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)

EXHIBIT 38

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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

:

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,

:

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
Page 1
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1 APPEARANCES:
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KING & SPALDING
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By: J BLAKE CUNNINGHAM, ESQ
101 Second Street
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Suite 2300
San Francisco, California 94105
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[phone]
bcunningham@kslaw com
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Representing the Plaintiff American
Society For Testing and Materials d/b/a
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ASTM International
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MUNGER, TOLLES & OLSON LLP
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By: THANE REHN, ESQ
560 Mission Street
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27th Floor
San Francisco, California 94105
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[phone]
thane rehn@mto com
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Representing the Plaintiff National Fire
Protection Association, Inc
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MORGAN LEWIS & BOCKIUS LLP
By: J KEVIN FEE, ESQ
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1111 Pennsylvania Avenue NW
Washington, DC 20004
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[phone]
jkfee@morganlewis com
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Representing the Plaintiff American
Society of Heating, Refrigeration, and Air
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Conditioning Engineers
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(continued)
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INDEX TO WITNESSES
WITNESS: JOHN C. JAROSZ
BY MR. BRIDGES

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PAGE
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INDEX TO EXHIBITS
PAGE
EXHIBIT
DESCRIPTION

MARKED
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12 Exhibit 1 Expert Report of John C. 6
Jarosz
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June 5, 2015
14 Exhibit 2 Handwritten notes
97
15 Exhibit 3 Handwritten notes
97
16 Exhibit 4 Spreadsheet
175
"NFPA Publication Sales
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2009 to 2013"
JAROSZ02443
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Exhibit 5 Article
210
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"ASHRAE Takes on Energy
Standard"
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1 APPEARANCES (continued):
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FENWICK & WEST LLP
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By: ANDREW P. BRIDGES, ESQ.
555 California Street
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12th Floor
San Francisco, California 94104
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[phone]
[e-mail]
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Representing the Defendant
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FENWICK & WEST LLP
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By: MATTHEW BECKER, ESQ.
801 California Street
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Mountain View, California 94041
[phone]
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[e-mail]
Representing the Defendant
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12 ALSO PRESENT:
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Carl Malamud, Public Resource
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Jonathan Perry, Videographer
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DEPOSITION SUPPORT INDEX
INSTRUCTION NOT TO ANSWER:

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Line

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NONE
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REQUEST FOR PRODUCTION OF DOCUMENTS:
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Line

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NONE
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15 QUESTIONS MARKED:
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* * *
(Jarosz Exhibit 1 marked for
identification.)
* * *
THE VIDEOGRAPHER: We are now
on the record.
Please note that the
microphones are sensitive and may pick
up whispering and private
conversations.
Please turn off all cell phones
or place them away from the
microphones, as they can interfere
with the deposition audio.
Recording will continue until
all parties agree to go off the
record.
My name is Jonathan Perry. I'm
here representing Veritext. Today's
date is August 27th, 2015. The time
is approximately 10:09 a.m.
We are at the offices of
Veritext, located at 1250 I Street
Northwest in Washington, D.C.
The caption on the case is the

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Air-Conditioning Engineers.
THE VIDEOGRAPHER: Today our
court reporter is Debbie Leonard with
Veritext. Would you please swear in
the witness.
* * *
JOHN C. JAROSZ,
having been first duly sworn, testified as
follows:
* * *
EXAMINATION
* * *
BY MR. BRIDGES:
Q. Good morning, Mr. Jarosz.
A. Good morning, Mr. Bridges.
Q. What do you do for a living?
A. I'm an economist.
Q. What types of work do you do as
an economist?
A. I'm not exactly sure what
you're asking. I am employed at an economic
consulting firm, and I am involved in applied
microeconomics and industrial organization,
among other things.
I apply much of my expertise to

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American Society for Testing and
Materials, et al., versus
Public.Resource.Org, Incorporated,
case filed in the US District Court
for the District of Columbia, Case
Number 1:13-cv-0215 [sic] TSC-DAR.
The name of the witness is
John C. Jarosz.
Would counsel present please
introduce themselves and state whom
they represent.
MR. BRIDGES: This is Andrew
Bridges of Fenwick & West for the
defendant, and with me is Matthew
Becker.
MR. FEE: Kevin Fee from Morgan
Lewis on behalf of ASTM.
MR. REHN: Thane Rehn from
Munger, Tolles & Olson on behalf of
the National Fire Protection
Association.
MR. CUNNINGHAM: Blake
Cunningham of King & Spalding on
behalf of the American Society for
Heating, Refrigerating, and

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the valuation and evaluation of intellectual
property rights. Some of that work is in the
context of damages assessments. Some of it
outside such contexts. Some of my work is in
litigation, and some of my work is not.
Q. Have you valued any of the
intellectual property at issue in this case?
MR. FEE: Objection. Form.
MR. REHN: And -MR. FEE: Wait. Before we go
any further, should -- do you want to
get into a stipulation that they don't
have to join every objection that one
or the other plaintiffs makes, or do
you want us to make them all seriatim?
MR. BRIDGES: I'll stipulate to
that.
MR. FEE: Okay.
THE WITNESS: I'm not exactly
sure what you mean by "value," but I
haven't done a formal valuation of any
of the IP. I have evaluated the
intellectual property rights, and I
have done the assessment that you see
in my expert report.

