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

Filing 164

REPLY in support of motion re #163 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.), #120 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by PUBLIC.RESOURCE.ORG, INC. (This document is SEALED and only available to authorized persons.) filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 [Redacted] Declaration of Matthew Becker, #2 [Redacted] Consolidated List of Exhibits, #3 [Redacted] Response to Supplemental Statement of Facts, #4 [Redacted] Response to Statement of Disputed Facts, #5 Supplemental Objections to Evidence, #6 Response to Evidentiary Objections, #7 Supplemental Request for Judicial Notice, #8 Supplemental Declaration of Carl Malamud, #9 Exhibit 1, #10 Exhibit 2, #11 Exhibit 3, #12 Exhibit 4, #13 Exhibit 5, #14 Exhibit 6, #15 Exhibit [Redacted] 7, #16 Exhibit 8, #17 Exhibit 9, #18 Exhibit [Redacted] 10, #19 Exhibit [Redacted] 11, #20 Exhibit 12, #21 Exhibit 13, #22 Exhibit 14, #23 Exhibit 15, #24 Exhibit 16, #25 Exhibit 17)(Bridges, Andrew) Modified text on 2/5/2016 (ztd).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;
NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,
Plaintiffs/Counter-defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

Case No. 1:13-cv-01215-TSC-DAR
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
OBJECTIONS TO PLAINTIFFS’
SUPPLEMENTAL EVIDENCE IN
SUPPORT OF PLAINTIFFS’
MOTION FOR SUMMARY
JUDGMENT AND PERMANENT
INJUNCTION AND IN OPPOSITION
TO DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (DKT. NO.
155)
Action Filed: August 6, 2013

TABLE OF CONTENTS
Page
I.

OBJECTION TO PLAINTIFFS’ UNAUTHORIZED RESPONSE TO
PUBLIC RESOURCE’S STATEMENT OF DISPUTED FACTS .....................................1

II.

OBJECTIONS TO PLAINTIFFS’ SUPPLEMENTSL DECLARATIONS
AND EXHIBITS..................................................................................................................1
A.

Standards For Admissible Evidence on a Motion for Summary
Judgment ..................................................................................................................1
1.
2.

Lack of Personal Knowledge/Foundation ....................................................2

3.

Improper Lay Testimony on Legal Conclusions or Expert
Subject Matter ..............................................................................................3

4.

Hearsay ........................................................................................................4

5.

Unauthenticated Documents ........................................................................5

6.
III.

Irrelevant Evidence ......................................................................................2

Secondary Evidence Rule ............................................................................5

OBJECTIONS TO SUPPLEMENTAL DECLARATIONS AND EXHIBITS
FILED IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY
JUDGMENT AND PERMANENT INJUNCTION AND IN OPPOSITION
TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT......................................5
A.
B.

Declaration of Christian Dubay In Support of Plaintiffs’ Motion For
Summary Judgment and Permanent Injunction .......................................................9

C.

Supplemental Declaration of Thomas B. O’Brien, Jr. In Support of
Plaintiffs’ Motion For Summary Judgment and Permanent Injunction .................12

D.
IV.

Declaration of Steve Comstock In Support of Plaintiffs’ Motion For
Summary Judgment-Permanent Injunction..............................................................5

Supplemental Declaration of Jordana S. Rubel In Support of Plaintiffs’
Motion For Summary Judgment and Permanent Injunction ..................................27

Supplemental Declaration of James Thomas In Support of Plaintiffs’ Motion
For Summary Judgment .....................................................................................................30

i

TABLE OF AUTHORITIES
Page(s)
CASES
Anheuser-Busch, Inc. v. Natural Beverage Distribs.,
69 F.3d 337 (9th Cir. 1995) .......................................................................................................4
Barthelemy v. Air Lines Pilots Ass’n,
897 F.2d 999 (9th Cir. 1990) .....................................................................................................2
Blair Foods, Inc. v. Ranchers Cotton Oil,
610 F.2d 665 (9th Cir. 1980) .....................................................................................................4
Block v. City of Los Angeles,
253 F.3d 410 (9th Cir. 2001) .....................................................................................................1
Boyd v. City of Oakland,
458 F. Supp. 2d 1015 (N.D. Cal. 2006) .....................................................................................2
Cambridge Elecs. Corp. v. MGA Elecs., Inc.,
227 F.R.D. 313 (C.D. Cal. 2004) ...............................................................................................4
Evangelista v. Inlandboatmen’s Union of Pac.,
777 F.2d 1390 (9th Cir. 1985) ...................................................................................................3
Express, LLC v. Fetish Grp., Inc.,
464 F. Supp. 2d 965 (C.D. Cal. 2006) .......................................................................................2
Gable v. Nat’l Broad. Co.,
727 F. Supp. 2d 815 (C.D. Cal. 2010), aff’d, 438 F. App’x 587 (9th Cir. 2011) ......................3
In re Cypress Semiconductor Sec. Litig.,
891 F. Supp. 1369 (N.D. Cal. 1995), aff’d, 113 F.3d 1240 (9th Cir. 1997) ..............................5
Int’l Church of Foursquare Gospel v. City of San Leandro,
902 F. Supp. 2d 1286 (N.D. Cal. 2012) .....................................................................................4
Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999) ...................................................................................................................4
Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871 (1990) ...................................................................................................................4
Mifflin v. Dutton,
190 U.S. 265 (1903) ......................................................................................................... passim

ii

TABLE OF AUTHORITIES
(Continued)
Page(s)
Orr v. Bank of America,
285 F.3d 764 (9th Cir. 2002) .............................................................................................1, 2, 4
Pierce v. Kaiser Found. Hosp.,
No. 3:09-cv-03837-WHA, 2010 WL 4590930 (N.D. Cal. Nov. 4, 2010), aff’d,
470 F. App’x 649 (9th Cir. 2012) ..............................................................................................3
Riggsbee v. Diversity Servs., Inc.,
637 F. Supp. 2d 39 (D.D.C. 2009) .............................................................................................4
Shapiro & Son Bedspread Corp. v. Royal Mills Assocs.,
764 F.2d 69 (2d Cir. N.Y. 1985) ...................................................................................... passim
Smith v. Hughes Aircraft Co.,
22 F.3d 1432 (9th Cir. 1993) .....................................................................................................2
Soremekun v. Thrifty Payless, Inc.,
509 F.3d 978 (9th Cir. 2007) .....................................................................................................4
U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc.,
296 F. Supp. 2d 1322 (S.D. Ala. 2003)......................................................................................3
U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc.,
608 F.3d 871 (D.C. Cir. 2010) ...................................................................................................2
U.S. v. Davis,
596 F.3d 852 (D.C. Cir. 2010) ...................................................................................................2
Uche-Uwakwe v. Shinseki,
972 F. Supp. 2d 1159 (C.D. Cal. 2013) .....................................................................................2
United States v. 87.98 Acres of Land More or Less in the County of Merced,
530 F.3d 899 (9th Cir. 2008) .....................................................................................................4
United States v. Dibble,
429 F.2d 598 (9th Cir. 1970) .....................................................................................................5
United States v. Hampton,
718 F.3d 978 (D.C. Cir. 2013) ...................................................................................................3
RULES
Fed. R. Civ. P. 56 .........................................................................................................................2, 5

