 1027769) 

Morgan, Lewis & Bockius LLP 
1111 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 
Telephone: 202.739.5353 
Email: kevin.fee@morganlewis.com 
jane.wise@morganlewis.com 

Counsel for American Society For Testing And Materials 
d/b/a/ ASTM International 

/s/ Kelly M. Klaus _ 

Kelly M. Klaus 
Rose L. Ehler 

Munger, Tolies & Olson LLP 
560 Mission St., 27th Floor 
San Francisco, CA 94105 
Tel: 415.512.4000 
Email: Kelly.Klaus@mto.com 
Rose .Ehler@mto .com 

Counsel for National Fire Protection Association, Inc. 

/s/ J. Blake Cunningham _ 

Jeffrey S. Bucholtz (D.C. Bar: 452385) 

King & Spalding LLP 

1700 Pennsylvania Avenue, NW, Ste. 200 

Washington, DC 20006-4707 

Tel: 202.737.0500 

Email: jbucholtz@kslaw.com 

Kenneth L. Steinthal 
J. Blake Cunningham 
King & Spalding LLP 
101 Second Street, Ste. 2300 
San Francisco, CA 94105 
Tel: 415.318.1211 
Email: ksteinthal@kslaw.com 
bcunningham@kslaw.com 


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Case l:13-cv-01215-TSC Document 193 Filed 03/12/19 Page 7 of 7 


Counsel for American Society of Heating, Refrigerating, 
and Air Conditioning Engineers 

/s/ Andrew P. Bridges _ 

Andrew P. Bridges (D.C. Bar: AR0002) 

Matthew B. Becker 
Fenwick & West LLP 
555 California Street, 12th Floor 
San Francisco, CA 94104 
Tel: 415.875.2300 
Email: abridges@fenwick.com 
mbecker@fenwick.com 

David Halperin 

1530 P Street, NW 

Washington DC 20005 

Tel: 202.905.3434 

Email: davidhalperindc@gmail.com 

Corynne McSherry 
Mitchell Stoltz 

Electronic Frontier Foundation 

815 Eddy Street 

San Francisco, CA 94109 

Tel: 415.436.9333 

Email: corynne@eff.org 

mitch@eff.org 

Counsel for Public.Resource.Org, Inc. 


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