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BY MR. BRIDGES:
Q. Have you made any attempt to
put a value on any of the intellectual
property rights claimed by the plaintiffs in
this case?
MR. FEE: Objection to form.
THE WITNESS: What do you mean
by "value"?
BY MR. BRIDGES:
Q. I mean by "value" what you
referred to earlier when you stated that
among your activities is the valuation of
intellectual property rights.
A. I have not done a formal
valuation, and I have not assigned a dollar
amount to any of the intellectual property
rights at issue here.
I have evaluated the rights and
determined issues associated with harm and
irreparable harm. You see my results
contained in my report.
Q. What do you mean by "evaluating
the intellectual property rights"?
A. I have looked at, from an
economist's perspective, the rights and the

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A. I don't know that there -- I -let me start this over again.
I believe there are fights
about whether the plaintiffs are entitled to
these copyrights. I don't know that there's
been a conclusion by this Court that they are
valid rights. I'm working under the
assumption that they are, but I believe the
defendant is disputing those rights.
Q. What did you do to evaluate
trademark rights in this case?
A. What I've done is summarized in
my report. I have an understanding that
there are marks and logos at issue that are
important to the plaintiffs and that Public
Resource activities impair the rights of the
plaintiffs in those trademarks and may
possibly cause confusion in the marketplace.
Q. What work did you do to
determine whether any activities of the
defendant does or may cause confusion in the
marketplace?
A. The work that you see is
summarized in my report. I haven't done
anything beyond that which is summarized

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impact of having IP protection or not having
IP protection for the subject matter at
issue.
Q. Have you done anything else to
evaluate the intellectual property rights of
the plaintiffs?
MR. FEE: Objection to form.
THE WITNESS: I've done the
analyses underlying my report, but the
summary of the work that I've done and
the conclusions that I've drawn are
contained in my report. I don't have
other conclusions that are not
contained in those -- in that report.
BY MR. BRIDGES:
Q. What intellectual property
rights of plaintiffs have you evaluated?
A. The copyrights at issue here.
I'm sorry. Let me be -- let me
alter that by saying I have evaluated the
alleged copyrights at issue here, and I have
evaluated the trademark rights at issue here.
Q. Why did you change your
testimony to refer to "alleged copyrights"
instead of "copyrights"?

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here.
Q. And by the "report," you're
referring to Exhibit 1 that I've marked and
placed before you?
A. Yes.
Q. Where did you state your
conclusions in your report regarding
trademark rights of the plaintiff -- of the
plaintiffs?
A. In part, I think it's covered
in paragraphs 150 and 151. It may be covered
in other sections.
Q. Take the time and let me know
what other sections trademark rights are
covered in.
MR. FEE: Objection. Are you
asking him to read the whole report
and answer that now?
MR. BRIDGES: No. Presumably
he's relatively familiar with it, so
it wouldn't require him to read it and
spend a great deal of time. I
don't -- he's referred to his report
in his answer, so I just want to make
sure that I have a complete

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understanding.
MR. FEE: All right. Well,
take as long as you need to answer
that, then.
THE WITNESS: In part, you see
it addressed in paragraph 30.
Right now, those are the
sections that I see that touch on that
topic. There may be others that I'm
overlooking right now.
BY MR. BRIDGES:
Q. And do you need more time?
MR. FEE: Objection. Asked and
answered.
THE WITNESS: I don't think so.
I've looked through at a fairly
cursory level. If you want me to read
the whole report to make absolutely
sure, I will, but I'm not sure if
you're asking me to do that, but -BY MR. BRIDGES:
Q. No, I wouldn't want to take the
time, unless counsel is willing to give me
lots of extra time or if you want to do it
during a break. But if you're confident that

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from the facts.
BY MR. BRIDGES:
Q. All right. I would like to
know where in the report your report reveals
any observations or conclusions by you about
the evaluation of the trademark rights.
MR. FEE: Just so the record is
clear, you're withdrawing the previous
question now?
MR. BRIDGES: No. It's a new
question.
MR. FEE: Okay. Well, he
didn't -Are you finished going through
the entire report and identifying
everywhere where you've evaluated the
trademarks?
Or do you not want him to keep
doing that?
MR. BRIDGES: I just -- I just
asked him a question. I'd like an
answer to the question.
MR. FEE: Okay.
BY MR. BRIDGES:
Q. I'd like to know where in

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those are the paragraphs that cover the
evaluation of trademark rights, then we can
proceed.
A. I'm not sure if there's a
pending question, but I didn't say I was
confident that those are the only places.
Q. Oh, then take more time,
please.
A. I think -Q. Then please -A. -- that those are the three
that address it.
Q. Well, what else reflects your
evaluation of trademark rights in this case?
A. Okay. If you'd like, I'll take
a little bit more time looking at the report.
I think in paragraph 2, I
believe part of the copying is the marks
and/or logos.
Q. And that paragraph 2 reflects
your evaluation?
MR. FEE: Objection to form.
THE WITNESS: Yes. My
evaluation includes understanding the
issues and then drawing conclusions

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the -- in the report your report reveals any
observations or conclusions by you about your
evaluation of the trademark rights of the
plaintiffs.
MR. FEE: Objection. And I
think it would be misleading if it's
not stated for the record that he has
not gotten past paragraph 2 in
responding to the prior question, and
you've instructed him not to further
proceed with respect to that question.
You can go ahead and answer the
current question.
THE WITNESS: So right now, I'm
working under the assumption that
there's only one pending question, and
that is your most recent question.
BY MR. BRIDGES:
Q. Yes.
A. Part of the implications of
loss -- I'm sorry.
Part of the implications of
trademark infringement are reflected in
paragraph 6, though they're not stated there.
That is when I address harm. That