iii

TABLE OF AUTHORITIES
(Continued)
Page(s)
Fed. R. Civ. P. 56(c) ....................................................................................................................1, 2
Fed. R. Civ. P. 56(e) ........................................................................................................................4
Fed. R. Evid. 101 .............................................................................................................................1
Fed. R. Evid. 402 ................................................................................................................... passim
Fed. R. Evid. 403 ................................................................................................................... passim
Fed. R. Evid. 602 ................................................................................................................... passim
Fed. R. Evid. 701 ...................................................................................................................3, 7, 31
Fed. R. Evid. 702 ...................................................................................................................3, 7, 31
Fed. R. Evid. 802 ................................................................................................................... passim
Fed. R. Evid. 901 .............................................................................................................................5
Fed. R. Evid. 1001 ...........................................................................................................................5
Fed. R. Evid. 1002 ................................................................................................................. passim
Fed. R. Evid. 1101 ...........................................................................................................................1

iv

Defendant-Counterclaimant Public.Resource.Org, Inc. hereby submits the following
objections to (1) the Plaintiffs’ unauthorized response to Public Resource’s Statement of
Disputed Facts and (2) Plaintiffs’ supplemental declarations and exhibits in support of Plaintiffs’
Motion for Summary Judgment and for Permanent Injunction and Opposition to Defendant’s
Motion for Summary Judgment, ECF No. 155.
I.

OBJECTION TO PLAINTIFFS’ UNAUTHORIZED RESPONSE TO PUBLIC
RESOURCE’S STATEMENT OF DISPUTED FACTS
As a threshold matter, Public Resource hereby objects to and moves to strike Plaintiffs’

Response to Public Resource’s Statement of Disputed Facts (ECF No. 155-3) as outside the
scope of documents permitted under LCvR 7(h), which allows only a Statement of Undisputed
Facts and a Statement of Disputed Facts.
II.

OBJECTIONS TO PLAINTIFFS’ SUPPLEMENTSL DECLARATIONS AND
EXHIBITS
A.

Standards For Admissible Evidence on a Motion for Summary Judgment

It is fundamental that trial courts “can only consider admissible evidence in ruling on a
motion for summary judgment.” Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002)
(emphasis added); see also Fed. R. Civ. P. 56(c); Fed. R. Evid. 101 (Rules of Evidence apply to
all proceedings in the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to
Rule 101). Hearsay, documents that cannot be authenticated, out-of-context excerpts, and
evidence with no foundation will not suffice, and are not to be considered by the court in ruling
on motions for summary judgment or adjudication. See Block v. City of Los Angeles, 253 F.3d
410, 418-19 (9th Cir. 2001) (deciding that consideration of a declaration’s facts not based on
personal knowledge was an abuse of discretion because such facts were inadmissible). Much of
the evidence on which Plaintiffs attempt to rely fails to meet the minimum threshold
requirements of admissibility, as set forth below:

1

1.

Irrelevant Evidence

Irrelevant evidence cannot be considered in summary judgment proceedings. See Fed. R.
Evid. 402; see also U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc., 608 F.3d 871, 897
(D.C. Cir. 2010) (“To be admitted, evidence must be relevant.”); Smith v. Hughes Aircraft Co.,
22 F.3d 1432, 1439 (9th Cir. 1993) (affirming trial court’s refusal to consider irrelevant evidence
on summary judgment); Uche-Uwakwe v. Shinseki, 972 F. Supp. 2d 1159, 1165 (C.D. Cal. 2013)
(sustaining objection that statement filed in support of motion for summary judgment was
inadmissible for lack of relevance and foundation).
2.

Lack of Personal Knowledge/Foundation

A fact witness may not testify to a matter unless the witness has personal knowledge of
the matter. Fed. R. Evid. 602; Fed. R. Civ. P. 56(c) (“declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated”); U.S. v.
Davis, 596 F.3d 852, 856 (D.C. Cir. 2010) (“The Rules also prohibit a witness from testifying
unless he has personal knowledge of the subject of his testimony.”); Orr, 285 F.3d at 774 & n.9;
Express, LLC v. Fetish Grp., Inc., 464 F. Supp. 2d 965, 973 (C.D. Cal. 2006) (“Declarations
submitted in conjunction with summary judgment proceedings must . . . be based on personal
knowledge”). Further, “[a] declarant’s mere assertions that he or she possesses personal
knowledge and competency to testify are not sufficient.” Boyd v. City of Oakland, 458 F. Supp.
2d 1015, 1023 (N.D. Cal. 2006). A declarant must show personal knowledge and competency
“affirmatively,” under Rule 56, for example, by “the nature of the declarant’s position and nature
of participation in matter.” Id.; see also Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018
(9th Cir. 1990) (inferring personal knowledge from affiants’ “positions and the nature of their
participation in the matters to which they swore . . .”). The fact that Public Resource does not
2

object to the witnesses’ testimony that they have personal knowledge of the facts stated in their
declarations and are competent to testify thereto does not in any way signal Public Resource’s
agreement with those assertions; Public Resource merely does not contend those statements
about personal knowledge are inadmissible, but they may be wrong.
3.

Improper Lay Testimony on Legal Conclusions or Expert Subject
Matter

Legal conclusions and characterizations are not admissible evidence. See Pierce v. Kaiser
Found. Hosp., No. 3:09-cv-03837-WHA, 2010 WL 4590930, at *8 (N.D. Cal. Nov. 4, 2010),
aff’d, 470 F. App’x 649 (9th Cir. 2012) (excluding numerous declarant statements containing
inadmissible legal conclusions). The Declarants, without any legal expertise, repeatedly purport
to state legal conclusions or characterizations and the legal effects of documents supposedly
relevant to this dispute. See Fed. R. Evid. 701; see also Evangelista v. Inlandboatmen’s Union of
Pac., 777 F.2d 1390, 1398 n.3 (9th Cir. 1985) (lay opinion construing contract provisions is
inadmissible); Pierce, 2010 WL 4590930, at *8 (declaration that opponent “breached” agreement
or “violated” laws is inadmissible legal conclusion).
Testimony requiring scientific, technical, or other specialized knowledge may be given
only by an expert witness with the requisite knowledge, skill, experience, training, or education,
and opinion testimony is not permitted of a lay person. Fed. R. Evid. 701, 702; see also United
States v. Hampton, 718 F.3d 978, 981–82 (D.C. Cir. 2013) (finding error when district court
allowed FBI agent to testify as a lay witness in the form of an opinion without an applicable
exception in Rule 701); U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F.
Supp. 2d 1322, 1331 (S.D. Ala. 2003) (unqualified expert opinions inadmissible at summary
judgment). The “proponent of the expert bears the burden of demonstrating that the expert is
qualified.” Gable v. Nat’l Broad. Co., 727 F. Supp. 2d 815, 833 (C.D. Cal. 2010), aff’d, 438 F.

