AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.
Filing
122
LARGE ADDITIONAL ATTACHMENT(S) filed by PUBLIC.RESOURCE.ORG, INC. #121 MOTION for Summary Judgment filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 Exhibit 1-10 Public, #2 Exhibit 11-20 Public, #3 Exhibit 21-40 Public, #4 Exhibit 41-60 Public, #5 Exhibit 61-80 Public, #6 Exhibit 81-100 Public, #7 Exhibit 101-120 Public, #8 Exhibit 121-140 Public, #9 Exhibit 141-157 Public)(Bridges, Andrew)
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EXHIBIT 11
(FILED UNDER SEAL)
EXHIBIT 12
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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----------------------------------AMERICAN SOCIETY FOR TESTING AND
) Case No.
MATERIALS d/b/a ASTM INTERNATIONAL;) 1:13-cv-01215-EGS
NATIONAL FIRE PROTECTION
)
ASSOCIATION, INC.; and
)
AMERICAN SOCIETY OF HEATING,
)
REFRIGERATING, AND
)
AIR-CONDITIONING ENGINEERS, INC., )
Plaintiffs,
)
vs.
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PUBLIC.RESOURCE.ORG, INC.,
)
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11
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Defendant.
)
-----------------------------------)
AND RELATED COUNTERCLAIMS.
)
-----------------------------------)
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RULE 30(B)(6) VIDEOTAPED DEPOSITION OF AMERICAN
SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
15
BY AND THROUGH ITS DESIGNEE,
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STEPHANIE REINICHE
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MONDAY, MARCH 30, 2015
9:10 a.m.
VERITEXT LEGAL SOLUTIONS
1075 PEACHTREE STREET
SUITE 3625
ATLANTA, GEORGIA
Reported By:
SHARON A. GABRIELLI, CCR B-2002
Job No. 2035289
Page 1
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A
I moved from Michigan to Georgia.
2
Q
And what was your first job that you took
09:21
ASHRAE.
Q
09:25
6 ASHRAE?
09:26
09:28
7
A
No.
09:29
8
Q
Okay. And when was it that you started
9 working at ASHRAE?
09:29
09:21
10
A
November 2003.
09:23
11
Q
Okay. How was it that you came to start
12 working at ASHRAE?
13
A
A
Yes.
Q
And what is the title that you were promoted 09:21
A
Senior manager of standards.
Q
And is that the title that you hold today?
8
A
Yes.
9
Okay. Did you move to Georgia to work at
And so were you promoted once again in 2014? 09:27
6
A
5
That title, till 2014.
Q
4
4
A
2
3
09:23
1
7
3 once you moved to Georgia?
09:29
Q
Okay. And do you have any other roles at
5 to?
09:21
09:20
09:23
09:24
09:21
09:24
09:24
10 ASHRAE, other than senior manager of standards?
09:23
09:24
A
No.
12
09:24
I applied online. I -- I saw a job posting, 09:27
11
09:29
Q
Have you served on any of the committees in
13 ASHRAE?
09:29
09:21
14 at that time it was for a procedures administrator, and 09:21
14
A
No.
15 I submitted a résumé.
15
Q
Have you -- what involvement in the design of 09:24
16
Q
09:23
Had you ever heard of ASHRAE before that
17 point?
09:21
17
09:23
No.
Q
Were you familiar with the air-conditioning, 09:24
20 heating and cooling industry prior to that point?
09:26
21
A
No.
09:21
22
Q
What was it that made you qualified for the
23 job at ASHRAE?
09:22
09:26
09:27
09:29
And what -- how long were you a procedures
5
A
I want to say until December 2004.
6
Q
And were you promoted at that time?
7
A
Yes.
8
Q
And what was -- what position were you
09:27
09:24
09:25
Standards administrator.
11
Q
09:26
20
A
It involves a lot of things. It involves
09:27
09:22
22 overseeing the documentation for public reviews, could 09:27
24 drafts, editing and reviewing those, working with the
1
Q
09:20
09:27
Page 20
And when you say you oversee the
09:25
3 change proposals and publication drafts, what does that 09:23
4 entail?
5
A
09:26
It can entail -- well, making sure that the
09:28
6 document for membership, that the documentation is all 09:22
And how long did you hold the title of
09:26
A
I think it was about three years.
14
Q
And were you promoted after three years?
15
A
Yes.
16
Q
And what title were you promoted to?
17
A
Assistant manager of standards
09:29
09:23
10 committees to help them make sure their committee is
09:22
13
8 filled out, everything is properly signed. And it
9 could involve talking with the chairs of project
09:20
12 standards administrator for?
And what does that involve?
7 complete, meaning every -- all the, you know, parts are 09:25
09:26
09:29
A
18 administration.
09:24
09:20
10
Q
2 documentation for membership and for public reviews and 09:29
4 administrator at ASHRAE for?
9 promoted to?
09:26
19
09:23
25 appeals.
Page 18
1 background and ability to -- to write and things like
Q
09:23
23 be change proposals, could be minutes, the publication 09:24
25 was about procedures and process, and so just legal
3
I oversee the development of all the
21 reviewing all the documentation for membership,
I suppose because it was -- at that time, it 09:20
2 that.
A
09:21
18 standards at ASHRAE.
A
19
A
16 standards have you played?
09:23
18
24
09:23
11 balanced.
12
09:24
Q
09:24
What do you mean by making sure the project
13 committees are balanced?
09:21
09:23
14
A
09:29
09:27
09:20
Under our ANSI rules, our committees have to 09:22
15 be balanced, meaning for nonsafety standards, no more
09:24
09:27
09:28
16 than 50 percent of the people can be in any one
09:25
09:29
17 interest category; and for safety standards, no more
09:23
18 than one-third in each interest category.
09:26
09:22
19
Q
And how long did you hold that position for? 09:27
19
Q
And what is an interest category?
20
A
A year or two.
20
A
It's -- it describes the -- the role a person 09:25
21
Q
And were you promoted again after that point? 09:26
21 plays typically in their job or their duties that
22
A
Yes.
22 they're doing, and that shows their bias for that
23
Q
And what title were you promoted to?
24
A
Manager of standards.
25
Q
And how long did you hold that position for? 09:29
25 categories?
Page 19
09:20
09:29
09:20
09:22
23 particular standard that's being developed.
24
Q
09:22
09:25
09:20
Could you list for me the interest
09:27
09:29
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For which standard?
2
Q
So the interest categories are different for 09:23
09:21
1
A
For which part of the process? After
2 membership?
09:29
09:22
3 particular standards?
09:25
3
Q
Let's talk about membership applications.
09:23
4
A
They can be, yes.
09:26
4
A
So for membership applications, there is an
09:27
5
Q
Okay. Do you know the -- off the top of your 09:27
6 head the interest categories for the 90.1 standards?
7
A
9
Q
Okay.
10
A
09:28
There's compliance, industry, utility,
Q
09:24
09:27
8 categorized. And then they would have -- then there is 09:33
09:22
11 general, and I think user.
6 project committee they're applying for, their name,
7 what interest category they believe they should be
I can list some of them, but I would have to 09:26
8 look at a roster to verify they're all correct.
12
09:20
5 application form that would list the -- you know, what 09:20
9 a signature at the bottom and their voting status, what 09:35
09:22
10 they would like to be on that committee.
09:21
11
And what does -- what are the -- those
09:39
There's a bias/conflict of interest form,
09:32
09:27
12 which gives background on where they've worked for the 09:36
13 categories? Excuse me, let me rephrase.
09:25
13 last five years, other organizations that they've been 09:30
14
09:29
14 involved with, who pays their way to participate, and
09:22
15 any public statements they would have made in regards
What -- what kind of a person would a --
15 would fall into the compliance category?
16
A
I would need to look at the application that 09:26
16 to the particular standard they're applying for, and
17 shows the definition to give you an exact person, the
09:28
17 that, too, is signed.
18 exact definition; but for example, somebody that's
09:22
18
19 involved in codes would be a compliance person.
20
Q
09:26
When you say someone who's involved in codes, 09:20
21 like what -- what kind of role do you mean by that?
09:24
09:27
09:34
09:38
09:31
09:34
And then there's a biographical record that
09:36
19 is done through the ASHRAE website which gives their
09:38
20 background, like where they -- you know, their degrees 09:33
21 and things like that, whether -- other committees
22
A
A code official.
23
Q
A code --
24
A
A building code person; that type of person. 09:20
24
25
Q
Would that be something like a regulator?
25 these fields are filled out?
09:38
22 they've been involved in within ASHRAE, awards; things 09:31
09:29
23 like that.
09:23
Q
09:36
Are you the person who makes sure that all of 09:36
09:39
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Page 24
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1
A
Could be.
2
Q
Okay. So that would -- that would encompass 09:27
09:26
A
I have a staff person that does that, but
09:31
2 then they are reviewed by another committee. And when 09:32
3 somebody in a government position, then, would be under 09:21
3 there's a question, then I'm the one that helps work
4 compliance?
4 with that.
5
09:27
MR. CUNNINGHAM: Object to form.
6
09:28
8
would be listed. It depends on where they
9
work, what they do. Without looking at an
11
Q
A
It's varied over the years.
8
Q
What is the name of the person today?
9
A
Katrina Shingles.
10
Q
And is there -- does Katrina Shingles have a 09:36
09:20
09:25
Depending on the -- it depends on what the
09:29
16 definition is. I really probably should look at the
And where would the definitions be found?
19
A
The definitions would be as part of the
09:25
The membership application?
22
A
Yes, sir.
23
Q
You also said that one of your jobs is to
13
Q
Is there a specific position for the person
09:32
09:38
15
A
Q
It's been a secretary or an administrative
09:37
09:30
And you said there's also a committee that
18 looks over that?
A
09:32
09:37
09:39
Yes. There's a staff liaison, and then there 09:30
20 is -- in addition to that, and then there is --
09:34
21 depending -- the process has changed slightly. There
09:21
22 could be up to two oversight committees.
09:22
23
09:21
24 make sure that documentation is complete. What does
25 that involve?
She's a secretary.
19
09:28
09:20
Q
09:31
A
17
09:24
Q
21
09:37
09:30
12
16 assistant.
09:21
18
20 application.
09:35
14 who has always checked the -- the forms?
09:28
17 definitions to tell you for sure.
09:32
11 specific position?
09:21
(BY MR. BECKER) Okay. What other categories 09:24
14 compliance?
A
7
09:26
13 could a government official go under, other than
15
6 checks these forms?
09:22
they would go under compliance.
12
And what is the name of the staff person who 09:30
09:20
the roster to see how a government employee
individual, I can't tell you for sure that
Q
09:29
THE WITNESS: I would have to look at
7
10
5
09:35
09:39
09:24
And you said that the process has changed.
24 When did the process change?
25
09:27
Q
A
This year.
Page 23
09:37
09:30
09:33
09:37
09:30
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A
Not exactly. A -- a standard could become a 10:03
2 code, because 90.1 is a standard and it could be the
3 code. It depends on whoever is wanting to make the
4 code -- or make the rule.
5
Q
A
10:01
6 strategic planning; that type of thing.
7
8 standards committee, are these all ASHRAE employees?
9 ASHRAE. They are the body that reviews any proposed
10:07
Q
10:15
10:18
10:09
So the committee members that are part of the 10:14
10:01
10:05
A
No.
Q
Are any of them ASHRAE employees?
A
No, just me as a staff liaison, and then
10:18
10:11
10:13
10:15
12 another staff person that does the minutes.
10:18
13 interpretation sub -- interpretation committees when an 10:04
13
10:11
14 interpretation request is submitted on a standard that 10:07
14 industry?
15 we don't have a standing standard project committee
15
16 for.
17
10:01
9
10
11
10 changes to any of the procedures related to standards
And then the other thing is they form
10:12
10:04
8 standards or guideline projects to be developed by
12
10:18
5 issues about the subcommittees and then, you know,
10:08
11 and interprets the -- any of our rules.
3 And then I'm the staff liaison for that group, other
4 staff attend, but they -- they just talk about the
10:04
They review proposals for new projects, new
10:18
2 committee and the board -- the board ExO to standards. 10:12
10:08
And what does the policy, procedures and
6 interpretation subcommittee do?
7
1 subcommittees, the chair and the vice chair standards
10:05
10:09
10:02
Q
18 know how it is that standards become codes?
THE WITNESS: It -- either they're
21
proposed into a code and the code accepts
22
them, or a local jurisdiction decides to use
23
a standard and that's -- and use that as
24
their code.
25
Q
10:03
MR. CUNNINGHAM: Object to form.
20
A
So these are -- are these members of
10:16
They're -- they're balanced as well. The
10:00
10:02
19
MR. CUNNINGHAM: Could I just ask, are
10:02
Are we talking about the executive committee?
22
Are we talking about the previous questions?
23
10:04
24
(BY MR. BECKER) And when you say "they're
MR. CUNNINGHAM: The standards
1
10:02
2
MR. BECKER: Yeah.
3 code, and they're proposed into that code that NFPA has 10:08
3
4 made?
4
standard? I just wanted to make sure we're
5
clear here.
6 part of whatever -- I can't remember the number of the 10:06
6
Q
7 NFPA code that references 90.1, but that becomes part
7 committees are there?
8 of that code. If they -- through their process, it
9 gets accepted.
10
Q
A
10:09
10:02
8
10:08
A
10:12
10:13
10:13
10:14
10:15
(BY MR. BECKER) How many standards
10:11
10:12
There's project committees, and those overdo 10:13
9 the standards, but the standards committee is one.
And what does the international liaison or
11 intersociety subcommittee do?
12
10:03
committee.
10:04
10:17
10
They're dealing with relationships between us 10:00
13 and sometimes other standards developers, but the
10:02
Q
There's just one standards committee?
11
10:08
10:19
10:11
Page 48
MR. CUNNINGHAM: For a specific
So NFPA references 90.1, and that becomes
10:16
10:18
10:10
2 mean that a -- that something like NFPA might make a
A
10:14
MR. BECKER: The standards committee as
a whole.
10:08
25
Page 46
10:02
10:13
we talking about the project committee here?
21
10:05
10:15
18 they are members of ASHRAE, but they're from all over. 10:19
20
10:07
10:12
17 they use. There are -- they're members -- they're --
1 proposed into a code and the code accepts them," do you 10:00
5
10:19
16 board has slightly different interest categories that
I'm sorry, just to back up a moment. Do you 10:09
19
Q
A
With the -- right, with the subcommittees.
10:19
10:11
12
Q
And what's the difference between the
10:17
13 projects committees and the standards committees?
10:19
14 majority of their work is in the -- is in the oversight 10:06
14
15 of the development of international standards.
15 the group that's responsible for writing the standard. 10:13
16
Q
10:10
What involvement does ASHRAE have in the
17 development of international standards?
18
A
10:15
10:17
We are the secretariat for several of the
16 Standards committee is an over -- oversight committee. 10:18
THE COURT REPORTER: "Is an oversight"?
18
10:15
20 committees. We are also the secretariat for the U.S.
A project committee is the one that is -- is 10:11
17
10:19
19 international standards organization technical
A
THE WITNESS: Yes.
19
10:18
Q
(BY MR. BECKER) And are any ASHRAE employees 10:13
20 members of the project committees?
10:16
21 TAG, which is the technical advisory groups within the 10:11
21
A
No.
22 U.S.
22
Q
Are the members of the project committees
23
Q
10:16
And, finally, you mentioned the executive
10:11
24 committee. What does the executive committee do?
25
A
That is the -- the chairs of each of the
10:13
10:18
23 people from various interest categories -24
A
Yes.
25
10:15
10:15
10:19
Q
-- as you had defined previously?
Page 47
10:13
10:19
10:13
10:13
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A
Yes.
2
Q
And are the project committee membership --
10:16
1
4 categories?
5
A
2
to schedule my deposition. I'm guessing
10:11
3
February.
4
3 memberships balanced based off of those interest
this when we first tried to -- started trying
10:16
Q
10:14
Yes. Whatever interest categories the
10:16
10:15
10:19
10:11
(BY MR. BECKER) And have you reviewed the
5 topics of examination that's starting on page 4?
6 project committee has, then they're balanced based on
10:18
6
A
Yes.
7 the number of project committees. That doesn't mean,
10:12
7
Q
And you're aware that you are here as a
8 you know, if there's 30 people and you have five
10:14
9 interest categories, there's six in each. It means no 10:17
10 more than 50 percent in one interest -- interest
11 category.
12
Q
10:13
10:17
8 30(b)(6) designee for ASHRAE with regards to particular 10:19
9 topics of examination?
10:14
10:16
10
10:13
Yes.
11
10:17
So why is it that these people who are not
A
10:17
Q
And that means that -- that you are expected 10:17
12 to prepare and be knowledgeable as to those particular 10:10
13 ASHRAE employees participate in the project committees? 10:10
13 topics, correct?
14
10:16
14
A
Yes.
10:18
15
Q
And those topics are, topic number 1, "The
MR. CUNNINGHAM: Object to form.
15
10:14
10:16
THE WITNESS: I would say because either
16
they really like that topic, it may affect --
10:10
17
you know, it may be because it affects
18
something that they do in their business.
19
They may be in the -- in the code arena and
20
they want to make sure it's written so that
21
you can adopt it in code. It could be a
22
number of reasons why they choose to
23
participate.
24
Q
10:13
10:14
10:16
16 process and activities of developing the works at
10:11
10:14
17 issue, including participation of government and
10:14
10:16
18 private sector personnel in standards development."
10:18
10:17
19
And did you prepare for that topic?
A
Yes.
22
10:10
Q
21
10:18
Yes.
20
10:13
10:16
A
10:10
Q
And have you been using your knowledge of
10:11
10:13
10:17
23 that topic in the answers that you had given me earlier 10:19
(BY MR. BECKER) And why is it that they'd
25 want to participate for a standard that would be
10:16
10:18
24 today concerning the standards committee and project
25 committee?
10:13
10:18
Page 50
1 adopted into code?
Page 52
1
10:12
2
MR. CUNNINGHAM: Object to form.
10:14
3
THE WITNESS: My -- my guess would be
4
that, you know, it's going to affect their --
5
their business somehow or the -- you know, or
6
the jurisdiction in which they work.
7
Q
10:17
Yes.
Q
And have you been using your knowledge with
10:19
3 regards to that topic as it applies to the other
10:11
10:13
4 answers that you've provided me about the ASHRAE's
10:18
10:12
5 operations?
10:12
10:13
10:16
10:19
6
10:16
(BY MR. BECKER) Ms. Reiniche, I'm handing
8 you what's been previously marked as Exhibit 1076.
A
2
A
Yes.
7
Q
And the other topics that you have prepared
10:10
8 for today include topic number 2, correct?
10:10
10:12
9
A
For the copyright?
10
Q
For topic number 2, "All elements of the
10:12
11 Heating, Refrigeration, and Air-Conditioning Engineers, 10:18
11 chain of title of copyright ownership, including
10:15
12 Inc. And this document had been previously introduced 10:18
12 copyright authorship and ownership of component parts
13 in Mr. Comstock's deposition.
13 of the works at issue in this case"?
9 This is Defendant Public.Resource.Org's Amended Notice 10:19
10 of Rule 30(b)(6) Deposition of American Society of
10:13
10:13
14
A
Okay.
15
Q
Have you seen this document before,
10:17
16 Ms. Reiniche -- excuse me, Ms. Reiniche?
10:19
A
Yes.
18
Q
And when did you first see this document
10:18
10:16
Yes.
10:14
15
Q
And you've also prepared for topic number 3, 10:17
16 "The authority of persons executing copyright
10:10
MR. CUNNINGHAM: So I'm -- Matt, this
10:11
question is obviously fine, but I just want
to caution the witness to not go into the
10:15
23
substance of any communications that may have
24
occurred between you and counsel.
10:13
THE WITNESS: I probably would have seen
10:13
10:17
10:19
20 employees to assign copyrights they do not own
10:12
21 individually"?
10:13
22
18 copyright rights in their works or expression,
19 including but not limited to evidence of authority of
10:10
21
25
A
17 assignment forms in favor of you to convey the
17
20
10:19
10:13
14
10:16
19 before, to your recollection?
10:11
10:15
22
10:18
A
Yes.
23
Q
On to page 5. You've also prepared for topic 10:13
10:16
24 number 6; is that correct?
25
10:15
Page 51
A
Yes.
10:17
10:11
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A
Do you mean everyone on the roster, or do you 10:42
1
Q
And would that have meant that the -- the
10:58
2 mean just project committee?
10:45
2 records for the 2007 edition of 90.1 would have been
3
Q
For everyone on the roster.
10:40
3 destroyed at the time of the 2010 publishing?
4
A
For -- yes, for everyone on the roster.
5
Q
And so are there people outside of the
If they were destroyed, then yes.
Q
You had mentioned before the term "continuous 10:59
10:52
6 maintenance change." What does that mean?
10:53
7
10:43
10:46
10:56
A
Standard 90.1 is on continuous maintenance,
8 so anyone at any time can propose a change to the
8
A
Yes.
10:48
9
Q
And would all of the people who were
11 listed on these pages of the roster?
10 the public. If it's the public, then there's a
10:43
12 submitted.
A
No.
13
Q
So what other people would have been
10:48
13
10:49
14 contributing text to Standard 90.1 at that time?
10:53
10:56
11 continuous maintenance change proposal form that gets
10:46
12
10:59
9 standard. It could be a project committee member or
10:40
10 contributing text to Standard 90.1 at that time be
A
A
5
10:40
6 project committee that would be contributing text to
15
4
10:44
7 Standard 90.1 at that time?
10:52
10:59
And similarly, for the continuous maintenance 10:56
14 change proposal forms, would those also have been
10:42
Commenters on -- draft goes out for comment
Q
10:51
10:54
10:46
15 destroyed?
10:51
10:54
16 and those who submitted a continuous maintenance change 10:40
16
A
They could have been destroyed.
17 proposal.
17
Q
Who would know whether or not these documents 10:52
18
Q
19
20
10:43
And where does -- excuse me.
A
10:53
Q
What was the ASHRAE's record retention
24 policy?
25
A
10:56
10:59
MR. CUNNINGHAM: I'm going to object
21
retention policy is outside the scope of the
23
30(b)(6) topics.
10:58
10:54
THE WITNESS: Okay. I would -- I --
10:57
Page 60
1
there is a log of files that we keep that are
2
at Iron Mountain. I have access to those
10:54
3
logs, can find out what's there. I would not
10:54
4
know what was or was not destroyed unless I
5
brought every single box back from Iron
10:54
6
Mountain, assuming they are all labeled
10:54
7
correctly.
8 electronic, we probably still have them. There may be 10:51
8
Q
9 some in paper format that are in Iron Mountain. I
9 Exhibit 1119 on page 2, where it says that ASHRAE was 10:55
2
Q
10:50
10:56
10:52
You can answer.
25
We follow the ANSI policy of keeping records 10:53
Page 58
1 back to the last prior revisions.
10:54
that the line of questioning about document
24
10:52
10:55
10:50
22
10:54
22 wouldn't require us to keep records this far back.
19 were or were not destroyed?
20
We have lists of commenters. For this year, 10:58
21 I don't know, because our record retention policy
23
18 for the 2010 prior editions of ASHRAE Standard 90.1
10:44
Does ASHRAE keep lists of commenters?
10:56
And what is the last prior revision for
3 Standard 90.1?
10:50
10:50
4
A
2013.
10:50
5
Q
So does that mean that ASHRAE would not have 10:51
6 records for the 2010 addition of 90.1?
7
A
10:51
Not necessarily. We -- if they're
10:51
10 can't guarantee that all the prior stuff is still
10:51
10:51
11 there, especially if it's not in electronic format.
Q
And what is Iron Mountain?
13
A
It's an off-site storage facility.
14
Q
And does the -- your same answer that you
10:54
(BY MR. BECKER) Ms. Reiniche, looking at
11 does Exhibit 1120 provide that list of project
10:51
10:55
13
10:51
MR. CUNNINGHAM: Objection to form.
14
THE WITNESS: This is only at one point
15 don't necessarily have records as to the 2007 and 2004 10:51
15
in time, so this isn't every single one.
16 edition of Standard 90.1 also apply?
10:51
16
This is at one point.
17
10:51
17
Q
A
That would be correct. Some -- if it's
19 it's paper, it may or may not still be at Iron
20 Mountain.
21
Q
10:51
10:55
10:55
(BY MR. BECKER) But would it provide that
18 for that one point in time?
10:51
10:55
10:55
19
10:52
Yes.
20
10:51
At what point would ASHRAE have destroyed
A
10:55
Q
Ms. Reiniche, I'm handing you what has been 10:56
21 marked as Exhibit 1121 --
10:56
22
A
Okay.
23 if it had done so?
23
Q
-- which reads "ASHRAE Roster." Could you
A
10:52
If we destroyed it, we could have destroyed 10:52
25 it at the time of 2013 publishing.
10:55
10:55
22 these documents for Standard 20 -- 90.1 2010 edition, 10:52
24
10:54
10:55
12 committee members for Standard 90.1?
10:51
18 electronic, then we probably still have it. But if
10:54
10 ordered to produce lists of project committee members, 10:55
10:51
12
10:53
24 tell me what this is?
10:52
25
A
10:56
This is the roster that would have been --
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10:56
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THE WITNESS: To my knowledge, it is
2
3
was entered in the database. At the time, we
4
had the database that tracks them. And
5
provided there's not an issue with the
6
database, then it would be kept.
7
Q
11:01
probably something we keep it's a -- if it
A
11
Q
11:05
11:06
11:07
11:09
They just aren't using it -- there may have 11:07
11:07
11:07
11:07
11:08
7
Q
(BY MR. BECKER) I'm handing you what's been 11:08
And do you know when ASHRAE first started
13
A
Around 2003.
11:08
14
Q
What kind of information does that database
11:02
11:08
9 ASHRAE0002469. Could you tell me what this document
10 is?
11:05
A
A
8 marked as Exhibit number 1133. This is Bates number
12 using that database?
16
11:07
6 (Exhibit 1133 marked for identification.)
We have a continuous maintenance change
15 contain?
Why is that?
5 but we don't use a Task Sheet 9 now.
11:04
10 proposal access database.
No.
Q
4 been one way back when they did everything in paper,
11:01
(BY MR. BECKER) And what database are you
8 referring to?
9
11:09
A
3
11:06
1
2
11:04
11
11:08
11:08
A
These are proposals received for continuous 11:08
12 maintenance of ASHRAE Standard 90.1 2004 dated as of
13 January 4th, 2005.
11:04
11:07
14
Q
11:08
For both Exhibit 1132 and 1133, it appears
15 that the dates that the proposals were received --
What you see in this report, which is the
11:07
17 proposer, the number, proposal date, when it was
16 excuse me, let me say that again.
11:00
17
11:08
11:08
11:08
11:08
For Exhibits 1132 and 1133, it appears that 11:08
18 received. And then there -- there will be a date that 11:03
18 the date of the document in the top right corner is
19 isn't shown on here that tells when the committee would 11:07
19 subsequent to the year of the standard itself; is that 11:09
20 have responded so that we can close out the proposal.
20 correct?
21
Q
And does the database also contain the
22 content of the proposal itself?
11:01
11:06
A
No.
24
Q
Where would someone find the content of the
11:02
A
You mean --
22
23
25 proposal itself?
11:09
21
11:00
11:08
Q
Let me clarify. For -- for Exhibit 1132,
11:09
11:09
23 that exhibit pertains to Standard 90.1 2001, but the
11:04
11:07
11:09
24 document itself is from January 5th, 2004; is that
11:09
25 correct?
11:09
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1
A
If it was -- when we were saving
11:09
Page 68
1
A
That's correct.
