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).

EXHIBIT 1

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF COLUMBIA

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AMERICAN SOCIETY FOR

: NO.

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TESTING AND MATERIALS

: 1:13-cv-01215-TSC-

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d/b/a ASTM

: DAR

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INTERNATIONAL;

:

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NATIONAL FIRE

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PROTECTION

:

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ASSOCIATION, INC.;

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and AMERICAN SOCIETY

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OF HEATING,

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REFRIGERATION, AND

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AIR CONDITIONING

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ENGINEERS,

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Plaintiffs

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vs.

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PUBLIC.RESOURCE.ORG,

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INC.,

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Defendant

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Videotaped deposition of JOHN C.
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JAROSZ taken at the law offices of Veritext

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Legal Solutions, 1250 I Street NW,

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Washington, DC, commencing at 10:09 a.m.

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THURSDAY, AUGUST 27, 2015, before Debbie

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Leonard, Registered Diplomate Reporter,

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Certified Realtime Reporter.

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PAGES 1 - 260
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a quantitative estimate. I think that
there -- with reasonable probability I
can draw this conclusion, but I can't
be any more precise than that.
BY MR. BRIDGES:
Q. What do you mean, "with
reasonable probability"?
A. Based on the information that I
have and the training and logic I bring to
it, I think there is a -- I say with some
confidence what I have said here.
Q. And when you say "likely," do
you mean more than 50 percent likely?
A. Not necessarily, no.
Q. Are you aware of other
standards development organizations active in
the same field as the plaintiffs?
MR. FEE: Objection. Vague.
Form.
THE WITNESS: Perhaps you could
tell me what you have in mind with
your use of the term "fields."
BY MR. BRIDGES:
Q. Well, are you familiar with
AHRI?

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to see what alternatives there are among
standards development organizations currently
in existence to carry forward the work of
plaintiffs if plaintiffs chose to stop
standards development as a result of the loss
of this case?
MR. FEE: Same objection.
THE WITNESS: Not that I
recall, but I am of the understanding
that each SDO has a different charter,
so I don't know that any SDO has an
identical charter to that of any of
the three plaintiffs.
BY MR. BRIDGES:
Q. Are you aware that these
plaintiffs compete with other SDOs in the
creation of standards in particular fields?
MR. FEE: Objection to form.
Vague.
THE WITNESS: What do you mean
by the term "compete with" in this
context?
BY MR. BRIDGES:
Q. That they consider others
rivals for the same market, in part.

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A. I have perhaps seen reference
to that.
Q. Do you know with which of these
plaintiffs it -- do you -- do you know what
field it's in?
A. I don't recall, sitting here
right now, no.
Q. Are you familiar with NFRC?
A. I may have seen reference to
that acronym.
Q. Do you know what field it's in?
A. Not sitting here right now.
Q. Are you familiar with ICC?
A. I have seen reference to that.
I don't recall what it is, sitting here now.
Q. Do you know whether other
standards developments organizations would be
in a position to step forward and to continue
the maintenance and preservation and further
development of the standards of plaintiffs
here if plaintiffs lose this case?
MR. FEE: Objection to form.
THE WITNESS: I don't know.
BY MR. BRIDGES:
Q. Have you done any investigation

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MR. FEE: Objection to form.
Vague.
THE WITNESS: I don't recall
seeing reference to that, but my
memory is not perfect.
BY MR. BRIDGES:
Q. The -- in paragraph 131, you
say, "Simply put, freely-distributed,
unrestricted versions of Plaintiffs'
standards that are or could be incorporated
by reference can be expected to adversely
impact the market for Plaintiffs' standards
that are incorporated by reference and to
displace sales of these standards by the
Plaintiffs - which can be expected to have a
material adverse effect on Plaintiffs'
revenues."
Do you see that?
A. Yes.
Q. By "expected," do you mean more
than 50 percent likely?
A. Not necessarily. I don't have
a quantitative assessment of what I mean by
"expected."
Q. Do you mean more than 5 percent

