AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 124

MOTION to Strike #118 MOTION for Summary Judgment and Permanent Injunction MOTION for Permanent Injunction by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Memorandum in Support [Redacted], #2 Declaration of Kathleen Lu, #3 Exhibit 1 to Lu Declaration, #4 Exhibit 2 to Lu Declaration, #5 Exhibit 3 to Lu Declaration, #6 Exhibit 4 [Redacted] to Lu Declaration, #7 Exhibit 5 to Lu Declaration, #8 Exhibit 6 [Redacted] to Lu Declaration, #9 Exhibit 7 to Lu Declaration, #10 Exhibit 8 [Redacted] to Lu Declaration, #11 Text of Proposed Order)(Bridges, Andrew)

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EXHIBIT 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ----------------------------------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. ) ) PUBLIC.RESOURCE.ORG, INC., ) ) Defendant. ) -----------------------------------) AND RELATED COUNTERCLAIMS. ) -----------------------------------) RULE 30(B)(6) VIDEOTAPED DEPOSITION OF AMERICAN STANDARDS SOCIETY FOR TESTING AND MATERIALS, BY AND THROUGH ITS DESIGNEE, JEFFREY GROVE WASHINGTON, D.C. WEDNESDAY, MARCH 4, 2015 Reported by: NANCY J. MARTIN, CSR No. 9504, RMR Job No. 2010158 PAGES 1 - 284 Page 1 Veritext Legal Solutions 866 299-5127 1 Q. Does he still work for ASTM? 2 A. He does. 11:54:10 3 4 identification.) 11:54:56 11:54:56 5 BY MR. BRIDGES: Q. Mr. Grove, Exhibit 1037 is an exchange of 5 11:54:57 7 correspondence between you and John Pace; correct? A. Yes. 9 Q. And the post that you're referring to is 11:55:01 11:55:11 11:55:12 11:55:20 12 A. That's correct. 13 Q. What interactions did you have with Emily 11:57:34 11:57:35 11:57:40 What standards community events do you 11:57:44 11:57:46 A. I recall there were some subsequent ACUS 11:57:47 10 public stakeholder opportunities for stakeholders to 11:57:50 11 come to ACUS events. I recall that Emily was at the 11:55:22 14 Bremer? 15 9 11:55:17 11:57:31 Q. And what standards community events do you 6 have in mind? Strike that. 7 11:57:56 12 NIST standards workshop in May of 2012. I know I've 11:55:24 11:55:26 13 seen her on other occasions at ANSI related events, 11:55:28 16 2011 but Emily Bremer was the lead investigator or 11:55:31 17 counsel that was working on the administrative counsel 18 of the United States review and potential 11:55:36 11:55:39 19 recommendations on incorporation by reference, and we 20 met on one occasion at my office at her request. 11:58:11 11:58:17 15 number of different opportunities for meetings and 11:58:22 16 topical discussions. So those would be the -- some of 17 the instances where I may have seen her. 18 Q. What other occasions have you seen her apart 11:58:36 11:55:44 19 from ACUS public stakeholders events, the NIST 11:55:49 11:58:39 20 standards workshop, and ANSI sponsored events? Q. Did you meet with her only once? 11:55:55 21 22 A. Only once professionally. I see her at 11:55:56 23 various standards community events in Washington quite 1 quite understand the -2 11:56:06 25 Page 86 1 11:56:14 11:58:55 Q. I understand maybe most. I want to try to A. Right. That's all I recall. 11:58:58 3 11:59:01 11:59:03 Page 88 Q. What were the ANSI sponsored events to which 2 you referred? 11:56:15 Q. You said you met with her only once A. I recall there was one at the national -- I'm 11:59:10 4 sorry. It's at the consumer electronics association 11:56:17 5 in Arlington, Virginia. A panel where Peter Strauss, 6 standards community events in Washington quite a bit. A. Yeah. Thanks for the opportunity to clarify. 8 MR. FEE: Objection. Vague. 9 11:59:07 11:59:09 11:56:15 5 professionally, and then you see her at various 7 11:58:51 24 understand every single one that you recall. 11:56:09 MR. FEE: Objection. 3 BY MR. BRIDGES: 4 11:55:59 23 11:56:04 A. I think that represents most of my 11:58:42 22 interactions or times I've seen her in Washington. Q. Are those nonprofessional events? I don't 11:58:27 11:58:34 21 25 11:58:03 14 ANSI sponsors world standards week where there's a A. I forget the time line. It was probably in 24 a bit. 11:57:24 11:57:25 A. I'd say at least a dozen. At least 10 to 12 8 recall? 10 indicated at the URL down below at the bottom of that 11 document; is that correct? 