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)

EXHIBIT 2

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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
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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
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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
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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
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12:26:47
12:26:50
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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

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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

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32 (Pages 122 - 125)
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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
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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
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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
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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
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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

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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
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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

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SIGNATURE

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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
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22 Dated: March 18, 2015
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