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likely?
A. I haven't quantified that, but
I would expect that it's -- more than
5 percent would be a reasonable definition of
"expected."
Q. More than 10 percent?
A. I don't know. I've not
quantified that number.
Q. And what amount of an effect on
plaintiffs' revenues have you identified as
"material"?
A. I haven't -MR. FEE: Objection to form.
THE WITNESS: -- been able to
quantify the specific effects, so I
don't know the amount.
BY MR. BRIDGES:
Q. Well, what -- I'm not asking
for your quantification of a specific effect,
but how large would an effect have to be for
to you consider it "a material adverse effect
on Plaintiffs' remedies"?
MR. FEE: Objection to form.
THE WITNESS: I don't know that
I have a particular quantitative

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Q. Do you consider $100,000 to be
material as an adverse effect on plaintiffs'
revenues?
MR. FEE: Objection to form.
Compound.
THE WITNESS: I haven't
considered that question. I don't
know the answer to it.
BY MR. BRIDGES:
Q. Have you considered whether
50,000 is a material amount as an adverse
effect on plaintiffs' revenues?
MR. FEE: Same objections.
THE WITNESS: Same answer.
BY MR. BRIDGES:
Q. Starting at page -- sorry.
Strike that.
Starting at paragraph 139, you
make several references to Mr. Malamud's
theory.
A. I'm sorry. To -- I missed a
word that you said. References to his what?
Q. To Mr. Malamud's theory -A. Okay.
Q. -- T-H-E-O-R-Y. You refer to

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guideline in mind.
BY MR. BRIDGES:
Q. Have you ever -- are you
familiar with audit inquiry letters regarding
litigation?
A. Generally, yes.
Q. And you're familiar with the
fact that auditors will often specify to
those they send the letters to what amounts
would be material for purposes of the audit
response?
A. Yes.
Q. So you understand the concept
of certain amounts being material to certain
companies or entities?
A. Yes, for certain purposes.
Q. So I'd like to know what amount
you have identified as being material as an
adverse effect on plaintiffs' revenues for
each of the three plaintiffs, please.
MR. FEE: Objection. Compound.
Asked and answered.
THE WITNESS: I have not
considered a particular amount.
BY MR. BRIDGES:

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it in paragraph 139; 140; 144, with the word
"theorized"; 145, "theory"; 146, "theory."
What facts do you have that
have disproved the theory in paragraph 139?
A. Perhaps most important is the
revealed preference information. If the
plaintiffs believed they were better off by
lack of copyright protection, they would have
pursued such a model.
They don't believe they're
better off. Moreover, they're expending
tremendous resources in bringing and pursuing
this litigation to halt the activity at
issue.
Q. What other facts, if any, do
you have that have disproved Mr. Malamud's
theory in paragraph 139?
A. That's what comes to mind right
now.
Q. What facts do you have or are
you aware of that have disproved
Mr. Malamud's theory as you refer to it in
paragraph 140?
A. That's the same theory that's
being referenced in 139, so there's nothing

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not thought about that particular
topic.
MR. BRIDGES: Okay. I think
we'll pause here and reserve the rest
of the time for a later visit with
you, Mr. Jarosz.
Kevin, this is in reliance on
an exchange of correspondence between
Matt and you, I believe. If, for some
reason -- well, no. I think that's
all.
Anything else?
MR. FEE: Well, I don't have
any questions.
Do you guys have any questions?
MR. REHN: Not at this time.
MR. CUNNINGHAM: No.
MR. BRIDGES: Great. Thank
you.
THE WITNESS: Thank you.
THE VIDEOGRAPHER: All right.
Off the record at 4:31. This ends
media unit number 3 and ends testimony
for August 27th, 2015.
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CERTIFICATE

I do hereby certify that I am a Notary
3 Public in good standing, that the aforesaid
testimony was taken before me, pursuant to
4 notice, at the time and place indicated; that
said deponent was by me duly sworn to tell
5 the truth, the whole truth, and nothing but
the truth; that the testimony of said
6 deponent was correctly recorded in machine
shorthand by me and thereafter transcribed
7 under my supervision with computer-aided
transcription; that the deposition is a true
8 and correct record of the testimony given by
the witness; and that I am neither of counsel
9 nor kin to any party in said action, nor
interested in the outcome thereof.
10
WITNESS my hand and official seal this
11 11th day of September, 2015.
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<%signature%>
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Debbie Leonard, RDR, CRR
Notary Public
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(Witness excused.)
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(Off the record at 4:31 p.m.)
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