2 electronically, then there will be a -- what we call a 11:03
2
Q
And why is that?
3 task sheet that we save on our network drive where
3
A
That would have been at the one-year mark -- 11:07
4 they're saved. And then if not, it's in paper. It
11:09
5 would have been sent to Iron Mountain.
6
Q
11:06
And what would be the title of the document
8
A
9
Q
10
On the network drive?
Yeah.
11:05
4 well, they have 13 months to -- to respond to
11:03
7 that would have this -- one of these proposals in it?
11:05
11:06
11:09
11:05
6 so this would have been printed prior to their January 11:07
7 2004 meeting, because we would want to know what the
8 status of the continuous maintenance change proposals
11:06
9 were at that time.
11:09
10
THE WITNESS: It's probably Task Sheet 6
11:01
11 those be -- if made effective, would those be made
12
would be the title.
13
Q
11:05
The proposals that were reflected here, would 11:11
11:16
12 effective in Standard 90.1 2001 or in a later version? 11:15
(BY MR. BECKER) And what does -- are there
14 other task sheets?
Q
11:01
11:05
11:10
MR. CUNNINGHAM: Object to form.
11
11:02
5 continuous maintenance change proposals within a year, 11:05
11:06
15
A
Yes.
16
Q
And what are the other task sheets?
11:04
17
A
There's a Task Sheet 1 for new projects; Task 11:08
13
A
A later version.
14
11:03
Q
So the proposals reflected in Exhibit 1132,
11:10
11:19
15 would those, if they had been enacted, be enacted into 11:13
11:05
18 Sheet 2 that was membership; Task Sheet 3 is title,
16 Standard 90.1 2004?
11:02
17
A
Yes.
11:18
11:10
18 (Exhibit 1134 marked for identification.)
11:12
19 purpose and scope change. I don't believe we have a 4; 11:07
19
20 a Task Sheet 5, which is public review; Task Sheet 7,
20 marked as Exhibit 1134, Bates number ASHRAE0022821.
21 which is publication; and Task Sheet 8, which is
11:02
11:07
Q
(BY MR. BECKER) I'm handing you what's been 11:10
21 Could you tell me what this document is, please?
22 appeals. And Task Sheet 10 might -- there might be a
11:03
22
23 Task Sheet 10 now. We might have switched the
11:07
23 review draft for an addendum to 90.1 2004.
24 continuous maintenance to that.
25
Q
Is there a Task Sheet 9?
11:01
24
11:03
A
Q
This is the form to comment on a public
And do you see where it says "Number 2,
25 copyright release"?
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11:11
11:19
11:12
11:17
11:17
11:10
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A
Yes.
2
Q
What is the significance of the copyright
3 release?
11:12
1
11:12
11:12
3
4
MR. CUNNINGHAM: Object to form.
5
THE WITNESS: It -- the significance of
11:12
11:12
it is when the commenter submits their
7
comments, they are giving ASHRAE the
8
nonexclusive rights to use whatever material
11:12
9
they submit in their comments to change or
11:12
11:12
11
copyright, and they don't.
Q
11:11
11:16
Does this document contain a copyright
4 release as well?
11:10
11:14
5
11:12
modify the standard and then ASHRAE owns the
This is a document to submit a continuous
A
Yes.
6
6
10
A
2 maintenance change proposal.
11:15
Q
Could you please mark on the page where the
7 copyright release is?
8 (Witness complied with the request of counsel.)
9
11:12
11:12
A
10
11:12
11:16
There's two spots.
11:13
11:13
MR. CUNNINGHAM: I'm going to go ahead
11
and object again to form here, Matt.
Q
11:15
11:19
12
MR. BECKER: I'm sorry, Counsel, will
11:12
12
13
you mind elaborating on the reason for your
11:12
13 marked with a number 1 and number 2; is that correct?
14
objection?
15
11:12
conclusion.
17
Q
That's correct.
Q
Why does ASHRAE use two copyright releases on 11:12
16 this form?
(BY MR. BECKER) Why does ASHRAE include the 11:12 17
11:12
THE WITNESS: We include it so that we
can include the material in -- in the
22
having to get copyright permission; because
24
they're giving it, we don't have to go back.
25
They're giving it when they sign it.
11:13
signature in. I just think there's a
signature line that we missed when we made
the form.
24
11:13
11:13
send it in or they could put an electronic
23
11:12
allowed it so they could either sign it and
22
11:12
Q
11:10
THE WITNESS: Actually, I think we
19
20
11:12
document that they're commenting on without
23
11:19
MR. CUNNINGHAM: Object to form.
18
11:12
21
11:12
21
MR. CUNNINGHAM: Object to form.
20
11:19
A
15
11:12
11:12
18 copyright release in this document?
19
11:18
14
MR. CUNNINGHAM: It calls for a legal
16
(BY MR. BECKER) And those two spots you've
11:11
11:11
11:14
11:17
11:18
11:10
(BY MR. BECKER) So this form should have
25 a -- a signature line below the first copyright
11:13
11:14
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1
Q
(BY MR. BECKER) Does ASHRAE believe that it 11:10
2 owns the copyright if somebody signs this form?
11:11
1 release, but it does not?
11:10
A
Yes.
4
Q
Would ASHRAE accept a form like this if it
11:16
11:12
11:16
2
A
Correct.
3
3
5 had not been signed and dated?
Page 72
11:11
Q
And if this form were printed out and sent to 11:13
4 ASHRAE, would ASHRAE reject it if someone had not
5 signed below the first copyright release?
6
A
No.
7
Q
Do you know of any instance in which ASHRAE
11:18
6
11:11
A
On this one, we would have allowed either the 11:17
7 electronic signature if they printed it with the
11:10
8 has accepted a form like this if it has not been signed 11:14
8 electronic or if they had signed it, because the
9 and dated?
9 language was the same.
11:17
10
A
No.
11:18
10
11
Q
Do you have any reason to believe that this
11:11
12 document produced by ASHRAE is not an authentic
13 document?
A
No.
15
Q
And are you familiar with this document
Would ASHRAE accept this document if someone 11:19
12 name"?
13
11:16
16 through your work at ASHRAE?
A
11:11
15
Q
If -- if they did not sign it and did not
A
Yes.
18
Q
Is this one of the documents that you review? 11:19
19
A
Yes.
19
11:16
17 copyright release -- the first copyright release in
11:13
11:16
(BY MR. BECKER) I'm handing you what has
22 been marked as Exhibit 1135, Bates number
A
Yes.
25
Q
And what is this document?
A
21
Q
11:19
11:17
And comparing the first and second copyright 11:12
23 between those two are?
24
11:19
25
11:10
There is missing -- oh, no, I just can't read 11:10
22 release in 1135, can you say what the differences
11:15
11:17
11:12
11:13
20 right. No, they're the same.
11:19
11:12
23 ASHRAE0022819. Do you recognize this document?
24
11:13
Comparing documents Exhibits 1134 and 1135,
18 1135?
Q
11:10
16 is the copyright release in 1134 the same as the
17
21
11:14
11:10
14 insert their name, we would not accept it.
11:13
20 (Exhibit 1135 marked for identification.)
11:11
11:14
11 had not typed in their name where it says "I, insert
11:13
11:16
14
Q
11:19
11:13
MR. CUNNINGHAM: I'm just going to
object. Matt, I think the document speaks
Page 71
11:16
11:10
11:11
11:12
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for itself here.
2
1
3
is one we allow electronic signature, and the
4
other is just a hand -- is a handwritten
5
signature.
6
Q
11:12
Q
(BY MR. BECKER) Thank you.
Yes.
12
Q
And what is this document?
13
A
This is the -- the form to comment on a
22
Q
A
That's correct.
11:21
Q
11:28
(BY MR. BECKER) Ms. Reiniche, I'm handing
11:27
11:27
Yes.
Q
And what is this document?
16
11:26
A
This is the form to submit a proposed change 11:28
11:27
17 to an ASHRAE standard under continuous maintenance.
11:17
18
11:18
Q
And does this document contain the same two
20 exhibit, 1137?
11:28
23 on -- at Exhibit 1136, if you look at the second page
A
Yes.
22
(BY MR. BECKER) Ms. Reiniche, looking again 11:26
11:20
11:24
21
11:28
11:21
11:27
19 copyright releases that were featured in the previous
11:27
11:29
Q
And at the bottom of the page, does this
11:22
23 document show that it was revised on March 9th, 2007?
11:26
24
24 of the exhibit, could you tell me what the significance 11:22
25 of the date on the second page is?
11:21
A
15
11:10
11:14
THE VIDEOGRAPHER: Going on the record
at 11:22.
9
11:20
14
11:17
THE VIDEOGRAPHER: Going off the record
21
And Exhibit 1137 says that it was revised on 11:21
13 ASHRAE0022820. Do you recognize this document?
11:14
THE COURT REPORTER: Can we go off the
20
Q
12 you what's been marked as Exhibit 1138, Bates number
11:13
14 public review draft standard guideline or addendum.
at 11:19.
11:25
10 (Exhibit 1138 marked for identification.)
11:12
19 (Recess taken.)
11:20
That's correct.
11
A
18
11:26
A
8 correct?
11:10
11
17
And which is the same as the copyright
7 January 30th, 2006 on the back of the document; is that 11:26
(BY MR. BECKER) I'm handing you what's been 11:12
record a second?
Q
6
11:11
11:14
9 marked as Exhibit 1136, Bates number ASHRAE0022823. Do 11:14
16
11:25
5
10 you recognize this document?
15
11:22
Yes.
4 releases on Exhibit 1135; is that correct?
11:15
11:10
7 (Exhibit 1136 marked for identification.)
8
1136.
A
3
11:11
Q
2
11:14
THE WITNESS: The -- the only difference
A
Yes.
25 (Exhibit 1139 marked for identification.)
11:27
11:24
11:25
11:21
Page 74
1
A
That was when we were -- we must have made a 11:23
Page 76
1
Q
(BY MR. BECKER) I'm handing you what's been 11:26
2 revision. So if we changed anything, even if it's one 11:23
2 marked as Exhibit 1139. This is Bates number
3 word, we put a new revision date on a form.
3 ASHRAE0022814. Do you recognize this document?
4
Q
11:23
And returning to Exhibit 1135, is that also 11:23
11:23
11:23
7
A
Yes.
11:23
8
Q
And returning to Exhibit 1134 at the back of 11:23
11
A
Yes.
12
Q
Q
11:24
16 0022825. Do you recognize this document?
Could you tell me what this document is?
A
This is an Application for Project Committee 11:26
11:24
Q
Does this document include a copyright
9 release under section 6?
11:27
11:27
11:20
A
Yes.
11:22
Q
Apart from referring to ASHRAE standard or
11:24
14 as the copyright -- the first copyright release in
15 Exhibit 1138?
Yes.
11:24
18
Q
And what is this document?
19
A
This is a form for commenting on a public
11:24
20 review draft to an ASHRAE standard, guideline or
MR. CUNNINGHAM: Object to form.
THE WITNESS: Actually, it differs.
18
11:24
11:24
Q
A
There's additional language included in
20 Exhibit 1139.
21
And does this document also contain the same 11:24
11:26
11:20
(BY MR. BECKER) How does it differ?
19
11:24
11:22
11:23
16
17
A
11:24
11:20
13 release under section 6 of Exhibit 1139 appear the same 11:24
11:24
11:24
17
Q
Q
12 guideline project committee, does this copyright
15 marked as Exhibit 1137. This is ASHRAE Bates number
22
5
11
11:24
(BY MR. BECKER) Handing you what's been
21 addendum.
11:24
10
11:24
13 (Exhibit 1137 marked for identification.)
14
Yes.
8
11:23
Thank you.
A
7 Organizational Representative Membership form.
9 that document where it says "REV 03-01-2004," is that 11:23
10 also what that date means?
11:20
4
6
5 what "revised 1/30/2006" means at the bottom of that
6 document?
11:26
Q
11:22
11:24
11:29
And could you tell me what that -- excuse me, 11:21
22 could you tell me what that additional language is?
23 copyright release -- excuse me, the same two copyright 11:24
23
24 releases that had appeared on the previous exhibit?
11:24
24 contributions I make to documents prepared by or for
25
A
Which one?
11:24
11:25
A
In the third sentence down, it adds, "to any 11:29
25 such committee for ASHRAE publication." And -- and
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11:24
11:28
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Q
11:22
3 was revised?
4
A
Q
11:21
11:21
October 2009.
11:23
(BY MR. BECKER) Handing you what's been
11:35
11:35
11:32
A
Yes.
Q
Could you tell me what this document is?
11:32
11
A
This is the ASHRAE Standard Guideline Project 11:34
A
And does this Exhibit 1140 include a
11:38
11:31
14 copyright release under section 5?
Actually, I -- I would -- correct. If it was 11:30
7 would have been why it would have been redacted.
A
Yes.
16
Q
Could you tell me if this copyright release
Q
(BY MR. BECKER) I'm handing you what's been 11:34
10 marked as Exhibit 1142. This is ASHRAE Bates number
11:39
12 numbers, does this document appear to you to be
11:33
A
Yes.
11:36
11:32
15 (Exhibit 1143 marked for identification.)
11:30
17 differs in any way from the copyright release on
11:35
11:30
19
20
16
Q
11:33
THE WITNESS: The only difference is
11:31
21
that on form 1139, it says "elected as an
22
organizational member" versus 1140, which is
11:34
23
"as a member."
24
Q
11:32
(BY MR. BECKER) I'm handing you what's been 11:38
17 marked as Exhibit 1143. Could you tell me what this
18 document is?
MR. CUNNINGHAM: Object to form.
19
A
11:35
This is the Form for Continuous Maintenance
20 Change Proposal.
11:32
Q
And do you recognize this document?
22
A
Yes.
Q
And could you tell me when this document was 11:37
24 last revised?
11:35
25
Page 78
A
11:30
11:32
11:30
January 30th, 2006.
11:31
Page 80
1 to fill out in order to obtain membership with ASHRAE? 11:30
1
2
2 copyright releases as in Exhibit 1135?
11:37
3 (Exhibit 1141 marked for identification.)
4
Q
11:30
(BY MR. BECKER) I'm handing you what's been 11:30
5 marked as Exhibit 1141. Do you recognize this
6 document?
11:36
11:39
23
11:33
(BY MR. BECKER) Are Exhibits 1139 and
For project committees, yes.
11:30
21
11:30
25 Exhibits 1140 documents that individuals are required
A
11:35
11 0001618. With the exception of the different Bates
14
11:36
11:38
11:35
13 identical to the previous exhibit, Exhibit 1141?
11:34
15
11:38
11:36
6 contact information of the individual on here, and that 11:36
9
11:32
12 Committee Application for Individual Membership.
18 Exhibit 1139?
11:32
8 (Exhibit 1142 marked for identification.)
9
Q
Does ASHRAE ordinarily keep a document that
5 redacted, it was probably because it had contact -- or 11:32
10
13
No.
Q
4
11:31
7 marked as Exhibit 1140. Do you recognize this
8 document?
A
2
3 would look like this in its redacted form?
5 (Exhibit 1140 marked for identification.)
6
1
Could you tell me on what date Exhibit 1139
11:31
11:36
3
Q
A
And does this document have the same two
Yes.
11:37
4 (Exhibit 1144 marked for identification.)
5
Q
11:37
11:37
11:37
(BY MR. BECKER) I'm handing you what's been 11:38
6 marked as Exhibit 1144. Do you recognize this
11:39
7 document?
11:38
7
A
Yes.
8
Q
Could you tell me what this document is?
11:30
8
A
Yes.
9
A
This document is -- language includes our
11:33
9
Q
Could you tell me what it is?
10
A
This is the Form for Commenting in a Public 11:38
10 copyright information for electronic or -- or the
11 signing.
12
Q
11:37
11:31
13 same two copyright releases that were seen in Exhibit
MR. CUNNINGHAM: Object to form.
16
THE WITNESS: There's a few "and"s
missing in the -- in -- in 1141 that are in
18
1135. And in 1141, the signature line is
19
than that, they're the same.
21
Q
11:38
11:36
included, which is not in 1135. But other
20
11:38
11:38
Q
And looking at the second page of this
A
March 1st, 2004.
16
Q
And does this document have the same
11:38
A
Yes.
11:38
11:38
11:38
11:39
19 (Exhibit 1145 marked for identification.)
20
Q
11:38
11:38
15
18
11:35
11:39
(BY MR. BECKER) Handing you what's been
11:32
Does this document appear to be redacted to
21 marked as Exhibit 1145. This is Bates number
11:35
11:39
22 ASHRAE0001606. Could you -- do you recognize this
11:38
23 document?
24
A
Yes.
11:38
25
Q
Do you know why this document is redacted?
11:38
11:38
13 document, could you tell me the date on which it was
17 copyright release as Exhibit 1134?
11:30
(BY MR. BECKER) Thank you.
23 you?
12
14 revised?
15
22
11:33
11:39
17
11:38
11 Review Draft ASHRAE Standard, Guideline or Addendum.
Does this document, Exhibit 1141, include the 11:36
14 1135?
11:38
11:39
11:39
11:39
24
A
Yes.
11:39
11:39
25
Page 79
Q
Could you tell me what this document is?
11:39
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A
This is the Form for Commenting on a Public
1
11:39
2 Review Draft ASHRAE Standard, Guideline or Addendum.
3
Q
March 1st, 2004.
6
Q
A
January 30th, 2006.
11:34
6
Q
Does this document under section 2,
11 marked as Exhibit 1146. Do you recognize this
13
A
14
Yes.
Q
A
Q
11:44
(BY MR. BECKER) I'm handing you what's been 11:44
15 marked as Exhibit 1149. Do you recognize this
11:49
16 document?
11:41
11:44
11:44
17
Yes.
Q
Could you tell me what this document is?
19
11:47
This is the Form for Submittal of a Proposed 11:48
A
18
(BY MR. BECKER) Could you tell me what this 11:45
18 document is?
19
14
11:44
11:44
11:44
13 (Exhibit 1149 marked for identification.)
11:47
record, this document is Bates number
17
In the first paragraph, in -- in the third
12 standard."
11:44
ASHRAE0001600.
11:44
A
11 see in Exhibit 1135, in Exhibit 1148, it says "this
11:40
MR. BECKER: And this -- just for the
16
11:43
11:43
10 line down, instead of saying "the standard," like we
11:44
15
11:43
9
11:41
(BY MR. BECKER) I'm handing you what's been 11:49
12 document?
11:43
8 releases that were in Exhibit 1135?
11:46
9 (Exhibit 1146 marked for identification.)
Q
11:43
7 "Copyright Release," have the same two copyright
And does this include the same copyright
11:43
Looking at the second page of this document, 11:43
5
11:33
7 release that was in the previous exhibit, 1144?
10
Q
11:36
A
Yes.
This is the Form for Commenting on a Public 11:43
4 could you tell me when this document was revised?
11:39
5
A
A
2 Review Draft ASHRAE Standard, Guideline or Addendum.
3
And could you tell me the date on which this 11:37
4 was revised?
8
11:32
11:44
A
This is the Form for Commenting on a Public 11:45
11:44
20 Change to ASHRAE Standard Under Continuous Maintenance. 11:41
20 Review Draft, ASHRAE Standard, Guideline or Addendum. 11:45
21
21
Q
Could you -- could you tell me the
11:47
23 corner?
11:43
A
That would have been the date it was revised. 11:43
25
Q
Does this document include the same copyright 11:43
Page 82
1 release under section 1 as was in Exhibit 1134?
A
11:45
With the exception of splitting up a
11:41
state that this is Bates number
11:45
ASHRAE0001610.
11:45
24
11:49
24
2
MR. BECKER: For the record, I'll just
22
23
22 significance of the date in the bottom left-hand
Q
(BY MR. BECKER) Looking at the back of the 11:45
25 document, could you tell me the date on which this was 11:45
Page 84
1 revised?
11:41
11:45
2
A
January 30th, 2006.
3 sentence, it's exactly the same. There's an "and" in 11:41
3
Q
Does this document, Exhibit 1149, have the
4 1134 between "proposals" and "I understand" -- and "I 11:41
4 same copyright releases as in the previous exhibit,
5 understand" that is not in 1146.
5 1148?
11:42
6 (Exhibit 1147 marked for identification.)
7
Q
11:42
6
(BY MR. BECKER) I'm handing you what's been 11:42
8 marked as Exhibit 1147. This is Bates number
11:42
9 ASHRAE0001604. Do you recognize this document?
10
A
Yes.
11
Q
Could you tell me what this document is?
12
A
This is a Continuous Maintenance Submittal
13 form.
14
Q
11:42
11:42
January 30th, 2006.
17
Q
Does this document include the same two
11:46
22 marked as Exhibit 1148. Do you recognize this
A
Yes.
25
Q
Could you tell me what this document is?
Yes.
Q
And could you tell me what this document is? 11:46
11:46
A
This is the Form for Submittal of a Proposed 11:46
14 Change to an ASHRAE Standard Under Continuous
Q
11:46
11:46
And could you tell me, looking at the bottom 11:46
17 right-hand corner, the date on which this was revised? 11:46
11:42
18
A
March 9th, 2007.
19
Q
And does Exhibit 1150 have the same two
11:43
11:46
20 copyright releases as Exhibit 1135?
11:43
11:43
24
A
11:42
(BY MR. BECKER) I'm handing you what's been 11:43
23 document?
11:46
12
16
11:43
20 (Exhibit 1148 marked for identification.)
Q
9 marked as Exhibit 1150. This is Bates number
15 Maintenance.
11:42
18 copyright -- copyright releases as in Exhibit 1135?
21
11:45
(BY MR. BECKER) I'm handing you what's been 11:46
13
A
Yes.
11:45
11
11:42
11:42
16
A
Yes.
10 ASHRAE0001605. Do you recognize this document?
And could you tell me when this document was 11:42
15 revised?
19
11:42
Q
11:45
11:45
11:45
7 (Exhibit 1150 marked for identification.)
8
11:42
A
11:45
21
A
11:46
11:46
With the exception of an "and" that's in
11:47
22 paragraph -- in the second paragraph of 1135, where
11:47
23 it's between "proposals" and "I understand," it's the 11:47
11:43
24 same.
11:43
11:47
25 (Exhibit 1151 marked for identification.)
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Q
(BY MR. BECKER) I'm handing you what has
11:48
3 document?
11:40
11:42
4
A
Yes.
5
Q
Could you tell me what this document is?
11:42
6
A
This is an Application for Project Committee 11:45
1
MR. BECKER: For the record, I'll note
2
that this is Bates number ASHRAE0001612.
3
2 been marked as Exhibit 1151. Do you recognize this
11:57
Q
11:58
(BY MR. BECKER) Are users of the ASHRAE
4 website required to fill in their name into the box
11:43
11:58
5 that says "Name of whoever is logged in to comment
6 would be entered here"?
11:54
11:57
7 Organizational Representative Membership.
11:47
7
MR. CUNNINGHAM: Objection to form.
8
11:41
8
THE WITNESS: In order to comment, any
Q
And looking at the bottom left-hand corner,
9 could you tell me the date on which this was revised?
10
A
11
Q
12
October 2009.
Yes.
15
Q
And comparing that copyright release on
11:43
A
They are identical.
Q
Thank you.
17
11:41
(BY MR. BECKER) Could you tell me who checks 11:55
A
11:58
You can't go forward. If you click "I do not 11:51
Q
11:53
If -- does somebody check whatever names are 11:56
18 put in there to make sure that they match with the
11:50
19 person who's submitting the comments?
11:48
20
(BY MR. BECKER) Handing you Exhibit 1152,
11:41
22 Bates number ASHRAE0001616. Do you recognize this
23 document?
Q
11:54
16 agree," you cannot submit a comment.
11:42
11:46
20 (Exhibit 1152 marked for identification.)
Q
11:50
online comment database.
15
11:47
17 Exhibit 1139, can you tell me if they are identical?
19
and hit "I agree" in order to comment in the
14 that box for names?
16 Exhibit 1151 with the copyright release on
18
11:58
13
11:41
11:55
their name as it would appear above that line
12
11:47
A
member of the public would have to enter
11
Comparing the copyright release -- excuse me. 11:40
Is there a copyright release under Exhibit -- 11:45
9
11:59
11:52
10
13 excuse me, section 6 of Exhibit 1151?
21
11:45
11:48
14
A
11:53
Do you mean can I physically tell if you were 11:58
21 signed in as somebody else and put their name in there? 11:52
11:43 22
Q
Yes.
23
A
I cannot physically tell that.
24
Q
And if -- if I went on to the ASHRAE website 11:51
11:49
24
A
Yes.
25
Q
Could you tell me what this document is?
11:49
11:43
11:56
11:58
25 and I put in my name as just the letter Z and clicked
11:56
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1
A
This is the ASHRAE Standard Guideline Project 11:44
Q
5
A
6
Q
7
11:47
And could you tell me the date on which this 11:56
4 was revised?
11:57
October 2009.
Comparing the -- excuse me.
10
Q
Comparing the copyright release on section 5 11:56
11:54
11 of Exhibit 1152 with the copyright release from
11:58
12 Exhibit 1151, could you tell me if there are any
The difference is on 1151, it's for an
Q
11:59
11:50
11:56
11:55
11:58
10 agree."
11
Q
11:51
So it might not allow you to enter your full 11:53
A
11:56
Correct. You have to enter whatever it shows 11:56
11:58
15 many -- the coding is such to so many characters.
11:52
16
11:56
19 marked as Exhibit 1153. Do you recognize this
11:54
Q
And where would it show the person's name?
11:57
17
11:56
(BY MR. BECKER) I'm handing you what's been 11:58
20 document?
11:57
There is a name -- where you see "Name of
14 above there, because it's -- you know, it's got so
11:55
17 (Exhibit 1153 marked for identification.)
18
And how does it stop me from proceeding?
A
13
11:56
Thank you.
Q
12 name?
11:52
15 organizational member; and 1152, it's a member.
Q
3
9 characters. That's what I enter there and hit "I
Yes.
16
11:56
8 ends up stop -- it goes to a certain amount of
11:52
A
A
No.
7 mine, it would say Mrs. Stephanie R-E-I-N, is where it 11:51
9
14
A
6 the system generates the letters -- for example, for
11:52
Is there a copyright release at section 5 of 11:59
13 differences between the two?
11:53
2
5 whoever is logged in to comment would be entered here," 11:53
11:58
8 Exhibit 1152?
1 "I agree," would it allow me to proceed?
4
2 Committee Application for Individual Membership.
3
11:56
A
Where you see "Name of whoever is logged in
11:59
18 to comment would be entered here," their name would
19 appear there.
20
11:50
Q
Okay. Does this Exhibit 1153 include a
21 copyright release?
21
A
Yes.
11:51
22
Q
Could you tell me what this document is?
23
A
This is how you would enter a comment on the 11:55
A
Yes.
23
Q
And is that the second paragraph on
24 online comment database with entering the -- your name 11:58
24 Exhibit 1153?
25 into that field and "I agree" in order to go forward.
25
11:52
A
Yes.
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11:56
11:56
22
11:54
11:52
11:56
11:57
11:51
11:54
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Q
And does this copyright release on
11:52
2 Exhibit 1153 appear identical to the second copyright
3 release on Exhibit 1135?
4
A
1
11:55
11:50
A
2
No.
11:53
MR. CUNNINGHAM: Object to the form on
3
that.
Q
11:55
11:56
Other than the fact you can't do the "I,
11:53
4
5 insert name," it starts with "I, hereby," it's the
11:56
5 between copyright releases and copyright assignments?
6 same.
11:50
6
7 (Exhibit 1154 marked for identification.)