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encompasses both the harm of loss of
copyright protection and the repercussions of
trademark infringement.
Same answer with regard to
paragraph 7.
There are also counterpart
paragraphs at the end of the report that I
think are identical to 6 and 7, so I won't
identify those numbers.
Though I didn't say it in a
number of paragraphs, I make reference to
conclusions with regard to the copyright
infringement.
I understand that the copyright
infringement is associated with certain
actions that, in part, encompass trademark
infringement, though I don't think I
explicitly said that in every section in
which I discover -- in which I discussed the
copyright protection and the conclusions
flowing from that.
I don't think I have anything
else to add besides what I have discussed
already.
Q. What conclusions do you see

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report.
BY MR. BRIDGES:
Q. What facts did you rely upon
for that conclusion?
A. Well, I understand that there
has been some inaccurate copying and
dissemination of plaintiff materials. I
don't recall exactly where I got that
information from, but I believe that there's
some materials, for instance, that have been
copied and disseminated that are upside-down.
There are other materials that are difficult
to read. There may be materials that are
disseminated with the thought that those are
the most recent standards when, in fact, they
may not be.
Q. You have no idea how you
learned that information?
A. I don't recall -MR. FEE: Objection. Vague.
And form.
THE WITNESS: I don't recall,
sitting here right now. I may have
seen representations in some of the
written materials, but I don't recall

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about a likelihood of confusion in the
marketplace arising from the defendant's use
of the marks?
A. I haven't drawn any conclusions
with regard to that topic.
Q. And what conclusions have you
drawn about the economic value or dollar
value of the plaintiffs' trademarks?
A. I have not assigned a dollar
value to the plaintiffs' trademarks.
Q. What conclusions have you drawn
about any harm to the plaintiffs arising from
the defendant's alleged use of the
plaintiffs' marks?
A. I've drawn the conclusion that
there could be harm if the materials, in
fact, are inaccurate use -- inaccurate
copies, therefore impacting the reputation of
either the materials or the organizations in
the marketplace.
Q. What studies did you rely upon
for that conclusion?
MR. FEE: Objection. Vague.
THE WITNESS: Nothing other
than what you see reflected in my

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what those written materials are.
BY MR. BRIDGES:
Q. Have you seen any upside-down
pages in any of the defendant's materials?
A. I don't recall seeing that
personally, no.
Q. Have you seen any
difficult-to-read materials produced by the
defendant?
A. I don't recall that right now.
Q. Do you know what rationale the
defendant has for disseminating materials
that are not the most recent standards?
MR. FEE: Objection. Form.
THE WITNESS: I'm not sure that
I know, no.
BY MR. BRIDGES:
Q. On what information -- I'd like
for you to recall all the information on
which you relied for the determination that
the defendant may have engaged in activities
that may have caused any harms to the
plaintiffs' reputation.
MR. FEE: Could you read that
back -- oh, I have it here. Forget

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it.
Objection to form. You're
asking him to recall, without having
all the materials in front of him?
MR. BRIDGES: Yeah.
MR. FEE: Okay.
THE WITNESS: It's all laid out
in my report, and the sources are
provided in my report. I've not
memorized all those.
BY MR. BRIDGES:
Q. But I don't think your report
refers to upside-down materials, does it?
A. I don't recall for sure, but I
thought some of the documents that I cited
make reference to those materials. I'm not
sure that I cited the, for instance,
upside-down materials, but I think I have
discussions about that phenomenon.
Q. With whom?
A. In written materials that I've
cited.
Q. Have you had oral discussions
about what you have referred to as that
phenomenon?

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beyond the document production to verify that
information.
Q. But you don't recall seeing any
defective materials yourself, correct?
A. That's correct. I do not.
Q. You just relied upon the word
of others, correct?
MR. FEE: Objection. Vague.
Mischaracterizes his testimony.
THE WITNESS: I relied upon
written documents I saw and
conversations that I had.
BY MR. BRIDGES:
Q. What written documents did you
see that discussed these issues?
MR. FEE: Objection. Asked and
answered.
THE WITNESS: And I'm sorry. I
can't point you to the particular
ones. Perhaps, through the course of
the day, my memory will be refreshed
on that.
BY MR. BRIDGES:
Q. If you relied upon those
written documents, would you have cited to

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A. Yes.
Q. With whom?
A. Counsel here.
Q. With anybody else?
A. I don't think so. It's
possible, but I'm not recalling anything
else.
Q. And when you say discussions
with "counsel here," you're referring to the
counsel at the table here today at the
deposition?
A. Correct.
And we should add to that
Jordana Rubel, who's been a person that I've
had conversations with over the last several
months.
Q. What did you do to verify any
of the statements to you from counsel about
these facts you've referred to about the
materials that the defendant has
disseminated?
A. I don't think I did separate
verification. I may have seen some documents
that provide or provided confirmation of that
fact, but I don't recall separately going out

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those written documents in your report?
A. Perhaps.
Q. Why do you say "perhaps"?
A. I can't say with absolute
certainty what I do. But often, if something
is a direct support for a factual
observation, I will often cite that source,
but not always.
Q. What previous -- strike that.
What training or education have
you ever received with respect to standards
development organizations?
MR. FEE: Objection to form.
THE WITNESS: I don't recall if
I've had a course in standard
development. Probably it has been
part of some of the economics courses
that I've taken over the years.
In my profession and the work
that I've done in the last 30 years,
I've had occasion to look at and
evaluate standards organizations and
the output from those organizations.
So it is among the topics that
I've investigated in the course of my