3 4 times. 11:54:57 8 Q. How many times have you seen her at standards 2 community events? (Deposition Exhibit 1037 was marked for 6 1 11:54:12 11:56:19 11:56:25 THE WITNESS: So I only met in an official 11:56:25 11:59:20 6 Emily spoke, and now that you've refreshed my memory, 7 I believe I spoke also on a panel there. Oh, and the 11:56:32 11:59:24 11:59:28 8 ANSI events, the question. During world standards 11:56:29 10 capacity to be interviewed to represent ASTM's views 11:59:15 11:59:38 9 week every year there's four or five days in October 11:59:41 10 where each day there's a -- one or more events, such 11:59:45 11 once with Emily, but from time to time since then I 11:56:37 11 as the organizational member form of ANSI, where 12 see her at standards related events and quite possibly 11:56:40 12 organizations that are members of ANSI can come and -- 13 would say, "Hi" or "Hello," or "What are you working 14 on" type of networking discussions. 16 11:56:53 Q. What networking would be going on in those 17 networking discussions? 18 11:56:56 A. Just in the course of normal relationship, 21 11:57:07 24 11:57:17 A. I don't recall, no. I don't believe I have 25 ever met with her besides the one time. 11:57:14 19 I belong to, during that week. Q. And did she attend all of those? A. I recall I've seen her at some ANSI events 12:00:36 12:00:38 12:00:41 Q. Are there any other instances that you recall 11:57:21 25 being with her at an event? Page 87 12:00:29 12:00:34 22 before, but I wouldn't be able to tell you which ones 24 12:00:20 12:00:24 12:00:31 21 23 with any certainty. 11:57:20 12:00:13 18 meetings, such as the national policy committee, which 20 11:57:11 22 occasion other than the one time you said you were 23 interviewed? 11:57:04 12:00:07 16 from the standards community might go to discuss legal 17 issues. And, occasionally, there's official committee 11:56:57 Q. Have you ever met with her alone on any There's a legal issues forum where members 11:59:57 12:00:02 14 consumer groups that are members of ANSI speak. 15 11:56:53 19 discussions that one might have with a colleague from 20 another organization. 11:56:45 13 for a program. There's the consumer interest forum or 11:56:48 15 BY MR. BRIDGES: 11:59:53 12:00:43 12:00:46 Page 89 23 (Pages 86 - 89) Veritext Legal Solutions 866 299-5127 1 A. I had previously mentioned an office in 1 an interview with Emily that appeared in our magazine. 12:18:34 3 Q. Who else? 4 2 12:18:35 12:18:39 A. We operated for many years an office in (Deposition Exhibit 1040 was marked for 3 2 Brussels, Belgium where we have a contractor. identification.) 12:18:40 5 6 unfortunately, recently passed away. So we are 7 re-evaluating what we're going to be doing in Mexico 7 12:18:51 MR. FEE: Read it first. MR. BRIDGES: It's pretty short. It's pretty 8 obvious. 12:18:54 12:18:58 9 12:18:59 9 there for the time being. 12:23:27 Q. Mr. Grove, have you seen Exhibit 1040 before? 6 12:18:47 8 City. But I believe we will still have an office 12:23:27 4 BY MR. BRIDGES: 12:18:44 5 Mexico City. That office, our representative, 10 11 A. We do. So we worked in collaboration with an 12:19:01 11 this E-mail, yes. 12 organization called the American Association of State 12:19:04 12:24:02 12 BY MR. BRIDGES: 13 12:19:09 15 facility in Buckeystown, Maryland, which is -- we do 12:19:12 12:24:12 Q. All right. And did you get -- did you see at 12:24:27 12:19:22 16 A. Yes. 12:19:30 17 Q. Is the "Jeff" in the middle of the large 21 25 22 12:19:55 12:20:38 A. I believe it is as I'm responsible for the 23 A. I honestly don't recall speaking with Emily 25 12:20:46 12:24:39 12:24:41 Q. Why are you responsible for the reading room? MR. FEE: Objection. Vague. Calls for 24 speculation. 12:20:41 12:24:34 12:24:37 21 ASTM's reading room. 12:19:50 Q. How often do you speak to Emily Bremer on the 24 telephone? 20 12:19:47 A. In 2013 I made approximately 24 trips to 22 ASTM's headquarters. 23 19 reference to you? 12:19:44 20 headquarters in the course of a year? 12:24:30 18 paragraph at the top, do you understand that to be a 12:19:35 Q. How often do you visit the corporate 12:24:54 12:24:57 12:24:59 THE WITNESS: For many years I've been 12:25:01 Page 104 Page 102 1 Bremer since 2012 on the telephone. 