3

App’x 587 (9th Cir. 2011) (citing United States v. 87.98 Acres of Land More or Less in the
County of Merced, 530 F.3d 899, 904-05 (9th Cir. 2008)). See also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147-48 (1999) (expert must have specialized knowledge).
One type of improper lay opinion is unsupported, speculative, and conclusory statements.
These statements, as well as characterizations and arguments by opposing parties and their
attorneys, are not evidence and do not raise a genuine issue of material fact sufficient to preclude
summary judgment. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990) (The purpose of
Rule 56(e) is “not to replace conclusory allegations of the complaint with conclusory allegations
of an affidavit.”). Rather, “[w]here the moving party will have the burden of proof at trial, it
must affirmatively demonstrate that no reasonable trier of fact could find other than for the
moving party.” Int’l Church of Foursquare Gospel v. City of San Leandro, 902 F. Supp. 2d 1286,
1290-91 (N.D. Cal. 2012) (citing Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
2007)) (emphasis added). Cf. Orr, 285 F.3d at 783 (“To defeat summary judgment, [one
opposing summary judgment] must respond with more than mere hearsay and legal
conclusions”); Cambridge Elecs. Corp. v. MGA Elecs., Inc., 227 F.R.D. 313, 320 (C.D. Cal.
2004) (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise
genuine issues of fact and defeat summary judgment”).
4.

Hearsay

Generally, “inadmissible hearsay evidence may not be considered on a motion for
summary judgment.” Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 n.4
(9th Cir. 1995); see also Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir.
1980) (“hearsay evidence is inadmissible and may not be considered by this court on review of a
summary judgment”); Riggsbee v. Diversity Servs., Inc., 637 F. Supp. 2d 39, 46 (D.D.C. 2009)
(“on summary judgment, statements that are impermissible hearsay or that are not based on
4

personal knowledge are precluded from consideration by the Court.”); In re Cypress
Semiconductor Sec. Litig., 891 F. Supp. 1369, 1374 (N.D. Cal. 1995) (hearsay evidence cannot
be considered in summary judgment proceedings), aff’d, 113 F.3d 1240 (9th Cir. 1997).
5.

Unauthenticated Documents

Authentication or identification is a prerequisite to admissibility of a document. Fed. R.
Evid. 901. Under Rule 56, evidence in support of a motion for summary judgment is
objectionable if it cannot be presented in a form that would be admissible. A document cannot be
authenticated by one who does not have personal knowledge of its authenticity. The foundation
is laid for receiving a document in evidence by the testimony of a witness with personal
knowledge of the facts who attests to the identity and due execution of the document and, where
appropriate, its delivery. United States v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970). If the
Plaintiffs are unable to show that they could authenticate a document at trial, then the document
should not be considered in support of Plaintiffs’ motion for summary judgment.
6.

Secondary Evidence Rule

The “secondary evidence rule” requires that contents of documents must be proved by
producing the document itself. Fed. R. Evid. 1001, 1002.
III.

OBJECTIONS TO SUPPLEMENTAL DECLARATIONS AND EXHIBITS FILED
IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
PERMANENT INJUNCTION AND IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
A.

Declaration of Steve Comstock In Support of Plaintiffs’ Motion For
Summary Judgment-Permanent Injunction

Declaration of Steve Comstock In Support of
Plaintiffs’ Motion for Summary Judgment
1. I am currently employed by the American
Society of Heating, Refrigerating, and Air
Conditioning Engineers (“ASHRAE”) as its
Director of Publications and Education. I have

Defendant-Counterclaimant
Public Resource’s Objections
No Objection.

5

Declaration of Steve Comstock In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

been employed by ASHRAE since 1974. Based
on the information known to me as a result of
the duties and responsibilities of my position, I
have personal knowledge of the facts set forth
herein and could and would testify competently
thereto if called as a witness.
2. As part of my job responsibilities, questions
regarding access to ASHRAE standards are
ultimately directed to me, including questions
regarding access to ASHRAE standards by
individuals with disabilities.

No Objection.

3. ASHRAE is a non-profit organization that
operates with the mission of advancing the arts
and sciences of heating, ventilating, air
conditioning and refrigerating to serve humanity
and promote a sustainable world. With that in
mind, I have made every effort to make
accommodations for anyone with a disability
who wishes to access ASHRAE standards.
These situations have not arisen often.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. The witness’s
statement that he has attempted to
accommodate individuals with disabilities has
no relevance to the question of whether
individuals who are blind or visually disabled
are able to access the standards at issue on
Plaintiffs’ read-only websites.
FRE 602 Lack of Personal Knowledge. To the
extent that the witness purports that people
with disabilities have not often sought to
access ASHRAE standards, or that people with
disabilities have not often sought
accommodations to access ASHRAE
standards, the proffered testimony is not based
on the witness’s personal knowledge of the
matter and the proffering party has not
introduced sufficient evidence to show the
witness has personal knowledge of this matter.
The witness can only testify as to his own
knowledge about the frequency by which a
request for accommodation by a person with
disabilities has been elevated to his attention.

6

Declaration of Steve Comstock In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

4. In my 31 years serving as the Director of
Publications for ASHRAE, I recall only two
specific examples where individuals requested
that ASHRAE make alternate forms of access
to ASHRAE publications available due to a
disability, and in both instances ASHRAE made
the appropriate accommodation. In 2013,
ASHRAE sent a digital copy of an ASHRAE
published textbook on HVAC systems to a
visually impaired student from the Northern
Alberta Institute of Technology so that the
student could employ screen reader software to
access the material audibly. Similarly, a hearing
impaired individual alerted ASHRAE that he
wished to attend a training class related to
HVAC design, and ASHRAE provided signlanguage interpretation.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. Two alleged
instances in which ASHRAE has made
accommodations to people with disabilities
have no relevance to the question of whether
individuals who are blind or visually disabled
are able to access the standards at issue on
Plaintiffs’ read-only websites.

5. ASHRAE has also undertaken additional
efforts to ensure that disabilities do not
unnecessarily limit access to our standards or
other services that ASHRAE provides. Last
year, ASHRAE removed encryption from the
digital copies of standards sold on the
ASHRAE bookstore so that the standards would
be more compatible with reading software used
by visually impaired individuals. ASHRAE’s
partner in running the ASHRAE bookstore, a
company called Techstreet, has made
assurances to ASHRAE that it would also help
accommodate individuals with disabilities. And,
ASHRAE has formally adopted a policy
allowing for alternate testing accommodations
related to certification programs run by
ASHRAE; a request form for test takers which
to receive such accommodations can be found
on the ASHRAE website at
https://www.ashrae.org/education-certification/certification/faqs#3.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. Alleged
instances in which ASHRAE has removed
encryption from ASHRAE standards,
discussed the issue of individuals with
disabilities with Techstreet, or adopted an
alternate testing accommodation policy have
no relevance to the question of whether
individuals who are blind or visually disabled
are able to access the standards at issue on
Plaintiffs’ read-only websites.