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consulting career.
BY MR. BRIDGES:
Q. In what context?
A. There have been several matters
I've had, litigations, that have involved
standard setting organizations and the
outputs from those organizations.
Q. What organizations?
A. Well, some that come to mind
are ETSI, IEEE, the Blu-ray Association,
MPEG, MPEG L.A., the Philips 6C and Philips
3C organizations. Those are among the ones
that come to mind.
Q. And what types of litigation
did your work relating to those standard
setting organizations involve?
MR. FEE: Objection to form.
THE WITNESS: It was almost all
intellectual property litigation, with
probably the bulk of the analyses
undertaken with regard to patent
rights.
BY MR. BRIDGES:
Q. Do you recall -A. I guess I should -- there were

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standards development organization that
you've worked on?
A. Again, I'd have to go back and
look at my records. I can't right now recite
any, but there very well could be one or
more.
Q. Did you review any of your work
in -- from earlier copyright cases involving
standards development organizations in
connection with your work in this case?
A. Not to the best of my memory,
no.
Q. What background do you have in
the creation of standards by standard
development organizations?
MR. FEE: Objection to form.
THE WITNESS: In the context of
some of my consulting assignments, I
have examined processes undertaken by
SDOs.
BY MR. BRIDGES:
Q. Anything else?
A. Nothing else comes to mind.
I've certainly looked at the output
associated with those processes, but there's

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probably some breach of contract matters as
well.
Q. Did you work on any matters
involving copyright law where you became
familiar with the work and outputs of
standards setting organizations before this
case?
A. Probably, but I cannot say that
with absolute certainty. I've been involved
in several matters over a course of many
years.
Q. Can you name any copyright
matter involving a standards development
organization that you recall?
A. Not now, without going back and
looking at my records.
Q. Would they be listed in the
cases attached to Exhibit 1?
A. That would summarize some of my
records. The cases that are embodied in my
tab 1 are those that led to deposition or
trial testimony. I've been involved in many
matters beyond those.
Q. But sitting here, you cannot
recall any copyright case involving a

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nothing else that comes to mind.
Q. What processes undertaken by
standards development organizations did you
examine?
MR. FEE: Objection. Are you
asking prior to the report still?
MR. BRIDGES: Yes.
MR. FEE: Okay.
THE WITNESS: I'm not quite -MR. BRIDGES: Or other than in
this case.
MR. FEE: Okay.
THE WITNESS: I'm not quite
sure what you're asking. I've seen
discussion of the some of the
processes of various organizations.
I'm not -- I'm not quite sure what
you're asking. Perhaps you could ask
it somewhat differently.
BY MR. BRIDGES:
Q. Well, no. You said, quote, "I
have examined processes undertaken by SDOs."
So my question is, what
processes undertaken by standards development
organizations did you examine?

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A. It sounds like the same
question to me.
Q. Specifically, what processes
did you examine?
A. That still sounds like the same
question, but let me try to answer it by
saying I've looked, for instance, at the
mechanisms that ETSI undertook in developing
standards. So I am familiar generally with
the processes that it follows. Similarly
with regard to other standard setting
organizations.
Q. What other standard setting
organizations?
A. Well, I think I identified
those a few moments ago. Do you want me to
repeat those?
Q. Well, if -- are you saying
that, for all of those organizations, you
examined their processes?
A. In some dimension, probably for
most of the organizations, I had at least
some knowledge of the process. I can't say
that I investigated in depth all of the
processes for all of the organizations that

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manufacturers only. Others include a wider
array of companies.
In all instances, though, the
companies are trying to -- the standards
setting organizations are trying to develop
at least some form of consensus -- sometimes
it's very broad consensus; sometimes it's
more narrow consensus -- about what would be
good for that standards setting organization.
Sometimes the SSOs are
interested in what's best for the
manufacturers and the ability for them to
supply in an interoperable environment. In
some cases, the SSOs are very alert to the
needs of consumers and users of products and
services that comply with standards.
Q. You've distinguished between
standards setting organizations and standard
development organizations. What is the
distinction that you -- that you identify
between the two?
A. I think I said I didn't know if
there is for sure a distinction, but I think
an SSO is perhaps a broader concept than an
SDO, but I might be wrong on that.

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have been involved in my consulting
assignments that are standards oriented.
Q. What do you recall about your
investigation of the processes by which
standards development organizations create
their standards?
A. I should say I -- SDO is
probably not the right term to use. I should
probably say standards setting organizations.
There may be a distinction between an SSO and
an SDO.
But, generally, each SSO has a
process that's unique to its organization.
Some solicit input from a wide range of
constituents; some from a more narrow range.
The ones that I have examined
have all been fairly careful in the work that
they've done, seeking input at many steps
along the way.
Some organizations, like SDOs
at issue here, seek a broader array of inputs
than do others.
Some organizations, standards
setting organizations, include primarily or
only manufacturers and sometimes large

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I know the companies -- I -the plaintiffs here are SDOs. The
associations are, among other things, in the
business of creating and developing
standards.
There could be other SSOs that
have different constituents that are of
interest to them. I don't know for sure that
an SSO is a broader concept than an SDO, but
it could be.
Q. What do you understand to be
the constituents of the plaintiffs in this
case?
MR. FEE: Objection to form.
THE WITNESS: I laid that out
in my report. In summary, I believe
they try to include in the process
both those -- both supply-side
entities and demand-side entities.
BY MR. BRIDGES:
Q. Who else are plaintiffs'
constituents?
MR. FEE: Same objection.
THE WITNESS: I can't think of
anything that doesn't fall within