2 12:20:48 Q. What about your staff? Do you know how often 3 they speak to Emily Bremer on the telephone? 4 12:20:53 MR. FEE: Objection. Calls for speculation. 5 Beyond the scope of his designation. 6 12:20:50 12:20:56 12:20:57 THE WITNESS: I believe my staff would inform 7 me if they spoke with Emily, and I don't recall them 8 speaking with her by phone. 9 12:21:08 MR. BRIDGES: I'll hand you Exhibit 1039. 10 11 identification.) 13 12:21:25 12:21:25 Q. Do you recognize this as an E-mail to you MR. FEE: Objection. Compound. 12:21:26 THE WITNESS: Yes. I recognize this is an 12:21:46 21 22 published in that newsletter? 23 25 6 our organization through the distribution of our 12:25:17 12:25:25 7 standards under the model that served us so well for 12:25:27 12:25:30 9 BY MR. BRIDGES: 12:25:42 10 Q. How did you come by such an interest? 12:25:42 A. Well, working in Washington for ASTM for as 12:25:45 12:25:48 13 emerging interest in striking this delicate balance, 12:25:56 14 began to see efforts that other organizations were 12:26:04 15 taking, such as the NFPA, which, going back all the 12:26:06 17 documents on their website. And I've heard some 12:21:54 12:21:58 12:22:00 12:22:03 12:22:07 12:22:05 12:26:21 12:26:23 20 and other people associated with ACUS who served on 12:26:31 21 ACUS committees. So those are some of the factors and 12:26:35 22 things that have influenced my thinking on this 23 reading room. 24 THE WITNESS: It appears as if it does. It's 12:26:10 12:26:15 18 interesting testimony and ideas expressed by people 19 like Peter Strauss, who is a law professor, I believe, 12:22:00 MR. FEE: Objection. Beyond the scope of his 24 designation. 5 regulations while maintaining our ability to sustain 12:21:51 Q. Does this E-mail concern an article to be 12:25:09 12:25:12 16 way to 2004, started to provide some of their key code 18 associate editor of our ASTM magazine known as 20 BY MR. BRIDGES: 4 incorporated by reference in various laws and 12:21:50 17 E-mail from Cicely Enright. Cicely works as an 19 Standardization News. 12:25:05 3 the public with access to ASTM standards that become 12 long as I have, I've begun to hear and see the 12:21:25 14 from Cicely Enright? And who is Cicely Enright? 16 12:25:01 2 I have in striking the right balance between providing 11 12:21:25 15 1 working with senior staff because of an interest that 8 118 years. 12:21:14 (Deposition Exhibit 1039 was marked for 12 BY MR. BRIDGES: 12:21:00 12:21:01 12:24:18 12:24:22 17 inspections. To my knowledge, that's the scope of 19 12:24:12 14 any point the segment from John Pace to James Thomas 16 cement and concrete reference, related laboratory 18 ASTM's offices. 12:24:07 12:24:09 15 up top? 12:19:16 12:23:35 12:23:37 THE WITNESS: Yes, I'm familiar -- I am on Q. Any other offices? 14 AASHTO, and AASHTO and ASTM work together in a 12:23:27 12:23:34 (The witness reviewed Exhibit 1040.) 10 13 Highway Transportation Officials. It's known as 12:22:11 12:23:27 12:26:42 12:26:44 Q. I understand the factors that influenced your 12:22:08 25 thinking, but how did you come to have such an Page 103 12:26:47 12:26:50 Page 105 27 (Pages 102 - 105) Veritext Legal Solutions 866 299-5127 1 BY MR. BRIDGES: 2 12:48:17 1 of working with agencies during the notice of proposed Q. How many ASTM standards do you understand are 3 listed at that location? 12:48:17 12:48:21 2 rule-making process. 3 4 MR. FEE: Objection. Vague as to time. 5 THE WITNESS: So there's -- if I'm answering 12:48:23 12:51:41 12:51:45 Any agency that comes to us and asks us to 12:51:46 4 put a standard up for public review during the public 12:51:50 12:48:34 5 review period of a rule, we work with them to make 12:48:35 6 that possible. So at times we know that a certain 7 many standards, I believe there's 885 or so ASTM 12:48:38 7 number of ASTM standards have been in a notice to 12:52:01 8 standards that are incorporated in the NIST database. 