8
Q
11:53
9 marked as Exhibit 1154. Do you recognize this
10 document?
11
A
12
Yes.
11:50
11:54
11:56
Q
15 document is?
16
A
11:59
11:54
18 being logged in, because my name appears,
Q
(BY MR. BECKER) Is there any way in which
23
17 releases that we have discussed today?
Q
And is this copyright release identical to
11:56
MR. CUNNINGHAM: Object to form.
THE WITNESS: Do you mean because their
12:03
20
a different document and put it in there?
Q
12:08
company submitted -- they took language from
12:01
12:03
(BY MR. BECKER) I mean, does ASHRAE believe 12:06
23 that it owns the copyright in contributions to
11:58
12:08
24 Standard 90.1 or to the 1993 ASHRAE handbook by virtue 12:05
11:59
25 of any copyright assignments or releases, other than
Q
Ms. Reiniche, do you know when this copyright 11:50
2 release was first added to the ASHRAE website?
3
A
12:00
Page 92
Q
A
No.
It would have been when we started the online 11:54
3
Q
And does ASHRAE believe that it owns
9
A
Yes.
10
Q
11:54
11:58
11:53
-- in order to gain access?
6 those copyright releases that we have discussed today? 12:01
7
9
11:55
10
Ms. Reiniche, I will represent to you that we 11:59
12 have now produced before you as exhibits all of the
A
11:55
11:50
legal conclusions.
17 Standards 90.1 or for the 1993 ASHRAE handbook that
11:53
MR. BECKER: I think that we can stop
for lunch here, if that works for the rest of
13
you.
at 12:01.
19
11:53
19
at 13:03.
20
Q
21
Q
11:55
Is ASHRAE aware of any copyright releases
22 that have not been produced to Public Resource?
11:57
11:50
23
A
No.
24
Q
Is ASHRAE aware of any copyright assignments 11:57
11:54
25 that have not been produced to Public Resource?
13:04
13:05
THE VIDEOGRAPHER: Going on the record
13:02
13:03
(BY MR. BECKER) Ms. Reiniche, we're back on 13:03
21 the record now.
22
12:06
12:07
17 (Exhibit 1155 marked for identification.)
18
20 produced.
12:05
16 (Lunch recess.)
11:50
I'm not aware of anything that has not been
12:01
12:03
THE VIDEOGRAPHER: Going off the record
18 have not been produced to Public Resource?
A
12:08
12:09
12:01
12
15
11:57
12:05
insofar as the last few questions called for
14
Are you aware of any other copyright releases 11:53
16 that ASHRAE uses in order to get copyright for
No.
MR. CUNNINGHAM: I'm going to object
11
11:51
13 blank copyright releases that ASHRAE has produced to
15
12:09
4 copyright in contributions to Standards 90.1 or to the 12:02
8
11:54
14 Public Resource through discovery.
12:08
5 1993 handbook by virtue of any other means, other than 12:06
And for the online comment database, has it
8 click "I agree" --
11:56
11:57
7 always required individuals to enter their name and
11
12:04
2
4 comment database, which was around 2005 -- no, I'm
6
1 those that we have discussed today?
11:57
5 sorry, around 2008.
12:05
12:04
Page 90
1
11:58
12:09
21
11:55
24 the copyright release in Exhibit 1153?
11:56
14 someone who contributed text to Standards 90.1 or to
22
Yes.
Yes.
Q
11:51
19
11:54
A
A
11:59
THE WITNESS: No.
18
11:57
22
25
11:50
And does this document, Exhibit 1154, include 11:59
21 a copyright release?
outside the scope.
11:52
11:56
16 rights to ASHRAE, other than through the copyright
11:53
19 Mrs. Stephanie C. R-E-I-N.
11:51
15 the 1993 ASHRAE handbook would have given copyright
This is the -- where you would go to log in
17 at the online comment database, and it shows me as
20
13
11:54
11:58
(BY MR. BECKER) Do you see a difference
MR. CUNNINGHAM: Object insofar as it's
12
(BY MR. BECKER) Could you tell me what this 11:53
11:57
9 between copyright releases and copyright assignments?
11
11:58
Bates number ASHRAE0022827.
14
THE WITNESS: No.
Q
10
MR. BECKER: For the record, this is
13
8
11:54
MR. CUNNINGHAM: Object to the form.
7
(BY MR. BECKER) I'm handing you what's been 11:50
(BY MR. BECKER) Does ASHRAE see a difference 11:51
13:05
Did you have anything that you had remembered 13:06
23 or wanted to add to prior testimony today?
24
A
No.
11:51
25
Page 91
Q
Thank you.
13:09
13:03
13:04
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Now, Ms. Reiniche, I'm handing you what's
13:05
2 been marked as Exhibit 1155. It's Bates number
13:09
1 publication. If they need to make more changes, it
2 will go back to the public review process.
3 ASHRAE0001598. So, Ms. Reiniche, my sincere apologies. 13:07
3
4 I had missed this one last document that pertains to
13:04
4 it's the standards committee that would begin drafting 13:05
5 the subject that we were discussing prior to lunch.
13:08
5 the document; is that correct?
6
Can you tell me if you recognize this
7 document?
6
13:02
8
A
Yes.
9
Q
And can you tell me what this document is?
13:05
10
A
This is an Application for Membership on
13:09
13:04
11 ASHRAE Standard or Guideline Project Committee.
Q
So in this process that you were describing, 13:01
A
13:08
No. It's the project committee that drafts
7 the document.
13:04
8
12
Q
13:06
13:08
13:01
And can you tell me if this document contains 13:03
Q
13:09
13:01
And the process that you just described, is
13:01
9 that the process that's used for ASHRAE Standard 90.1? 13:06
10
A
It would have when it was started. The
13:02
11 difference -- there's a little difference now because
12 it's on continuous maintenance.
13:04
13:06
13 a copyright assignment?
13:06
13
Q
And what -- what does that difference mean?
14
A
Yes, under number 7.
13:08
14
A
The difference is the membership is on a
15
Q
Okay. And could you tell me if after seeing 13:09
16 this document if that changes any of your answers
17 earlier today?
13:08
13:00
15 four-year rotating cycle, so one -- basically, roughly 13:04
13:01
16 one-third of the committee would roll off every four
13:08
17 years, so they're not -- everyone is not coming off at 13:01
13:05
18
A
No, it does not.
13:05
18 the same time. And new members will be added, so
19
Q
Thank you.
13:07
19 they're added continuously, typically once a year.
20
Ms. Reiniche, could you walk me through at a 13:07
21 high level how ASHRAE standard -- standards are
22 created?
23
A
13:00
20
Then instead of the full draft going out,
13:04
13:07
13:02
21 their addenda are issued to go out for public review
13:07
22 and comment. They'd either come from stuff that has
13:03
23 been generated by the committee or through a continuous 13:03
Sure. So it starts with a title, purpose and 13:03
24 scope being submitted for consideration to be approved. 13:08
24 maintenance change proposal. And then the rest of the 13:05
25 process would follow the same way.
25 That would have been approved by the procedures, policy 13:03
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1 interpretation subcommittee, then forwarded to the
13:07
2 standards committee for approval. Depending on what
3 year, it would have had to go to tech council, but
13:00
13:02
13:06
1
Q
A
Page 96
And the -- who drafts the title, purpose and 13:03
2 scope?
3
13:07
13:07
The title, purpose and scope can be -- a new 13:02
4 always ends up at our board of directors to approve the 13:00
4 one can be submitted by anyone. I could submit one;
5 title, purpose and scope for a new standard project
5 you could submit one. The technical committee within
6 committee or guideline.
7
13:03
13:07
Then after that, you would do a call for
9 applications, and then the committee chair would
13:05
13:01
7
13:02
13:02
Q
And is the technical committee, are they
8 volunteers or are they employees of ASHRAE?
9
A
Volunteers.
10 recommend to the standards project liaison subcommittee 13:08
10
Q
11 and standards committee their membership.
11 volunteers, correct?
13:07
And the project committee as well is
13:01
And then the committee would -- would begin
13:06
13 working on drafting the document. Then they would
13:00
14 approve it for public review. And then depending on
13:04
15 what type of committee, would dictate how much more
16 oversight. So standards project liaison subcommittee
13:08
13:03
13:00
13:01
13:03
12
A
That's correct.
13:04
13
Q
How are ASHRAE employees involved in the
15
A
13:04
18 out for public review. It goes out for comment.
13:01
18 until now.
19
13:05
19
13:07
20 have been proposed, a staff member would -- would
21 commenters have to indicate their resolution status.
13:00
22 And then the committee needs to decide whether or not
23 changes need to be made to the standard -- to the
24 document based on the comments received, or if not -25 if not, it goes for -- they'll approve it for
13:03
13:06
13:09
13:02
Q
A
13:05
In the -- are you talking from now or are you 13:01
16 talking about when it was first started?
17
20 responds to all the commenters. And then the
13:01
14 creation and maintenance of ASHRAE Standard 90.1?
17 or the SPLS liaison would -- would say it's okay to go 13:06
The committee reviews all the comments,
13:07
6 ASHRAE is usually how it's submitted.
13:09
8 members, people would submit the membership
12
13:05
Let's -- let's go from when it first started 13:07
13:09
So when the title, purpose and scope would
21 review that to make sure it's in the correct format
13:01
13:03
13:05
22 and, if there is some questions, would actually send it 13:09
23 back to whoever had proposed it to make -- to correct
13:01
24 it or say if they're okay, if we met their intent, and 13:05
25 then send it forward to -- it probably when -- 19 --
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Now, Ms. Reiniche, I'm handing you what's
13:05
2 been marked as Exhibit 1155. It's Bates number
13:09
1 publication. If they need to make more changes, it
2 will go back to the public review process.
3 ASHRAE0001598. So, Ms. Reiniche, my sincere apologies. 13:07
3
4 I had missed this one last document that pertains to
13:04
4 it's the standards committee that would begin drafting 13:05
5 the subject that we were discussing prior to lunch.
13:08
5 the document; is that correct?
6
Can you tell me if you recognize this
7 document?
6
13:02
8
A
Yes.
9
Q
And can you tell me what this document is?
13:05
10
A
This is an Application for Membership on
13:09
13:04
11 ASHRAE Standard or Guideline Project Committee.
Q
So in this process that you were describing, 13:01
A
13:08
No. It's the project committee that drafts
7 the document.
13:04
8
12
Q
13:06
13:08
13:01
And can you tell me if this document contains 13:03
Q
13:09
13:01
And the process that you just described, is
13:01
9 that the process that's used for ASHRAE Standard 90.1? 13:06
10
A
It would have when it was started. The
13:02
11 difference -- there's a little difference now because
12 it's on continuous maintenance.
13:04
13:06
13 a copyright assignment?
13:06
13
Q
And what -- what does that difference mean?
14
A
Yes, under number 7.
13:08
14
A
The difference is the membership is on a
15
Q
Okay. And could you tell me if after seeing 13:09
16 this document if that changes any of your answers
17 earlier today?
13:08
13:00
15 four-year rotating cycle, so one -- basically, roughly 13:04
13:01
16 one-third of the committee would roll off every four
13:08
17 years, so they're not -- everyone is not coming off at 13:01
13:05
18
A
No, it does not.
13:05
18 the same time. And new members will be added, so
19
Q
Thank you.
13:07
19 they're added continuously, typically once a year.
20
Ms. Reiniche, could you walk me through at a 13:07
21 high level how ASHRAE standard -- standards are
22 created?
23
A
13:00
20
Then instead of the full draft going out,
13:04
13:07
13:02
21 their addenda are issued to go out for public review
13:07
22 and comment. They'd either come from stuff that has
13:03
23 been generated by the committee or through a continuous 13:03
Sure. So it starts with a title, purpose and 13:03
24 scope being submitted for consideration to be approved. 13:08
24 maintenance change proposal. And then the rest of the 13:05
25 process would follow the same way.
25 That would have been approved by the procedures, policy 13:03
Page 94
1 interpretation subcommittee, then forwarded to the
13:07
2 standards committee for approval. Depending on what
3 year, it would have had to go to tech council, but
13:00
13:02
13:06
1
Q
A
Page 96
And the -- who drafts the title, purpose and 13:03
2 scope?
3
13:07
13:07
The title, purpose and scope can be -- a new 13:02
4 always ends up at our board of directors to approve the 13:00
4 one can be submitted by anyone. I could submit one;
5 title, purpose and scope for a new standard project
5 you could submit one. The technical committee within
6 committee or guideline.
7
13:03
13:07
Then after that, you would do a call for
9 applications, and then the committee chair would
13:05
13:01
7
13:02
13:02
Q
And is the technical committee, are they
8 volunteers or are they employees of ASHRAE?
9
A
Volunteers.
10 recommend to the standards project liaison subcommittee 13:08
10
Q
11 and standards committee their membership.
11 volunteers, correct?
13:07
And the project committee as well is
13:01
And then the committee would -- would begin
13:06
13 working on drafting the document. Then they would
13:00
14 approve it for public review. And then depending on
13:04
15 what type of committee, would dictate how much more
16 oversight. So standards project liaison subcommittee
13:08
13:03
13:00
13:01
13:03
12
A
That's correct.
13:04
13
Q
How are ASHRAE employees involved in the
15
A
13:04
18 out for public review. It goes out for comment.
13:01
18 until now.
19
13:05
19
13:07
20 have been proposed, a staff member would -- would
21 commenters have to indicate their resolution status.
13:00
22 And then the committee needs to decide whether or not
23 changes need to be made to the standard -- to the
24 document based on the comments received, or if not -25 if not, it goes for -- they'll approve it for
13:03
13:06
13:09
13:02
Q
A
13:05
In the -- are you talking from now or are you 13:01
16 talking about when it was first started?
17
20 responds to all the commenters. And then the
13:01
14 creation and maintenance of ASHRAE Standard 90.1?
17 or the SPLS liaison would -- would say it's okay to go 13:06
The committee reviews all the comments,
13:07
6 ASHRAE is usually how it's submitted.
13:09
8 members, people would submit the membership
12
13:05
Let's -- let's go from when it first started 13:07
13:09
So when the title, purpose and scope would
21 review that to make sure it's in the correct format
13:01
13:03
13:05
22 and, if there is some questions, would actually send it 13:09
23 back to whoever had proposed it to make -- to correct
13:01
24 it or say if they're okay, if we met their intent, and 13:05
25 then send it forward to -- it probably when -- 19 --
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1 90.1 was developed in, I think, 1975. They probably
13:05
1
Q
(BY MR. BECKER) And by "the codes," are you 13:18
2 didn't have all the subcommittees that we have now, but 13:01
2 referring to the standards that have been enacted into 13:19
3 would have went through the approving bodies up through 13:04
3 regulation?
4 the board that way.
4
5
Q
13:07
And would there have been a project committee 13:07
6 as well for -- for the original 90.1?
13:09
7
A
Yes.
8
Q
And during that process, did staff members
9 draft any of the text for 90.1?
13:09
13:15
A
From the beginning?
11
Q
Yeah.
12
A
13:10
13:13
A
THE WITNESS: I'm sure there are. I
13:14
13:15
12
And would staff members have contributed any 13:12
13:18
In the same way, either in the discussions,
18 if there's a conflict or stuff doesn't -- or through
13:16
13
people apply for membership.
13:19
Q
(BY MR. BECKER) Does ASHRAE draw -- draft
15 model laws or ordinances?
16
13:10
A
18
13:17
Q
Where we would start with the drafting for
Q
And does ASHRAE have any record of that?
21
A
If it was done -- it would have been done via 13:17
13:12
20
A
13:16
13:11
Does ASHRAE oversee the drafting of model
19 laws and ordinances?
20
13:12
13:16
We submit comments on things that are coming 13:18
21 out through -- through -- through the -- through
13:10
22 email, at the time email started. 90.1 started before 13:10
22 Congress or that have been posted in the Federal
23 the Internet, so if the -- if -- if the records still
23 Register; things like that.
13:15
24 existed, it would have been in paper format.
25
Q
What is ASHRAE's purpose in creating these
1 standards?
2
A
13:10
Q
2
13:16
13:12
6 purposes in -- in developing these standards?
13:15
13:14
3 want stuff that's been done through consensus process
I would say yes.
13:13
8
Q
And how does ASHRAE advance the building
13:16
8
Q
I would -- well, I would say through the
13:10
When you say "you want stuff that's been done 13:15
10 sentence?
13:12
11 development of the -- the standards that affect, you
13:15
11
A
13:18
12
Q
ASHRAE. Okay.
13
13:12
13:15
13:15
And why is it that ASHRAE wants things that
14 there's other things that we create, courses and books 13:15
14 have been done through the consensus process?
15 that are outside the standards development process that 13:18
15
16 we do as well.
16 participating in the development of those documents,
17
Q
13:11
And why is it that individuals who are not
A
Because the -- the proper experts are
17 it's -- it's been vetted in the industry, people have
13:10
13:10
13:14
ASHRAE.
12 know, the energy efficiency of buildings, indoor air
13 quality, indoor environmental quality. I'm sure
13:17
13:14
9 through the consensus process," who is "you" in that
13:19
13:19
13:13
5 Another reason may be to make it consistent language
7 others; that type of thing.
A
A
13:11
The purpose is to -- to -- typically, you
6 with what's already out there in our standards or
13:18
7
10
A
4 and has the expertise, so that may be a reason.
13:16
Does ASHRAE's mission statement reflect its
9 sciences?
13:15
And what's the purpose of submitting comments 13:16
1 regulation as you're describing?
13:14
It's to -- the purpose is to advance the
4 but that's essentially what it is.
Q
13:12
13:11
25 in -- for things that are coming out in legislation and 13:19
Page 98
Page 100
3 building sciences. We have a long mission statement,
5
24
13:11
13:14
17 the law, is that what you mean?
13:13
19 the editing and review of the material.
just -- that's not a question I ask when
14
13:16
13:19
13:19
13:13
MR. CUNNINGHAM: Object to form.
11
13:12
16 text to subsequent versions of 90.1?
17
13:13
8 in the ASHRAE development -- standard development
10
13 because of conformity and -- or conflicts or things
Q
13:19
Are there any other reasons why -- why
9 process?
Not unless they were making the edits to --
15
Q
7 individuals who are not employees of ASHRAE participate 13:16
10
14 like that.
That and -- and the international codes, the 13:14
5 codes spelled by NFPA, IAPMO.
6
13:01
A
13:14
13:18
13:11
13:14
13:17
13:10
18 employees of ASHRAE participate in the standard design 13:16
18 had a chance to comment. We've tried to reach
19 process?
19 resolution so, you know, an equal amount of people are 13:17
13:19
20
MR. CUNNINGHAM: Object to form.
21
THE WITNESS: I would say because for
13:13
13:14
22
various reasons it could affect their
23
company. Maybe they want to make the world a
24
better place, maybe it affects the codes. It
25
varies. It depends on the individuals.
20 unhappy.
21
Q
13:13
13:10
And you referred to an interest in expertise 13:14
22 in the process of drafting legislation and regulation. 13:18
13:18
13:10
23 Does that also reflect ASHRAE's interest in -- in
24 having expertise reflected in that process?
13:13
25
13:16
MR. CUNNINGHAM: Object to the form.
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13:13
13:17
13:19
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THE WITNESS: I'm not sure what you
2
mean.
3
Q
13:11
(BY MR. BECKER) Okay. Just a moment ago,
4 you said the purpose is to -- "typically, you want
13:16
5 stuff that's been done through consensus process and
13:10
6 has the expertise, so that may be a reason." So what
7 did you mean by "has expertise" there?
8
A
13:13
13:13
13:18
13:19
13:19
3 90.2 and a 90.4, because they cover -- it's energy
13:19
4 efficiency, but they cover a certain building type.
5
Q
13:19
And when referring to these standards, if
13:19
6 they were referred to in, say, regulation, would it
13:19
7 need to say ASHRAE 90.1 or could the regulation simply 13:19
So if you're writing, for example, something 13:12
9 on how to create a widget, you want the people that
1 the next number for a standard. There are a couple
2 when they're tied together; for example, 90.1 has a
13:12
13:14
10 know how to create a widget, the information coming
8 say 90.1 and would people know what that was referring 13:19
9 to?
13:19
13:18
10
MR. CUNNINGHAM: Object to the form.
11 from that versus someone who has -- in legislation may 13:11
11
MR. FEE: Same objection.
12 have a marketing degree that doesn't understand how to 13:16
12
13 create that widget.
13
you will know ASHRAE 90.1. If you just said
14
90.1, I would probably want you to say
15
ANSI/ASHRAE Standard 90.1 and the year, so
16 rather than necessarily a legislator or a regulator who 13:17
16
you know which document they're talking
17 doesn't have expertise in that area; is that correct?
17
about.
18
Q
14
Q
13:18
And so for air-conditioning or heating, you
13:19
15 would want somebody who has expertise in that area,
18
A
13:13
13:11
We would want the information to come through 13:15
13:19
13:19
THE WITNESS: If you're within ASHRAE,
13:19
13:19
13:19
13:19
13:19
13:19
(BY MR. BECKER) Would that be the correct
19 stuff that had been done by the expert to be reflected, 13:17
19 way to cite the ASHRAE 90.1 standard?
20 that would be correct.
20
MR. FEE: Objection, form.
21
THE WITNESS: I would include the title.
21
Q
13:11
And why is that important to have it come
22 from an expert?
23
A
13:12
13:14
Because they're the ones that understand how 13:15
25 or how to make something more energy efficient; that
1 type of thing.
2
Q
13:13
4
5
writing. But I don't think you can do it
have to have some knowledge.
Q
13:20
(BY MR. BECKER) Yeah. So people should say 13:20
13:20
Page 104
13:19
13:12
(BY MR. BECKER) So for -- to make it
THE WITNESS: They should say
13:20
13:20
ANSI/ASHRAE Standard 90.1, energy efficiency
4
for -- oh, I just lost the blank -- my -- for
13:20
5
buildings -- not -- except for residential
13:20
buildings or something.
7
13:15
13:16
Q
8
13:13
10 concrete for Standard 90.1, is that a standard that
MR. FEE: Same objection.
2
13:19
just with -- just looking at something. You
9
Q
6
THE WITNESS: It depends on what you're
8
makes it clear.
24
13:15
13:20
Referring back to Exhibit 1155, on the back 13:21
9 of that exhibit, Bates number ASHRAE0001599, it refers 13:21
10 to interest categories; is that correct?
13:21
11
A
That's correct.
12 its contents were and what should be enacted into law? 13:16
12
Q
And it has a -- an interest category that
13
MR. CUNNINGHAM: Object to the form.
13 includes user; is that correct?
14
THE WITNESS: You need to understand
how -- all of 90.1. It does help to have
16
or not something needs -- the technical
18
expertise is needed to go into the law, I
19
would still venture on the side of yes.
20
Q
13:12
technical expertise in engineering. Whether
17
13:19
13:18
A
A
That's correct.
13:22
Q
And within the user interest category is a
A
That's correct.
13:13
18
Q
And that's for a representative of a
13:17
19 government agency; is that correct?
(BY MR. BECKER) How does one identify a
13:10
13:14
13:11
Each has a number, and so it's just
14
17
22 particular naming convention that ASHRAE uses for its
24
13:22
13:22
13:19
13:22
13:22
13:22
13:22
20
A
That would be correct.
21
Q
And this document by the -- the date on the 13:22
13:22
22 bottom left-hand corner, does that mean that this
23 document was last revised on March 5th, 2001?
13:13
13:22
16 subcategory for a user government; is that correct?
13:11
21 particular ASHRAE standard? Is there -- is there a
23 standards?
13:21
15
13:15
13:20
13:20
(BY MR. BECKER) Thank you.
11 would require technical expertise in order to know what 13:19
15
13:20
13:20
3
MR. CUNNINGHAM: Object to the form.
7
23
1
13:17
6
The first reference you make as well still
13:10
25 ANSI/ASHRAE Standard 90.1?
Page 102
Is there technical expertise that's necessary 13:14
3 in order to understand that subject?
13:20
22
24 to make that product or how to construct that building 13:17
13:19
13:19
24
A
Yes.
25 sequential in number; whatever number we are last at is 13:16
25
Page 103
Q
Thank you.
13:22
13:22
13:22
13:22
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1
And if you refer to Exhibit 1151, please.
13:22
1 with the Department of Energy with senior leadership
2
A
Okay.
13:23
3
Q
This also has, under section 5, a listing of 13:23
2 within ASHRAE.
3
13:24
13:29
And document 1157 appears to be a draft,
13:22
4 check boxes for interest categories; is that correct? 13:23
4 because -- since it's not signed, I can't say it's the 13:21
5
A
That's correct.
5 official one, but a Draft Memorandum of Understanding
13:24
6
Q
And for SSPC 90.1, those categories include 13:23
6 Between the Department of Energy and ASHRAE.
13:27
13:23
7 compliance, designer, general interest, industry, user 13:23
7
8 and utility; is that correct?
8 the Exhibit 1157, was the attachment to Exhibit 1156?
13:23
9
A
That's correct.
10
Q
And if you turn to the next page, Bates
13:23
9
13:23
11 number ASHRAE0001614, that includes a -- the
12 definitions of these interest categories; is that
13 correct?
13:23
15
13:23
Q
And for compliance, would that category
16 include regulators?
17
A
19
Q
21
A
13:23
13:24
18
13:24
13:24
21
13:24
Yes.
A
Could you tell me what -- what is the purpose 13:22
The applicant suggests which interest
A
13:20
Its -- its basic purpose is to talk about
20 goals.
Do you mean who decides which interest
Q
13:25
13:27
13:21
19 ways that we're going to work together or towards
13:24
24
I'll -- I'll represent that -- that it is
17 with ASHRAE?
13:24
23
Q
13:24
13:28
And does ASHRAE have a history of working
22 together with the Department of Energy?
13:24
13:25
13:27
23
A
Yes.
24
13:24
25 category they belong in, then the chair of the -- of
Q
How long has ASHRAE been working with the
13:21
13:24
25 Department of Energy?
Page 106
1 the project committee will review that information,
13:21
13:27
Page 108
13:23
1
MR. CUNNINGHAM: Object to the form.
2 look at all their applicable paperwork, and then decide 13:26
2
THE WITNESS: I would probably say since
3 if that's correct.
3
at least 90.1 has been as part of -- adopted
4
into EPAct as the minimum energy efficiency
5
for commercial buildings.
6
Q
4
13:29
They may say no and put them in a different
13:21
5 interest category. And then SPLS will look at that
13:24
6 recommendation, and they could look at the same
13:20
7 paperwork and determine that they're still not in the
8 correct interest category and move them into a
9 different one.
10
Q
13:22
A
13:28
14 identification.)
Q
13:20
13:32
13:36
What's the -- the -- what -- what is the
13:38
MR. CUNNINGHAM: Object to the form.
THE WITNESS: To -- to advance the
mission of ASHRAE, which is, you know,
15
advance the art of building sciences.
Q
13:30
13:32
(BY MR. BECKER) And for -- for Exhibit
18 the recipients for this email; is that correct?
13:34
13:27
22
Q
And could you tell me what these documents
19
A
That's correct.
20
13:26
Yes.
13:37
13:27 17 ASHRAE -- excuse me, Exhibit 1156, you're listed among 13:39
13:23
A
13:32
13:38
16
13:23
13:24
21
A
Q
13:24
I would -- I want to say '99, but I'm -- I
14
18 Exhibit 1157 is Bates number ASHRAE0026229.
24
(BY MR. BECKER) Do you have any idea when -- 13:23
13
(BY MR. BECKER) I'd like to hand you what's 13:21
20 Ms. Reiniche?
13:26
12
13:21
Do you recognize these documents,
13:24
11 purpose of ASHRAE's work with the Department of Energy? 13:33
13:28
17 Exhibit 1156 is Bates number ASHRAE0026227. And then
23 are?