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those two categories as the
constituents of the plaintiffs.
BY MR. BRIDGES:
Q. Only entities are constituents
of the plaintiffs?
MR. FEE: Objection. Vague.
THE WITNESS: An individual can
be an entity, in my mind. It's not
necessarily a company.
BY MR. BRIDGES:
Q. And what do you mean by a
supply-side entity or person?
A. Those companies or individuals
that provide products or services that, among
other things, comply with the standards.
Q. Do you mean anything else by
supply-side entities or individuals?
MR. FEE: Objection to form.
THE WITNESS: I don't think so.
BY MR. BRIDGES:
Q. What do you mean by demand-side
entities or individuals?
MR. FEE: Same objection.
THE WITNESS: Just so that
there's no confusion between us, I

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constituents of the plaintiffs?
MR. FEE: Objection to form.
THE WITNESS: Nothing else
comes to mind, although I'm certainly
open to learning that I have not
included something that I should
include.
BY MR. BRIDGES:
Q. What about regulators?
A. I'm sorry. What's the
question?
Q. What about regulators?
MR. FEE: Objection to form.
THE WITNESS: I heard those
words. I don't understand the
question.
BY MR. BRIDGES:
Q. You don't understand the
question?
A. Correct.
Q. You've referred to supply-side
entities. You've referred to demand-side
entities. I'm saying now what about
government -- what about regulators? You
don't understand that question --

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believe an entity can encompass an
individual.
BY MR. BRIDGES:
Q. I understand, but I want the
record to be clear. And since "entity" tends
to suggest a non-breathing person, I would
like to include both breathing persons and
non-breathing legal persons in my question.
A. I'm not sure if that's a
question.
Q. The pending question was, what
do you mean by demand-side entities or
individuals?
MR. FEE: Objection to form.
THE WITNESS: Okay. I'm not -I'm not sure I used the phrase
"entities or individuals" when I
talked about demand side.
Regardless, it's companies or
individuals that are the users or
potential users of products or
services that, in part, comply with
the standards.
BY MR. BRIDGES:
Q. Are you aware of any other

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A. I don't.
Q. -- in this context?
A. Are you asking whether a
regulator is on the demand side or supply
side?
Q. I'm asking whether regulators
are constituents of the plaintiffs.
MR. FEE: Objection to form.
BY MR. BRIDGES:
Q. Have you ever given that any
thought?
A. Which question -MR. FEE: Objection. Compound.
THE WITNESS: -- should I
answer?
BY MR. BRIDGES:
Q. Both.
MR. FEE: Objection to form.
THE WITNESS: The question of
have I given that any thought,
perhaps.
To the question of are they a
constituent of the plaintiffs here, I
guess in some dimension they are.
They are interested parties because

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they have both supply-side and
demand-side interests that they
consider.
BY MR. BRIDGES:
Q. Don't they also have regulatory
interests aside from being supply side or
demand side?
MR. FEE: Objection to form.
THE WITNESS: What do you mean
by "regulatory interests"?
BY MR. BRIDGES:
Q. You don't understand the term?
A. No, I don't know what you mean
by that term.
Q. Do they have public interests
other than supply or demand side interests?
MR. FEE: Objection to form.
THE WITNESS: I don't know that
it would be "other than," because I
think of the public interest as being
either demand or supply side. I don't
know what might not be included.
BY MR. BRIDGES:
Q. What about somebody that has a
safety interest? How do you classify them as

1
The Web sites and information
2
that I looked at for each of the
3
plaintiffs certainly give more detail.
4
But, in essence, a need for a
5
standard is brought to the attention
6
of the group. That need can be
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identified from any number of places.
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And then a group is chartered
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with assessing what that need is and
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how best to respond to that need.
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That group often comes up with
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proposals to respond to the issue and
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adjusts that proposal as it gets more
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input and gives more thought.
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Ultimately consensus is arrived
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at for each of the organizations, and
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a standard is developed and published.
18
The processes are slightly
19
different for each of the
20
organizations but generally follow
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that route.
22 BY MR. BRIDGES:
23
Q. How do the processes differ
24 among the three plaintiff organizations?
25
MR. FEE: Objection to form.

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a constituent of the plaintiffs?
MR. FEE: Objection to form.
THE WITNESS: It depends on who
that is. I have an interest in my
house being safe, for instance, and I
consider myself as part of the
demand-side constituency.
I think that there could be
companies that are in the business of
manufacturing smoke detectors, for
instance. I would think of them
primarily as being on the supply side,
although they're certainly alert to
the demand-side considerations.
BY MR. BRIDGES:
Q. How do you understand the
plaintiffs here -- strike that.
What do you understand to be
the process by which the plaintiffs develop
standards?
MR. FEE: Objection to form.
THE WITNESS: I don't know all
the steps. I've summarized some of
the steps that I understand in the
report.

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THE WITNESS: I don't know all
of the differences. They may have, in
part, been summarized in my report. I
see, for instance, on page 29,
paragraph 70, I have identified the
four steps that I saw that NFPA
follows in developing standards.
BY MR. BRIDGES:
Q. I'm just asking you -- you
don't need to spend time going through the
report. I just want to know, sitting here
today, how you understand the processes
differ.
MR. FEE: Object to form, to
the extent you are asking him not to
look at his report. I think he should
be permitted to do that.
THE WITNESS: Just by -- just
going by memory, I don't recall
substantial differences in the
processes. I understand each one to
follow the general scheme that I
identified a few moments ago. I'm
quite sure that there are differences
in each plaintiff's implementation of

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that scheme.
BY MR. BRIDGES:
Q. You used the word "group"
several times in discussing the process by
which the standards -- the plaintiffs develop
standards. What did you mean by "group"?
A. I don't recall exactly what
context I used it in, but I think of a set of
individuals representing either themselves or
companies that have interest in the topic and
might have some thoughts as to how best to
address that topic and develop a standard.
The groups can be wide
assortments. Sometimes they're individual
users. Sometimes they're large company
representatives. Sometimes they're small
company representatives. Sometimes there
are -- they are employees of the SDO.
But each one of the SDOs tends
to have a fairly wide and diverse set of
groups that addresses these topics.
Q. You say some members of the
groups may be individuals, correct, and their
own -- acting on their own interest; is that
correct?