12:48:41 8 proposed rulemaking and that the new rule's expected 12:52:04 6 your question exactly as you phrased it to me, how 9 BY MR. BRIDGES: 10 12:48:50 Q. How many of those standards are currently 11 available at ASTM's reading room? 12 9 to come out, so we can look for it. 12:48:50 12:48:52 A. Well, if it's in the NIST database, we built 16 reference, just an agency, for instance, might 12:49:10 15 THE WITNESS: So we do -- I'm familiar with a 12:52:24 12:52:29 12:52:31 17 does. We look to see -- when we're aware that an ASTM 12:49:25 12:52:39 19 reference in some type of an action, we look to see 12:52:43 20 well, and I believe our reading room has a volume of 12:49:30 20 what version of the standard and what designation of 21 13- to 1,400 ASTM standards that are available to the 12:49:32 21 the standard is being used, and I believe on occasion 23 12:49:36 Q. Are every one of the 885 standards from the 25 A. I wouldn't be able to answer that 22 if they're using -- proposing to use an outdated 12:52:46 12:52:50 12:52:54 12:49:41 23 version of a standard, or, quite frankly, we've seen 12:49:45 24 NIST database available in the reading room? 12:52:34 18 standard is going to be used and incorporated by 12:49:27 22 public at no cost on our website for their review. 12:52:20 12:52:23 MR. FEE: Objection. Vague. 16 couple things that either I do or a member of my staff 12:49:21 So we counted them in the reading room as 12:52:18 14 12:49:17 17 reference the same ASTM standard but reference two 19 13 reference? 12:49:06 15 885 ASTM standards that have been also incorporated by 12:52:16 12 considering whether to incorporate an ASTM standard by 12:49:02 14 baseline, and we added in other versions of those same 12:52:08 Q. Does ASTM provide assistance to the 11 government in any way when the government is 12:48:55 13 the ASTM reading room using the NIST database as a 18 different versions of the standard. 10 12:51:53 12:51:57 24 errors where they've attempted to use an ASTM biofuel 12:49:51 12:52:59 25 standard, and rather than referencing D6751 they've 12:53:02 12:53:06 Page 122 Page 124 1 specifically. Using the NIST database as a guideline, 12:49:53 1 referenced D56571, gotten the numbers wrong, we will 2 we've incorporated, you know, as much of that as 12:50:02 2 engage with an agency and either make them aware 12:50:04 3 there's a more recent version or make them aware that 3 possible in the reading room. At times I believe we 4 also tried to add a little bit more intelligence to it 12:50:06 5 to determine if an agency was undertaking a subsequent 12:50:09 6 rule-making, and we became aware that the agency had 12:50:18 7 published a new final rule which either changed the 12:50:24 8 reference to an ASTM standard that we had placed in 12:50:27 9 the reading room or added a new ASTM standard to the 10 reading room. 11 12:53:22 6 BY MR. BRIDGES: 7 12:53:20 12:53:23 Q. Does ASTM bring standards to the attention of 8 the federal government with some sort of 12:53:26 12:53:36 12:50:31 9 recommendation that the federal government incorporate 12:53:38 12:50:38 10 the standard by reference? Then we took steps to add that to the reading 12:53:16 4 what they are trying to reference doesn't make a lot 5 of sense. 12:53:41 12:50:39 11 MR. FEE: Objection. Vague. 12:50:42 12 room. It's not an exact science. We don't pay a 12:53:09 12:53:14 12 THE WITNESS: That's not part of what we call 12:53:43 12:53:45 13 vendor to perform the service for us. We rely either 12:50:48 13 engaging federal agencies in Congress. What we will 12:53:49 14 exclusively on the NIST database or we -- it's based 12:50:55 14 do is work with agencies and work with Congress to 12:53:53 15 on intelligence that we've gathered about new 16 rulemakings. 17 12:50:58 12:51:01 16 that we're developing in any given area that they Q. How do you gather intelligence about 12:51:03 18 incorporations of ASTM standards by reference? 