FRE 802 Hearsay. The proffered testimony
concerning the alleged request of the second
unnamed individual is an out-of-court
statement that is offered to prove the truth of
the matter asserted.

FRE 802 Hearsay. The proffered testimony
concerning alleged assurances by Techstreet is
an out-of-court statement that is offered to
prove the truth of the matter asserted.

6. ASHRAE has consistently provided
FRE 402 Relevance. The proffered testimony
accommodation to individuals with disabilities
does not have any tendency to make a fact of
in the past and intends to continue to do so in the consequence more or less probable than it

7

Declaration of Steve Comstock In Support of
Plaintiffs’ Motion for Summary Judgment
future.

Defendant-Counterclaimant
Public Resource’s Objections
would be without the evidence. The witness’s
opinion concerning ASHRAE’s provision of
accommodations to individuals with
disabilities has no relevance to the question of
whether individuals who are blind or visually
disabled are able to access the standards at
issue on Plaintiffs’ read-only websites.
FRE 602 Lack of Personal Knowledge. The
witness does not know that ASHRAE has
consistently provided accommodations to
individuals with disabilities, and can only
speak to his personal experiences. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory; or is based on scientific, technical,
or other specialized knowledge within the
scope of Rule 702.
No Objection.

7. I am attaching to this declaration as Exhibit 1
a true and correct copy of ASHRAE Standard
90.1-2004, which I understand to be one of the
ASHRAE standards at issue in this case. In my
role as Director of Publications, I am familiar
with ASHRAE’s standards, including 90.1. I
have reviewed this document and it is an
accurate copy of Standard 90.1-2004.

8

B.

Declaration of Christian Dubay In Support of Plaintiffs’ Motion For
Summary Judgment and Permanent Injunction

Christian Dubay In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

1. I am Vice President, Codes and Standards,
and Chief Engineer for the National Fire
Protection Association (“NFPA”). My duties
include managing and administering the NFPA
Codes and Standards process. I have held this
position since 2007. The following facts are
based upon my own personal knowledge, and if
called upon to do so, I could and would testify
competently hereto.

No Objection.

2. A central component of NFPA’s mission is to
eliminate the risk of death, injury, property and
economic loss due to fire, electrical and related
hazards, for all people. As part of that mission,
NFPA has long been involved with developing
strategies and fire safety educational materials
for people with disabilities.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. The witness’s
claim that “NFPA has long been involved with
developing strategies and fire safety
educational material for people with
disabilities” has no relevance to the question of
whether individuals who are blind or visually
disabled are able to access the standards at
issue on Plaintiffs’ read-only websites.

3. Since at least 2007, NFPA has had a
Disability Access Review and Advisory
Committee. This committee is appointed by
NFPA’s president and advises NFPA’s
president and its Technical Committees.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. The existence
of an NFPA disability access review and
advisory committee has no relevance to the
question of whether individuals who are blind
or visually disabled are able to access the
standards at issue on Plaintiffs’ read-only
websites.

9

Christian Dubay In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

4. The Disability Access Review and Advisory
Committee works to identify existing needs and
emerging issues within the disability
community, and to ensure that the NFPA Codes
and Standards process includes current subject
matter that addresses disability issues, access
provisions, and other matters that impact the
disability community.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. The existence
and operation of the NFPA disability access
review and advisory committee has no
relevance to the question of whether
individuals who are blind or visually disabled
are able to access the standards at issue on
Plaintiffs’ read-only websites. This is
particularly the case where it appears that this
committee acts to address how the content of
NFPA standards pertains to people with
disabilities, as opposed to the issue of the of
persons with disabilities to access the
standards themselves.

5. NFPA has taken a leading role in promoting
building safety for the disabled by, among other
things, developing an Emergency Evacuation
Planning Guide for People with Disabilities,
which is available for free download on
NFPA’s website. This Guide provides
information on the five general categories of
disabilities (mobility, visual, hearing, speech,
and cognitive) and the four elements of
evacuation information that occupants need:
notification, way finding, use of the way, and
assistance.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. NFPA’s
alleged involvement in the development of an
emergency evacuation planning guide for
people with disabilities has no relevance to the
question of whether individuals who are blind
or visually disabled are able to access the
standards at issue on Plaintiffs’ read-only
websites.

10

FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document, the Emergency Evacuation
Planning Guide for People with Disabilities,
which has not been introduced into evidence.

Christian Dubay In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

6. NFPA is also committed to providing access
to its standards to all persons who have an
interest in reading them. As part of that
commitment, NFPA makes accommodations for
disabled persons who request assistance in
accessing any of NFPA’s standards. NFPA is
not aware of any persons who have requested
assistance in accessing NFPA materials and
have been unable to do so.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. The witness’s
opinion concerning NFPA’s alleged-butunexecuted commitment to providing
accommodations to individuals with
disabilities has no relevance to the question of
whether individuals who are blind or visually
disabled are able to access the standards at
issue on Plaintiffs’ read-only websites.
FRE 602 Lack of Personal Knowledge. The
witness does not know and cannot reasonably
allege that “NFPA makes accommodations for
disabled persons who request assistance in
accessing any of NFPA’s standards” when in
the next paragraph he says that he knows of
only one such incident. Nor can the witness
know that no persons have requested
assistance in accessing NFPA materials and
been unable to do so. The proffered testimony
is not based on the witness’s personal
knowledge of the matter and the proffering
party has not introduced sufficient evidence to
show the witness has personal knowledge of
this matter.

11

Christian Dubay In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

7. I am aware of one instance in which NFPA
received a request for accommodation in
accessing an NFPA standard from a person who
had low vision. NFPA responded by providing
that individual with a PDF copy of the
requested standard, free of charge, and the
individual was able to use that PDF copy to
read the standard.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. The witness’s
claim regarding the provision of a PDF version
of a standard to a person with low vision has
no relevance to the question of whether
individuals who are blind or visually disabled
are able to access the standards at issue on
Plaintiffs’ read-only websites.
FRE 602 Lack of Personal Knowledge. The
witness has no apparent personal knowledge
about the ability of the disabled individual in
question to use the PDF document provided in
order to read the standard. The proffered
testimony is not based on the witness’s
personal knowledge of the matter and the
proffering party has not introduced sufficient
evidence to show the witness has personal
knowledge of this matter.

8. Attached hereto as Exhibit A is a true and
correct copy of the 2011 edition of NFPA 70,
the National Electrical Code.
C.