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particular, but the -- the options are
federal, state, and local.
BY MR. BRIDGES:
Q. Have you -A. But I don't know that each
group assessing the need for a standard
always has representations at each level of
government.
Q. What do you know about
participation by employees of standards
development organizations in what you call
the "groups"?
MR. FEE: Objection to form.
THE WITNESS: My memory is that
each one of the standard development
organizations that are at issue here
have at least one employee that's -that's involved in the process.
Sometimes those employees are
facilitators. Often that's the case.
Sometimes they have substantive input.
But they often help the process along.
BY MR. BRIDGES:
Q. And what do you mean by
"substantive input"?

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A. That's my understanding, yes.
Q. Why is that your understanding?
How -- what -- what's the basis of your
understanding?
A. I think I've probably seen that
in some of the written materials, but I can't
point you to particular materials that -that I relied on for that.
Q. And you said that some
individuals may participate in groups as
representatives of large companies; is that
correct?
A. Yes.
Q. Some individuals may
participate as -- participate as
representatives of small companies, correct?
A. Yes.
Q. And I don't think you mentioned
that any individuals participate as
representatives of government?
A. That's probably also the case.
Q. What types of governments?
MR. FEE: Objection. Vague.
Form.
THE WITNESS: I don't know in

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A. Some people may have particular
knowledge about a particular industry or
topic. They all have some knowledge about
the standards development process.
Q. Do you have any understanding
as to why the various individuals in the
groups participate in the standards
development process?
MR. FEE: Objection to form.
THE WITNESS: Generally,
they're interested in addressing a
topic of some concern and coming to a
resolution, one that's acceptable to,
at the very least, the party that
they're representing and one that
is of -- has sufficient consensus
support to be a practical and
acceptable solution to a pending
problem.
BY MR. BRIDGES:
Q. What do you mean by "a pending
problem"?
A. Typically, there's a need
identified, and the SDO has decided a
standard may help address that need. For

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instance, the fire at the shirt factory in
New York a hundred years ago, it was
identified that we didn't want those
disasters to occur in the future and that we
would like to investigate avenues to minimize
such risks.
Q. What do you mean by "avenues to
minimize such risks"?
A. Well, consideration is given to
determining whether there should be quality
standards that manufacturers should comply
with in order to reduce the disastrous
outcomes that occur because of fires, for
instance.
Q. And what do you mean by
"quality standards"?
A. Just by way of example, to have
more ingress and egress available to
employees and to have that as a requirement
or have a standard that may eventually be
incorporated into law so that buildings are
erected in such a way to allow employees to
leave the building rather than be engulfed in
flames.
Q. And what do you mean by

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do have a JD.
Q. You don't have a Ph.D. in
economics, correct?
A. Correct. I was in the Ph.D.
program and have completed most of the
requirements for my Ph.D. but not all.
Q. What interests do you
understand the plaintiffs to have -- strike
that.
What interests do you
understand the plaintiffs to have in having
standards incorporated into law?
MR. FEE: Objection to form.
THE WITNESS: I think that's
laid out in my report in a variety of
ways; but generally, the plaintiffs
are interested in effectuating their
charters, and that is they want to
address certain problems in an
effective way. And if those solutions
get incorporated into standards and
those standards get incorporated by
reference into law, that can be an
effective way for dissemination of a
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"incorporated into law"?
MR. FEE: Objection. Calls for
a legal conclusion. Form.
THE WITNESS: As an economist,
I generally understand it to be that
there's some federal, state, and local
laws that make reference to certain
standards and have that reference as
part of the law.
The legal implications I am
certainly not an expert in, and I
hesitate to characterize any more than
I have.
BY MR. BRIDGES:
Q. Well, you, in fact, have a law
degree, correct?
A. I have a law degree. I am not
now, nor have I ever been a practicing
attorney.
Q. Okay. But you have a juris
doctor degree, correct?
A. Is that different from a law
degree?
Q. It's a type of law degree.
A. I -- I didn't know that, but I

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BY MR. BRIDGES:
Q. What do you mean by
"effectuating" the plaintiffs' charters?
A. Well, each plaintiff has a goal
or set of goals it would like to achieve,
whether that's safety or interoperability.
But generally, they want to achieve a
socially good purpose and one that is good
for members of the industry.
Q. In your answer, you're
referring specifically to these plaintiffs?
A. Yes.
Q. Do these plaintiffs have an
interoperability goal?
A. I don't think explicitly, but I
think -- I don't think as part of the charter
for the plaintiff, but I think with regard to
certain topics that they address
interoperability helps achieve some of those
goals of the individual topics that help
achieve the overall goals of the
organization.
Q. What are some of the goals of
interoperability that you've identified for
plaintiffs?

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A. That I've identified in my
report?
Q. In your work on -- in your work
on this matter for the plaintiffs.
A. I'm not exactly sure what
you're asking, but I talked about the merits
of interoperability and why these
organizations -- why certain standards are
oriented toward interoperability.
I think one of the specific
illustrations is -- of the need for and the
achieving of interoperability goals is the
NEC. That allows one to safely and
effectively receive power across the world.
That's good for manufacturers, and it's good
for consumers.
Q. You said that plaintiffs are
interested, I believe, in addressing certain
problems in an effective way. Do you recall
that?
A. Generally I recall that, yes.
Q. And, generally speaking,
referring to these plaintiffs, what are the
problems you understand them to be trying to
address?