19 12:51:08 A. Well, as much as possible we read the federal 20 register. I'd like to think we read it on a regular 15 make them aware of the voluntary consensus standards 12:51:14 12:51:17 21 basis, but sometimes it's more infrequent than that. 17 might have an interest. But the ultimate decision of 18 whether or not to utilize and reference those 22 So we will search key terms in the federal register to 12:51:24 22 BY MR. BRIDGES: 23 see if it's mentioning ASTM and if there's a rule that 12:51:30 23 24 has resulted in the publication of standards. And 12:51:34 25 sometimes we're ahead of it because ASTM has a policy 12:54:08 20 give you a specific example of a time that we have 21 taken an example on -- taken a position on. 12:54:02 12:54:07 19 standards we rarely take positions on, and I can't 12:51:20 12:53:56 12:53:59 12:54:14 12:54:17 12:54:23 Q. Do any state governments or municipal 12:54:23 24 governments incorporate ASTM standards by reference? 12:51:38 25 Page 123 MR. FEE: Objection to form. 12:54:26 12:54:30 Page 125 32 (Pages 122 - 125) Veritext Legal Solutions 866 299-5127 1 that they must be -- they have to be referred to as 1 stakeholders because the government is a very 17:24:32 2 "musts," and this would have the voluntary consensus 3 standards process. This isn't the intention when 2 important member. 17:24:35 17:29:07 17:29:09 3 BY MR. BRIDGES: 17:24:39 17:29:11 4 people come together to work in a voluntary consensus 17:24:43 4 5 standard environment. They want the words to mean 17:24:47 5 MR. FEE: Objection. 6 You can answer it however you'd like. 17:29:14 7 MR. BRIDGES: He already has. 17:29:17 6 what they carefully craft them to mean in the process, 17:24:49 7 and when -- so I believe that's what I was referring 8 to in this. 8 17:24:55 9 BY MR. BRIDGES: 10 17:24:52 11 government was changing the standard. The government 12 was proposing to change the law; correct? 13 15 14 17:25:29 MR. FEE: Same objections. And vague. 21 THE WITNESS: Yeah. That the government was 17:25:41 25 with them. 17:29:26 THE WITNESS: I don't believe ASTM would have 17:29:28 17:29:35 Q. You don't think that ASTM has a view as to 21 standards by reference? 17:29:35 24 17:29:44 17:29:46 THE WITNESS: It's never been a performance 25 metric for me. So no. 17:25:57 17:29:39 17:29:43 MR. FEE: Objection. Vague and asked and 23 answered. 17:25:50 17:29:49 17:29:50 Page 234 1 BY MR. BRIDGES: 2 2 17:27:38 3 governments to incorporate its standards by reference? 4 MR. FEE: Objection. Vague. 5 Page 236 1 BY MR. BRIDGES: 17:27:38 Q. Mr. Grove, does ASTM encourage any THE WITNESS: As a matter of policy, we make 4 17:27:49 17:27:54 17:29:58 Q. Does ASTM have views about things that are 3 not performance metrics? 17:27:46 17:27:58 6 7 standards and point out and connect with agency 17:28:04 10 standards are incorporated or not. 11 BY MR. BRIDGES: 12 17:28:12 11 17:28:13 MR. FEE: Objection. Vague. 15 THE WITNESS: So I think it speaks to the 20 that it signifies that the government -- it couldn't 17:30:23 17:30:24 17 reference -- strike that. 21 17:30:36 23 17:28:57 17:30:46 17:30:48 17:30:50 MR. FEE: Objection. Beyond the scope of his 17:30:51 17:30:55 THE WITNESS: I believe over the years I 17:30:56 24 might have pointed out to my superiors that a standard 17:29:00 25 has become incorporated as something significant. 17:29:04 Page 235 17:30:39 17:30:44 Do your performance reviews ever mention the 22 designation. 17:30:27 17:30:36 Q. Is your -- do your performance reviews ever 20 reference? 17:28:52 17:28:54 25 fact that ASTM standards are relied upon by all of our THE WITNESS: Generally, my performance is 19 degree of incorporation of ASTM standards by 17:28:46 22 they're looking to a voluntary consensus standards 17:30:16 17:30:20 16 mention the degree of adoption of ASTM standards by 18 17:28:37 17:28:42 21 do what we've done with the same effectiveness. So So in some ways I might take pride in the 17:28:29 17:28:34 19 respected for their technical excellence. I believe 17:30:14 MR. FEE: Objection. Beyond the scope of his 12 based on the job I've done in removing worldwide 15 17:28:28 16 significance of ASTM and to the breadth of ASTM when 18 reference because it does signify that they are widely Q. What performance metrics do you have? 14 BY MR. BRIDGES: 17:28:22 17 you see ASTM standards become incorporated by 17:30:11 17:30:14 13 barriers to the acceptance and use of ASTM standards. 17:28:20 14 THE WITNESS: It could. 10 designation. 17:28:13 13 incorporate its standards by reference? 24 9 17:28:09 Q. Is ASTM generally pleased when governments 23 group in utilizing those standards. 