No Objection.

Supplemental Declaration of Thomas B. O’Brien, Jr. In Support of
Plaintiffs’ Motion For Summary Judgment and Permanent Injunction

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

1. I am over the age of 18 years and am fully
competent to testify to the matters stated in this
Declaration.

No Objection.

2. This declaration is based on my personal
No Objection.
knowledge. If called to do so, I would and could
testify to the matters stated herein.
3. I am Vice President and General Counsel at

No Objection.

12

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

ASTM International ("ASTM"). I have worked
at ASTM since 2003.
4. Prior to joining ASTM in 2003, I worked as
outside counsel for ASTM between 1997 and
2003.

No Objection.

5. Attached as Exhibit 1 hereto is a true and
correct copy of ASTM’s online new
membership form, which has been in place
since 2005.

FRE 402 Relevance. ASTM’s online new
membership form is not relevant because
ASTM has evidence only of people who have
signed up through the new member form from
2007 and later, and only one ASTM standard
at issue was published in 2007, while all the
rest were developed and published in prior
years dating back to the 1950s, and so new
members starting in 2007 or later would not
have any copyright to the standards at issue.
The proffered exhibit therefore does not have
any tendency to make a fact of consequence
more or less probable than it would be without
the evidence.

6. As shown in Exhibit 1, since 2005, new
members to ASTM who completed their
membership application online had to
affirmatively click on a check box next to the
following statement: "I agree, by my
participation in ASTM and enjoyments of the
benefits of my annual membership, to have
transferred and assigned any and all interest I
possess or may possess, including copyright, in
the development or creation of ASTM
standards or ASTM IP to ASTM.”

FRE 402 Relevance. ASTM’s online new
membership form is not relevant because
ASTM only has evidence of people who have
signed up through the new member form from
2007 and later, and only one ASTM standard
at issue was published in 2007, while all the
rest were developed and published in prior
years dating back to the 1950s, and so new
members starting in 2007 or later would not
have any copyright to the standards at issue.
The proffered testimony therefore does not
have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.
FRE 403 Prejudice. The checkbox that appears
on the ASTM new member online form does
not appear for the ASTM renewal online form.
Because the new member form is irrelevant for
the reason noted above, the witness’s

13

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
description of this checkbox risks confusing or
misleading the factfinder into thinking that
there is such a checkbox on the renewal forms,
or that the checkbox is in any way probative of
ASTM’s claim to own copyright as to any of
the standards at issue (as opposed to owning
copyright as to other material developed in
2007 or later). The probative value of the
proffered testimony is therefore substantially
outweighed by a danger of unfair prejudice,
confusing the issues, misleading the factfinder,
and needlessly presenting cumulative
evidence.

7. Attached as Exhibit 2 hereto is a true and
correct copy of ASTM’s online membership
renewal form, which has been in place since
2005.

No Objection.

8. Attached as Exhibit 3 hereto is a true and
correct copy of instructions for registering a
work item through ASTM’s online system,
which provides screen shots of each of the
different screens a member will see when
registering a work item.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matters asserted in the exhibit.

9. ASTM has had a version of its “Form and
Style for ASTM Standards” (“ASTM Form and
Style Guide”) since at least as early as 1957.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. The use of
ASTM’s Form and Style Guide by volunteers
who developed the standards at issue does not
make the standards ASTM’s property, just as
the use of the Bluebook for writing a brief or
law review article does not make that brief or
law review article the property of Harvard Law
School. Moreover, ASTM’s 1961 Form and
Style Guide submitted as Exhibit 4 to the
O’Brien Supplemental Declaration does not
appear to bear a copyright notice, and therefore
entered the public domain upon publication.

14

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
Pub. L. No. 60-349, 35 Stat. 1075 (1909), Sec.
9 (requiring copyright notices on each copy);
see Shapiro & Son Bedspread Corp. v. Royal
Mills Assocs., 764 F.2d 69 (2d Cir. N.Y. 1985)
(finding that an absence of copyright notice
resulted in loss of copyright); Mifflin v.
Dutton, 190 U.S. 265 (1903) (same). Use of
content from a public domain document cannot
bestow ASTM with any copyright, and is
therefore irrelevant.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter. The witness
states in paragraphs 3 and 4 of his declaration
that he was outside counsel for ASTM starting
in 1997, and first became employed within
ASTM in 2003, and has not established any
knowledge of ASTM’s practices as early as
1957.
FRE 402 Relevance. The proffered testimony
and exhibit does not have any tendency to
make a fact of consequence more or less
probable than it would be without the
evidence. The use of ASTM’s Form and Style
Guide by volunteers who developed the
standards at issue does not make the standards
ASTM’s property, just as the use of the
Bluebook for writing a brief or law review
article does not make that brief or law review
article the property of Harvard Law School.
Moreover, ASTM’s 1961 Form and Style
Guide submitted as Exhibit 4 to the O’Brien
Supplemental Declaration does not appear to
bear a copyright notice, and therefore entered
the public domain upon publication. Pub. L.
No. 60-349, 35 Stat. 1075 (1909), Sec. 9
(requiring copyright notices on each copy); see

10. Attached as Exhibit 4 hereto is a true and
correct copy of the version of the ASTM Form
and Style Guide titled “Recommendations on
Form of ASTM Standards,” which was
published in 1961 and references issuance in
1957.

15

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
Shapiro & Son Bedspread Corp. v. Royal Mills
Assocs., 764 F.2d 69 (2d Cir. N.Y. 1985)
(finding that an absence of copyright notice
resulted in loss of copyright); Mifflin v.
Dutton, 190 U.S. 265 (1903) (same). Use of
content from a public domain document cannot
bestow ASTM with any copyright, and is
therefore irrelevant.

11. Each version of the ASTM Form and Style
Guide described certain components and
provided the text for certain language that was
required to be included in every ASTM standard
during the relevant time period.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. The use of
ASTM’s Form and Style Guide by volunteers
who developed the standards at issue does not
make the standards ASTM’s property, just as
the use of the Bluebook for writing a brief or
law review article does not make that brief or
law review article the property of Harvard Law
School. Moreover, ASTM’s 1961 Form and
Style Guide submitted as Exhibit 4 to the
O’Brien Supplemental Declaration does not
appear to bear a copyright notice, and therefore
entered the public domain upon publication.
Pub. L. No. 60-349, 35 Stat. 1075 (1909), Sec.
9 (requiring copyright notices on each copy);
see Shapiro & Son Bedspread Corp. v. Royal
Mills Assocs., 764 F.2d 69 (2d Cir. N.Y. 1985)
(Finding that an absence of copyright notice
resulted in loss of copyright); Mifflin v.
Dutton, 190 U.S. 265 (1903) (same). Use of
content from a public domain document cannot
bestow ASTM with any copyright, and is
therefore irrelevant.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter. The witness
states in paragraphs 3 and 4 of his declaration

16

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
that he was outside counsel for ASTM starting
in 1997, and first became employed within
ASTM in 2003, and has not established any
knowledge of ASTM’s practices as early as
1957 or the content of each and every ASTM
Form and Style Guide.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of
multiple documents that have not been
introduced into evidence.