10
13:27
16 been marked as 1 -- Exhibits 1156 and Exhibits 1157.
19
A
13:22
13:21
9 need to check.
13 (Exhibit 1156 and Exhibit 1157 marked for
15
8
And so has it happened that people have been 13:28
Yes.
13:22
7 approximately when that would have been?
13:26
11 moved from one interest category to a different one?
12
13:29
16 of the Department of Energy Memorandum of Understanding 13:24
And who makes the determination for these
22 category a person belongs in?
Q
15
13:23
20 particular interest categories?
13:24
13:25
14 the -- the attachment.
If you -- if you include them as federal
18 officials, then yes.
13:20
Well, I would say it probably is the exhibit, 13:20
12 is the same one.
13
That's correct.
13:22
11 says DOEMOU.doc on it, I would have to assume that it
13:23
A
A
And does it appear to you that this draft,
10 but since the document doesn't have a -- a thing that
13:23
14
Q
13:38
Q
And you're listed among the recipients for
13:39
21 the -- the email that's further down in the chain in -- 13:32
13:21
13:23
22 on that exhibit; is that correct?
13:38
23
Document 1156 is an email conversation
13:26
25 regarding a meeting that's -- that was going to occur
A
That's correct.
13:39
24
Q
On Exhibit 1157, section 2, it refers to
13:38
13:21
25 promoting and supporting implementation of ASHRAE
13:34
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1 standards through training programs, including
13:37
1 the Department of Energy?
2 self-directed learning, building code interaction and
13:30
2
A
No.
3
Q
And section 10 refers to "Advancing and
3 ASHRAE chapter oriented training.
4
What is the Department of Energy's role in
5 that?
6
13:33
A
13:36
13:31
13:32
13:34
4 supporting the professional development of DOE
They -- Department of Energy provides
13:39
13:36
5 personnel by facilitating membership, attendance, and
13:38
13:39
6 active participation at the local and society levels of 13:33
7 training not only ASHRAE, but other code bodies' codes, 13:33
7 ASHRAE, especially as a member of technical committees 13:37
8 so it would be supported through software development, 13:30
8 and standard project committees, and by providing a
9 maybe at the DOE level, they give trainings on what's
10 in 90.1; things like that.
11
Q
13:35
10
Does the Department of Energy provide funding 13:33
12 to ASHRAE?
13:37
A
No.
14
Q
Does the Department of Energy provide any
13:37
13:36
13:37
A
They're talking about research publication.
13:31
13 If the DOE does research, they're publishing it
15 funds to ASHRAE?
A
13:33
What kind of publication is this referring
11 to?
12
13
16
9 venue for publication of research and practice."
13:30
13:30
13:34
14 somewhere. It's not referring to standards.
13:34
13:30
13:37
15
17 Department of Energy pays their membership fees to
13:32
Q
Does ASHRAE publish DOE research?
16
I suppose if someone is a -- a member and the 13:38
A
Not that I'm aware of.
13:30
17
Q
With regards to section 13, do you know what 13:32
13:36
18 ASHRAE to be a member of ASHRAE, then yes, but it goes 13:34 18 they are referring to with regards to counter-terrorism 13:38
19 to membership.
20
Q
13:37
19 design features?
On the second page of Exhibit 1157,
13:36
21 subsection 5 says, "Cooperating in promoting of
24
25
What is that referring to?
A
13:36
13:39
A
No.
21
13:32
22 ANSI/ASHRAE standards adoption in the International
23 Standards Organization (ISO) standards."
13:35
20
13:30
Q
Do you know what -- under -- under section
23 Innovation Cluster Initiative is?
13:32
13:34
22 14, the DOE Energy Efficient Building Systems Regional 13:38
24
A
13:35
I don't think that exists anymore, but
13:30
That must have been -- that would have been a 13:35
25 there's been a collaborative where they've worked
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13:32
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1 new thing added. The Department of Energy hasn't done 13:37
1 together, and they just -- they talk about research and 13:34
2 anything that I'm aware of to promote the adoption of
2 things like that.
13:30
3 ASHRAE -- ANSI/ASHRAE standards in ISO.
4
Q
And for section 8, where it refers to
13:32
13:38
7
A
13:30
13:36
That could be supporting proposals that would 13:33
8 have been submitted to adopt 90.1 in -- in the
13:39
10 and they would have provided supporting testimony,
12
Q
13:37
Was the Memorandum of Understanding Between
5 both ASHRAE and the Department of Energy?
6
13:37
13:30
A
Q
13:34
13:30
How would you characterize the relationship
13:31
13:32
9 between the Department of Energy and ASHRAE?
10
A
I mean, they work -- we work together.
12 projects, but I mean some things.
13:35
13:30
13 supporting testimony, probably," is that the Department 13:33
13
14 of Energy that would provide that?
14 Department of Energy would testify on behalf of ASHRAE 13:33
15
A
A -- a staff member from the Department of
16 Energy.
17
Q
13:36
13:37
13:30
Okay. Are there any other ways that ASHRAE, 13:31
19 promoting these standards adoption in building codes?
A
I'm not aware of ANSI promoting standards
21 adoption in building codes, other than -- it's an
You mentioned that someone from the
13:30
15 in terms of getting the Standard 90.1 adopted as a
13:38
16 building code. How does ASHRAE benefit from having
18 ANSI and the Department of Energy have cooperated in
20
Q
13:34
13:32
11 That's probably on -- not all -- not all of these
When you say "they would have provided
13:31
I need to go back and check to see if it was 13:37
7 signed.
8
9 international code, because that's the federal minimum, 13:33
11 probably.
Q
4 the DOE and ASHRAE, Exhibit 1157, eventually signed by 13:34
5 "Cooperating and promotion of ANSI/ASHRAE standards
6 adoption in building codes," what does that refer to?
3
13:39
13:33
13:30
13:34
17 90.1 endorsed by the DOE?
18
19
13:38
13:32
MR. CUNNINGHAM: Object to the
characterization of prior testimony.
13:35
13:36
20
THE WITNESS: They don't testify on
21
behalf of ASHRAE. They testify on behalf of
13:30
13:31
22 ANSI/ASHRAE standard going through their process. They 13:39 22
the Department of Energy.
23 don't go to building codes. I can't think of anything 13:31
23
Q
(BY MR. BECKER) Excuse me.
24 else with the Department of Energy.
24
A
So the benefit is then the IECC and 90.1 can 13:36
25
Q
13:36
13:34
Anything else with regards to just ASHRAE and 13:38
25 be the same. So it's a -- it's the benefit to having
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1 a -- one code.
1 within ASHRAE?
13:39
13:43
2
Q
And are the IECC and Standard 90.1 the same? 13:32
2
A
Yes.
3
A
They are not exactly the same.
3
Q
And is that located in Washington, D.C.?
4
Q
And how do they differ?
4
A
Yes.
5
A
I would have to look at the versions and the 13:32
5
Q
And what is -- why is it that ASHRAE has a
13:36
13:39
6 comparisons. In some instances, 90.1 would be more
7 stringent; in other, IECC.
8
Q
13:35
13:30
A
They have a different process. The IECC,
11 while it's a consensus process, is not an ANSI
8
A
12 consensus process, so it's comparing apples to oranges. 13:49
12
13
What does ASHRAE do to educate governments
14 and government officials about its work?
15
A
13:46
14
13:49
break.
at 13:44.
17
13:44
13:53
at 13:56.
18 and things like that.
18
Q
Q
13:44
And are there particular staff people who
20 talk to staff members on the hill?
20
A
Yes.
22
Q
And what individuals are these?
23
A
Mark Ames and Doug Read. And Jeff Littleton 13:45
Q
13:40
A
A
90.1 policy committee? You mean on the
Q
Project committee, excuse me.
23
A
Yes.
24
Q
They are?
25
And you say ASHRAE has leadership that talks 13:49
Page 114
A
There is a staff person on there, yes.
13:49
13:42
The -- it -- it could be Jeff, it could be
1
13:45
13:56
13:56
13:56
22
13:41
1 to staff on the hill. Is that Jeff Littleton?
2
(BY MR. BECKER) Ms. Reiniche, are you aware 13:56
21 project committee?
21
25
13:56
13:56
19 if DOE employees are on the 90.1 policy committee?
13:45
13:47
24 might talk to some, too.
13:44
THE VIDEOGRAPHER: Going on the record
17 what standards we have, certification programs, classes 13:44
19
13:44
13:44
THE VIDEOGRAPHER: Going off the record
16
13:49
13:44
13:44
15 (Recess taken.)
It has a staff person and/or leadership talk 13:42
16 to the staff on the hill about what our process is,
13:44
MR. BECKER: All right. Let's take a
13
Q
13:44
So they can -- it's easier to talk to people 13:44
9 on the hill. It's been there as long as I've been
11
13:45
13:43
6 separate department for government affairs that's
10 there.
13:41
13:43
13:43
7 located in Washington, D.C.?
13:30
On balance, would you characterize the IECC
9 as being more stringent than ASHRAE 90.1 or vice versa? 13:34
10
13:43
13:56
13:56
13:56
13:56
Page 116
Q
And have DOE employees been on the 90.1
2 project committee -- committee in the past?
13:53
13:57
3 whoever is the president for that given -- given
13:40
3
A
Yes.
4 society year or vice president that society year. It
13:43
4
Q
Okay. And so DOE employees provide -- they
13:59
13:50
5 depends on the year, it depends on who they're talking 13:47
5 contribute to the development of 90.1; is that correct? 13:50
6 to.
6
MR. FEE: Objection to form.
7
THE WITNESS: They participate in the
7
13:42
Q
And what are Mr. Ames' and Mr. Read's
8 positions at ASHRAE?
9
A
13:42
13:47
Well, Mr. -- Mark's title is senior manager
13:54
8
9
13:49
process. I'm not aware of any draft
language.
13:55
13:57
13:50
10 of government affairs. Doug's title was director. He 13:46
10 (Exhibit 1158 marked for identification.)
11 has retired.
11
12
Q
13:43
And was -- was Doug's -- Doug Read's title
13 just director or director of government affairs?
13:46
13:49
Director of government affairs.
13:42
14 "Marketing Task Force Report."
15
Q
Are there other employees of ASHRAE who work 13:48
16 with -- or who did work with Mr. Ames and Mr. Read on
A
13:52
13:53
13 document with Bates number ASHRAE0005856. It's labeled 13:50
A
18
(BY MR. BECKER) Ms. Reiniche, I'm handing
12 you what's been marked as Exhibit 1158. This is a
14
17 government affairs?
Q
13:51
13:43
13:48
13:58
15
A
Okay.
16
Q
Are you familiar with this document,
17 Ms. Reiniche?
13:50
13:53
13:55
They have a secretary -- or an administrative 13:41
18
A
Yes.
19 assistant that works there. She doesn't talk to people 13:46
19
Q
Could you tell me what this document is?
13:50
20 on the hill. And they have a new person there, Jim
20
A
This is a document that would have been
13:53
21 Scarborough. He deals with local.
22
Q
Is that a local government that he works --
23 deals with?
13:48
13:42
13:40
13:43
21 presented to the project committee on priorities -- on 13:54
22 trying to get things out in the marketplace.
23
24
A
Yeah, the grassroots chapters within ASHRAE. 13:44
25
Q
So is government affairs its own department
13:59
Q
24 what Chris Mathis's position is at ASHRAE?
13:49
25
Page 115
A
13:56
And could you tell me what -- do you know
He is not a staff member at ASHRAE.
13:53
13:56
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1 what portion of 90.1 it was commented on or, you know, 14:11
1
2 how it was developed, that type of thing.
2 of this email?
3
Q
14:16
And then two pages later on ASHRAE0003506, it 14:14
4 then has "Recommendations," and then parentheses
14:10
5 "repeated." And the first three recommendations are
6 "Make it free, make it beautiful, and make it
7 electronic."
8
14:14
14:17
And is that -- are you one of the recipients 14:12
14:17
3
A
Yes.
14:19
4
Q
And what is this email?
5
A
This is an email on having a discussion about 14:16
14:14
6 DOE comparing the IECC and 90.1 as equivalent.
14:10
7
Do you understand this as referring to ASHRAE 14:15
9 90.1?
Q
14:17
Q
14:14
At the bottom of -- near the bottom of the
14:18
8 page, Ryan Colker writes, "Folks, we are seeing some
14:13
9 indications from DOE that they are beginning to see the 14:18
10
A
Yes.
14:17
11
Q
Three pages later on ASHRAE0003509, it says, 14:17
10 IECC and 90.1 as equivalent (i.e., states can be in
14:11
11 compliance if they adopt the IECC without the reference 14:11
12 "Paradigm Shift Issues." And then it says, "Decide if 14:15
12 to 90.1.) As you can guess, this could have
13 we want to continue to live in this code minimum
13 significant impact on the future of 90.1."
14:10
14
What did Mr. Colker mean by that?
14:17
15
MR. CUNNINGHAM: Object to form.
16
THE WITNESS: That he's concerned that
14:19
14 world." And "code minimum" is underlined.
15
14:12
Do you know what this is referring to with
14:16
16 the term "code minimum world"?
17
A
14:18
That means, you know, a minimum level for
14:15
Q
22
A
I'm sorry, what do you mean by "go beyond the 14:14
14:17
Maybe towards the -- towards the development 14:18
23 of green standards or green codes.
24
Q
14:12
14:10
if it's found to be equivalent, that it could
14:17
mean that the IECC would be referenced in
19
EPAct instead of 90.1.
20
Q
(BY MR. BECKER) And who is Ryan Colker?
A
Well, at that time, he was the manager of
14:19
14:13
22 government affairs for ASHRAE.
14:18
Do you know if Mr. Colker is still at ASHRAE? 14:17
A
He is not.
Q
Do you know when he left ASHRAE?
1
A
I want to say sometime in 2010.
2
14:16
Q
24
25
14:14
Q
And Doug Read responded to Ryan Colker by
14:20
14:20
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1
A
Green codes and green standards typically are 14:14
2 not cost -- cost -- cost justified, where you can
14:16
3 propose doing some technology -- technological thing
4 that's expensive that, you know, a normal building
14:12
14:16
14:25
3 saying, "I echo Ryan's concern. I suggest we take a
6
14:25
5 differentiate ourselves from the ICEC. Doug."
6 wouldn't want to put in their building versus a
14:14
14:25
14:21
4 stance and clearly delineate the differences and
5 person wouldn't want to put -- you know, building owner 14:11
14:28
Did -- do you think that Mr. Read meant the
14:25
7 minimum, which is not only is it energy efficient, but 14:18
7 IECC?
8 it's cost -- cost effective.
8
A
Yes.
9
Q
And has ASHRAE taken a stance and clearly
9
10
14:11
THE COURT REPORTER: A building owner
would want to put in their building?
11
their building.
13
Q
14:12
14:13
THE WITNESS: Would not want to put in
12
16
14:17
14:17
(BY MR. BECKER) At the bottom of that page, 14:17
14:17
17 another minimum energy efficient commercial building
Q
A
14:22
13 line for line, no.
14
Q
14:24
We have not done a comparison between the two 14:27
14:23
Was that what ASHRAE was considering doing,
14:26
15 was doing a line-for-line comparison between the IECC
14:29
14:12
14:25
14:13
17
A
They discussed it.
18
Q
Has ASHRAE done anything else to
14:27
14:20
19 differentiate Standard 90.1 from the IECC in the minds 14:25
(BY MR. BECKER) I'm handing you what's been 14:13
21 marked as Exhibit 1160. This is Bates number
22 ASHRAE0025561.
14:20
16 and ASHRAE Standard 90.1?
14:15
19 (Exhibit 1160 marked for identification.)
20
14:18
14:12
That were referenced in the EPAct over
18 code.
11 and the IECC?
12
What is ASHRAE's EPAct advantage?
A
14:28
10 delineated the differences between ASHRAE Standard 90.1 14:28
14 it says, "How long will we have our EPAct advantage?"
15
14:17
14:16
23
And how do green standards and green codes
25 differ from Standard 90.1?
17
18
14:17
19 efficiency, or do you want to go beyond the code.
21 code"?
14:10
14:13
21
18 your -- the development of -- in 90.1, energy
20
14:14
14:14
20 of the public?
14:22
14:15
MR. CUNNINGHAM: Object to the form.
14:24
22
14:10
21
THE WITNESS: I am not aware we've done
14:28
23
A
Okay.
23
anything in the eyes of the public. We've
24
Q
Do you recognize this document, Ms. Reiniche? 14:10
24
probably had discussions where we pointed out
25
A
Yes.
25
the difference between the processes that are
14:16
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14:23
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1
used to develop the two documents, but it's
14:29
1
MR. BECKER: It has not been asked.
2
not been, like, you know, a press release or
14:21
2
MR. CUNNINGHAM: Okay. I -- are you --
3
something like that.
4
Q
3
14:25
(BY MR. BECKER) Was ASHRAE concerned that if 14:28 4
14:27
14:27
is your position here that someone who, by
14:27
virtue of being on one of the committees,
14:27
5
essentially speaks for ASHRAE, such that you
6
can ask Ms. Reiniche to interpret their --
7 incorporation of standard -- ASHRAE Standard 90.1 into 14:20
7
their documents?
8 laws and regulations throughout the United States?
8
5 the IECC and ASHRAE's Standard 90.1 were seen as
14:20
6 equivalent, it would mean that there would be less
14:25
14:26
14:27
14:27
14:27
MR. BECKER: Well, if Ms. Reiniche has
9
an understanding of what this might mean,
10 If -- if the reference changed. That's possible.
14:26
10
particularly because of her senior role with
11
14:20
11
regards to the development of these standards
12
and so forth, then I would hope that
13
14:27
Ms. Reiniche can provide that information.
9
A
Q
It would depend on if the EPAct changed.
Would that mean that if -- if the EPAct
12 changed -13
A
14:23
14:23
If the reference in the EPAct was changed
14 from 90.1 to the IECC.
14:23
14
14:26
14:27
14:27
14:27
14:28
14:28
I think that a document such as this
14:28
15
discussing ASHRAE 90.1 2010 falls well within
16 adoption of Standard 90.1 into the laws and regulations 14:25
16
topic number 1 that she's been designated on.
17 of jurisdictions in the United States?
17
Q
15
Q
Then that would mean there would be less
14:22
14:20
A
It's possible, yes.
19
Q
And was ASHRAE concerned about that?
20
A
If -- if that changed, they were. They were 14:23
14:24
14:26
Did it change?
23
A
No.
24
Q
Did the DOE ever publicly weigh the option of 14:22
14:21
Not that I'm aware of, there hasn't been
14:28
MR. CUNNINGHAM: Same objection.
THE WITNESS: I think because the
14:28
14:29
growing period, there's one time frame where
24
I think they pulled residential out. I think
14:29
14:22 25
Page 130
at one time it included residential. It does
14:29
14:29
Page 132
1
14:21
14:23
have been when we started continuous
14:28
3
14:25
not include low-rise residential. 1999 would
2
14:22
2 anything published where they were going to do that.
3 (Exhibit 1161 marked for identification.)
14:28
23
14:23
25 changing the EPAct to IECC instead of ASHRAE 90.1?
A
20 maturity period for Standard 90.1?
22
Q
maintenance.
14:21
4
Without seeing Mr. Skalko's notes on
5 you what's been marked as Exhibit 1161. This is Bates 14:20
5
this, but based on my knowledge, I think that
6 number ASHRAE0005677. Do you recognize this document? 14:25
6
these periods are times that -- in the
7
A
Yes.
7
maturity period shows greater energy savings,
8
Q
Could you tell me what this document is?
8
and that's what he's trying to demonstrate in
9
A
This is a presentation given by Stephen
9
that timeline.
4
Q
(BY MR. BECKER) Ms. Reiniche, I'm handing
11 energy codes 2010.
12
13
14:29
14:29
14:24
14:27
10 Skalko, who is the chair of 90.1, at a conference on
10
14:21
"Who is the chair of 90.1," and --
14
Charlotte, North Carolina.
17
Q
A
Yes.
14:23
Q
And who is he?
14
A
He is the past chair of 90.1. I think he
14:24
15 started after the 2010 version published.
16
14:25
18
14:29
A
14:26
14:23
And do you have any idea how long Mr. Skalko 14:32
17 has been a member of ASHRAE?
(BY MR. BECKER) On page 3 of this document, 14:23
18 Bates number ASHRAE0005679, it says at the top,
Q
14:21
14:25
13
14:28
14:23
14:27
14:20
14:27
energy codes conference in 2010 at -- in
16
14:26
(BY MR. BECKER) Do you know who Mr. Steven
12
14:27
14:27
THE WITNESS: It's at -- given at an
15
Q
14:23
14:29
11 V. Skalko is?
14:27
THE COURT REPORTER: Say that again.
14:28
19 distinction between this growing period and mature -- 14:28
21
14:29
22
1
(BY MR. BECKER) I'm sorry, Ms. Reiniche.
18 Let's see. I asked why do you think there was a
18
21 concerned if it changed, yes.
14:28
14:28
14:30
I would have to look in the ASHRAE records,
14:32
19 "Standard 90.1 Timeline," and it delineates between the 14:25
19 but he's been a member longer than I've been there, so 14:35
20 growing period from 1970 to 1999, and then the maturity 14:22
20 over 11 years.
21 period from 1999 to 2010. What does that mean?
14:20
21
22
MR. CUNNINGHAM: Object to the form.
14:22
22 worked on ASHRAE 90.1?
23
Matt, do we know if the Steven person, do we
24
know if he's an ASHRAE staff member? Do
25
we -- was that asked at any point?
Q
14:38
And for as long as you know, has Mr. Skalko
14:32
14:36
23
14:28
A
Yes.
24
14:23
Q
And would you say that Mr. Skalko is -- is -- 14:32
14:32
25 would you say that Mr. Skalko knows a good deal about
14:21
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1 ASHRAE Standard 90.1?
2
A
3
14:36
Yes.
2 my -- my guess is their goals are the same as ours,
MR. FEE: Objection to form.
14:38
4 (Exhibit 1162 marked for identification.)
5
Q
1 I don't know why they would choose to do that. I mean, 14:38
14:38
14:34
4 would assume they would enter MOUs with whatever
(BY MR. BECKER) I'm handing you what's been 14:34
6 marked as Exhibit 1162. This is Bates number
14:34
8
A
Yes.
14:38
9
Q
And could you tell me what this document is? 14:39
10
A
This is a Memorandum of Understanding between 14:31
12 but I would guess it's sometime in 2007 time frame,
14:34
14:35
13 because that's when Terry Townsend was president of
15
Q
14:39
14:34
And is this a signed copy of the Memorandum
14:35
14:39
17
A
Yes.
14:34
18
Q
Has ASHRAE had multiple Memorandums of
A
Yes.
Q
14:35
14:30
When did ASHRAE first start having
14:32
24
A
MR. CUNNINGHAM: Object to form.
9
14:36
THE WITNESS: I am not positive on how
10
11
Q
14:37
that came about. I would have to check.
14:39
(BY MR. BECKER) Did ASHRAE staff meet with
12 the Department of Energy to help facilitate the
A
I have -- I'll have to go back and double
15 check in my records to see.
16
Q
14:31
14:36
14:39
Would it be customary for ASHRAE staff to
14:30
18 the incorporation of ASHRAE Standard 90.1 into EPAct?
19
A
It would be customary for ASHRAE staff with
14:32
14:38
23
14:34
14:38
14:36
22 (Exhibit 1163 marked for identification.)
Q
14:39
(BY MR. BECKER) I'm handing you what's been 14:32
24 marked as Exhibit 1163. This is Bates number
14:33
25 ASHRAE0024558. Do you recognize this document?
14:38
Page 136
Page 134
1
Could you remind me of when that was?
A
I think it was '99.
14:30
3
Q
Okay.
4
A
Around that time frame.
5
Q
Was that soon after EPAct?
6
A
I would have to look.
7
Q
Has ASHRAE -- ASHRAE and the DOE continued to 14:36
14:32
14:34
Yes.
Q
And what is this document?
3
Q
2
A
2
1
14:36
A
This is a presentation that would have been
14:39
14:30
4 made by the D.C. office to tech council and the chapter 14:32
14:34
5 technology and transfer committee. I think that's what 14:33
14:35
6 CTTC stands for. And it would have been made in -- at 14:36
14:31
7 the ASHRAE meeting in Albuquerque, New Mexico, on
8 June 26, 2010.
8 enter into memorandums of understanding to the present 14:33
9 day?
14:39
14:36
13 incorporation of ASHRAE Standard 90.1 into EPAct?
21 requesting that type of thing.
14:39
14:32
After EPAct was -- when 90.1 was made a
25 reference in EPAct.
14:30
20 ASHRAE volunteer leadership to go to -- when they were 14:32
14:34
22 Memorandums of Understanding with the Department of
23 Energy?
How is it that ASHRAE 90.1 came to be
17 meet with members of the Department of Energy prior to 14:37
19 Understanding with the Department of Energy?
21
14:35
Q
7 incorporated into EPAct?
14
16 of Understanding between the DOE and ASHRAE?
20
14:32
8
11 the Department of Energy and ASHRAE. It's not dated,
14:38
5 organizations would help them reach that goal.
6
14:35
7 ASHRAE0026233. Do you recognize this document?
14 ASHRAE.
14:31
3 energy efficient buildings in the United States. So I 14:36
9
14:36
Q
And what is the purpose of this document, to 14:42
10 your understanding?
14:37
14:41
14:47
14:44
10
A
Yes.
11
Q
How regularly do they do so?
14:37
11
12
A
It -- it varies. It depended -- it depends
14:32
12 office just to let the CTCC [sic] and tech council know 14:49
13 on who's at -- who's in charge at the Department of
15 positive if it's signed yet.
Q
Is this typically an annual event?
17
A
Not always annual. Sometimes it's every
18 couple of years.
14
14:38
Q
18 join."
14:36
Q
And is it sometimes an annual event, though? 14:37
19
20
A
Sometimes.
20
21
Q
And why would the -- why would the leadership 14:32
14:39
22 of the Department of Energy reflect or change whether
I can't speak for the Department of Energy.
14:45
14:43
What is that referring to?
A
14:44
There is a high-performance building caucus
21 coalition that meets in D.C. It deals with high
14:45
14:40
22 performance buildings. Beyond -- that would be beyond 14:44
14:33
23 ASHRAE would enter into a memorandum -- memorandum of
A
14:48
17 Coalition," in parentheses, "ask your representative to 14:49
14:34
19
25
14:45
16 says, "High-Performance Building Congressional Caucus
14:37
24 understanding with the Department of Energy?
14:44
On the third page of Bates number
15 ASHRAE0024560 titled "Participation Coalitions," it
14:33
16
The purpose of this document is for the D.C. 14:45
13 what they've been doing in D.C.
14:35
14 Energy. We were just working on a new one. I'm not
A
14:38
23 the minimum code.
14:47
24
Are these -- and who composes this coalition? 14:40
25
14:30
14:36
Q
A
Oh, there's a lot of different standards
Page 135
14:48
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1 developers that are in part of it. It might even be in 14:41
1
2 here, it tells you. There's a -- there's a long list. 14:46
2 or how often they still meet. I think it was about
3 I don't have that memorized. I don't know if it -- oh, 14:41
3 once a month.
4 if you turn to page -- that says ASHRAE0024575, that
4
14:47
A
Q
Yeah, about -- I'm not sure they still meet
5 Congress or as a larger group?
6 in the high-performance building congressional caucus
6
A
14:40
14:42
Do they meet individually with the members of 14:49
5 shows you who's on the high -- what groups are involved 14:45
14:40
14:47
14:41
If they're doing it as the high-performance
14:45
7 at that time. It includes the representatives and then 14:45
7 building congressional caucus, they're meeting as a
14:48
8 the different standards developers that are involved.