8 17:28:07 17:30:05 17:30:06 7 BY MR. BRIDGES: 9 should be the ones that determine whether or not our 17:29:58 17:30:01 MR. FEE: Objection. Beyond the scope of his 5 designation. Vague. 6 organizations -- sorry -- governments aware of our 8 missions. But in the end, we respect that agencies 17:29:29 17:29:31 18 BY MR. BRIDGES: 22 17:25:46 24 to without coming back to the organization and working 17:29:26 Q. What about speaking for ASTM? 20 whether it is pleased when governments incorporate its 17:25:43 23 consensus standard group didn't necessarily intend it 17:29:23 MR. FEE: Objection. Asked and answered. 19 17:25:36 22 interpreting a standard in a way that the voluntary THE WITNESS: Speaking for Jeff Grove, yes. 17 an official position. 17:25:31 20 17:29:21 17:29:22 16 17:25:24 Q. That the government would be changing the law 17:29:20 MR. FEE: Same objection. Asked and 15 17:25:22 17:25:29 19 as the law interprets the standard? 17:29:18 13 BY MR. BRIDGES: 17:25:11 THE WITNESS: I guess I would be speculating, 17 BY MR. BRIDGES: Q. I'm now asking him is the answer to my 11 answered. 12 17:25:13 16 but that was my interpretation of what this means. 18 17:25:02 17:25:07 MR. FEE: Objection. The document speaks for 14 itself. Calls for speculation. 10 17:25:00 17:29:11 17:29:13 9 question "yes." 17:25:00 Q. Well, Mr. Miller was not saying that the Q. So is the answer to my question "yes"? 17:30:57 17:31:00 Page 237 60 (Pages 234 - 237) Veritext Legal Solutions 866 299-5127 1 A. Kathe Hooper is responsible for permissions 2 at ASTM. 18:16:38 18:16:47 2 3 Q. Who is Joe Koury? 18:16:49 4 A. Joe Koury is a staff manager that works with 5 technical committees. 18:16:51 (Deposition Exhibit 1070 was marked for 18:17:06 7 identification.) 8 MR. BRIDGES: I'm showing you Exhibit 1070. 9 Q. This is an E-mail from Ms. Hooper responding 18:17:06 (The witness reviewed Exhibit 1070.) THE WITNESS: Yes. 13 (Deposition Exhibit 1071 was marked for 14 identification.) 18:18:11 18:18:11 18:18:12 (The witness reviewed Exhibit 1071.) MR. FEE: Objection. Lack of foundation -- 20 strike that. No objection. 21 18:18:26 18:18:27 THE WITNESS: So it's an E-mail between ASTM 25 A. Correct. 18:20:48 Q. You may answer. 18:20:48 9 MR. FEE: Hold on. Lack of foundation. 18:20:49 11 Go ahead. THE WITNESS: Yeah. So I think we think -- 18:20:53 18:20:55 18:20:55 13 we want to make sure that Congress is aware of the 16 the most recent version. 18:20:59 18:21:02 18 18:21:12 Q. Ms. Petre asked you whether ASTM should 18:21:12 19 request that Congress use the language. Does ASTM 22 18:21:17 18:21:21 18:21:25 MR. FEE: Objection. Beyond the scope of his 23 designation. 18:18:48 18:21:32 18:21:36 24 You can answer. 25 18:18:51 18:21:05 18:21:08 18:18:42 21 regarding ASTM standards? 18:18:44 18:18:48 Q. And within the ASTM -- 8 18:20:40 20 ever request Congress to use particular language 22 and Congressional staff and then ASTM staff, correct. 24 18:20:39 6 scope of his designation. Calls for speculation. 17 BY MR. BRIDGES: 18:18:26 23 BY MR. BRIDGES: 18:20:38 15 oftentimes it may be unintended that they're not using 18:18:12 18:18:16 19 MR. FEE: Objection to form. Beyond the 14 fact there may be a more recent version because Q. Exhibit 1071 is an E-mail from Sarah Petre to 18 (Record read.) 12 18:17:58 17 you and others; is that correct? 4 10 18:17:59 15 BY MR. BRIDGES: 16 18:17:12 18:17:17 12 18:20:20 7 BY MR. BRIDGES: 18:17:06 18:20:11 18:20:19 5 6 11 MR. FEE: Can you read that back to me, 3 please. 18:16:53 10 to a permission request; is that correct? 1 legislation that causes an incorporation by reference? THE WITNESS: Okay. I can think of instances 18:21:36 18:21:38 Page 260 Page 258 1 Q. And it's discussing Congressional 2 legislation; is that correct? 3 1 like this where Congress -- what's happening here is 18:21:40 2 this is incorporation by reference by Congress and not MR. FEE: Objection. The document speaks for 4 itself. 