12. As part of the process of developing a draft
standard, ASTM staff members added language
and components that were required by the
relevant ASTM Form and Style Guide to the
draft prepared by the task group.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. The use of
ASTM’s Form and Style Guide by volunteers
who developed the standards at issue does not
make the standards ASTM’s property, just as
the use of the Bluebook for writing a brief or
law review article does not make that brief or
law review article the property of Harvard Law
School. Moreover, ASTM’s 1961 Form and
Style Guide submitted as Exhibit 4 to the
O’Brien Supplemental Declaration does not
appear to bear a copyright notice, and therefore
entered the public domain upon publication.
Pub. L. No. 60-349, 35 Stat. 1075 (1909), Sec.
9 (requiring copyright notices on each copy);
see Shapiro & Son Bedspread Corp. v. Royal
Mills Assocs., 764 F.2d 69 (2d Cir. N.Y. 1985)
(finding that an absence of copyright notice
resulted in loss of copyright); Mifflin v.
Dutton, 190 U.S. 265 (1903) (same). Use of
content from a public domain document cannot
bestow ASTM with any copyright, and is
therefore irrelevant.
FRE 403 Prejudice. The witness does not
identify the relevant dates for this claim, which
particular standards this applies to, or which
particular language or components were

17

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
allegedly added to standards. The probative
value of the proffered testimony is
substantially outweighed by a danger of
confusing the issues and misleading the
factfinder.
FRE 602 Lack of Personal Knowledge. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter. The witness
was not involved with ASTM prior to 1997
and was not employed within ASTM until
2003, and has established no basis for knowing
what content was added to the 229 ASTM
standards at issue and by whom, particularly
for the 225 ASTM standards developed prior
to the witness’s tenure at ASTM.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of
documents that have not been introduced into
evidence.

13. I have given training to ASTM employees
and committee officers on use of the ASTM
Form and Style Guide in connection with
standards, in conjunction with Regulations
Governing ASTM Technical Committees.

18

FRE 402 Relevance. The witness does not
identify when he performed this alleged
training, whether it occurred prior to 2007, or
what its relevance is. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence. Moreover,
ASTM’s 1961 Form and Style Guide
submitted as Exhibit 4 to the O’Brien
Supplemental Declaration does not appear to
bear a copyright notice, and therefore entered
the public domain upon publication. Pub. L.
No. 60-349, 35 Stat. 1075 (1909), Sec. 9
(requiring copyright notices on each copy); see
Shapiro & Son Bedspread Corp. v. Royal Mills
Assocs., 764 F.2d 69 (2d Cir. N.Y. 1985)
(finding that an absence of copyright notice

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
resulted in loss of copyright); Mifflin v.
Dutton, 190 U.S. 265 (1903) (same). Use of
content from a public domain document cannot
bestow ASTM with any copyright, and is
therefore irrelevant.

14. I have attended ASTM committee
meetings in which the requirement to use
certain language and information from the
ASTM Form and Style Guide was discussed.

FRE 402 Relevance. The witness does not
identify when these alleged statements at
committee meetings were discussed, whether it
occurred prior to 2007, whether this alleged
requirement was in existence in 2007 or prior,
or what its relevance is. To the extent that this
statement is made to establish that ASTM had
a requirement to use language from the Form
and Style Guide in 2007 or earlier, then it is
hearsay; to the extent that it is not made for
that purpose, the proffered testimony is
irrelevant and does not have any tendency to
make a fact of consequence more or less
probable than it would be without the
evidence.
FRE 403 Prejudice. The witness does not
identify if this alleged requirement to use
certain language and information from the
ASTM Form and Style Guide was in effect in
2007 or prior, nor whether this alleged
requirement was acted upon or enforced, and
by who. The probative value of the proffered
testimony is substantially outweighed by a
danger of unfair prejudice, confusing the
issues, and misleading the factfinder.
FRE 602 Lack of Personal Knowledge. To the
extent that this statement is made to establish
that ASTM had a requirement to use language
from the Form and Style Guide in 2007 or
prior, then the proffered testimony is not based
on the witness’s personal knowledge of the
matter and the proffering party has not
introduced sufficient evidence to show the
witness has personal knowledge of this matter.

19

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
FRE 802 Hearsay. To the extent that this
statement is made to establish the alleged fact
that ASTM had a requirement to use language
from the Form and Style Guide in 2007 or
prior, then the proffered testimony is an out-ofcourt statement that is offered to prove the
truth of the matter asserted.

15. I supervise the ASTM employees who
respond to requests to grant permissions to
use ASTM’s copyrighted materials, and I
have personal knowledge of the
circumstances and frequency with which
these requests are granted and denied.

No Objection.

16. ASTM denies requests for permission to
use its standards at no cost when the requester
seeks to post the standard on a public website
with no reasonable time limit and/or with no
limitation on the number of people who can
access it

FRE 403 Prejudice. The witness’s statement is
misleading to the extent that it implies that
ASTM denies permission to use ASTM
standards only in this context, when it refuses
permission to use standards in other noncommercial contexts as well, such as denying
reproduction of ASTM standards in graduate
student thesis papers. See, e.g., SMF ¶ 46, Ex.
115 (denying permission for reproduction of
an ASTM standard in a student’s thesis paper
that would be made available only in three
copies presented to the thesis examination
board).

17. I am not aware of any visually-impaired
person who has informed ASTM that he/she
was having difficulty accessing an ASTM
standard due to a print disability. If a
visually-impaired person requested access to
an ASTM standard that was necessary due to
a print disability, I would instruct the staff
member who received the request to provide
a copy of the ASTM standard in a format that
accommodated the person’s disability at no
additional cost to the requester.

FRE 402 Relevance. The proffered testimony
concerning what the witness is personally
aware of (as opposed to the organization
generally) and what the witness claims he
would do in a hypothetical situation is not
relevant to the question of whether people who
are blind or visually disabled can access the
standards on the ASTM Reading Room, nor
does it have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

20

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
FRE 403 Prejudice. The probative value of the
proffered testimony concerning what the
witness is personally aware of and what the
witness claims he would do in a hypothetical
situation is substantially outweighed by a
danger of unfair prejudice and misleading the
factfinder, as this witness’s personal awareness
and opinions are of no consequence to the
inability of people who are blind or visually
disabled to access ASTM standards that have
been incorporated into law in a free reading
format.

18. ASTM’s practice was to obtain a
copyright registration for every annual Book
of Standards from 1980-2011. I am not aware
of any circumstance in which ASTM deviated
from this practice.