14:47
8 group. If they're advancing something within their
14:41
9
14:44
9 organization, then the supporting coalition would
14:44
Q
The code chairs and members that are listed
10 on that page you just referenced, are these all members 14:46
10 probably be meeting individual with representatives.
11 of Congress?
11
14:49
12
A
Yes.
14:40
13
Q
What's the purpose of participation in the
A
14:47
14:47
18 more energy efficient than the minimum code.
14:42
20 these members of Congress so as to have them
23
24
14:41
MR. CUNNINGHAM: Object to the form.
14:48
(BY MR. BECKER) What's the purpose of having 14:40
25 the members of Congress involved?
A
Um-hmm.
14:43
Q
Then on the following page it says, "American 14:43
16 Clean Energy and Security Act, HR 2454 a/k/a
14:46
17 Waxman-Markey, sets national building code energy
18 efficiency targets."
14:42
20 ASHRAE 90.1-2004 and" E -- "IECC 2006 as baselines."
Does ASHRAE advocate for the use of earlier
23 laws or regulations?
14:45
14:44
24
A
That's not what this refers to.
14:44
Q
What does that refer to?
14:46
Page 138
1
A
Education.
2
Q
And what is the benefit of educating the
14:44
3 members of Congress?
4
A
14:48
Q
14:42
14:44
14:46
14:49
5 residential code. That's where that falls in there.
And they want to do it -- set it at a
14:44
14:48
7 baseline, so each consecutive every three years. So
8 to -- as to what to incorporate into reference into the 14:49
9 law?
14:48
4 about the IECC 2006, they're talking about the
6
So it's to help them with their decisions
This refers to as part of EPAct the
3 more energy efficient 90.1 -- and when they're talking 14:45
5 before them when they're making a decision of what to
7
A
2 Department of Energy is required to determine how much 14:41
So they understand things when things do come 14:49
6 incorporate into law.
Page 140
1
14:45
14:42
14:41
8 for example, 90.1-2007 has to be more energy efficient 14:44
9 than -- so much more energy efficient than 90.1-2004
10
A
Correct.
14:43
11
Q
And how does the high-performance building
14:49
14:44
11 then they wouldn't adopt that. And then for 90.1-2010. 14:49
12 They are just taking a baseline target to measure the
13 educate these members of Congress on issues related to 14:40
14 incorporating these -- excuse me, incorporating
14 and cause market confusion.
14:40
13 amount of energy efficiency so that it's not in flux
16
17
14:46
14:40
15
MR. CUNNINGHAM: Object to the
14:43
characterization of the prior testimony.
18
14:45
THE WITNESS: They -- my recollection
19
20
office was that they -- they have a lunch,
21
they sit there and they talk, sometimes they
22
have an educational session; things like
23
that.
24
Q
And the same with the IECC. That's -- but
16 the IECC refers only to the residential, not to
14:49
18
Q
20
14:45
A
14:46
Does ASHRAE 90.1-2004 refer only to
14:44
14:47
22
Q
14:49
No, 90.1-2004 is commercial. There's two
21 codes in that reference, two different codes.
14:40
14:40
14:42
19 residential and not commercial in this instance?
14:42
14:43
14:48
17 commercial in this instance.
14:47
from the presentations made by the D.C.
So in this instance, if you had a -- a
14:41
14:44
14:47
23 commercial building, then ASHRAE 90.1-2004 would be the 14:41
(BY MR. BECKER) So they meet with the
25 members of Congress?
14:49
10 They measure that. If it's not more energy efficient, 14:44
12 congressional caucus and the supporting coalition
15 standards into the law?
14:45
14:48
22 versions of 90.1 in Standard -- excuse me, in -- in
25
14:41
14:42
14:49
Then two bullet points down it says, "Uses
21
14:47
THE WITNESS: Not that I'm aware of.
Q
14:48
14
19
14:46
21 incorporate these standards into the law?
22
14:41
14:49
And is this for the purpose of influencing
14:43
15
It's really pro -- promoting doing things for 14:43
17 standards, pushing the envelope to make things even
Q
14:45
13 and then it says, "ASHRAE Washington, D.C."
14:40
16 high-performance buildings, so stretch codes, green
19
14:47
On page ASHRAE0024568, it says,
12 "Legislation," with an image of the capitol building,
14 high-performance building congressional caucus?
15
Q
14:44
14:46
24 baseline standard and not be IECC 2006?
25
A
No.
Page 139
14:48
14:43
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1
Q
How am I mistaken?
2
A
1 the -- but we explained that once you -- as you get
What this proposed legislation was, was to
14:45
14:50
2 above -- when you're going between the 30 and the 50
14:48
14:53
14:43
3 percent, it gets more and more difficult to have
4 determination on whether or not the next version of
14:47
4 cost-effective equipment and things like that and -- in 14:58
5 90.1 is more energy efficient. So this was proposing
14:40
5 there. So it -- it wasn't put in the law.
3 set the baseline for which the DOE uses to make the
6 to use 90.1-2004 as the benchmark for each subsequent
7 version of 90.1.
8
14:44
9 then the IECC is for residential. They're referenced
14:43
14:41
12 subsequent version of the IECC for residential moving
Okay. Does the IECC itself refer to
16 buildings?
17
A
14:46
9 and then under that, "Standard 90.1 and Standard
14:50
11
14:54
Does this mean that the Washington office was 14:50
12 engaged in promoting the adoption of Standard 90.1 into 14:54
13 building codes?
14:49
14
14:42
15 commercial buildings or is it only for residential
A
14:50
I don't remember. And without seeing it, if 14:55
15 he -- he didn't have notes with it, so I don't think it 14:59
14:49
16 was at a building code level. I think that's something 14:52
14:42
17 they were talking about expanding in the grassroots.
There -- there's different I-codes within the 14:46
18 IECC. So there's the IRC, which is residential, but
14:40
18 That was not done at that time.
19 it's part of the whole body of codes. So the IECC for 14:43
19
20 residential is just the energy efficiency stuff for
22
Q
14:40
21
14:44
On the following page, it says, "American
14:58
24 "Introduced by Senator Jeff Bingaman, D-NM. Updates
14:53
14:55
We have started a grassroots program to reach 14:51
14:51
14:53
23 different standards. And we could ask volunteers in
14:58
24 those jurisdictions to go.
25
14:58
Page 142
25 national building energy codes and standards at least
A
So that's something -- is that something
22 out when we are made aware of references to -- to
14:55
23 Clean Energy Leadership Act, S.1462." It says,
Q
14:57
14:52
20 that's done in -- at this time?
21 residential home -- residential stuff.
14:58
14:56
14:56
10 189.1/IGCC promotion."
14:48
11 that you use the IECC 2006 as the baseline for each
Q
14:52
On page ASHRAE0024581, it says, "Additional
8 third major bullet point, "Building code adoptions,"
And then -- and that's only commercial. And 14:40
10 as the residential. What's being advocated here is
14
Q
7 Washington office activities." And it says for the
14:48
13 forward as for energy efficiency.
6
14:55
Q
14:52
And when you say "a grassroots program," who 14:53
Page 144
1 every three years to achieve target energy savings of," 14:51
1 is involved in the grassroots program?
2 and then it -- four bullet points down from that, it
2
14:55
A
14:57
It's -- it's the individual ASHRAE chapters
14:50
3 says, "If DOE determines ASHRAE's future revised model 14:50
3 within each state, and then each -- you know, there's
4 codes will not meet targets, DOE will propose or
14:55
4 multiple chapters within a state. So whoever is
14:55
5 establish a modified code or standard that meets the
14:58
5 closest to wherever the decision is being made.
14:58
6 above targets. Uses 90.1-2004 as baseline for
14:50
7 commercial buildings IECC 2006 for residential."
8
14:56
When it references "Uses 90.1-2004 as
14:59
9 baseline for commercial buildings," is that in the same 14:53
10 capacity as the reference on the prior page that you
11 were just referring to?
12
A
Q
14:51
This is -- this proposed language is not
14:59
9
14:58
10
MR. CUNNINGHAM: Objection.
Q
(BY MR. BECKER) -- in states and local
12
14:52
mischaracterization of prior testimony.
14:56
15
other standards as well.
17
Q
14:53
90.1. It could include any other -- our
16
14:58
14:59
14:51
MR. CUNNINGHAM: Objection,
14
14:50
14:52
14:54
14:53
Did the Department of Energy propose or
16 above targets on page ASHRAE0024570?
A
And so this is -- the grassroots program
8 adoptions of Standard 90.1 into building codes --
13
14:54
15 establish a modified code or a standard that met the
17
Q
7 works to advocate for building code adoptions --
11 governments?
14:59
Yes. One is a bill proposed in the House;
13 one is a bill proposed in the Senate.
14
14:56
6
14:52
THE WITNESS: It could include Standard
14:54
14:56
14:59
(BY MR. BECKER) And at the bottom of this
14:54
18 in -- in law at this particular time. This was -- this 14:51
18 page, it says, "Empowering chapters to engage state and 14:56
19 was talking about what was being proposed at this point 14:55
19 local policy-makers." Do you know what that
20 in time in 2010.
20 references?
14:50
21
Q
What was the outcome?
22
A
21
14:53
I don't -- I don't think they set -- I don't 14:56
A
14:52
That's referencing what I was talking about, 14:53
22 the grassroots, and encouraging local chapters to talk 14:55
23 believe that they set targets, because it's -- as part 14:59
23 to their state and local policy makers.
24 of the -- these codes, it has to be cost effective.
24
14:56
25 And as ASHRAE explained -- and I'm not sure if it's
14:59
Q
14:51
And on the next page, it says, "Opportunities 14:55
25 for individual member participation. Contact state and 14:59
14:51
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1 marked as Exhibit 1174. Could you please tell me what 15:42
1
A
Yes.
2 this document is?
2
Q
Can you tell me what this document is?
3
A
This document is the letter that gets sent to 15:46
3
A
15:42
This is a subset, I think, of another email 15:42
15:44
15:44
4 exchange related to Exhibit 1170 where Mark indicates 15:43
4 the project committee that shows the public review
5 that this correction was made by Jim Calm.
5 comments for BSR/ASHRAE/IESNA Addenda S, T, and X to
15:43
6 (Exhibit 1175 marked for identification.)
7
Q
15:44
6 ANSI/ASHRAE/IESNA Standard 90.1-2007.
(BY MR. BECKER) I'm handing you what's been 15:44
8 marked as Exhibit 1175. Do you recognize this
9 document?
15:49
15:44
15:45
7
Q
And if you look at the sixth, seventh,
15:40
8 eighth, ninth, and I believe tenth page of this
15:47
9 document, are those copyright releases on all of those 15:51
10
A
Yes.
11
Q
And could you tell me what this document is? 15:45
11
A
Yes.
12
A
This is a Certificate of Registration with
12
Q
And who are those copyright releases from?
13 the United States Copyright Office for the 1993 ASHRAE 15:45
13
A
Larry Spielvogel.
14 Handbook: Fundamentals Inch-Pound Edition.
15:45
14
Q
Do you know who Larry Spielvogel is?
15
15:45
15
A
Yes.
16
Q
Who is Mr. Spielvogel?
17
A
He is an ASHRAE member.
18
Q
Has Mr. Spielvogel ever been an employee of
Q
15:45
17
A
10 pages I mentioned?
15:45
What is the 1999 ASHRAE Handbook:
16 Fundamentals?
15:45
It covers a variety of topics. I would have 15:45
18 to look at the inside cover to tell you every topic
19 that it covers.
20
Q
15:45
15:45
15:59
15:57
15:45
15:54
15:58
15:58
15:50
19 ASHRAE?
What's the purpose of the 1993 ASHRAE
15:57
15:50
20
A
No.
15:45
21
Q
Do Mr. Spielvogel's proposed contributions
22
15:45
22 appear in this document?
It's a -- it's a tool for engineers to use
23 when they're working with the topics covered in that
24 book.
25
Q
A
Q
A
Actually, yes.
Q
And where is that?
15:45
25
Page 158
A
Under -- on the page labeled ASHRAE0013966,
15:59
15:51
Page 160
2 approve and do not publish this addendum."
3
15:46
(BY MR. BECKER) I'm handing you what's been 15:46
Q
15:46
6 ASHRAE0001592. Could you -- do you recognize this
15:46
15:46
So these are his contributions, then, as to 15:52
4 say "Do not approve and do not publish this addendum" 15:52
5 that he's referring to?
15:52
6
A
That is correct.
15:52
Q
If you turn to the page ASHRAE0013973, is
8 that another signed copyright release on that page?
8
A
Yes.
15:46
9
Q
And could you please tell me what it is?
10
A
Well, the first page labeled ASHRAE001592 is 15:47
A
Yes.
10
Q
And in that instance, has it been signed and 15:53
15:53
11 also had the -- the name of the individual inserted?
12 the United States Copyright Office for ANSI/ASHRAE/IES 15:47
12
A
Yes.
13 Standard 90.1-2010 IP Edition.
13
Q
And who is that individual?
14
A
James Calm.
15 the Certificate of Registration with the United States 15:47
15
Q
And what is Mr. Calm's relationship to
16 Copyright Office for ANSI/ASHRAE/IESNA
16 ASHRAE, if any?
15:47
For the page labeled ASHRAE0001594, that is 15:47
17 Standard 90.1-2007 IP Edition.
18
15:47
15:53
15:53
15:53
15:53
15:53
15:53
17
15:47
For the page labeled ASHRAE001596, this is
15:52
15:53
9
15:46
11 the certification -- Certificate of Registration with 15:47
14
15:52
15:52
7
5 marked as Exhibit 1176. This is Bates number
7 document?
15:56
1 under 4 "Comment (Proposed Text)," it says, "Do not
15:46
15:46
3 (Exhibit 1176 marked for identification.)
4
15:50
15:54
24
Is the 1993 ASHRAE Handbook: Fundamentals
I would have to look.
15:57
23
15:45
1 referenced in ASHRAE Standard 90.1?
2
15:45
15:52
15:57
21 Handbook: Fundamentals?
A
15:43
15:45
15:47
A
He's a member of ASHRAE.
18
Q
And has Mr. Calm ever been an employee of
15:53
15:53
19 the Certificate of Registration with the United States 15:47
19 ASHRAE?
20 Copyright Office for ANSI/ASHRAE/IESNA
20
A
No.
21
Q
And Mr. Calm's contribution on the following 15:53
21 Standard 90.1-2004 IP -- IP Edition.
22 (Exhibit 1177 marked for identification.)
23
Q
15:48
15:48
15:48
(BY MR. BECKER) I'm handing you what's been 15:48
15:53
15:53
22 page, is that "Disapprove proposed revisions in
23 Addendum S"?
15:53
15:54
24
A
That would be his comment, yes.
25 with ASHRAE0013961. Do you recognize this document? 15:48 25
Page 159
Q
And then if you turn to ASHRAE0013982, is
24 marked as Exhibit 1177. It's the document beginning
15:48
15:54
15:54
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1
for time at the time.
2
Q
1
3 was -- that Ms. Ramspeck was referring to
4 Public.Resource.Org when she said "Did you know that
16:56
5 there has been a big increase in the number of
16:59
6 copyrighted docs beginning in January"?
16:51
7
A
Because I knew about the SMACNA things, and
16:57
8 so staff was watching to see what copyrighted documents 16:52
9 were out there, if they belonged to ASHRAE.
10
Q
post it after the public review period has
4
ended. And I've sent letters to ask them to
remove it, and they are removed.
Q
16:53
16:56
16:58
(BY MR. BECKER) Is ASHRAE aware of
16:56
7 infringement or potential infringement on file-sharing 16:59
8 websites of ASHRAE standards?
16:53
9
16:56
16:57
16:51
MR. CUNNINGHAM: Same objection.
10
16:56
And so there was sufficient discussion of
without seeking permission from me first to
6
16:52
our Standard 188 posted on company websites
5
16:50
2
3
16:58
(BY MR. BECKER) How did you know that she
THE WITNESS: I'm not aware of those.
16:55
16:57
11 Public.Resource.Org in February of 2013 that without
16:59
11
MR. BECKER: We can take a break here.
12 even referencing Public.Resource.Org, you knew that
16:54
12
THE VIDEOGRAPHER: Going off the record
13 Ms. Ramspeck was referring to Public.Resource.Org?
16:58
13
14
MR. CUNNINGHAM: Objection to the form.
16:51
14 (Recess taken.)
15
THE WITNESS: At that time, we would
16
17
would have known that's what she was
18
referring to.
19
Q
21
22
16:59
Q
17:24
17:26
(BY MR. BECKER) Ms. Reiniche, could you
MR. CUNNINGHAM: Objection.
24
THE WITNESS: It's -- it's dealing with
Okay.
Q
Ms. Reiniche, does ASHRAE claim to be the
17:28
17:20
23 author of standard -- of the editions of Standard 90.1 17:24
16:56
24 that are listed in Exhibit 1176?
16:59
intellectual property mostly, things -- or
A
22
16:55
17:26
17:27
21
16:54
25
16:52
17:20
MR. CUNNINGHAM: Objection to the
17:27
Page 192
Page 190
1
things like patents and some, I guess, quasi
2
legal things.
3
Q
16:56
5
form.
2
(BY MR. BECKER) How much of the discussion 16:56
16:56
MR. FEE: Objection to form.
6
1
16:56
4 in IPRPC relates to Public.Resource.Org?
THE WITNESS: On the items I have either
seen in email or when I've been able to
8
participate remotely on their calls, minimal.
9
Q
3
Q
16:56
16:56
MR. CUNNINGHAM: Same objection.
7
THE WITNESS: Yes.
8
(BY MR. BECKER) Is ASHRAE concerned about
16:57
Q
11
16:57
MR. CUNNINGHAM: Objection to scope and
to the form.
16:57
17:21
17:27
(BY MR. BECKER) Is ASHRAE the sole author of 17:28
9 these works?
11 than Public.Resource.Org?
14
17:28
6
16:56
10
13
17:28
(BY MR. BECKER) And does ASHRAE claim to be 17:20
5 listed in Exhibit 1175?
10 alleged copyright infringement by other entities other 16:57
12
17:27
THE WITNESS: Yes.
4 the author of the 1993 ASHRAE Handbook: Fundamentals as 17:22
16:56
7
17:20
MR. CUNNINGHAM: Same objection.
17:20
THE WITNESS: It's the members of the
17:27
project committee as -- as part of their
membership that agreed to write the document
14
16:57
12
13
16:57
THE WITNESS: Of course. We don't -- we
17:25
19 are the certificates of registration from the copyright 17:22
20 office.
16:52
23
25
17:19
18 please refer again to Exhibits 1175 and 1176. Those
16:51
MR. FEE: Objection, lack of
foundation.
at 17:24.
17
16:59
16:50
16:52
THE VIDEOGRAPHER: Going on the record
16
16:56
(BY MR. BECKER) What is the purpose of the
20 IPRPC?
15
16:55
have discussed Public.Resource.Org, and I
at 16:58.
16:57
17:29
and -- and have it attributed to ASHRAE.
Q
17:23
17:25
15
don't allow other people to post copyrighted
16:57
15
16
material or anywhere else. If -- when we're
16:57
16 project committee are not employees of ASHRAE, correct? 17:20
17
made aware of it, we ask for it to be
18
removed.
19
Q
16:57
21
22
17
(BY MR. BECKER) Where has ASHRAE seen
16:57
MR. CUNNINGHAM: Same objection.
every single time. I don't -- it's not
24
related to 90.1, but I know that there have
25
been public review drafts of, for example,
That's correct.
Q
And so what is the basis for ASHRAE's claim
16:57
21
22
16:57
THE WITNESS: As a basis of the signed
copyright assignments that all the members
24
sign when they apply for membership, that the
25
16:57
commenters sign when they submit a comment
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17:25
17:26
23
16:57
17:28
17:21
MR. CUNNINGHAM: Objection to the form,
calls for a legal conclusion.
17:29
17:23
19 that it's the author of these works?
20
16:57
THE WITNESS: I'm -- I'm not privy to
23
16:57
A
18
16:57
20 infringement of its standards?
(BY MR. BECKER) And the members of the
17:20
17:22
17:25
17:29
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and that the members that submit change -- or
17:21
1
2
the public that submits change proposals sign
17:26
2 for sure from Saturday, January 24th, 2004. Then
3
when they submit a change proposal.
4
Q
(BY MR. BECKER) Has ASHRAE ever compensated 17:24
6 sale of any of the works at issue?
A
No.
8
Q
Ms. Reiniche, is the project committee for
6 And from Monday, January 26, 2004.
9 Standard 90.1 in charge of the selection and
17:23
8?
Yes.
12
Q
Is anybody else responsible for the selection 17:23
17:28
13 and arrangement of standard -- of the content of
Q
Yes. Section 10 on page 8 includes the
14 has one customer that it has failed to fulfill the
17 the formatting in terms of, you know, the two-column
17 to be a customer?
17:22
18 format, it could switch from one to two column after
20
And who made the decision to switch it from
A
It would be one customer.
17:38
Q
17:31
(BY MR. BECKER) Ms. Reiniche, I'm handing
That would have been Steve Comstock would
23 what this document is?
17:21
24
17:24
25 originally one column. When they go out for public
A
17:33
25 summary combined -- compiled by Valerie Block, the
17:27
3 have to mess with the formatting.
4
1 chair of the 90.1 marketing committee.
17:20
2 for people to read one column, you know, and we don't
2
17:22
17:38
Page 196
4
17:29
5 switched to a two-column format for publication.
17:33
And can you tell me what the purpose of this 17:32
3 questionnaire summary was?
17:25
Then because of the length, I believe they
Q
A
17:35
The purpose of -- of the questionnaire or the 17:36
5 summary -- summary?
17:21
17:34
This document is an ASHRAE 90.1 questionnaire 17:34
Page 194
1 review, we put it in one column, because it's easier
17:38
17:30
22 This is Bates number ASHRAE0006892. Can you tell me
17:28
24 have decided to -- I believe the standard was
A
17:35
21 you a document that has been marked as Exhibit 1194.
17:24
17:37
Does ASHRAE consider the Department of Energy 17:33
19 (Exhibit 1194 marked for identification.)
17:20
17:23
22 one column to two column?
23
18
17:26
19 public review is done by public -- our publications
17:32
15 needs of, and that is the Department of Energy, DOE."
17:24
16
Q
17:30
13 for Standard 90.1. Chris stated that the subcommittee 17:37
17:27
16 arrangement, they're not going to change the order, but 17:20
21
17:39
12 discussion included the question of who is the customer 17:33
17:23
The selection of the content, no. The
20 department.
17:33
17:39
11 it says in the second and third sentence, it says, "The 17:39
A
A
And could you please turn to page 8?
A
10 marketing task force ad hoc subcommittee update. And
17:28
11
15
Q
9
17:27
17:35
17:30
8
17:26
10 arrangement of the content of Standard 90.1?
17:34
17:31
4 meeting on Sunday, January -- January 25th, 2004. Hang 17:35
7
7
17:38
5 on. They usually have more than -- another meeting.
17:26
17:23
14 Standard 90.1?
These are the minutes from the 90.1 meeting
3 from -- and it also includes the minutes from the
17:29
5 any of the members of the project committee for the
A
17:39
6 And -- and that's -- that's why they did it, so the -- 17:24
6
Q
Of the summary itself.
7 your printed copy isn't, you know, 3 inches thick
7
A
It was to give information to the committee
17:32
8 on what -- the opinions of the users of the standard
17:37
8 versus an inch and a half thick.
9
Q
17:29
17:24
So when you say two-column format, you mean
9 were.
17:27
17:31
17:31
10 the text appears in two columns on the page, as opposed 17:28
10
Q
And which committee was that?
11 to just being a single column on the page?
11
A
90.1.
12
A
That's correct.
13
Q
17:23
17:32
17:33
12 (Exhibit 1195 marked for identification.)
17:25
And is that the only change in arrangement
13
17:23
Q
17:38
(BY MR. BECKER) Ms. Reiniche, I'm handing
17:38
14 that's performed by ASHRAE staff?
17:27
14 you what's been marked as Exhibit 1195. Bates labeled 17:30
15
17:20
15 ASHRAE0024267. Do you recognize this document?
A
By publications, they might correct the
17:23
16 numbering of a section if the committee changed
17 something and the numbering was off, but it's just to
18 make it format correctly for -- on the publication
19 side.
Q
A
This is -- yes.
17:25
17
Q
And can you tell me what this document is?
18
A
This is a document where the president of
17:28
17:35
17:30
17:32
17:39
19 ASHRAE was asking for the committee on utilities and
17:23
20 (Exhibit 1193 marked for identification.)
21
16
17:38
20 energy to consider a building energy labeling program
17:30
17:33
21 that was being developed by ASHRAE. This is the
17:24
(BY MR. BECKER) Ms. Reiniche, I'm handing
17:38
22 you what's been marked as Exhibit 1193. This is Bates 17:31
22 building energy quotient, but it's not -- it's not a
23 number ASHRAE0001628. Do you recognize this document? 17:37
23 90.1 tool.
24
A
Yes.
24 (Exhibit 1196 marked for identification.)
25
Q
Can you tell me what this document is?
17:33
25
17:35
Q
17:36
17:31
17:34
(BY MR. BECKER) Ms. Reiniche, I'm handing
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2 number 0024287. Do you recognize this document?
17:35
17:39
1 meeting with different organizations in Washington,
2 D.C.
3
17:30
Q
17:41
17:41
And when you say what would have been an
17:41
3
A
Yes.
4
Q
And could you tell me what this document is? 17:32
4 ASHRAE leadership meeting with different organizations 17:41
5
A
This is a letter from -- who would have been 17:34
5 in Washington, D.C., do you mean it was a meeting that 17:41
6 the president of ASHRAE at the time in 2009, Gordon
17:38
7 Holness, to President Obama talking about as we're
17:33
8 working towards energy efficiency, where we have agreed 17:31
9 to try to -- the project committee to be 30 percent
12
8
Q
Is it clear to you who the participants of
17:42
17:42
MR. FEE: Can I see this document before
you get into this any further?
17:42
17:42
12
17:35
16 considering using the building EQ program.
17:38
17 (Exhibit 1197 marked for identification.)
17:39
(BY MR. BECKER) Ms. Reiniche, I'm handing
19 you what's been marked as Exhibit 1197. Do you
20 recognize this document?
17:33
17:34
17:37
21
A
Yes.
17:30
22
Q
And can you tell me what this document is?
23
A
This is an ASHRAE Facts and Stats document
17:31
24 that D.C. folks would leave with congressional staff
17:35
17:39
ASHRAE side, based on this email, that Lynn
15
Bellenger, Ron Jarnigan, Tom Watson, Jeff
16
Littleton, Doug Read, and Mark Ames would
have been at these meetings. Some of them I
18
can -- it appears from this that OSTP had
19
Kevin Hurst there.
20
17:36
15 implementing the executive order, that they look at
THE WITNESS: Well, I can tell from the
17
17:32
Okay.
13
14
17:39
14 use of buildings and to ask that the -- while they're
25 members.
17:41
Q
(BY MR. BECKER) That's fine if you --
21
And it also mentions our Building Energy
Q
Yes.
11
17:34
13 Quotient BEQ program that provides people with energy
18
A
10
17:31
11 Standard 90.1 to the 2010 version.
17:41
7
9 this meeting would have been?
17:35
10 more energy efficient from 2004, version of
6 did occur?