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the problems that they are trying to address?
MR. FEE: Same objection.
THE WITNESS: Generally, ASTM
is addressing problems associated with
public health and safety; support -protection and sustainability of the
environment; overall quality of life;
the reliability of materials, product
systems, and services; and
facilitating international, regional,
and national commerce.
BY MR. BRIDGES:
Q. Now, those are problems?
A. They are trying to achieve
their mission by addressing problems that may
stand in the way of achieving those missions.
Q. So please give me an example of
some problems that the plaintiffs are trying
to address. My questioning has been focused
on problems. You've been responding about
mission, but I -- I'd like for you to
identify some of the problems, generally
speaking, that you understand the plaintiffs
are trying to address.
MR. FEE: Objection to form.

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MR. FEE: Objection to form.
THE WITNESS: I've laid that
out in my report. In page 64 I've
laid out, in essence, the ASTM
mission, as I understand it.
In paragraph 68 I've laid out
the NFPA mission, as I understand it.
And in paragraph 73 I've laid
out the ASHRAE mission, as I
understand it.
BY MR. BRIDGES:
Q. So now my question is, what are
the problems that you understand the
plaintiffs are trying to address in an
effective way?
MR. FEE: Objection to form.
THE WITNESS: Well, generally,
they're addressing the mission that
they have here and their individual
problems that are brought to the SDOs'
attention that, if addressed
effectively, would help each
organization fulfill its mission.
BY MR. BRIDGES:
Q. So generally speaking, what are

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Compound.
THE WITNESS: I thought I did,
so I'll try with some different words.
BY MR. BRIDGES:
Q. Can you answer without
reference to your report -A. I'd rather -Q. -- based on your general
knowledge?
A. I'd rather not.
Q. Well, I'd rather that you tell
us what you can recall about the -- about the
problems that plaintiffs are trying to
address.
A. So you don't -MR. FEE: Objection.
THE WITNESS: -- want me to
look at my report? This is just a
memory contest?
BY MR. BRIDGES:
Q. No, it's not a memory contest.
I'd like to know what you happen to know,
sitting here.
A. I'd like to do that by looking
at my report.

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Q. You may after I get your answer
2 first.
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A. Okay.
4
MR. FEE: Objection to making
5
this a memory test and not allowing
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him to review materials he's indicated
7
he needs to review to fully and
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accurately respond to the question.
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If you can answer without
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looking at your report, go ahead.
11
THE WITNESS: By way of
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example, ASTM has addressed problems
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associated with the safety of
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amusement rides.
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By way of example, NFP [sic]
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has addressed problems associated with
17
electrical fires in buildings.
18
By way of example, ASHRAE is
19
addressing -- but I'm not thinking of
20
a good example for ASHRAE right now.
21
I apologize. I'd have to look at my
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report.
23 BY MR. BRIDGES:
24
Q. Okay. And I believe that you
25 testified -- bear with me just a second. Let

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Q. You said standards "provide
definition around what is a best practice, an
advisable practice, and that practice is
intended to address existing and potential
problems."
What did you mean by "practice"
in that answer?
A. It was an example of what
somebody should do.
Q. And what do you mean by "what
somebody should do"?
MR. FEE: Objection. Vague.
THE WITNESS: I don't know how
to define it any more than that. I'm
sorry.
BY MR. BRIDGES:
Q. Is it a course of action that
somebody should take?
A. That would be another way to
say it. I don't think that's a definition.
It's -- it's another presentation of what I
said.
Q. Is -- a suitable method for
accomplishing a goal?
MR. FEE: Objection to form.

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me get the exact testimony.
You said earlier that the
plaintiffs are interested in effectuating
their charters, and that is they want to
address certain problems in an effective way.
And if those solutions get incorporated into
standards and those standards get
incorporated into law, that can be an
effective way for dissemination of a
solution.
Do you recall that testimony?
A. Yes, I do.
Q. What did you mean by
"solutions" in that context?
A. Standards are a form of
solution.
Q. In what respect?
A. They provide definition around
what is a best practice, an advisable
practice, and that practice is intended to
address existing and potential problems.
Q. And what do you mean by
"practices" in that -- in your answer?
A. Perhaps you could read it back,
and that will help me answer the question.

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THE WITNESS: That -- that
could be an example, yes.
BY MR. BRIDGES:
Q. And would it be in terms of
some of plaintiffs' standards?
MR. FEE: Same objection.
THE WITNESS: I think so.
BY MR. BRIDGES:
Q. Would it be optimal or best
procedures for accomplishing a result?
MR. FEE: Objection to form.
THE WITNESS: That could be.
I'm not sure that that's a definition,
but it -- that's a possibility.
BY MR. BRIDGES:
Q. And does that apply to
plaintiffs' standards?
MR. FEE: Same objection.
THE WITNESS: I'm sorry. What
is the question?
BY MR. BRIDGES:
Q. That plaintiffs' standards
articulate optimal procedures for
accomplishing certain results.
MR. FEE: Objection to form.

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THE WITNESS: I don't know that
I've seen that. I think that they are
consensus based, and what one party
may define as optimum may be different
from what another party defines as
optimal.
But I think they're the result
of a variety of parties coming
together and sometimes balancing
interests and opinions.
BY MR. BRIDGES:
Q. And recommending certain
procedures for accomplishing certain
outcomes?
A. By way -MR. FEE: Objection to form.
THE WITNESS: By way of
example, yes.
Are we at a point for a break?
We've been going a little over an
hour.
BY MR. BRIDGES:
Q. I'd like to go a little bit
further to conclude a line of questioning.
It will be about ten more minutes.

