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 7

Capital Reporting Company
30(b)(6) Public.Resource.Org 02-26-2015
1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS D/B/A ASTM INTERNATIONAL;
NATIONAL FIRE PROTECTION, INC.;
AND AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
Plaintiffs,/
Counter-Defendants,
vs.

Case No.:
1:13-cv-01215-EGS

PUBLIC.RESOURCE.ORG, INC.
Defendant/
Counter-Plaintiff
____________________________________/
VIDEOTAPED DEPOSITION OF THE 30 b) 6) OF
PUBLIC.RESOURCE.ORG

DATE:

Thursday, February 26, 2015

TIME:

10:07

LOCATION:

1 Market Street, Spear Tower, Suite
2000, San Francisco, California

Reported by:

Ashley Soevyn
Certified Shorthand Reporter
License Number 12019

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law has no copyright in the United States, and if a
standard is incorporated by reference into law, it
is the law.
THE REPORTER: Next one is 35.
(Exhibit 35 marked for identification.)
BY MR. FEE:
Q I'm going to hand you what has been marked
as Exhibit 35. Appears to be a chain of e-mails
between you and Joseph Mornin; Bates-labeled
PRO_167245 through -47.
A I recall this exchange.
Q So Exhibit 35 is an e-mail between -- or a
series of e-mails between and Mr. Mornin; is that
right?
A That's correct.
Q I want to turn your attention to the
second page of Exhibit 35. Towards the bottom you
see it says, "on 5/1/12 at 11:06 a.m. Carl Malamud
wrote." Do you see that?
A Yes, I do.
Q Okay. Second paragraph in -- in that
e-mail starts with the open task, we have -- are to
pick an appropriate state. Do you see that part?
A Yes, I do.
Q Okay. The second sentence in that

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hypothetical and implicitly calls for a legal
opinion, vague and ambiguous.
You can answer.
THE WITNESS: Some states are -- are
sloppy and nonspecific, and again, we look for a
very specific and deliberate incorporation by
reference of a specific standard into the law.
BY MR. FEE:
Q So when you're talking about five listed
standards there, are you referring to five versions
of one standard? Is that what you're saying?
MR. BRIDGES: Objection, misstates the
document, lacks foundation, vague and ambiguous.
THE WITNESS: I was giving Mr. Mornin an
example of something that was not a specific
reference, a -- a specific incorporation of a
specific year of a standard into law, and it was a
hypothetical example.
BY MR. FEE:
Q Who is Joseph Mornin?
A Mr. Mornin was a Harvard undergrad that
was then going to go to Berkeley law school and
wanted a job for the summer, and so we gave him a
little bit of money -- it was like $1,500 -- and he
became a fellow.

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paragraph says, "It has to be an explicit
incorporation of a specific standard. Then it
falls, under the Veeck decision, e.g., it can't be,
quote, you can meet this legal requirement by, for
example, using one of these five listed standards.
Any version will do. It has to be, quote, the
Secretary of State here -- does hereby incorporate
the 1962 version of this standard and it is required
by law."
Do you see that?
A Yes, I do.
Q Can you explain what you meant there?
MR. BRIDGES: Objection to the extent it
calls for a legal conclusion.
THE WITNESS: I meant exactly what I -- I
have been -- been telling you, that in order for us
to post a standard, it must be explicitly
incorporated by law and must be a specific version
of that standard.
BY MR. FEE:
Q And I want to get a -- your explanation
for the part of that quote that we just read where
it says, "using one of these five listed standards."
Any -- what are you referring to there?
MR. BRIDGES: Objection, calls for a

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MR. BRIDGES: I'll ask you to answer the
question.
THE WITNESS: Okay.
BY MR. FEE:
Q Besides Mr. Mornin, have there been any
other fellows of Public Resource since 2007?
A No.
Q Can you describe how Public Resource
decided which standards that were incorporated by
reference that it would post on its website?
A Looked for these specific incorporation of
a specific standard, the deliberate and -- and
explicit incorporation of a specific year of a
specific standard by a governmental authority into
law.
Q How did you decide which of those
standards that were specifically incorporated would
be first put on the Public Resource website?
A I looked for compelling examples.
Q How did you go about doing that?
A I read through the law and looked at what
was incorporated by reference.
Q Did you start with the CFR or some other
source of law?
A Well, we began in 2008 with -- with Title

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24 of the California Code of Regulations.
Q What made a particular standard a
compelling standard for purposes of posting it on
your website?
A I looked for standards that I thought were
compelling and were critical to the public safety.
Q How did you make an assessment as to
whether or not a standard was critical for public
safety?
A Well, that was simply my opinion. I read
the standard.
Q After you dealt with Title 24 of the
California Code, how did you next go about
identifying standards that were incorporated by
reference that you would post on the Public Resource
website?
MR. BRIDGES: Objection, vague and
ambiguous.
THE WITNESS: I did a survey of state
regulations looking for similar public safety
codes.