17:42
A
I mean, I would have to -- I mean, some of
17:42
17:42
17:43
17:43
17:43
17:43
17:43
17:43
17:43
22 them I can tell that -- you know, who was there, I can 17:43
23 tell which organizations were there, but some I can
17:43
24 tell by the way the notes were written who was there, 17:43
25 and some I cannot. I can -- if it would be easier, I 17:44
17:37
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Q
3
A
Just to give you a -- give them information
5 about our standards, our research program,
Q
Yes, if you could say which organizations.
A
So -- and this -- my recollection of the
17:46
5 one meeting, so they weren't all in one meeting
17:48
6 together, so these would have been notes from all of
17:33
7 their meetings.
8
17:39
(BY MR. BECKER) Ms. Reiniche, I'm handing
17:46
17:40
4 leadership meetings, typically it's more -- more than
17:33
17:30
17:37
8 (Exhibit 1198 marked for identification.)
Q
3
17:31
6 publications, continuing education; just ASHRAE as a
7 whole.
17:44
2
17:30
4 about what ASHRAE is, what our expertise is in, and
9
1 can tell you what organizations appears.
And what was the purpose of leaving this with 17:37
2 congressional staff members?
Page 200
17:40
17:42
So they would have talked with the EPA,
17:45
9 DOE -- sorry, the page is sticking -- FEMP, NEMA, ASE, 17:48
17:34
10 you what's -- what's been marked as Exhibit 1198, Bates 17:35
10 AHRI, NASEO, N-A-S-E-O, and that looks to be it.
11 number ASHRAE0024393. Do you recognize this document? 17:30
11
12
A
Yes.
12 are -- that are listed as individual acronyms at the
13
Q
And what is this document?
14
A
This is another sort of fact sheet type thing 17:39
17:37
19
Q
A
Right.
15
17:32
17:41
Q
And would those have been separate meetings
16 with each individually?
17:36
17
17:31
18 (Exhibit 1199 marked for identification.)
17:40
17:40
14
15 that ASHRAE does to educate the staff members of the
17 and our views on how to get there.
Okay. So it's all of the organizations that 17:48
13 top of each paragraph section?
17:37
16 legislature about ASHRAE's role in energy efficiency
Q
17:42
A
17:44
17:46
Some of them could have been clumped
17:47
18 together, some of them could have been separate. It's 17:41
17:33
(BY MR. BECKER) Ms. Reiniche, I'm handing
19 hard to tell from this email string how those occurred. 17:43
17:42
20 you what's been marked as Exhibit 1199. This is Bates 17:45
20 But sometimes they have it where they're going to meet 17:49
21 labeled ASHRAE0024624. Do you recognize this document? 17:40
21 with these three organizations and then these three
22
A
Yes.
22 organizations; something like that.
23
Q
And what is this document?
24
A
17:40
23 (Exhibit 1200 marked for identification.)
17:41
24
These are -- this is an email that shows the 17:42
25 notes from what would have been an ASHRAE leadership
17:45
Q
17:42
17:44
17:49
(BY MR. BECKER) I'm handing you what's been 17:45
25 marked as Exhibit 1200. This is Bates labeled
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standards at issue here.
18:03
1
if we could get comp copies to send to HUD to
2
THE WITNESS: This email relates to
18:06
2
consider it, and Mark indicated that's
3
Standard 161-2007. That's indoor air quality
18:08
3
probably very likely.
4
for commercial aircrafts. And it's about a
5
congressional committee considering an FAA
6
reauthorization bill and wants to know if --
7
if the members of 161 are supportive of this
8
bill.
9
Q
18:04
4
18:09
18:01
18:04
18:07
And then they ask for the -- where to
18:00
using the paper comment -- paper format, they
8
18:01
who I'm assuming is from HUD. And instead of
7
18:06
send it, to Rhonda from -- Rhonda Dickerson,
6
18:01
5
18:03
sent a PDF copy that -- indicating it wasn't
to be distributed outside of the HUD
18:08
18:02
18:08
(BY MR. BECKER) And in the top email,
18:05
9
10 Mr. Weber's communication, he says, "Ladies and
18:01
10
manufacturing housing consensus committee and
11 Gentlemen, below is an email from Ryan Colker, manager 18:06
11
not to reprint without ASHRAE permission.
12 of government affairs in the ASHRAE Washington office. 18:09
12
Q
13 ASHRAE is encouraging legislators to adopt ASHRAE
13 email; is that correct?
18:03
14 Standard 161-2007 and intends on sending the attached
15 letter early next week. Ryan would like to make the
18:07
18:03
18:12
18:15
18:18
(BY MR. BECKER) You are a recipient of this 18:13
14
A
Yes.
18:15
18:17
15
Q
What does HUD stand for?
16 SSPC aware of the intentions and would like to know if 18:07
16
A
Housing Urban Development.
17 their organizations are willing to support the
17
Q
And is that a federal agency?
18
A
Yes.
19
Q
Is it common for ASHRAE to provide copies of 18:10
18 adoption."
19
18:01
18:04
Is one of the roles of government -- ASHRAE's 18:09
20 government affairs office in Washington, D.C., to
18:02
21 encourage legislators to adopt ASHRAE standards?
22
A
If it's relevant to a bill that the
18:01
23 legislature is -- is drafting.
24
Q
18:06
18:14
18:17
18:11
20 ASHRAE standards to members of government when they are 18:16
21 considering incorporating that standard into
22 legislation or regulation?
18:08
23
Does that include encouraging legislators to 18:01
25 adopt ASHRAE Standard 90.1?
18:10
A
18:10
18:14
If it's been requested, we typically will
18:17
24 provide a copy for them to review, yes.
18:04
25
Q
18:10
And that would be a complimentary copy,
18:13
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A
If it's related to a legislation that they're 18:07
2 creating.
3
Q
Page 212
1 correct?
18:00
2
So if -- for clarity, if the -- if standard
18:01
A
18:11
That is correct.
18:11
3 (Exhibit 1208 marked for identification.)
4
5 created, then the Washington office of ASHRAE might
5 you what's been marked as Exhibit 1208. This has been 18:11
6 encourage the adoption of Standard 90.1 into that
7 legislation?
8
A
18:08
18:03
Yes, in consultation with ASHRAE leadership
18:05
18:11
6 produced as ASHRAE0024209. Do you recognize this
8
18:12
18:12
MR. CUNNINGHAM: Object to this document
18:09
9
as it also appears to relate to standards
10
other than those that are at issue in this
18:12
case.
18:12
18:12
18:09
10 (Exhibit 1207 marked for identification.)
(BY MR. BECKER) I'm handing you what's been 18:07
11
12 marked as Exhibit 1207. Could you please take a moment 18:08
12
13 to read this document and tell me what it is?
13
document.
14
Q
(BY MR. BECKER) And what is this document? 18:12
15
A
This is a document from Terry Townsend, who 18:12
14
Q
(BY MR. BECKER) Ms. Reiniche, I'm handing
7 document?
9 and those with relevant technical expertise.
11
18:03
Q
18:11
4 ASHRAE 90.1 is related to the legislation that's being 18:09
18:02
MR. CUNNINGHAM: Same objection as the
15
last document. This is outside the scope and
16
irrelevant, as it doesn't relate to the
17
standards at issue.
18:02
18:03
18:06
18:12
THE WITNESS: Yes, I recognize the
18:12
18:12
16 would have been the president of ASHRAE in 2007, to
18:08
18
THE WITNESS: So this is an email where
18:05
18 about a draft report to Congress on server and
19
Mike Lubliner, who was involved in 62.2, said
18:09
19 datacenter energy efficiency.
20
he was talking with HUD and about having them
21
adopt 62.2 and asked -- and discussing with
22
Steve Emmerich, who I believe was the chair
23
at that time, about who could speak on that.
24
25
And then they asked Mark Weber if we
could -- who is the staff liaison for 62.2,
18:13
17 Andrew Fanara from EPA Energy Star Program. And it's 18:13
18:05
18:00
18:06
18:08
20
18:13
18:13
And he's talking about the -- how ASHRAE is 18:13
21 involved in that and the majority of this deals with
18:13
22 our technical committee 9.9, which is missing critical 18:13
23 facilities and the work they've done in the different 18:13
18:03
18:13
25 processing equipment. And -- and then they had
18:07
24 publications they have, thermal guidelines for data
18:13
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CERTIFICATE
2 STATE OF GEORGIA:
COUNTY OF FULTON:
3
I, SHARON A. GABRIELLI, HEREBY CERTIFY that
4 the foregoing deposition was taken down by me in
stenotype, and the questions and answers thereto were
5 transcribed by means of computer-aided transcription,
and that the foregoing represents a true and correct
6 transcript of the testimony given by said witness.
I FURTHER CERTIFY that I am not kin or
7 counsel to the parties in the case; am not in the
regular employ of counsel for any of said parties; nor
8 am I in any way financially interested in the result of
said case.
9
IN WITNESS WHEREOF, I have hereunto set my
hand this 10th day of April, 2015
10
11
_______________________________________
SHARON A. GABRIELLI, RPR
12
CCR-B-2002
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--oOo-21
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
- - AMERICAN SOCIETY FOR
: Case No.
TESTING AND MATERIALS d/b/a: 1:13-cv-01215-PSC-DAR
ASTM INTERNATIONAL;
:
:
NATIONAL FIRE PROTECTION
:
ASSOCIATION, INC.; and
:
:
AMERICAN SOCIETY OF
:
HEATING, REFRIGERATING,
:
AND AIR-CONDITIONING
:
ENGINEERS, INC.
:
Plaintiffs,
:
:
vs.
:
:
PUBLIC.RESOURCE.ORG, INC., :
Defendant.
:
___________________________:
AND RELATED COUNTERCLAIMS. :
___________________________:
Videotaped 30(b)(6) deposition
of American Society for Testing & Materials,
through DANIEL SMITH, held in the offices of
Veritext Philadelphia, 1801 Market Street,
Ten Penn Center, Suite 1800, Philadelphia,
Pennsylvania 19103, commencing at 10:43 a.m.,
July 24, 2015, before Linda Rossi Rios, a
Federally Approved RPR, CCR and Notary
Public.
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giving your best testimony today?
A. No.
Q. Mr. Smith, what do you do for a
living?
A. I work for ASTM International.
Q. And when you say you work for
ASTM International, what do you mean?
A. I'm the vice -MR. FEE: Objection. Vague.
You can answer.
THE WITNESS: I'm the vice
president of technical committee
operations.
BY MR. BECKER:
Q. And what is technical committee
operations?
A. It's a division within ASTM.
Q. What does technical committee
mean?
A. Technical committees develop
standards.
Q. When you say "standards," what
do you mean by that?
A. Consensus standards.
Q. By "consensus standards," what
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technical committee?
A. A group of experts that develop
standards.
Q. And who are those experts?
A. Volunteers.
Q. And are they only volunteers?
MR. FEE: Objection. Vague.
THE WITNESS: For the most part
from my knowledge, they're all
volunteers.
BY MR. BECKER:
Q. How does a technical committee
go about developing standards as you say?
A. They use our consensus process.
Q. What is the consensus process?
A. It's two levels of voting
starting with the subcommittee and then the
main committee.
Q. What's the difference between a
subcommittee and a main committee?
A. A subcommittee is typically
smaller with a more narrow interest. A main
committee has broader interest.
Q. So within a technical
committee, then, there is -- is there just
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do you mean by that?
A. Documents.
Q. Any documents?
A. Specifications, test methods,
practices, guides, classifications and
terminology.
Q. Does the term "standards" have
any specific meaning to you?
MR. FEE: Objection. Vague.
THE WITNESS: I'm not sure what
you mean by that.
BY MR. BECKER:
Q. Can you define what a standard
is?
A. Just what I said previously,
it's a test method, a specification, a
practice, a guide, classification or
terminology.
Q. And you say that the technical
committees develop standards. How do -actually, let me back up.
What is a technical committee?
A. I'm not sure how to answer
that. I'm not sure what you mean by that.
Q. How would you define a
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one main committee?
A. A main committee is a technical
committee.
Q. And are there numerous
subcommittees?
A. Yes.
Q. And how many subcommittees on
average?
A. It varies.
Q. Could you give me a range by
which it might vary?
A. The best of my knowledge, maybe
from 3 to 40, 50.
Q. When you say there is a
consensus process that involves voting in the
subcommittee and then voting at the main
committee level, can you elaborate on that
process?
MR. FEE: Objection. Vague.
THE WITNESS: They vote on
standards so the folks on that
committee will vote on whether or not
they agree or not agree with the
content of the standard.
BY MR. BECKER:
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Q. Is that agree or don't agree on
the content of a draft standard or the
finalized standard?
A. A draft standard.
Q. Could we just back up a little
bit and could you walk me through how a
standard is developed at ASTM?
A. It varies, but it could be
by -- it starts typically with a task group.
Q. And what does the task group
do?
A. They'll develop the content of
the draft.
Q. And who composes the task
group?
MR. FEE: Objection. Vague.
THE WITNESS: The task group is
typically made up of volunteers who
wish to serve on the task group.
BY MR. BECKER:
Q. Are -- is everyone in a task
group an ASTM member?
A. No, not necessarily.
Q. In what situations would
individuals who are not members of ASTM
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average?
A. It varies, but it could be
anywhere from 3 to 30 approximately.
Q. And you said that the task
group develops the content or the original
draft of a standard. Is that correct?
MR. FEE: Objection. Lack of
foundation.
THE WITNESS: From my
experience, that's what a task group
does.
BY MR. BECKER:
Q. How is a task group initially
formed?
A. It's formed by a group of
volunteers who want to develop a standard or
a revision to a standard.
Q. Do the members and -- excuse
me.
Do the ASTM members and
nonmembers of ASTM who compose task groups
generally have the same or similar interests?
MR. FEE: Objection. Calls for
speculation.
THE WITNESS: I don't know. I
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compose members of the task group?
MR. FEE: Objection to form.
THE WITNESS: I'm not sure what
you mean by that. Could you repeat
that or say that differently?
BY MR. BECKER:
Q. Let's see. Are -- let me back
up just a moment.
Are any members of the task
group also members of ASTM?
A. Yes.
Q. But some members of the task
groups are not members of ASTM?
A. Could be. It's mostly members.
Q. And why would individuals who
are not members of ASTM be members of the
task group?
MR. FEE: Objection. Calls for
speculation.
THE WITNESS: From my
experience, because they're interested
in the standard that's being
developed.
BY MR. BECKER:
Q. How large are task groups on
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would think they would have a variety
of different interests.
BY MR. BECKER:
Q. Are there any characteristics
other than ASTM membership that would
distinguish ASTM members who are members of
task groups and those members of task groups
who are not ASTM members?
MR. FEE: Objection to form.
THE WITNESS: The members pay
the $75 membership fee. Nonmembers
don't pay the membership. That's the
only thing I can think of.
BY MR. BECKER:
Q. How does a task group go about
developing the initial draft of a standard?
A. They could do it in a variety
of ways.
Q. Could you give me some examples?
A. They could do it through the
use of our collaboration areas, an online
space that allows them to develop the draft.
Q. And in what other ways?
A. They could do it through course
of e-mail.
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Q. And in what other ways?
A. Through a meeting.
Q. And in what other ways?
A. None other come to mind at this
point.
Q. Are there any differences in
how a task group would develop a draft of a
standard today versus how they might have
developed a draft of a standard in the 1970s
or 1980s?
MR. FEE: Objection. Lack of
foundation. Calls for speculation.
You can answer.
THE WITNESS: Just from common
sense, we wouldn't have had our Web
tools, they wouldn't have been able to
use our Web tools or our virtual
meeting technology in the '70s.
BY MR. BECKER:
Q. Do you know how task groups
developed drafts in the 1970s and 1980s?
A. I don't know firsthand, but my
guess is they would have done it at meetings.
Q. When did ASTM first provide the
online collaboration areas for the use by
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outside of ASTM.
BY MR. BECKER:
Q. Do you know how drafts of
the -- of ASTM standards were exchanged
between task group members prior to the
introduction of the online collaboration area
by ASTM?
A. My guess would be through mail
and fax.
Q. Do you know if that mail and
fax of drafts was facilitated by ASTM?
MR. FEE: Objection. Vague.
THE WITNESS: I would imagine
that some of them would have been
facilitated by ASTM and others would
not have been.
BY MR. BECKER:
Q. Prior to the introduction of
the online collaboration area, were there
specific forms that task group members were
made to fill out when drafting drafts of ASTM
standards?
MR. FEE: Objection to form.
THE WITNESS: I believe we had
forms starting in about 2003 on our
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task groups?
A. Guessing, it was sometime
probably in the early 2000s roughly.
Q. How long have you been at ASTM
for?
A. About 23 years.
Q. So you were at ASTM for roughly
a decade, at least a decade prior to when the
online collaboration area was first rolled
out. Is that correct?
A. Approximately.
Q. So prior to when the online
collaboration area was rolled out, how did
task groups develop draft standards at ASTM?
A. To my knowledge, it would have
been at meetings.
Q. Were these meetings organized
by ASTM?
A. Some of them.
Q. But other meetings might not
have been organized by ASTM, is that what
you're saying?
MR. FEE: Objection. Vague.
THE WITNESS: They could. They
could organize their own meetings
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membership applications that required
members to assign all rights to ASTM.
BY MR. BECKER:
Q. So the membership, the forms on
the membership applications for ASTM that
asked individuals to assign all rights to
ASTM, as you said, started in 2003 and didn't
exist prior to that date?
A. I believe that's correct.
Q. And this just concerned the
membership applications. Correct?
MR. FEE: Objection. Vague.
THE WITNESS: We also had them
on our renewal forms, membership
renewal forms. And then we also had
them on our work item registration,
and then our collaboration.
BY MR. BECKER:
Q. What is a work item registration
form?
A. It's for essentially opening up
a new work item.
Q. What is a work item?
A. Either a revision to a standard
or development of a new standard.
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Q. And when was the language that
you say concerns assignments of rights
introduced to the work item form?
A. I think it was in about 2003,
'04, '05, somewhere in there.
Q. So somewhere in the 2003 to
2005 period, you're not certain precisely
when?
A. I believe so.
Q. But it didn't exist on those
forms prior to at earliest 2003?
A. That's correct.
Q. Who fills out a work item form?
A. A member.
Q. Is it only ASTM members who
fill out work item forms?
A. If a member would ask a staff
person to help facilitate filling out a form,
they may do that.
Q. What is a collaboration form?
A. The collaboration, if a member
wants to initiate a collaboration area, they
have to go through an online process to
initiate it.
Q. Just so I understand, is that
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work item registration forms for ASTM?
A. No.
Q. And those individuals I
described a moment ago, do they fill out
collaboration forms for ASTM?
A. Yes.
Q. They do. Are they required to
fill out collaboration forms for ASTM in
order to participate in the development of a
draft of a standard?
MR. FEE: Objection. Vague.
THE WITNESS: Yes.
BY MR. BECKER:
Q. From approximately what year
forward have individuals who are members of
ASTM task groups but not themselves members
of ASTM been required to fill out
collaboration forms in order to participate
in the drafting of an ASTM standard?
A. To my knowledge, since the
beginning.
Q. When you say "since the
beginning," what do you mean?
A. When we had -- when we created
the form.
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to create the online collaboration area that
you had described earlier as being a location
online provided by ASTM where members of a
task group could go to help develop the draft
for a standard?
A. Yes.
Q. And so the collaboration form
was only introduced after the collaboration
areas had been provided by ASTM to its
members?
A. Yes.
Q. And when, again, did you say
that that was?
A. I think it was about 2003.
Q. People who are members of task
groups for developing standards but are not
themselves ASTM members, do they fill out
membership applications for ASTM?
A. No.
Q. And those individuals who I
just described a moment ago, do they fill out
renewal forms for ASTM?
A. No.
Q. And those individuals who I
just described a moment ago, do they fill out
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Q. So that would be approximately
2003, you're saying?
A. Yes.
Q. Were individuals who were
members of task groups but not themselves
members of ASTM required to fill out any
forms in order to participate in the drafting
of an ASTM standard prior to 2003?
A. Not to my knowledge.
Q. Is there any means by which
ASTM claims that individuals who are -- who
were members of task groups but not
themselves members of ASTM have assigned any
copyrights that they might have in the drafts
of the standards that were created and
eventually published through ASTM -- to ASTM?
MR. FEE: Objection. Calls for
a legal conclusion. Instruct you not
to disclose any communications you
might have had with counsel regarding
that subject. If you have an
independent knowledge that is
responsive, you can answer that.
THE WITNESS: I don't know. Not
to my knowledge.
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a legal conclusion. Vague.
Confusing. You can answer if you can.
THE WITNESS: I think I'll
answer it by just saying the purpose
of this form is for when an individual
wants to bring a document into ASTM to
make it into an ASTM standard.
BY MR. BECKER:
Q. So this document is not
required of every member of a task group who
contributes original material to an ASTM
standard draft?
MR. FEE: Objection. Vague. To
the extent it calls for a legal
conclusion.
THE WITNESS: This form would
not be.
BY MR. BECKER:
Q. When is the last time, to your
knowledge, that this form, Exhibit 1284, was
used by ASTM?
A. I don't know.
Q. Do you have any guess as to
what year this form was last used by ASTM?
MR. FEE: Objection. Lack of
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Participation and Acknowledgement Form has
ever been signed and returned to ASTM?
A. I don't know for sure, but I
would guess it has been.
Q. And what's your basis for
guessing that it has been?
A. I vaguely remember instances
where we would have to use this.
Q. And what instances were those?
A. I can't remember.
Q. What other information do you
recollect in conjunction with those instances
where you believe that you had to use this
form as you describe it?
MR. FEE: Objection. Vague.
THE WITNESS: The only thing I
can remember is members interested in
bringing forward documents that they
were interested in having become ASTM
standard.
BY MR. BECKER:
Q. Prior to the introduction of
the Participation and Acknowledgement Form in
approximately 2002, was there any means by
which ASTM had members of task groups who
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foundation. Calls for speculation.
THE WITNESS: I don't know.
BY MR. BECKER:
Q. Do you know any specific
standards that this form was used in
conjunction with?
A. I don't know offhand, no. No
specifics.
Q. Does ASTM retain the signed
copies that it receives of this Participation
and Acknowledgement Form?
A. I'm not sure.
Q. Do you know how many of these
Participation and Acknowledgement Forms have
been signed and returned to ASTM?
A. No.
Q. Do you have any approximate
guess as to how many of these Participation
and Acknowledgement Forms have been signed
and returned to ASTM?
MR. FEE: Objection. Calls for
speculation.
THE WITNESS: No.
BY MR. BECKER:
Q. Do you know if this
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contributed original contents to the drafts
of ASTM standards but were not themselves
members of ASTM thereby transferred their
copyrights to ASTM?
MR. FEE: Objection. Calls for
a legal conclusion. To the extent -you shouldn't disclose any
communications you had with counsel
regarding the subject matter. If you
have independent information that you
can share, go ahead and answer with
respect to that.
THE WITNESS: I'm not aware of
any formal forms that we used prior to
2003.
BY MR. BECKER:
Q. Are you aware of any informal
means by which individuals such as those that
I just described in my previous question
might have transferred their copyright to
ASTM?
MR. FEE: Same objection and
instruction.
THE WITNESS: I'm not sure what
you mean by "informal."
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BY MR. BECKER:
Q. I'm simply asking because you
say you're not aware any formal forms that
are used prior to 2003. So I'm asking if
there were any informal means by which ASTM
believes that individuals transferred their
copyright to ASTM prior to 2003?
MR. FEE: Objection. Calls for
a legal conclusion. You shouldn't
disclose your communications with
counsel on this subject, but if you
have other information, you can answer
about that.
THE WITNESS: I don't believe -we didn't feel like we needed any
formal, any formal assignment paper.
BY MR. BECKER:
Q. Why didn't ASTM feel like it
needed any formal assignment paper?
MR. FEE: Objection. Calls for
a legal conclusion. You shouldn't
disclose any communication you had
with counsel regarding the subject,
but if you have any other information
that's responsive, you can answer
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THE WITNESS: Not at this time.
BY MR. BECKER:
Q. The basic understanding that
you just described, how is that basic
understanding documented?
MR. FEE: Objection. Again,
instruct you not to disclose
communications with counsel on that
subject, but if you have other
information, you can go ahead and
disclose that.
THE WITNESS: I'm not sure what
you mean by "documented."
BY MR. BECKER:
Q. Are there any documents that
reflect the basic understanding that you just
described concerning the reasons for
individuals contributing in the drafting of
ASTM standards?
A. No, we didn't feel like
documentation was needed.
Q. Does ASTM have any documents to
support its position that there was a basic
understanding between the members who -excuse me, let me rephrase that.
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about that.
2
THE WITNESS: Because we felt
3
that there was a basic understanding,
4
there is a basic understanding today
5
and there's been a basic understanding
6
for as long as ASTM has been around
7
that the reason they come to the table
8
is for the sole purpose of developing
9
an ASTM standard that will receive a
10
logo, and that will be copyrighted and
11
be distributed. Our members buy the
12
resulting standards from ASTM. We've
13
never, that I can recall, have had a
14
member or a nonmember take issue with
15
ASTM selling the resulting copyrighted
16
standard to them and to others. I
17
believe that the reason they come to
18
the table is because they want -19
they're there for the sole purpose of
20
having a standard that will have an
21
ASTM logo on it.
22 BY MR. BECKER:
23
Q. Anything else?
24
MR. FEE: Same objections and
25
instructions.
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Does ASTM have any documents to
support its position that there was a basic
understanding between the individuals who
drafted ASTM standards and ASTM that the
copyright in those standards were to belong
to ASTM?
MR. FEE: Objection. Instruct
you not to disclose communications
with counsel on that subject. If
you're aware of other documents, you
can go ahead and respond with respect
to them.
THE WITNESS: I'm not aware of
any documents.
BY MR. BECKER:
Q. Just a moment ago you were
describing the reasons why people participate
in the drafting of ASTM standards. Could you
describe some of the incentives for
individuals to participate in the drafting of
ASTM standards?
MR. FEE: Objection. Lack of
foundation. You can answer.
THE WITNESS: In general, you
can say that an individual would -- or
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BY MR. BECKER:
Q. I'm simply asking because you
say you're not aware any formal forms that
are used prior to 2003. So I'm asking if
there were any informal means by which ASTM
believes that individuals transferred their
copyright to ASTM prior to 2003?
MR. FEE: Objection. Calls for
a legal conclusion. You shouldn't
disclose your communications with
counsel on this subject, but if you
have other information, you can answer
about that.
THE WITNESS: I don't believe -we didn't feel like we needed any
formal, any formal assignment paper.
BY MR. BECKER:
Q. Why didn't ASTM feel like it
needed any formal assignment paper?
MR. FEE: Objection. Calls for
a legal conclusion. You shouldn't
disclose any communication you had
with counsel regarding the subject,
but if you have any other information
that's responsive, you can answer
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THE WITNESS: Not at this time.
BY MR. BECKER:
Q. The basic understanding that
you just described, how is that basic
understanding documented?
MR. FEE: Objection. Again,
instruct you not to disclose
communications with counsel on that
subject, but if you have other
information, you can go ahead and
disclose that.
THE WITNESS: I'm not sure what
you mean by "documented."
BY MR. BECKER:
Q. Are there any documents that
reflect the basic understanding that you just
described concerning the reasons for
individuals contributing in the drafting of
ASTM standards?
A. No, we didn't feel like
documentation was needed.
Q. Does ASTM have any documents to
support its position that there was a basic
understanding between the members who -excuse me, let me rephrase that.
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about that.