5 18:18:51 18:18:54 18:18:56 18:18:57 3 by an agency, and the concern that's expressed at 4 times by our committee members is if Congress acts to THE WITNESS: Legislation passed the House 18:19:10 18:21:57 18:22:02 18:19:11 6 freezes that piece of -- that reference in statute for 7 Petre recognized that there's references to ASTM 18:19:16 7 years to come and agencies -- since it's something 8 standards which are out of date, and she wanted to 18:19:18 8 that Congress said, agencies will simply say, "Hey, 9 contact the staffer to make him aware of that fact. 11 18:19:22 18:19:26 Q. Was this a discussion about incorporation by 12 reference? 18:19:26 13 MR. FEE: Same objection. 14 18:19:29 18 18:19:41 22 THE WITNESS: It appears, yes. 23 BY MR. BRIDGES: 24 18:19:48 18:19:52 25 its standard Congress should include in its 18:22:29 18:22:32 15 version. 18:22:36 18:20:01 18:22:38 18 question. My question is does ASTM ever request 18:22:40 19 Congress to use particular language regarding ASTM 21 18:19:55 18:22:38 Q. Mr. Grove, again, you didn't answer my 20 standards? 18:19:54 Q. Does ASTM have a view as to which versions of 18:22:26 14 in making sure Congress is aware as a more current 17 18:19:41 19 incorporation by reference into a federal law of an MR. FEE: Same objection. 18:22:21 16 BY MR. BRIDGES: Q. Is that for Congress's use in making an 21 18:19:37 18:19:40 20 ASTM standard? 18:22:19 13 current version language. That's why we're interested 18:19:35 15 Congressional intent to use the most recent standard, 17 BY MR. BRIDGES: So that's a concern that I'm familiar with, 11 and I can't tell if that -- I don't recall the 18:22:12 18:22:16 12 circumstances of this here, but that's the most THE WITNESS: It's a discussion about 16 I believe. 18:22:06 9 talk to Congress, not to agencies about it." 10 18:19:28 18:21:52 5 designate a specific standard in legislation that 6 and now it's being referred to the Senate, and Sarah 10 BY MR. BRIDGES: 18:21:45 18:21:48 23 THE WITNESS: Yes. 18:20:01 24 BY MR. BRIDGES: 18:20:07 25 Page 259 18:22:46 MR. FEE: Same objections. Plus asked and 22 answered. 18:22:43 18:22:47 18:22:50 18:22:52 18:22:55 Q. To your knowledge, has ASTM ever asked 18:22:55 Page 261 66 (Pages 258 - 261) Veritext Legal Solutions 866 299-5127 1 Congress or a federal agency not to incorporate any of 2 its standards by reference? 3 18:23:00 4 designation. 18:23:07 18:23:15 18:23:21 18:25:46 MR. FEE: Objection. Mischaracterizes his 9 testimony. Vague. 18:23:31 11 the federal government may incorporate its standards 12 by reference? 18:25:42 8 18:23:31 Q. Has ASTM ever imposed conditions on whether 18:25:40 7 government in incorporating standards by reference? 18:23:26 9 BY MR. BRIDGES: 18:25:40 Q. Are you saying that there has to be a 6 consensus process in order to cooperate with a federal 18:23:24 8 reference, but I can't recall an instance. 5 18:25:54 10 You can answer. 18:25:58 THE WITNESS: No, that's not what I'm saying. 12 BY MR. BRIDGES: MR. FEE: Same objection. Vague as well. 14 THE WITNESS: I don't have direct knowledge. 18:23:44 13 18:23:52 15 It was before my time at ASTM, but I understand at one 16 point in time there was a concern that Congress was 18:26:00 18:26:14 Q. Do you know whether any federal official has 18:26:14 14 taken advantage of the reading room that ASTM provides 18:23:54 18:23:58 17 perhaps taking ASTM -- taking key content from an ASTM 18:25:52 11 18:23:37 18:23:42 13 18:25:35 18:25:38 4 BY MR. BRIDGES: 6 it's possible that there's been reasons why committees 10 3 ASTM. 18:23:09 THE WITNESS: To my knowledge, no. I believe 7 haven't wanted to see standards incorporated by 18:25:33 2 has happened in the last 10 years since I've been at MR. FEE: Objection. Beyond the scope of his 5 1 don't think it happens very often, but I believe it 18:23:04 15 the public? 16 18:24:03 MR. FEE: Objection. Vague. 17 THE WITNESS: I don't know specifically 18:26:23 18:26:30 18 standard and placing it in a piece of legislation and 18:24:09 18 whether they have. I do know I've received accolades 19 that ASTM would be concerned about that. 18:24:13 19 from federal agencies, the fact that it exists. So I 20 BY MR. BRIDGES: 21 18:24:16 20 would presume that they have. Q. Why would ASTM be concerned about that? 22 18:24:16 MR. FEE: Objection. Beyond the scope of his 23 designation. Calls for speculation. Lack of 24 foundation. 25 18:24:20 18:24:22 18:26:44 Q. How much money has ASTM received from the 23 federal government in each of the last five years? 