FRE 402 Relevance. The witness’s lack of
awareness of whether or not ASTM obtained
copyright registrations is irrelevant, and does
not prove that copyright registrations were or
were not obtained, nor what those registrations
covered or whether they are valid. The
proffered testimony does not have any
tendency to make a fact of consequence more
or less probable than it would be without the
evidence.
FRE 602 Lack of Personal Knowledge. The
witness started working as outside counsel to
ASTM in 1997 and became employed within
ASTM in 2003, and therefore does not have
personal knowledge of ASTM’s practices
before then. Moreover, the witness’s avowed
lack of awareness is does not allow him to
opine on whether ASTM has in fact obtained
the copyright registrations in question. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents an
existence of documents (copyright

21

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
registrations), some of which have not been
introduced into evidence.

19. ASTM maintains records related to each
ASTM standard that is proposed. Those
records include information about the
standard number, the committee that has
jurisdiction over the standard, ballot items
related to the standard, and the name of the
technical contact for the standard. These
records are kept in the ordinary course of
ASTM’s regularly conducted activity at or near
the time at which any activities related to the
standard took place by a person with knowledge
of the activities related to the standard. I am
familiar with these computer-stored records
because I use these records to prove legal
advice to ASTM. I recognize the documents
referenced in paragraphs 20-23 below to be
printouts from these computer-stored records
and the printouts accurately reflect the
computer-stored records.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence, because the
existence of these records does not prove that
ASTM owns the copyrights that it claims to
own.

20. Attached as Exhibit 5 is a true and correct
printout from the computer-stored records
described in paragraph 19 above with
information regarding ASTM D86-07.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence, because the
existence of this record does not prove that
ASTM owns the copyrights that it claims to
own. This is particularly the case because
ASTM has not established that Michael Collier
wrote any copyrightable portion of ASTM
D86-07 or that he owned any copyright in that
standard.

FRE 602 Lack of Personal Knowledge. The
witness was not involved in the creation or
maintenance of the records in question, and his
only knowledge of them is as an attorney. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of
documents.

FRE 602 Lack of Personal Knowledge. The
witness was not involved in the creation or
maintenance of the records in question, and his
only knowledge of them is as an attorney. The
proffered testimony is not based on the
witness’s personal knowledge of the matter

22

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted (information
concerning ASTM D86-07). Mr. O’Brien is
not a custodian of this exhibit or the
underlying records; nor does he have personal
knowledge about the creation and maintenance
of this record.

21. Attached as Exhibit 6 is a true and correct
printout from the computer-stored records
described in paragraph 19 above with
information regarding ASTM D975-07.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence, because the
existence of this record does not prove that
ASTM owns the copyrights that it claims to
own. This is particularly the case because
ASTM has not established that John Chandler
wrote any copyrightable portion of ASTM
D975-07, nor that he owned any copyright in
that standard.
FRE 602 Lack of Personal Knowledge. The
witness was not involved in the creation or
maintenance of the records in question, and his
only knowledge of them is as an attorney. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted (information
concerning ASTM D975-07). Mr. O’Brien is
not a custodian of this record; nor does he have
personal knowledge about the creation and
maintenance of this record.

23

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

22. Attached as Exhibit 7 is a true and correct
printout from the computer-stored records
described in paragraph 19 above with
information regarding ASTM D396-98.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence, because the
existence of the records does not prove that
ASTM owns the copyrights that it claims to
own. This is particularly the case because
ASTM has not established that John Chandler
wrote any copyrightable portion of ASTM
D396-98 or that he owned any copyright in
that standard.
FRE 602 Lack of Personal Knowledge. The
witness was not involved in the creation or
maintenance of the records in question, and his
only knowledge of them is as an attorney. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement offered to prove the
truth of the matter asserted (information
concerning ASTM D396-98). Mr. O’Brien is
not a custodian of the records; nor does he
have personal knowledge about the creation
and maintenance of this record.

23. Attached as Exhibit 8 is a true and correct
printout from the computer-stored records
described in paragraph 19 above with
information regarding ASTM D1217-98.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence, because the
existence of the records does not prove that
ASTM owns the copyrights that it claims to
own. This is particularly the case because
ASTM has not established that Jimmy King
wrote any copyrightable portion of ASTM
D1217-98 or that he owned any copyright in
that standard.
FRE 602 Lack of Personal Knowledge. The

24

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
witness was not involved in the creation or
maintenance of the record in question, and his
only knowledge of them is as an attorney. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted (information
concerning ASTM D1217-98). Mr. O’Brien is
not a custodian of this record, nor does he have
personal knowledge about the creation and
maintenance of this record.

24. ASTM maintains records related to
members who complete new membership and
membership renewal forms each year. Those
records include information such as the name of
the member, the date on which the member
completed the membership form, and for some
of the members, whether the member completed
the membership through ASTM’s online
system, a paper form, or another method. These
records are kept in the ordinary course of
ASTM’s regularly conducted activity at or near
the time at which the membership forms were
completed by a person with knowledge of the
completion of the membership forms. I am
familiar with these computer-stored records
because I use these records to prove legal
advice to ASTM. I recognize the documents
referenced in paragraphs 25-26 below to be
printouts from these computer-stored records
and the printouts accurately reflect the
computer-stored records.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence, because the
existence of these records does not prove that
ASTM owns the copyrights that it claims to
own. New memberships in 2007 or later are
irrelevant to ASTM standards created before
that date. ASTM has not demonstrated that any
of its membership renewal records show that
someone who owned copyright in an ASTM
standard at issue agreed to assign her copyright
to ASTM.
FRE 602 Lack of Personal Knowledge. The
witness was not involved in the creation or
maintenance of the records in question, and his
only knowledge of them is as an attorney. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of

25

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
documents.
FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence, because the
existence of these records does not prove that
ASTM owns the copyrights that it claims to
own. New memberships in 2007 or later are
irrelevant to ASTM standards created before
that date. ASTM has not demonstrated that any
of its membership renewal records show that
someone who owned copyright in an ASTM
standard at issue agreed to assign her copyright
to ASTM.

25. Attached as Exhibit 9 is a true and correct
printout from the computer-stored records
described in paragraph 24 above showing
ASTM individual membership forms that
were completed in 2007.

FRE 602 Lack of Personal Knowledge. The
witness was not involved in the creation or
maintenance of the records in question, and his
only knowledge of them is as an attorney. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted (information
concerning membership application and
renewal). Mr. O’Brien is not a custodian of
these records, nor does he have personal
knowledge about the creation and maintenance
of these records.
26. Attached as Exhibit 10 is a true and
correct printout from the computer-stored
records described in paragraph 24 above
showing ASTM organizational membership
forms that were completed in 2007.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence, because the
existence of these records does not prove that
ASTM owns the copyrights that it claims to
own. New memberships in 2007 or later are
irrelevant to ASTM standards created before

26

Supplemental Declaration of
Thomas B. O’Brien In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections
that date. ASTM has not demonstrated that any
of its membership renewal records show that
someone who owned copyright in an ASTM
standard at issue agreed to assign her copyright
to ASTM.
FRE 602 Lack of Personal Knowledge. The
witness was not involved in the creation or
maintenance of the records in question, and his
only knowledge of them is as an attorney. The
proffered testimony is not based on the
witness’s personal knowledge of the matter
and the proffering party has not introduced
sufficient evidence to show the witness has
personal knowledge of this matter.
FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted (information
concerning membership application and
renewal). Mr. O’Brien is not a custodian of
these records, nor does he have personal
knowledge about the creation and maintenance
of these records.