2
THE WITNESS: Because we felt
3
that there was a basic understanding,
4
there is a basic understanding today
5
and there's been a basic understanding
6
for as long as ASTM has been around
7
that the reason they come to the table
8
is for the sole purpose of developing
9
an ASTM standard that will receive a
10
logo, and that will be copyrighted and
11
be distributed. Our members buy the
12
resulting standards from ASTM. We've
13
never, that I can recall, have had a
14
member or a nonmember take issue with
15
ASTM selling the resulting copyrighted
16
standard to them and to others. I
17
believe that the reason they come to
18
the table is because they want -19
they're there for the sole purpose of
20
having a standard that will have an
21
ASTM logo on it.
22 BY MR. BECKER:
23
Q. Anything else?
24
MR. FEE: Same objections and
25
instructions.
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Does ASTM have any documents to
support its position that there was a basic
understanding between the individuals who
drafted ASTM standards and ASTM that the
copyright in those standards were to belong
to ASTM?
MR. FEE: Objection. Instruct
you not to disclose communications
with counsel on that subject. If
you're aware of other documents, you
can go ahead and respond with respect
to them.
THE WITNESS: I'm not aware of
any documents.
BY MR. BECKER:
Q. Just a moment ago you were
describing the reasons why people participate
in the drafting of ASTM standards. Could you
describe some of the incentives for
individuals to participate in the drafting of
ASTM standards?
MR. FEE: Objection. Lack of
foundation. You can answer.
THE WITNESS: In general, you
can say that an individual would -- or
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a company or an individual would be
interested in having an ASTM standard
that they could say their product or
service is in compliance with.
BY MR. BECKER:
Q. Are there any other reasons?
MR. FEE: Objection.
THE WITNESS: I'm sure there are
other reasons, I just can't think of
any right now.
BY MR. BECKER:
Q. Does ASTM have any forms by
which companies have assigned any copyrights
that they may have in the draft standards to
ASTM?
MR. FEE: Objection. To the
extent it calls for a legal
conclusion, I instruct you not to
disclose communications with counsel
on this subject, but if you have any
documents to identify, go ahead.
THE WITNESS: I'm not aware of
any.
BY MR. BECKER:
Q. Does ASTM distinguish between
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you might think are responsive to
that. If you have other information,
you can go ahead and answer.
THE WITNESS: My understanding
is that the members join as
individuals, and that when they come
to an ASTM meeting, they're
contributing their own knowledge to
the ASTM standard.
BY MR. BECKER:
Q. When you say that's your
understanding, is that also ASTM's
understanding?
A. Yes.
MR. FEE: Same objections.
THE WITNESS: Yes.
MR. FEE: And instructions.
BY MR. BECKER:
Q. When you say "members join as
individuals," does this also include
individuals who are government employees?
A. Yes.
Q. Does ASTM believe that
government employees who are acting within
the scope of their employment by the federal
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companies and individuals in the -- in its
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understanding of the granting of copyright
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rights to ASTM?
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MR. FEE: Objection. Vague. To
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the extent I understand it, I think it
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calls for a legal conclusion. To the
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extent you think that requires you to
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disclose any communication from
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counsel, you shouldn't do so. If you
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understand you have non-privileged
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information that is responsive, go
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ahead and provide it.
12
THE WITNESS: I'm not sure what
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you mean by that question.
14
BY MR. BECKER:
15
Q. Let me rephrase. If an
16
individual fills out a form that ASTM
17
believes assigns a copyright to ASTM but that 18
individual is employed by a company and is
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acting in the scope of employment, does ASTM 20
believe that a copyright is granted to it?
21
MR. FEE: Objection. Calls for
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a legal conclusion. Calls for
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speculation. You shouldn't disclose
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any communications with counsel that
25
Page 48
government join as individuals when they join
ASTM?
MR. FEE: Objection. Calls for
a legal conclusion. Calls for
speculation. Instruct you not to
disclose communications with counsel
on this subject, but you can answer if
you have other information.
THE WITNESS: I'm not sure what
the individual members believe. I
believe our committees believe that
the input they get on the standards
are from that individual, the
individual knowledge that they're
providing, not necessarily a company
or a government position.
BY MR. BECKER:
Q. And what's your basis for
believing that that is what the members of
the committee believe?
A. Just my experience.
Q. What experience are you
referring to?
A. My experience with working with
technical committees.
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experience in sitting in the meetings
and observing the individual members
contribute to the development of the
standards.
BY MR. BECKER:
Q. What about those contributions
of those members gave you that impression?
MR. FEE: Objection. Calls for
a legal conclusion. Compound.
THE WITNESS: I'm not thinking
of any one example. I'm just thinking
over time in all of my different
committees and all the different
meetings that I've attended, to me it
appears that people are contributing
off the cuff spontaneously in the
development of the standard.
BY MR. BECKER:
Q. When they participate, do
members of the federal government use their
federal government issued e-mail addresses?
MR. FEE: Objection. Compound.
Calls for speculation.
THE WITNESS: They may or they
may not.
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you mean by "differently."
BY MR. BECKER:
Q. Is there a specific
classification that's given to government
employees who participate in the development
of standards under ASTM?
A. They're given a classification
just as all other members are.
Q. And what is that classification?
A. It could either be a producer,
user, general interest, depending upon the
scope of the committee.
Q. Would a federal government
employee count as a producer?
A. I can't think of a situation
where they would be.
Q. Would a federal government
employee count as a user?
A. They may.
Q. Would a federal government
employee count as a general interest member?
A. They may.
Q. In what circumstances might a
federal government employee count as a user
versus a general interest member?
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BY MR. BECKER:
Q. What is it about off-the-cuff
or spontaneous contributions that you think
means that these individuals are
participating in their individual capacity
and not as federal government employees?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: Just my belief
based on what I'm observing that I
think it's a very spontaneous
conversation, people providing
contributions based on what they
believe, not necessarily what their
company believes.
BY MR. BECKER:
Q. Are individuals who
participate -- excuse me.
Are federal government
employees who participate in ASTM committees
or task groups classified differently than
other individuals who participate in those
committees or task groups?
MR. FEE: Objection. Vague.
THE WITNESS: I'm not sure what
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A. It depends on the scope of the
committee.
Q. Could you give some examples?
A. On my road and paving
committee, federal highway would be
considered a user.
MR. FEE: We've been going quite
some time. I asked to have a short
break. We're going to take a break
now, no question pending.
MR. BECKER: We can take a
break.
VIDEOGRAPHER: Time is now
11:48. We're going off the video
record.
- - (A recess was taken.)
- - VIDEOGRAPHER: The time is now
12:02. We're back on the video
record.
BY MR. BECKER:
Q. Mr. Smith, do you have any
additional recollections or other information
that you would like to add in response to any
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of the questions we've discussed so far
today?
A. Relative to our members'
awareness that they're assigning copyrights
to ASTM, I believe you had asked that
question prior to 2003.
Q. Yes.
A. ASTM also has an Intellectual
Property Policy that makes our members aware
of that as well.
Q. And when was ASTM's
Intellectual Property Policy first
instituted?
A. I'm not sure, but I believe it
was in the '90s.
Q. Is there anything else other
than ASTM's Intellectual Property Policy that
you believe contributes to ASTM's belief that
there was an understanding that the copyright
of individuals who participated in the
drafting of ASTM standards was owned by ASTM?
MR. FEE: Objection. Asked and
answered. Are you asking him to
repeat all the other things he
mentioned before or are you excluding
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- - (Exhibit 1285, Intellectual
Property Policy of ASTM, Bates
ASTM103277 - ASTM103284, was marked
for identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1285. Is this the
Intellectual Property Policy of ASTM that you
had just mentioned?
A. Yes, I believe this is a
version of it.
Q. Are there multiple versions of
the ASTM intellectual property policy?
A. I believe there were at least
two or three.
Q. This says it was approved on
April 28, 1999. Correct?
A. It does say that.
Q. It says that at the top of the
first page and at the bottom of the last
page. Is that correct?
A. That's correct.
MR. FEE: Objection. It says
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those?
MR. BECKER: Were there other
things that he mentioned before?
MR. FEE: Oh, yeah. I'll be
honest. Actually I shouldn't say
that. But you're asking him to list
everything he can think of now again?
MR. BECKER: In terms of
documents.
MR. FEE: Oh, documents.
MR. BECKER: I don't think there
was anything else, was there?
MR. FEE: Your prior question
wasn't limited to documents, that's
why I said that.
THE WITNESS: Is it before 2003?
BY MR. BECKER:
Q. Yes.
A. I'm not aware of any other
documents.
Q. Is there anything else that you
have to add to your earlier testimony other
than your mention of the IP Policy?
A. I can't think of anything at
this time.
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adopted on the last page, not
approved.
BY MR. BECKER:
Q. And for the record, this is the
document Bates number ASTM 103277 to
ASTM 103284 titled: "INTELLECTUAL PROPERTY
POLICY OF ASTM." It says at the top of page
Bates number ASTM103277 "Approved 28
April 1999." Is that correct?
A. Yes.
Q. Was this the first edition of
the Intellectual Property Policy of ASTM?
A. I believe there was one prior
to this.
Q. Do you know when the
Intellectual Property Policy of ASTM that
existed prior to this was created?
A. No.
Q. Do you have any idea?
A. I think it was at some point in
the '90s. Maybe mid '90s, but I'm not sure.
Q. Does ASTM have any record of an
Intellectual Property Policy prior to this
one, Exhibit 1285?
A. I'm not sure.
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Q. What did you discuss with Jim
Thomas when you met with him then?
A. I asked Jim about any memory
that he has relative to assignments of
copyright.
Q. And what did he say?
A. Pretty much what I've explained
to you relative to formally getting
documentation from our members on assignment
from 2003 to the present relative to our
renewal forms, membership application forms,
collaboration area. And then prior to that,
Jim's recollection and feelings were that
copyright assignment from our members was a
very basic understanding that our members had
and our staff have had, the sole purpose they
come to an ASTM meeting is to develop a
standard that's going to result in an ASTM
approved standard with a logo on it that's
copyrighted.
Q. Did Mr. Thomas identify any
basis for his belief that copyright
assignment from ASTM members was a very basic
understanding, as you described it, that ASTM
members had with the purpose of developing an
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Q. Did Jim Thomas say all of that
to you? When I say "all of that," I'm
referring to your previous statement that you
attributed to Jim Thomas, were all of those
statements from Jim Thomas?
MR. FEE: Objection. Compound.
THE WITNESS: Jim has told me
and I have seen Jim do these
presentations.
BY MR. BECKER:
Q. When you spoke with Jim Thomas
on Tuesday, did he say that a member has
never challenged the copyright assertions by
ASTM?
A. Yes.
Q. And when you met with Jim
Thomas on Tuesday, did he say that the fact
that ASTM sells standards to its members is a
basis for why there may be an understanding
that by ASTM members, that their
contributions would be copyrighted by ASTM?
A. He had indicated that the fact
that we sell the standards back to our
members is probably a real good indication
that there's a basic understanding from our
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ASTM standard?
A. Can you explain?
Q. Let me rephrase that. Did
Mr. Thomas identify any basis for his belief
that ASTM members had an understanding that
their drafts would be -- that the copyright
for their drafts would be held by ASTM?
A. I think his basis was on the
fact that we've never had a member that has
really questioned, that we can recall, or
challenged ASTM copyrighting something.
Another basis being that we sell our
standards and our members are some of our
biggest customers, so they're buying the
standards from us. Jim Thomas has provided
numerous presentations at different committee
meetings announcing about this lawsuit and
what the ramifications potentially could be.
How it could affect our business model and
how we want to maintain our low entry for
participation, $75 membership, no meeting
fees, and we sell our resulting standards so
that we can support our operations. And the
members, based on the presentations that I've
seen, have embraced that concept.
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members that we are copyrighting the material
that they contribute.
Q. Did Jim Thomas say anything
else to you when you met with him on Tuesday?
MR. FEE: Objection. Vague.
THE WITNESS: I can't think of
anything else specific that he said.
BY MR. BECKER:
Q. Did you ask Jim Thomas any
questions when you met with him on Tuesday?
A. No, I don't think I asked him
any questions. I think the meeting was
basically to discuss copyright assignment.
And I don't know if -- it was more of a
discussion, I don't think we had -- I had
questions. I mean, I didn't need to ask
questions. It was a discussion.
Q. A moment ago you referred to
the $75 fee. Do ASTM members -- excuse me,
let me rephrase.
Do individuals have to pay ASTM
a fee to participate in the standard drafting
process?
MR. FEE: Objection. Asked and
answered.
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THE WITNESS: They have to pay
$75 to be a member, but they don't
have to pay $75 to participate. So an
individual can participate without
paying ASTM.
BY MR. BECKER:
Q. What are the differences that
individuals who are members of ASTM enjoy in
their participation in the standard drafting
process versus individuals who are not
members?
MR. FEE: Objection. Vague.
THE WITNESS: They get to -free volume of standards and they get
to vote. When it's on the ballots,
they get to cast votes. Nonmembers do
not.
BY MR. BECKER:
Q. When you say "on the ballots,"
what ballots are you referring to?
A. On the technical standards.
Q. Are those ballots for voting up
or down on the revision or creation of
particular standards?
A. Correct.
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A. No.
Q. When was that meeting?
A. That meeting was yesterday.
Q. So Mr. Pace provided no
information to you on the subject of
copyright by individuals to ASTM?
A. No.
MR. FEE: Objection. Vague.
BY MR. BECKER:
Q. A moment ago you referred to
presentations by Jim Thomas. Can you give
any specific -- can you tell me about any
specific presentations by Jim Thomas that you
think address issues of copyright ownership
by ASTM?
A. I can't recall any
presentations that he did specific on that
subject.
Q. What presentations were you
referring to?
A. At ASTM conferences where we
have breakfast meetings with all of the
individuals attending that meeting, are
invited to a breakfast meeting. And we hold
them in four different committee weeks; in
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Q. Have you had any other
communications with Jim Thomas about your
deposition today other than the meeting you
had with him on Tuesday?
A. No.
Q. And have you had any
communications with Marge Cassidy in
preparation for your deposition today other
than the meeting that you had with her?
A. No.
Q. You said you met with John
Pace, the vice president of publications, as
well in preparation for your deposition
today. Correct?
A. Uh-huh.
Q. What did you discuss with
Mr. Pace?
A. Any knowledge that he would
have relative to the assignment of copyright
from our members.
Q. What did Mr. Pace say?
A. He didn't provide any input.
He didn't have any knowledge.
Q. Did you discuss any other
issues with Mr. Pace at that meeting?
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January, April, May and June of every year.
I've heard Jim Thomas talk about what I said
at those breakfast meetings.
Q. Do you recall on what dates
Mr. Thomas spoke about those issues at
breakfast meetings?
A. I can't provide specific dates.
Q. Do you have general dates as in
this year, last year or the year prior?
A. I believe it was this year was
mentioned. And it was probably last year as
well.
Q. Do you recall Mr. Thomas
mentioning anything on this subject prior to
last year?
A. I can't say for sure.
Q. Are these breakfast meetings
recorded in any way?
A. No.
Q. Are there any minutes kept of
the breakfast meetings?
A. No, but we have annual -- our
annual meeting -- we may have minutes from
our annual meeting, but I'm not sure. I
think we might have slides actually,
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presentation slides that are available for
our annual meetings.
Q. You said you also meet with
Phil Lively, the vice president of
technology. Is that correct?
A. Yes.
Q. When did you meet with him?
A. I met with Phil yesterday.
Q. What did you speak with Phil
Lively about yesterday?
A. About copyright assignments for
members to ASTM.
Q. And what did Phil Lively tell
you?
A. About his involvement and help
with having the language that we talked about
earlier on the membership application screens
and the membership renewal screens and the
collaboration area screen and the work item
registration screens.
Q. When you say, "the language
that we talked about earlier," are you
referring to language that ASTM believes
assigns copyright from individuals to ASTM?
MR. FEE: Objection. Calls for
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helped create the electronic version of the
forms that appear on the ASTM Web site. Is
that what you're saying?
MR. FEE: Objection. Compound.
THE WITNESS: I'm not sure what
exactly you mean by that, but
essentially he was able to accomplish
getting the language up onto the
screens so that the members can
acknowledge the statement during the
process.
BY MR. BECKER:
Q. Did Mr. Lively draft any of the
language on the membership application or
renewal forms or any of the other forms that
you're describing?
MR. FEE: Objection. Compound.
THE WITNESS: I don't believe
so.
BY MR. BECKER:
Q. What did Mr. Lively tell you
about the work that he did related to
copyright assignments?
A. Just that he could remember
helping with putting the information up on
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a legal conclusion.
THE WITNESS: The language that
we talked about that is on the
membership applications, yes. That
the members acknowledge when they're
either registering a work item or
joining as a new member or renewing
their membership or opening up a
collaboration area that assigns all of
their past, present and future
contributions to ASTM standards -into ASTM standards to ASTM.
BY MR. BECKER:
Q. What was Mr. Lively's
involvement in the language that you are
referring to?
MR. FEE: Objection. Vague.
THE WITNESS: He helped us with,
from a technology standpoint, getting
that language up onto our Web site,
onto the screens.
BY MR. BECKER:
Q. So you're saying that
Mr. Lively was involved in the -- Mr. Lively
did not draft the language, but Mr. Lively
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the Web screens, and he could remember when
he was a staff manager back in the very
beginning time, I think it was early '80s
when he was a staff manager, and kind of
reiterating what I had previously said about
there being an understanding that our members
understand that their contributions to ASTM,
is well understood that we're going to
copyright that material.
Q. Did Mr. Lively provide any
basis for his statement that there was an
understanding in the early '80s that ASTM
would copyright the material provided by
individuals that was incorporated into the
standard drafts?
A. Can you repeat that question?
Q. Yes. Did Mr. Lively provide
any basis for his statement that there was an
understanding in the early '80s that ASTM
would copyright the material provided by
individuals that was incorporated into the
standard drafts?
A. No. I think it was just his
belief just as it was my belief.
Q. Did you discuss anything else
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of any organizations typically sign up for
1
organizational memberships?
2
MR. FEE: Objection. Vague.
3
Beyond the scope of his designation.
4
THE WITNESS: I don't know.
5
BY MR. BECKER:
6
Q. Can organizational members be
7
members of technical committees?
8
A. Yes. As a matter -9
MR. FEE: There's no question
10
pending.
11
BY MR. BECKER:
12
Q. I'm sorry, what were you about
13
to say?
14
A. I believe all organizational
15
members are members of technical committees. 16
Q. Have any organizational members
17
executed copyright assignments for ASTM?
18
A. Not to my knowledge. I'm
19
sorry, can you repeat that question?
20
Q. Yes. Have any organizational
21
members executed copyright assignments for 22
ASTM?
23
A. Through the membership
24
applications that we talked about earlier,
25
answered.
THE WITNESS: No. Organizations
designate a member, an employee to
participate on technical committees.
BY MR. BECKER:
Q. What's the difference between
what you just said and an organizational
member designating an individual to
participate on technical committees on its
behalf?
MR. FEE: Objection.
Mischaracterizes his testimony to the
extent it purports to summarize it.
You can answer.
THE WITNESS: An organizational
member is an individual, it's not the
organization. So the organization
designates a member, an employee to be
a member to represent it on a
technical committee.
BY MR. BECKER:
Q. When you say the organization
designates an employee to be a member to be a
representative on a technical committee, when
you say representative, do you mean a
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through the renewal applications that we
talked about earlier, if they're involved in
a collaboration area, they would make an
assignment, and if they registered a work
item, they would make an assignment.
Q. So those are the same -- the
same assignment language that would relate to
individual members you're saying would also
relate to organizational members when
organizational members sign up for
membership?
A. Correct.
Q. How do organizational members
participate in technical committees?
A. The same way as participating
members, individual members.
Q. Can you elaborate on that?
MR. FEE: Objection. Vague.
THE WITNESS: I don't think I
can. There's no difference.
BY MR. BECKER:
Q. Do organizational members
designate an individual to participate on
their behalf?
MR. FEE: Objection. Asked and
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representative of that organization?
A. Maybe.
Q. Does ASTM have any knowledge as
to whether organizational members, when they
designate an individual to participate in a
technical committee, whether those
organizations are designating that individual
on the organization's behalf?
MR. FEE: Objection. Vague.
May call for a legal conclusion.
THE WITNESS: I think it varies.
I think organizational -- again,
organizations that choose to support
ASTM through an organizational
membership designate an individual to
participate on a technical committee.
That individual may be contributing to
the content of ASTM standards as an
individual even as an organizational
member, not necessarily representing
the organization's -- the
organizational views.
BY MR. BECKER:
Q. For organizational memberships,
does the organization itself typically pay
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the $400 fee?
MR. FEE: Objection. Calls for
speculation.
THE WITNESS: I don't know for
sure. Not necessarily. But probably
in most cases, probably.
BY MR. BECKER:
Q. Do you know of any instance
when a person indicated that he or she
disagreed with his or her organization's
position with respect to an action on a
technical committee?
A. No.
Q. Do you know of any instance
when an individual indicated that he or she
was specifically speaking on his or her own
behalf as apart from the organization that he
or she is part of?
A. No.
Q. Are any U.S. federal agencies
organizational members of ASTM?
A. I don't know.
Q. Who would know if any federal
agencies are organizational members of ASTM?
MR. FEE: Objection. Calls for
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MR. FEE: Objection. This is
beyond the scope of his designation.
THE WITNESS: No.
MR. BECKER: For the record, I
don't believe that this is beyond his
designation as this concerns an
organizational membership renewal.
MR. FEE: I don't think he was
designated to authenticate checks from
2013, but we'll agree to disagree.
BY MR. BECKER:
Q. Does this document indicate to
you that the Department of Consumer Affairs
from the State of California had paid for an
organizational membership renewal with ASTM?
MR. FEE: Objection. Calls for
speculation. Beyond the scope of his
designation.
THE WITNESS: I guess you could
assume that. I don't know for sure.
BY MR. BECKER:
Q. Do you have any reason for
thinking this -- that's not what this
document shows?
MR. FEE: Same objections.
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speculation. Also beyond the scope of
his designation.
THE WITNESS: We have an
organizational member directory on the
Web site.
BY MR. BECKER:
Q. And where on the Web site is
that organizational member directory located?
A. I think it's on the membership
page.
- - (Exhibit 1292, Check, Bates
ASTM049368, was marked for
identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as 1292. This is the document
produced by plaintiffs as Bates number
ASTM049368.
Do you recognize this document?
A. No.
Q. Do you have any reason to
believe that this document produced by ASTM
is not authentic?
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THE WITNESS: No, no reason not
to believe.
- - (Exhibit 1293, 2011 Membership
renewal invoices, Bates ASTM086030 ASTM086031, was marked for
identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1293. This is the document
produced by plaintiffs as ASTM086030 to
086031. Can you tell me what this document
is?
A. It is a 2011 membership renewal
invoice.
Q. It is a different 2011
membership renewal invoice on each side.
Correct?
A. Yeah. For different persons,
yeah.
Q. And these persons are employees
of NIST. Is that correct?
MR. FEE: Objection. Calls for
speculation. Beyond the scope of his
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designation.
THE WITNESS: It says here
they're from NIST.
BY MR. BECKER:
Q. NIST is a federal agency.
Correct?
MR. FEE: Same objections.
THE WITNESS: I believe. Sorry.
I believe so.
BY MR. BECKER:
Q. And they both give their NIST
e-mail addresses. Is that correct?
MR. FEE: Objection. Calls for
speculation. Beyond the scope of his
designation. You can answer.
THE WITNESS: The e-mail
addresses are on this piece of paper.
BY MR. BECKER:
Q. And the e-mail addresses say
@nist.gov. Correct?
A. Yes.
Q. And the addresses that they
provide are for NIST. Correct?
MR. FEE: Objection. Calls for
speculation. Beyond the scope of his
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where on these renewal invoices, if anywhere,
language exists that would assign any
copyright that Charles E. Gibson or Benjamin
K. Tsai, the individuals listed on these
membership renewal invoices, might have
granted to ASTM?
MR. FEE: Objection. Calls for
a legal conclusion. Compound. You
can answer if you know.
THE WITNESS: No, there's
language in the middle of both pages
beginning with "You agree...."
BY MR. BECKER:
Q. Is that where it says, "You
agree, by your participation in ASTM and
enjoyment of the benefits of your annual
membership, to have transferred and assigned
any and all interest you possess or may
possess, including copyright, in the
development or creation of ASTM standards or
ASTM IP to ASTM. For additional information,
please see the ASTM IP Policy, available at
www.astm.org"?
A. Yes.
Q. For these membership renewal
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designation.
THE WITNESS: Yes, the NIST
address is on these pieces of paper.
BY MR. BECKER:
Q. And did -- the credit card
information and payer is the same for both
renewal invoices. Correct?
MR. FEE: Objection. Beyond the
scope of his designation.
THE WITNESS: It appears that
the names are the same.
BY MR. BECKER:
Q. And that name appears to be
Aruella Kuehl, K-U-E-H-L. Aruella is spelled
A-R-U-E-L-L-A -- excuse me, that's Arvella,
A-R-V-E-L-L-A.
MR. FEE: Objection. Beyond the
scope of his designation.
BY MR. BECKER:
Q. Is that correct?
MR. FEE: Same objection.
THE WITNESS: If that's -- yeah,
that's the way you want to spell it.
BY MR. BECKER:
Q. Could you, please, indicate
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invoices, are individuals required to check
any box showing that they have read and
understand the provision that I just read out
loud?
MR. FEE: Objection. Vague.
Compound.
THE WITNESS: I don't see here
where there's a box to check off.
BY MR. BECKER:
Q. For the membership renewal
invoices, are the members required to sign
anywhere on the renewal invoice?
MR. FEE: Same objections.
THE WITNESS: I don't see
anywhere else other than the signature
for where the credit card information
is.
BY MR. BECKER:
Q. And if an individual pays by
some other means that doesn't require a
credit card, would it not be necessary to
sign this membership renewal invoice at all
in order to get a membership renewal?
MR. FEE: Objection. Calls for
speculation. Form.
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THE WITNESS: I don't know. I
guess you could sign a check. The
only other way you could pay is
through a check, so you could sign a
check.
BY MR. BECKER:
Q. It also lists electronic
payments. Correct?
A. Yes.
Q. So if somebody were to provide
an electronic payment, then they would not
need to sign anywhere on this form. Is that
correct?
MR. FEE: Objection. Calls for
speculation.
THE WITNESS: I suppose.
BY MR. BECKER:
Q. Is there any means through the
membership renewal invoice that ASTM ensures
that it has the understanding and assent of
the individual renewing his or her membership
that any copyright he or she has in the
development or creation of ASTM standards is
to be assigned to ASTM?
MR. FEE: Objection. Vague and
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that we read.
BY MR. BECKER:
Q. And my question is, is there
any means through the membership renewal
invoice that ASTM ensures that it has the
understanding and assent of the individual
who is renewing his or her membership that
any copyright he or she has in the
development or creation of ASTM standards is
to be assigned to ASTM?
MR. FEE: Same objections. Plus
asked and answered.
THE WITNESS: Plus what?
MR. FEE: Asked and answered.
THE WITNESS: Same answer.
BY MR. BECKER:
Q. It's a yes or no answer.
MR. FEE: No. Answer it however
you want to answer it.
THE WITNESS: Within the 2011
membership renewal invoice, there is
this clause that we feel is -- informs
the members that they're assigning
their copyright to us within their
participation at ASTM.
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confusing. Calls for speculation.
Calls for a legal conclusion.
THE WITNESS: Through the
original membership application,
through the work item registration
process, and through the collaboration
registration process.