18:24:24 MR. FEE: Objection. Vague. 25 18:24:26 18:26:44 18:26:49 24 THE WITNESS: It would be taking the standard 18:26:31 18:26:34 18:26:40 21 BY MR. BRIDGES: 22 18:26:17 18:26:22 18:26:58 THE WITNESS: Well, I believe we've received 18:27:00 Page 262 1 out of context from what the voluntary consensus 3 enterprises wanted to see represented in the standard. 4 BY MR. BRIDGES: 5 7 9 12 MR. FEE: Same objection. 13 THE WITNESS: I don't recall a particular 17 times it's occurred? 18 18:27:37 Q. What were the main categories of payments by 13 the federal government to ASTM over the last five 18:24:59 15 18:25:01 17 24 have to reach a consensus that they want to see an 25 ASTM standard included in a regulation. And so I 18:27:47 18:27:48 Q. In other words, what were the payments for 18:27:48 18 ASTM to do? 18:25:09 19 MR. FEE: Same objection, plus form. 20 18:27:50 THE WITNESS: I can think of -- that we would 18:27:52 21 sell standards to federal agencies. That would be one 18:25:13 22 our committees would have to follow. They would have 23 to -- the executive committee of a committee would MR. FEE: Objection. Vague. 18:25:08 18:25:11 THE WITNESS: It's -- there's a process that 18:27:37 18:27:41 18:27:46 16 BY MR. BRIDGES: 18:25:01 18:25:06 19 Beyond the scope of his designation. Calls for 21 12 18:27:31 18:27:32 11 BY MR. BRIDGES: 18:24:55 18:27:27 18:27:29 14 years? MR. FEE: Objection. Lack of foundation. 20 speculation. 18:27:25 THE WITNESS: To my knowledge, none of it 10 was. 18:24:59 Q. Do you have an estimate as to the number of 18:27:22 MR. FEE: Objection. Calls for speculation. 9 18:24:54 18:27:17 5 federal government in order to facilitate the 8 Vague. 18:24:57 15 BY MR. BRIDGES: 18:27:17 Q. Were some of that money provided by the 7 18:27:04 18:27:11 6 standards development process? 18:24:50 18:24:55 Q. Do you recall a particular -- any instance? 14 time. 18:24:43 18:24:52 10 BY MR. BRIDGES: 16 4 18:24:47 THE WITNESS: It's possible that we have. 2 last five years from the federal government. 3 BY MR. BRIDGES: 18:24:35 18:24:43 MR. FEE: Objection. Beyond the scope of his 8 designation. 11 18:24:31 Q. Has ASTM ever asked an agency to use specific 6 language in a regulation? 1 anywhere from $650,000 to $900,000 per year over the 18:24:27 2 process encompassed in ASTM standards development Page 264 18:25:17 22 source of revenue. 18:28:00 23 BY MR. BRIDGES: 18:25:19 18:28:01 24 18:25:28 Q. What other sources of revenue? 25 18:25:24 A. I believe that we have a number of federal Page 263 18:27:53 18:27:56 18:28:01 18:28:03 Page 265 67 (Pages 262 - 265) Veritext Legal Solutions 866 299-5127 1 THE VIDEOGRAPHER: This is the end of the 2 deposition of Mr. Jeffrey Grove. We are off the 3 record at 18:52. 4 (Witness excused.) 5 18:53:06 18:53:08 ACKNOWLEDGMENT OF DEPONENT 2 3 18:53:13 (Deposition concluded at 6:52 p.m.) 1 I, JEFFREY GROVE, do hereby certify that I 4 have read the foregoing pages, ________ to ________, 18:53:16 18:53:16 5 and that the same is a correct transcription of the 6 6 answers given by me to the questions therein 7 7 propounded, except for the corrections or changes in 8 8 form or substance, if any, noted in the attached 9 Errata Sheet. 9 10 10 11 11 _________________________________________________ 12 12 DATE 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 Page 282 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 SIGNATURE Page 284 CERTIFICATE I do hereby certify that the aforesaid testimony was taken before me, pursuant to notice, at the time and place indicated; that said deponent was by me duly sworn to tell the truth, the whole truth, and nothing but the truth; that the testimony of said deponent was correctly recorded in machine shorthand by me and thereafter transcribed under my supervision with computer-aided transcription; that the deposition is a true and correct record of the testimony given by the witness; and that I am neither of counsel nor kin to any party in said action, nor interested in the outcome thereof. <%signature%> 19 Nancy J. Martin, RMR, CSR 20 21 22 Dated: March 18, 2015 23 24 25 Page 283 72 (Pages 282 - 284) Veritext Legal Solutions 866 299-5127

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