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BY MR. FEE:
Q Did you do all that work yourself?
A I did.

ambiguous, lacks foundation.
THE WITNESS: And I'm sorry. Could you
repeat the question?
BY MR. FEE:
Q When you were doing your review of the
state regulatory materials and statutes, did you
encounter any state statutes or regulatory -- or
regulations that incorporated by reference anything
other than a standard?
MR. BRIDGES: Objection, vague and
ambiguous.
THE WITNESS: "Standard" is a very broad
term, sir.
BY MR. FEE:
Q Okay. Well, maybe we should start with
that, then. The -- what is your understanding as to
what would be a standard that could be incorporated
by reference?
MR. BRIDGES: Objection, may call for a
legal opinion, vague and ambiguous, competence.
THE WITNESS: I -- I think it's up to the
government to decide what can be incorporated by
reference, not me.
BY MR. FEE:
Q Okay. What do you understand a standard

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Q When you're identifying standards to post
on Public Resource's website, do you search for a
particular standard development organization's
standards?
MR. BRIDGES: Objection, vague and
ambiguous.
THE WITNESS: I -- I look for particular
areas of public safety, like building codes.
BY MR. FEE:
Q Any other particular areas that you were
looking for?
A I -- I think there are a number of
critical areas of public safety in -- in U.S. law,
occupational safety, for example.
Q How did you go about reviewing various
states' statutes and regulations to identify
standards that have been incorporated by reference
by those states?
A I read the regulations.
Q While you were reading the regulations of
the various states, did you encounter any types of
works other than standards that were incorporated by
reference by any of the state statutes or
regulations that you were reviewing?
MR. BRIDGES: Objection, vague and

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to be?
MR. BRIDGES: Objection, vague and
ambiguous, competence, lacks foundation, calls for
speculation.
THE WITNESS: A standard is a document
that establishes norms in a particular area of
application.
BY MR. FEE:
Q Now, is it Public Resource's public
position that it can only publish standards
incorporated by reference when they are a specific
standard in a specific year?
MR. BRIDGES: Objection, calls for a legal
opinion, assumes facts not in evidence, lacks
foundation.
MR. FEE: I'll actually withdraw that
question.
MR. BRIDGES: Okay.
BY MR. FEE:
Q Is there -- is it Public Resource's public
position that it can only incorporate the precise
standard that has been incorporated by reference -strike that.
Is it Public Resource's public opinion
that it can only copy the precise standards that are

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deposition of Carl Malamud -MR. BRIDGES: I'm sorry, Carl. Is there
anything we should designate as confidential?
THE WITNESS: No.
MR. BRIDGES: Okay. Sorry. You may
proceed.
MR. BRIDGES: We reserve the right -- I
believe we have 30 days -- well, if you can -let's go off the record for a second to determine
whether we'll go back on the record to make a
confidentiality request.
THE VIDEOGRAPHER: Going off the record,
the time is 6:37 p.m.
(Recess taken.)
THE VIDEOGRAPHER: We're back on the
record. The time is 6:38 p.m.
MR. BRIDGES: Okay. We can now determine
that the deposition is concluded. We're not making
any confidentiality designations.
THE VIDEOGRAPHER: All right. This
concludes today's deposition of Carl Malamud.
Master discs of today's deposition will remain in
the custody of Capital Reporting. The time is 6:38
p.m.
MR. BRIDGES: I just want to say it's the

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CERTIFICATION OF DEPOSITION OFFICER
I, Ashley Soevyn, CSR, duly authorized to
administer oaths pursuant to Section 2093(b) of the
California Code of Civil Procedure, hereby certify
that the witness in the foregoing deposition was by
me sworn to testify to the truth, the whole truth
and nothing but the truth in the within-entitled
cause; that said deposition was taken at the time
and place therein stated; that the testimony of the
said witness was thereafter transcribed by means of
computer-aided transcription; that the foregoing is
a full complete and true record of said testimony;
and that the witness was given an opportunity to
read and correct said deposition and to subscribe
the same.
I further certify that I am not of counsel or
attorney for either or any of the parties in the
foregoing deposition and caption named or in any
way interested in the outcome of this cause named
in said caption.

_____________________________
ASHLEY SOEVYN
CSR No. 12019

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deposition of Public.Resource.Org, not of Carl
Malamud. He was the designated witness of the
deponent and the deponent was Public.Resource.Org.
THE VIDEOGRAPHER: The time is 6:38 p.m.
We are now off record.
(Whereupon, at 6:38 p.m., the deposition of THE
30(b)(6) OF PUBLIC.RESOURCE.ORG was concluded.)
*****

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FENWICK & WEST
CARL MALAMUD
c/o ANDREW BRIDGES
555 California Street
12th Floor, San Francisco, CA 94104
IN RE: ASTM V. PUBLIC.RESOURCE.ORG
Dear Mr. Malamud:
Please be advised that, pursuant to California
Code of Civil Procedure Section 2025.520 or Federal
Rule of Civil Procedure 30, the original transcript
of your deposition, taken Thursday, February 26,
2014, in the above-referenced matter, has been
completed and is not ready for your reading,
correcting, and signing.
Pursuant to the applicable rles, the transcript
will be available for 30 days. Any errata changes
must be signed by the deponent within the 30-day
time period.

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The official transcript for the noticing
counsel, with exhibits, will be mailed in
accordance with said rules, depending on the action
of the deponent.
Please do not hesitate to contact us if you
have any questions.
Best Regards,

Ashley Soevyn
CSR No. 12019

cc: Original Transcript
All Counsel

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ACKNOWLEDGEMENT OF DEPONENT

I, Carl Malamud, 30(b(6) witness, do hereby
acknowledge I have read and examined the foregoing
pages of testimony, and the same is a true, correct
and complete transcription of the testimony given
by me, and any changes or corrections, if any,
appear in the attached errata sheet signed by me.

_________________ ______________________________
Date
Carl Malamud

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Capital Reporting Company
1821 Jefferson Place, NW
Third Floor
Washington DC 20036
(415) 499-DEPO (3376)
ERRATA SHEET
Case Name: ASTM V. PUBLIC.RESOURCE.ORG
Witness Name: THE 30(B)(6) OF PUBLIC.RESOURCE.ORG
Deposition Date: THURSDAY, FEBRUARY 26
Page No. Line No. Change/Reason for Change

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________________________ ________________
25 Signature
Date

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