BY MR. BECKER:
Q. My question was with regards to
the 2011 membership renewal invoice. I'll
read it again.
Is there any means through the
membership renewal invoice that ASTM ensures
that it has the understanding and assent of
the individual renewing his or her membership
that any copyright he or she has in the
development or creation of ASTM standards is
to be assigned to ASTM?
MR. FEE: Objection to form.
Vague and confusing. Compound. Calls
for speculation and calls for a legal
conclusion.
THE WITNESS: Within the 2011
membership renewal invoice, the only
thing that is there is this language
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BY MR. BECKER:
Q. How does ASTM know that a
member has read that clause?
A. We don't.
Q. How does ASTM know that a
member agrees with that clause?
MR. FEE: Objection to the
extent it calls for a legal
conclusion. Also calls for
speculation. You can answer.
THE WITNESS: We don't know for
sure.
- - (Exhibit 1294, Organizational
Membership Directory, was marked for
identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1294. It's a document
titled: "Organizational Membership
Directory." This is two separate printouts
combined. It is the A to K listing and the L
to Z listing. It's something -- it's over
100 pages long.
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THE WITNESS: They make
contributions at the meetings.
BY MR. BECKER:
Q. And do those contributions end
up in the final approved standards?
MR. FEE: Objection. Vague.
THE WITNESS: I don't -- I can't
say specifically.
BY MR. BECKER:
Q. What kind of contributions do
they provide at these meetings?
MR. FEE: Objection. Vague.
THE WITNESS: Oral contributions.
BY MR. BECKER:
Q. Do they provide any written
contributions?
MR. FEE: Objection. Vague.
THE WITNESS: They may through
the balloting process.
BY MR. BECKER:
Q. Do they vote on standard drafts
or revisions?
MR. FEE: Objection. Form.
THE WITNESS: They may. They
have the opportunity to.
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A. Yes.
Q. Did you ever receive this
e-mail that's Exhibit 1295?
A. I may have.
Q. Do you have any reason to think
that if you had -- that you did not receive
this e-mail produced by ASTM that has your
name listed under the cc line?
A. No.
Q. Do you have any reason to
believe that this document provided by ASTM
is not authentic?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: I have no idea.
BY MR. BECKER:
Q. Is that a yes or a no?
A. I don't know. I don't see any
reason why it wouldn't be.
Q. If you turn to the second page,
it says -- this is an e-mail from Sarah
Petre, P-E-T-R-E, to Jeff Grove that says -in which you are cc'd at dsmith@astm.org. Is
that correct?
A. Yes.
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- - (Exhibit 1295, E-mail chain with
attachment, Bates ASTM025633 ASTM025640, was marked for
identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1295.
Could you, please, take a
moment to try to put the pages for the
previous exhibit back in the same order that
they were provided to you, if possible?
MR. BRIDGES: I'll do that.
Hand them to me, I'll do that.
THE WITNESS: I think that's the
order.
BY MR. BECKER:
Q. Do you recognize this document
that has been provided to you as
Exhibit 1295? It is Bates number ASTM025633
to 025640.
A. No.
Q. Are you copied on this e-mail
that's Exhibit 1295?
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Q. And it says, "Jeff: Attached
is a summary of all the potentially relevant
standards related to the UE's efforts that
focus on the environmental footprint of
products and services. This list is more
over inclusive. I also included a list of
the EPA members that participate in E50 or
E60." Is that correct?
A. That's what it says.
Q. Then if you turn to Bates
number ASTM025637, the second paragraph from
the top says, "The following representatives
from EPA participate on the relevant ASTM
committees...," and then lists a number of
individuals. Is that correct?
A. Yes.
Q. Do you know any of these
individuals that are listed?
A. Yes.
Q. Which individuals do you know?
A. I know Deb Goldblum. I know
Sven-Erik Kaiser. And I know Patricia
Overmeyer.
Q. Who is Deborah Goldblum?
A. She works in the EPA. It's --
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marked for identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1300. Could you, please,
identify this document?
A. It says at the top "Laboratory
Inspection Program," but it would appear to
be a membership application.
Q. I'll note that this document is
produced by ASTM as ASTM067024. Is there any
mention of copyright assignment or ASTM's IP
Policy on this document?
MR. FEE: Objection to form.
THE WITNESS: I don't see that
language on here, no.
- - (Exhibit 1301, Membership
applications, Bates ASTM066871,
ASTM069213, ASTM069058, ASTM080176,
ASTM061450, ASTM063146, ASTM063147,
ASTM065682 & ASTM066345, was marked
for identification.)
- - BY MR. BECKER:
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respective years, 2007 through 2014?
MR. FEE: Objection to form.
THE WITNESS: There probably
was, yes.
BY MR. BECKER:
Q. How do you know that?
A. Well, because I know our
applications, we have applications that have
the language that we spoke about earlier that
was on, was it 1293, Exhibit 1293? We have
copies of membership applications that have
that language on there.
Q. Exhibit 1293 is a membership
renewal invoice. Correct?
A. Yes.
Q. And a membership renewal
invoice is different from a membership
application. Correct?
A. Yes.
Q. So when you say that there are
different versions, do you mean that there is
different versions of the membership
applications for each year or that there is a
membership application and there also is a
membership renewal invoice --
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Q. I'm handing you what's been
marked as Exhibit 1301. This is a
compilation of documents that were provided
by ASTM as single pages. It is one example
from each year from which ASTM has provided a
membership application starting with the 2007
membership application and ending with the
2014 membership application. And the Bates
numbers are ASTM066871, ASTM069213,
ASTM069058, ASTM080176, ASTM061450,
ASTM063146, ASTM063147, ASTM065682 and
ASTM066345.
Are these the ASTM membership
application forms for the years 2007 through
2014?
MR. FEE: Objection to the
extent the witness has cherry picked
pages of membership applications that
were produced to you; to form as well,
and compound.
THE WITNESS: These are versions
of the application from these years.
BY MR. BECKER:
Q. Were there multiple versions of
the ASTM membership applications for these
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MR. FEE: Objection. Form.
BY MR. BECKER:
Q. -- for each year?
A. We have membership applications
for these years that have that language from
Exhibit 1293 on them.
Q. How do you know that there are
membership applications for all of the years
2007 through 2014 that have the same language
that is from the 2011 membership renewal
invoice Exhibit 1293?
MR. FEE: Objection to form.
THE WITNESS: Because I believe
we put the language on the renewal
forms and the application forms at the
same time.
BY MR. BECKER:
Q. Why would there be membership
applications that do not have the language
that you're referring to? And to -- let
me -- hold on. Let me clarify.
By the language that you're
referring to on Exhibit 1293, you're
referring to the purported copyright
assignment language that starts with "You
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agree. By your participation in ASTM...."
Correct?
A. Yes.
MR. FEE: Hold on. Objection to
form.
THE WITNESS: Sorry.
MR. FEE: It's compound. Calls
for a legal conclusion.
THE WITNESS: The language that
I'm talking about is on Exhibit 1293
that begins with "You agree, by your
participation...."
BY MR. BECKER:
Q. Why do you believe that ASTM
put the language that you're referring to on
the renewal forms and the application forms
at the same time?
A. That's what I recall.
Q. Recall from what?
MR. FEE: Objection. Vague.
THE WITNESS: Just what I
remember.
BY MR. BECKER:
Q. Do you know when ASTM first
used the language that you're referring to
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Q. How many different forms of
membership application existed in 2007?
A. I don't know.
Q. Do you know how many different
forms of membership application ASTM had for
the year 2008?
A. No.
Q. Do you know how many forms of
membership application ASTM had for the year
2009?
A. No.
Q. Do you know how many forms of
membership application ASTM had for 2010?
A. No.
Q. How about for 2011?
A. No.
Q. Or 2012?
A. No.
Q. Or 2013?
A. No.
Q. Or 2014?
A. No.
Q. Do you know why ASTM has
different membership application forms?
MR. FEE: Objection. To the
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from Exhibit 1293?
A. Not exactly sure.
Q. Do you have any idea as to what
year ASTM first started using that language
that appears on Exhibit 1293?
A. I thought it was in about 2005.
Q. Do you have any way to confirm
when ASTM began using that language that was
featured on Exhibit 1293?
MR. FEE: Objection. Vague.
THE WITNESS: Not right here,
now.
BY MR. BECKER:
Q. How would you go about
confirming that?
A. I would ask our general counsel.
Q. Is there any other way that you
would confirm that?
A. Not right now.
Q. Is there anyone who would know
other than ASTM's general counsel when the
copyright assignment language that you're
referring to from 1293 was first used by ASTM
on membership forms?
A. I'm not sure.
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extent that your answering that
question would disclose
attorney-client communications, you
shouldn't disclose that. You can
answer otherwise.
THE WITNESS: No. My experience
has been that if we go to a very
focused individual conference, there
may be a -- it could be the staff
manager prepares an application for
that particular committee and did not
use the most current application.
BY MR. BECKER:
Q. Is there a difference between
ASTM membership application forms and ASTM
committee membership application forms?
MR. FEE: Objection. Vague.
THE WITNESS: We have a type of
membership that's called a
participating membership where you
join technical committees. And then
we also have informational members
that just joined ASTM but they do not
join a particular technical committee.
But I'm not aware of a difference
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BY MR. BECKER:
Q. On the next page, ASTM063147,
it has different language concerning the ASTM
Intellectual Property Policy than the 2012
membership application that we were just
discussing. Is that correct?
MR. FEE: Hold on one second.
You can answer.
THE WITNESS: Yes, that language
is different.
BY MR. BECKER:
Q. The language that's on
ASTM063147 is similar to the language that's
on Exhibit 1293, the 2011 membership renewal
invoice. Is that correct?
MR. FEE: Objection. Vague.
THE WITNESS: Yep, that looks
correct. Slightly different.
BY MR. BECKER:
Q. Why is this language different
for the 2012 committee membership application
than for the 2012 membership application?
MR. FEE: Objection. To the
extent that would require you to
disclose attorney-client
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MR. FEE: Objection to form. I
also object to the extent it calls for
attorney-client communications. You
shouldn't disclose any communications
between you and counsel, but you can
answer otherwise.
THE WITNESS: I believe the
language that is at the top of
ASTM063146 was language that we used
prior to the language that we used
that's contained on ASTM063147.
BY MR. BECKER:
Q. But if you then turn the page
to ASTM065682, that's a 2013 membership
application, and it has the same language
concerning the ASTM Intellectual Property
Policy as on ASTM063146. Correct?
A. That's what it looks like.
Q. If you turn the page to the
following page, the 2014 membership
application also has that same language.
Correct?
A. Yes.
Q. So ASTM has continued to use
this language into 2014?
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communications, you shouldn't do so.
If you can answer otherwise, go ahead.
THE WITNESS: My perspective is
that they're the same thing. They're
both intended for an individual to
join a particular committee.
BY MR. BECKER:
Q. Why is the copyright -- you say
they're the same thing, the copyright
assignment language?
MR. FEE: Same objection and
instruction.
THE WITNESS: No, I believe the
form is the same thing. It serves the
same purpose. It's an application so
an individual can join the technical
committee.
BY MR. BECKER:
Q. And my question was about the
actual language that ASTM believes concerns
copyright assignment. Why is there a
difference in the language concerning ASTM's
IP Policy on ASTM063146 as opposed to the
language concerning ASTM's IP Policy on
ASTM063147?
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MR. FEE: Objection. Vague.
THE WITNESS: That's what it
would appear to me.
BY MR. BECKER:
Q. Who knows how many different
versions exist for the membership
applications during each year from 2007 to
2014?
A. I don't know if anybody knows.
Q. Why is that?
MR. FEE: Objection. Calls for
speculation.
THE WITNESS: My experience as
being a staff manager is I don't think
people think about the version of an
application that's being used. I
think it's viewed as a tool that
enables an individual to join a
technical committee.
BY MR. BECKER:
Q. Who creates the membership
applications such as the 2014 membership
application ASTM066345?
A. I'm not sure who creates it.
Maybe our customer relations. Maybe it's our
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I just want to say that Mr. Smith has
been available to be deposed since
10:00 a.m. this morning. It's now
7:00. We have about 55 minutes left.
We're not staying past 8:00. So if
you're going to take any other breaks,
it better be short. That was a
20-minute break and I think a complete
waste of time. Go ahead.
BY MR. BECKER:
Q. Mr. Smith, I've handed you
what's marked as Exhibit 1311. This is a
document produced by ASTM as 003501 to 3522.
Could you, please, identify it?
A. It says, "RECORD RETENTION
POLICY."
Q. Is this ASTM's record retention
policy?
A. Yes, I believe it is.
Q. Have you -- did you review
ASTM's record retention policy in preparation
for the deposition today?
A. I reviewed it very briefly.
Q. Do you know what category under
the record retention policy that membership
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of Records," section III.
- - (Exhibit 1312, 11/21/08 E-mail
with attachment, Bates ASTM088320 ASTM088325, was marked for
identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1312. This is the document
produced by ASTM as ASTM088320 to ASTM088325.
It is an e-mail with an attachment that says,
"ASTM International Author/Copyright Owner
Agreement." Is this attachment a correct
copy of the ASTM International
Author/Copyright Ownership Agreement?
MR. FEE: Objection. Vague as
to time. Beyond the scope of the
designation as well.
THE WITNESS: I'm not sure.
BY MR. BECKER:
Q. Who would know whether this
attachment is a correct copy of the ASTM
International Author/Copyright Ownership
Agreement?
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application forms would qualify as?
MR. FEE: Objection. It's
beyond the scope of his designation.
THE WITNESS: Are you referring
to any particular pages?
BY MR. BECKER:
Q. Yes. If you look at ASTM 3502
and 3503, it says, "Types of Records." That
includes "Temporary Records," "Final Records"
and "Permanent Records." And then it also
has B is -- section B, "Types of Records That
have Legal or Regulatory Periods of
Retention," "Accounting and Corporate Tax
Records," "Corporate Records," "Employment
and Employee Records," "Bank Records," and
"Legal Records."
A. I don't know what category
membership application would fall under,
would just -- I'm not sure.
Q. Do you know what category the
ASTM IP Policy would fall under?
MR. FEE: Objection. Beyond the
scope.
THE WITNESS: No, I don't know.
I'm not very familiar with the "Types
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MR. FEE: Objection. Beyond the
scope.
THE WITNESS: I would have to
read it first to possibly give you an
answer.
Our publications department
might be able to tell you whether or
not this is the correct
Author/Copyright Owner Agreement since
it's a journal paper, relevant to a
journal paper.
- - (Exhibit 1313, Web site
screenshots, Bates ASTM001792 ASTM001800, was marked for
identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1313. This document was
produced by ASTM with Bates number ASTM001792
to 1800. What is this document?
A. This looks like it is
screenshots from our Web site for how an
individual would renew their membership.
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that I've provided here as Exhibit 1315?
MR. FEE: Same objections, plus
lack of formation -- or foundation.
Sorry.
THE WITNESS: I'm not aware of
whether there was or there was not.
- - (Exhibit 1316, Regulations
Governing ASTM Technical Committees,
was marked for identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1316. Could you, please,
tell me what this document is?
A. The front page says the
"REGULATIONS GOVERNING ASTM TECHNICAL
COMMITTEES."
Q. What are the Regulations
Governing ASTM Technical Committees?
A. It's essentially this entire
document if it's all included here.
Q. Does it appear to be all
included there?
A. I'd have to go through it, but
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Q. What do staff members do to
assist the members of technical committees?
MR. FEE: Objection. Vague.
THE WITNESS: General
assistance. Provide them with advice
on regulations, on our form and style
manual. We have interlaboratory study
program that assists our members. A
variety of things. I don't know if
there's anything specific that you
want me to focus on.
BY MR. BECKER:
Q. Does -- how does ASTM staff
members assist individual -- assist technical
committee members in the drafting or revision
of standards?
MR. FEE: Objection. Vague.
THE WITNESS: We have -- we
provide them with editorial
assistance, so we'll provide editorial
help within the documents. Our
interlaboratory study program is
responsible for organizing round-robin
studies for collecting the data and
doing the number crunching in order to
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it could. Looks like it.
1
Q. What is the purpose of the
2
Regulations Governing ASTM Technical
3
Committees?
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MR. FEE: Objection. Beyond the
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scope. Vague.
6
THE WITNESS: Technical
7
committees follow the regulations and
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develop member standards.
9
BY MR. BECKER:
10
Q. Do you use the Regulations
11
Governing ASTM Technical Committees in the 12
course of your work with ASTM?
13
A. Yes.
14
Q. How do you use them?
15
A. As staff people, we advise our
16
technical committees on the regulations so
17
that they -- the regulations can be followed
18
in the development of their standards.
19
Q. Do staff members do other
20
things to assist the members of the technical
21
committees?
22
MR. FEE: Objection. Vague.
23
THE WITNESS: Yes.
24
BY MR. BECKER:
25
Page 268
produce precision statements. Our ILS
team will produce the research reports
which are referenced in the standard.
We will help -- we have a graphics
department that will create graphics
for the standards, for committee
members. We have an up-front editor
that provides a great deal of
assistance if we have a draft that
needs to be put into proper ASTM form
and style. We provide them with
assistance on language for caveats
that are placed in the ASTM standards.
BY MR. BECKER:
Q. Anything else?
A. We provide an awful lot of
assistance, but nothing else that comes to
mind at this particular time.
Q. When you say editorial
assistance, what do you mean by that?
A. Grammatical things. We'll
inform members if they have mandatory
language in a non-mandatory section, that
that's outside the form and style policy. Or
vice versa, if they have non-mandatory
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language in a mandatory section, we'll
provide assistance in tweaking that language
so that it's within the form and style
guidelines.
Q. Anything else in terms of
editorial assistance other than grammatical
assistance?
A. We could take a document and
place it and organize it so that it has the
relevant sections as defined in the form and
style manual.
Q. Do you mean to reorganize a
draft standard, is that what you're saying?
A. Yes.
Q. What are -- excuse me.
Anything else in terms of
editorial assistance?
A. Our editors will also take a
document that's been approved through our
balloting process, if it's a new standard,
they'll put it into publication format and
work with the technical contacts to make sure
that everything looks good prior to
publication.
Q. When you say they put it into
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BY MR. BECKER:
Q. Is that the same grammatical
changes that you were referring to before?
MR. FEE: Objection.
Mischaracterizes his testimony.
Vague.
BY MR. BECKER:
Q. I'm sorry, what did you say?
A. The editors could work with the
technical contacts to incorporate editorial
changes, grammatical or reorganization of
content.
Q. Who are the technical contacts?
A. Who are they?
Q. Yeah.
A. They are individuals that take
the lead in developing a new standard or in
developing a revision to an existing
standard.
Q. Are those volunteers or are
those employees of ASTM?
MR. FEE: Objection. Vague.
Calls for a legal conclusion.
THE WITNESS: They're
volunteers.
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publication format, does that involve any
changes to the content of the draft standard?
MR. FEE: Objection. Vague.
THE WITNESS: It involves taking
what was balloted in the Word format
and placing it into our XML format
that we use for producing PDFs.
BY MR. BECKER:
Q. Is that a no?
MR. FEE: Objection. You can
answer the question however you like.
You don't have to answer it yes or no.
THE WITNESS: Did you ask me is
that a no?
BY MR. BECKER:
Q. Yeah.
A. What was -- can you repeat the
original question?
Q. The question was, when you say
you put it into publication format, does that
involve any changes to the content of the
draft standards?
MR. FEE: Objection. Vague.
THE WITNESS: It could,
editorial changes, yes.
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BY MR. BECKER:
Q. What did you mean when you said
precision statements?
A. Precision statements are
included in test methods.
Q. What are precision statements?
A. Precision statements include
statements on repeatability and reproducibility.
Q. What do you mean by that?
A. For a test method, a statement
of repeatability would be a laboratory taking
the ASTM test method and running the test in
the laboratory several times. And they take
the results of that test and they see how
close each iteration is. And if the results
are very close, then that would indicate good
precision. If it's -- if the results are not
close, then that would indicate poor
precision. So that's what repeatability is.
Then reproducibility is at least six labs
doing the same thing as what I just described
as that one lab. And then the
reproducibility is a statement that analyzes
the results from all six or more labs.
Q. Do the same precision
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statements appear in different standards?
A. In test methods.
Q. For test methods they do?
A. Yes.
Q. What is the work that the
graphics department does?
MR. FEE: Objection. Vague.
THE WITNESS: Graphics, I don't
know exactly everything that they do,
but they will take figures that are
perhaps old from years ago and we will
use them in our technology, update
them to make them more user friendly.
BY MR. BECKER:
Q. Are these figures that were
created by committee members or how are these
figures created that the graphics department
would update?
MR. FEE: Objection to form.
THE WITNESS: I would assume by
the committee members.
BY MR. BECKER:
Q. Do members -- do committee
members vote on the changes that -- or
additions that you just described?
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significantly when it's transformed
into the published version.
BY MR. BECKER:
Q. When you say it's not changed
significantly, what do you mean?
A. There could be editorial
changes. So that's a service that our
editors perform. When they're putting it
into the published version, they will work
with the technical contact to incorporate any
editorial changes that may have been agreed
upon by the committee.
Q. You mentioned caveats in ASTM
standards. What are those?
A. There are caveats that are in
our form and style manual.
Q. Are those -- what exactly are
the caveats in the form and style manual?
MR. FEE: Objection. Vague.
THE WITNESS: I wouldn't be able
to name all of them for you, but there
are caveats related to the use of
units, so the standard will -- the -there will be a caveat that will
identify the use of units within a
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MR. FEE: Objection.
Mischaracterizes his testimony. Vague
and ambiguous.
THE WITNESS: Yes.
BY MR. BECKER:
Q. Do committee members vote on
the final versions of ASTM standards?
A. I'm not sure what you mean by
"final versions."
Q. Do committee members vote on
ASTM standards, on the final appearance of
ASTM standards?
MR. FEE: Objection. Vague.
THE WITNESS: The final
appearance, the published format?
BY MR. BECKER:
Q. Yes.
A. No.
Q. Do ASTM committee members vote
on the content that appears in the final form
of ASTM standards?
MR. FEE: Objection. Vague.
THE WITNESS: The content that
is balloted and approved through our
consensus process is not changed
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particular standard. We have certain
safety caveats and hazardous caveats.
I think we have a caveat that deals
with mercury being used in the
standard. I'm sure there are some
others.
- - (Exhibit 1317, Participating
Membership Applications, Bates
ASTM064686 - ASTM064692, was marked
for identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1317. This document has
been produced by ASTM as ASTM064686 to 64692.
What is this document?
A. This looks like a copy of an
old application that was downloaded and saved
from our Web site and that was filled out by
hand. Best guess.
- - (Exhibit 1318, E-mail chain with
attachment, Bates ASTM087493 ASTM087497, was marked for
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identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1318. Does this exhibit
appear to show an individual who was
attempting to renew his application,
membership application with ASTM by phone -A. I'd have to read it.
Q. -- and e-mail?
A. [Reviewing document.] Looks
like, based on what I'm reading here, they
were trying to renew the membership by phone,
but it doesn't say that it actually happened.
Q. Can ASTM members renew their
membership by phone or e-mail?
A. They could. It's not -- I
don't think it's very common, but they could.
- - (Exhibit 1319, 2011 ASTM
International Committee Membership
Application, Bates ASTM061183, was
marked for identification.)
- - BY MR. BECKER:
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Standards Writing 101 How To [as read]. It
looks like something that was written in
Standardization News back in 2000.
Q. Does this document accurately
reflect the way that standards were developed
at ASTM in approximately March of 2000?
MR. FEE: You're going to have
to read the whole document to answer
that question.
THE WITNESS: This was, I
believe, a way that an individual
could request the development of a new
standard.
BY MR. BECKER:
Q. So there were other ways that
an individual could request the development
of a new standard as of March 2000?
A. Yeah, they could make a request
from the subcommittee or by the subcommittee
chairman.
- - (Exhibit 1321, How Standards are
Developed article, was marked for
identification.)
- - -
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Q. I'm handing you what's been
marked as Exhibit 1319, document produced by
ASTM as Bates number ASTM061183. What is
this document?
A. It says, "2011 ASTM...Committee
Membership Application."
Q. Does this document appear to
have a line crossed through the language
concerning the ASTM IP Policy?
MR. FEE: Objection. The
document speaks for itself.
THE WITNESS: I can't say that
that's a line or whether that's an
indicator towards the individual's
account number.
- - (Exhibit 1320, How To Standards
Writing 101 New Standards, was marked
for identification.)
- - BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1320. What is this
document?
A. I'm not sure. It says
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BY MR. BECKER:
Q. I'm handing you what's been
marked as Exhibit 1321. This document was
printed from the ASTM Web site at
www.astm.org/MEMBERSHIP/standardsdevelop.HTML.
What is this document?
A. It looks like maybe an article.
MR. FEE: Objection. Lack of
foundation.
THE WITNESS: Maybe an article
we have on our Web site that helps
provide guidance for our members.
BY MR. BECKER:
Q. Do you know what a US TAG ISO
list is?
A. A US -Q. US TAG ISO list.
A. United States Technical
Advisory Group ISO list, I don't know if that
refers to the list of members that are
serving on the technical advisory group.
- - (Exhibit 1322, 8/13/08 E-mail,
Bates ASTM073852, was marked for
identification.)
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MR. BECKER: Object as to form.
3
THE WITNESS: There is
4
additional language. This document
5
identifies membership renewal Web
6
screenshots for different types of
7
members. So I identified page 2, and
8
then there's also additional language
9
on page ASTM001796 as well as
10
ASTM001798. And I believe that's it.
11
MR. FEE: I have no other
12
questions.
13
Do you have any other questions
14
or is he done?
15
MR. BECKER: No, no redirect.
16
MR. FEE: Great. Thank you.
17
THE WITNESS: Thanks.
18
VIDEOGRAPHER: The time is now
19
7:57. This concludes the videotape
20
deposition of Dan Smith.
21
- - 22
(Witness excused.)
23
- - 24
(Deposition concluded at 7:57
25
p.m.)
1
I declare under penalty of perjury
2 under the laws that the foregoing is
3 true and correct.
4
5
Executed on _________________ , 20___,
6 at _____________, ___________________________.
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_____________________________
12
DANIEL SMITH
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Page 290
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Page 292
CERTIFICATE
I do hereby certify that I am a Notary
4 Public in good standing, that the aforesaid
testimony was taken before me, pursuant to
5 notice, at the time and place indicated; that
said deponent was by me duly sworn to tell
6 the truth, the whole truth, and nothing but
the truth; that the testimony of said
7 deponent was correctly recorded in machine
shorthand by me and thereafter transcribed
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Certification
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December 9, 2010
0201796533357958
Pagó
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ASHRAE0001593
ASHRAE0001595
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TITLE OF THIS WORK
ANSI/ASHRAE/IESNA Standard 90 1-2004, Energy Standard for Btuldings Except Low-Rise Residential Buildings
(I-P Edition)
PREVIOUS OR ALTERNATIVE TITLES
ANSI/ASHRAMESNA Standard 90 1-2001, Energy Standard for Buildings Except Low-Rise Residential BuilenIsCZ-P ram)
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Provide minimum requirements for energy-efficient design of bldgs except low-nse residennal bldgs
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Monello December
ye.* 2004
ONLY tf this work
hae been pubflabod.
U.S.A.
Arnencan Society of Heating, Refngerating & Air-Conditioning Engrs
1791 Tulhe Circle, NE
Atlanta, GA 30329-2305
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ASHRAE, ATTN Mildred Geshwiler
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Rev July 2003ask Web Rem Jury 2903
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U S Gcrvammoni Pilaw OlIco 2000-461-113/20 021
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