D.

Supplemental Declaration of Jordana S. Rubel In Support of Plaintiffs’
Motion For Summary Judgment and Permanent Injunction

Supplemental Declaration of
Jordana S. Rubel In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

1. I am over the age of 18 years and am fully
competent to testify to the matters stated in this
Declaration.

No Objection.

2. This declaration is based on my personal
No Objection.
knowledge. If called to do so, I would and could
testify to the matters stated herein.

27

Supplemental Declaration of
Jordana S. Rubel In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

3. I am an associate at Morgan Lewis &
Bockius LLP, which represents Plaintiff
American Society for Testing and Materials in
this matter.

No Objection.

4. Attached as Exhibit 1 are true and correct
copies of excerpts from the transcript of the
deposition of James Fruchterman, which took
place on July 31, 2015.

Public Resource preserves the objections that
its counsel made at the time of deposition.

5. Attached as Exhibit 2 is a true and correct
copy of Exhibit 4006 to the deposition of James
Fruchterman.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted in the exhibit.

6. Attached as Exhibit 3 are true and correct
copies of excerpts from the transcript of the
deposition of Daniel Smith, which took place
on July 24, 2015.

FRE 802 Hearsay. The proffered exhibit
contains out-of-court statements offered to
prove the truth of the matter asserted in the
exhibit. This is particularly the case for the
double-hearsay statements concerning alleged
communications by an unnamed ASTM
employee and an unnamed individual from the
Copyright Office.

28

Supplemental Declaration of
Jordana S. Rubel In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

7. ASTM produced copies of tens of thousands
of paper membership renewal forms to
Defendant in this litigation. The Bates range for
these documents was ASTM0345596ASTM088302.

FRE 402 Relevance. The paper membership
forms that ASTM produced are from after the
ASTM standards at issue were developed, and
Plaintiff have neither shown nor alleged that
any of the people who filled out those paper
membership renewal forms had any copyright
in any of the ASTM standards at issue. The
proffered testimony is therefore irrelevant and
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.
FRE 403 Prejudice. The paper membership
forms that ASTM produced are from after the
ASTM standards at issue were developed, and
Plaintiff have neither shown nor alleged that
any of the people who filled out those paper
membership renewal forms had any copyright
in any of the ASTM standards at issue, and so
the probative value of the proffered testimony
is substantially outweighed by a danger of
unfair prejudice, confusing the issues and
misleading the factfinder.
FRE 1002 Secondary Evidence. The proffered
testimony is offered to prove the contents of a
document.

8. Attached as Exhibit 4 are true and correct
copies of excerpts from the transcript of the
deposition of Jeffrey Grove, which took place
on March 4, 2015.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted in the exhibit.

9. Attached as Exhibit 5 are true and correct
copies of excerpts from the transcript of the
deposition of Carl Malamud, which took place
on February 27, 2015.

Public Resource preserves the objections that
its counsel made at the time of deposition.

10. Attached as Exhibit 6 is a true and correct
copy of a webpage that was accessed from the
following URL on January 21, 2016:
https://www.acus.gov/contacts/emily-s-bremer.

FRE 802 Hearsay. The proffered testimony is
an out-of-court statement that is offered to
prove the truth of the matter asserted.

29

Supplemental Declaration of
Jordana S. Rubel In Support of
Plaintiffs’ Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

11. Attached as Exhibit 7 are true and correct
copies of excerpts from the transcript of the
deposition of Steven Comstock, which took
place on March 5, 2015.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted in the exhibit.

12. Attached as Exhibit 8 are true and correct
copies of excerpts from the transcript of the
deposition of Stephanie Reiniche, which took
place on March 30, 2015.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted in the exhibit.

13. Attached as Exhibit 9 are true and correct
copies of excerpts from the transcript of the
deposition of Bruce Mullen, which took place
on March 31, 2015.

FRE 802 Hearsay. The proffered exhibit is an
out-of-court statement that is offered to prove
the truth of the matter asserted in the exhibit.

IV.

Supplemental Declaration of James Thomas In Support of Plaintiffs’ Motion For
Summary Judgment

Supplemental Declaration of
James Thomas In Support of Plaintiffs’
Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

1. I am over the age of 18 years and am fully
competent to testify to the matters stated in this
Declaration.

No Objection.

2. This declaration is based on my personal
No Objection.
knowledge. If called to do so, I would and could
testify to the matters stated herein.
3. I am the President of ASTM International
(“ASTM”), which is a not-for-profit
organization headquartered in Pennsylvania. I
have worked at ASTM since 1972.

No Objection.

4. In over 40 years working at ASTM, one of
No Objection.
the premier international standards development
organizations (“SDOs”), I have participated in
numerous activities, committees and panels
with executives from other SDOs.

30

Supplemental Declaration of
James Thomas In Support of Plaintiffs’
Motion for Summary Judgment

Defendant-Counterclaimant
Public Resource’s Objections

5. In addition, I have participated in activities of
the American National Standards Institute
(“ANSI”) since 1976 and I have been on the
ANSI Board of Directors since approximately
1993.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.

6. As a result of my work with other SDOs and
my involvement with ANSI, I am
knowledgeable about many SDOs’ procedures
for developing standards and how standards are
used, both in the United States and
internationally.

FRE 402 Relevance. The proffered testimony
does not have any tendency to make a fact of
consequence more or less probable than it
would be without the evidence.
FRE 701 Improper Lay Opinion. The proffered
testimony is a lay opinion that is not rationally
based on the witness’s perception; is not
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue,
including because the proffered testimony is
conclusory and is based on scientific,
technical, or other specialized knowledge
within the scope of Rule 702.
FRE 702 Unreliable Expert Opinion. The
witness is not an expert on the development
and use of standards throughout the world, and
he has not been qualified as an expert. The
proffered testimony is an expert opinion by a
witness who is not qualified as an expert by
knowledge, skill, experience, training, or
education. The testimony further will not help
the trier of fact to understand the evidence or
to determine a fact in issue; is not based on
sufficient facts or data; is not the product of
reliable principles and methods; and is not
based on the expert’s reliable application of
reliable principles and methods to the facts of
the case.

31

Dated: February 4, 2016

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Sebastian E. Kaplan (pro hac vice pending)
[e-mail]
Matthew Becker (admitted)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

32