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

Filing 204

LARGE ADDITIONAL ATTACHMENT(S) to Public Resource's Second Motion for Summary Judgment by PUBLIC.RESOURCE.ORG, INC. 202 MOTION for Summary Judgment filed by PUBLIC.RESOURCE.ORG, INC., 203 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 Public Resources Statement of Disputed Facts, # 2 Public Resources Evidentiary Objections, # 3 Public Resources Request for Judicial Notice, # 4 Declaration Carl Malamud, # 5 Declaration Matthew Becker, # 6 Consolidated Index of Exhibits, # 7 Exhibit 1, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7, # 14 Exhibit 8, # 15 Exhibit 9, # 16 Exhibit 10, # 17 Exhibit 11, # 18 Exhibit 12, # 19 Exhibit 13, # 20 Exhibit 14, # 21 Exhibit 15, # 22 Exhibit 16, # 23 Exhibit 17, # 24 Exhibit 18, # 25 Exhibit 19, # 26 Exhibit 20, # 27 Exhibit 21, # 28 Exhibit 22, # 29 Exhibit 23, # 30 Exhibit 24, # 31 Exhibit 25, # 32 Exhibit 26, # 33 Exhibit 27, # 34 Exhibit 28, # 35 Exhibit 29, # 36 Exhibit 30, # 37 Exhibit 31, # 38 Exhibit 32, # 39 Exhibit 33, # 40 Exhibit 34, # 41 Exhibit 35, # 42 Exhibit 36, # 43 Exhibit 37, # 44 Exhibit 38, # 45 Exhibit 39, # 46 Exhibit 40, # 47 Exhibit 41, # 48 Exhibit 42, # 49 Exhibit 43, # 50 Exhibit 44, # 51 Exhibit 45, # 52 Exhibit 46, # 53 Exhibit 47, # 54 Exhibit 48, # 55 Exhibit 49, # 56 Exhibit 50, # 57 Exhibit 51, # 58 Exhibit 52, # 59 Exhibit 53, # 60 Exhibit 54, # 61 Exhibit 55, # 62 Exhibit 56, # 63 Exhibit 57, # 64 Exhibit 58, # 65 Exhibit 59, # 66 Exhibit 60, # 67 Exhibit 61, # 68 Exhibit 62, # 69 Exhibit 63, # 70 Exhibit 64, # 71 Exhibit 65, # 72 Exhibit 66, # 73 Exhibit 67, # 74 Exhibit 68, # 75 Exhibit 69, # 76 Exhibit 70, # 77 Exhibit 71, # 78 Exhibit 72, # 79 Exhibit 73, # 80 Exhibit 74, # 81 Exhibit 75, # 82 Exhibit 76, # 83 Exhibit 77, # 84 Exhibit 78, # 85 Exhibit 79, # 86 Exhibit 80, # 87 Exhibit 81, # 88 Exhibit 82, # 89 Exhibit 83, # 90 Exhibit 84, # 91 Exhibit 85, # 92 Exhibit 86, # 93 Exhibit 87, # 94 Exhibit 88, # 95 Exhibit 89, # 96 Exhibit 90, # 97 Exhibit 91, # 98 Exhibit 92, # 99 Exhibit 93, # 100 Exhibit 94, # 101 Exhibit 95, # 102 Exhibit 96, # 103 Exhibit 97, # 104 Certificate of Service)(Bridges, Andrew)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;

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

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.

PUBLIC RESOURCE’S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO
[198] PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
IN SUPPORT OF PUBLIC RESOURCE’S SECOND MOTION FOR SUMMARY
JUDGMENT

Pursuant to Federal Rule of Evidence 201(b) and the authorities cited below, DefendantCounterclaimant Public.Resource.Org respectfully requests that the Court take judicial notice of
several matters in connection with its Memorandum of Law In Opposition to [198] Plaintiffs’
Second Motion for Summary Judgment and for a Permanent Injunction and In Support of
Defendant’s Second Motion for Summary Judgment. In particular, Public Resource requests that
the Court take judicial notice of certain aspects of the version of the 2002 National Electrical
Safety Code (NESC) that the Indiana Supreme Court cited in Bellwether Properties, LLC v.
Duke Energy Indiana, Inc., 87 N.E.3d 462, 469 (Ind. 2017).
Public Resource respectfully asks this Court to take judicial notice of the fact (1) that the
version of the NESC that Indiana Supreme Court cited is a resource on the Internet Archive
website, archive.org, which is evident from examining the URL cited by the Bellwether court:
https://ia600704.us.archive.org/16/items/gov.law.ieee.c2.2002/ieee.c2.2002.pdf; and (2) that the
metadata page for this document indicates that it was “Uploaded by Public.Resource.Org.”1
In addition, Public Resource requests that the Court take judicial notice that the Institute
of Electrical and Electronics Engineer (IEEE), which published the 2002 edition of the NESC,
describes this version as “[s]uperseded,” even though it is still Indiana law.2
A district court may take judicial notice of facts that are “not subject to reasonable
dispute in that [they are] either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b).

1

See https://archive.org/details/gov.law.ieee.c2.2002 and
https://ia600704.us.archive.org/16/items/gov.law.ieee.c2.2002/ieee.c2.2002.pdf_meta.txt
2

See http://ieeexplore.ieee.org/document/6516109/
1

Specifically, a court may take judicial notice of matters of public record. See Bebchick v.
Washington Metro. Area Transit Comm’n, 485 F.2d 858, 880 n. 176 (D.C. Cir. 1973) (“[M]atters
of public record . . . [are] well within the range of judicial notice.”). This Court has “frequently
taken judicial notice of information posted on official public websites of government agencies.”
Pharm. Research & Manufacturers of Am. v. United States Dep't of Health & Human Servs., 43
F. Supp. 3d 28, 33 (D.D.C. 2014) (citing Cannon v. District of Columbia, 717 F.3d 200, 205 n. 2
(D.C. Cir. 2013)).
For these reasons, Public Resource respectfully requests that the Court take judicial
notice of the matters listed above.

2

Dated: November 12, 2019

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (USDC-DC AR0002)
[e-mail]
Matthew B. Becker (admitted pro hac vice)
[e-mail]
Armen N. Nercessian (pending pro hac vice)
[e-mail]
Shannon E. Turner (pending pro hac vice)
[e-mail]
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
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
CSRL 2nd Floor
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

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