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incorporated into law, that can be an
effective way for dissemination of a
solution.
What makes incorporation into
law an effective way for dissemination of a
solution with respect to the plaintiffs'
activities?
MR. FEE: Objection to form.
THE WITNESS: I -- I'm
certainly not -MR. FEE: It mischaracterizes
his prior testimony.
THE WITNESS: I -- I'm not a
legal expert, and I'm not an expert of
an -- on the topic of incorporation by
reference into law.
But if a particular statute
lays out that legally someone must
follow what's laid out in certain
standards, I would expect that,
because most people are interested in
lawful rather than unlawful activity,
that people would follow that dictate.
BY MR. BRIDGES:
Q. And that incorporation into law

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MR. FEE: Are you okay with
that?
THE WITNESS: I'm okay with
that. I don't know what you mean by
"a little bit further."
BY MR. BRIDGES:
Q. About ten more -- about ten
more minutes.
A. I'd rather keep it closer to
now than ten minutes from now.
Q. Well, let me just finish a
couple of things here.
MR. FEE: Well, you take a
break whenever you want to take a
break.
MR. BRIDGES: Well, I -- I'm in
the middle of a line of questioning.
MR. FEE: There's no question
pending. He can take a break now if
he wants. If he's willing to give you
a couple more minutes, then that's
great, too.
BY MR. BRIDGES:
Q. You said that if solutions get
incorporated into standards and standards get

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would be effective for dissemination of a
standard?
MR. FEE: Same objections.
BY MR. BRIDGES:
Q. Is that your testimony?
A. It's not necessarily the most
effective way, but it -- as -- as far as I
know, it would be an effective way.
Q. What are other effective ways
for dissemination of a standard?
A. I -- I haven't given that any
thought. I would just be speculating.
MR. BRIDGES: Okay. We can
take a break.
THE WITNESS: Thank you.
THE VIDEOGRAPHER: Off the
record at 11:12.
* * *
(Recess from 11:12 a.m. to
11:23 a.m.)
* * *
THE VIDEOGRAPHER: On the
record at 11:23.
BY MR. BRIDGES:
Q. Mr. Jarosz, have you evaluated

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any harms that the plaintiffs have actually
suffered to date as a consequence of the
defendant's activities?
MR. FEE: Objection to form.
THE WITNESS: To the extent I
have, it's embodied in my report.
You'll see there's a little bit of
evidence of actual tangible harm to
date, and there's certainly more
discussion of harm. The tangible
evidence I have is reflected in my
report.
BY MR. BRIDGES:
Q. And what do you understand that
evidence to be?
A. I believe the number of
downloads from the Public Resource
dissemination have been fairly substantial.
I believe that the purchase of publications
has declined some at the plaintiffs -- at the
various plaintiffs. It certainly has not
risen. Those are among the things that come
to mind.
I think I discuss the topic in
more depth in paragraph, among other thing --

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you just said, quote, "I am not sure that the
impact from the past would be close to the
impact that will occur in the future if the
Court finds that there has been no copyright
or trademark infringement."
A. It's everything laid out in my
report. I -- it's really the -- at the heart
of what I did.
Q. And please summarize for me
what data you base that statement on.
A. That's identified in my report.
Q. Okay. Show me, please, in the
report.
A. It's all of what's in
Exhibit 1.
Q. No, I want -- I want the basis
for your statement that the impact from
conduct to date -- strike that -- that you're
not sure that the impact from the conduct to
date would be close to the impact that will
occur in the future if the Court find -makes a certain finding, right?
A. Correct.
Q. So please identify for me
something specific that forms the basis of

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among other places, in paragraph 133 of my
report.
Q. Have you been able to quantify
any financial losses to plaintiffs as a
consequence of defendant's activities?
A. No.
Q. Why not?
A. Not with any great certainty.
Q. Why not?
A. Well, I don't have the records
that would allow me to do that. Moreover, I
am not sure that the impact from the past
will be close to the impact that will occur
in the future if the Court finds that there
has been no copyright or trademark
infringement.
Q. Why do you make the statement
you just did? What's your basis for it?
MR. FEE: Objection to form.
THE WITNESS: I think there
were a few things in my statement.
Which would you like me to expound on?
BY MR. BRIDGES:
Q. Just that sentence. I'd like
to know what the basis is for the sentence

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that statement.
MR. FEE: Objection. Asked and
answered.
THE WITNESS: Among other
things, paragraphs 112 through 155.
BY MR. BRIDGES:
Q. So these are the "Costs of
Losing Copyright Protection"; is that
correct?
A. That's the title of this
section, and then there's some discussion of
trademark protection as well.
Q. And those would be the harms
that you identify that would flow from a
decision by the Court that the plaintiffs
cannot enforce their copyrights against the
defendant, correct?
MR. FEE: Objection to form.
THE WITNESS: What I can say -I'm sorry.
MR. FEE: I just objected to
form.
THE WITNESS: What I can say
with a reasonable degree of certainty.
BY MR. BRIDGES:

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Q. So those would be harms caused
by a court decision?
MR. FEE: Same objection.
THE WITNESS: By continuing
activities by the defendant that are
not halted by the Court.
BY MR. BRIDGES:
Q. Well, it comes across, frankly,
in your report as though you're identifying
harms that would flow from a court decision.
MR. FEE: Objection.
BY MR. BRIDGES:
Q. Is that correct or not?
A. No, I think you -MR. FEE: Mischaracterizes the
report.
THE WITNESS: -- you misread
it. I don't think I said that or
meant to say that.
BY MR. BRIDGES:
Q. So what harms have occurred
from the -- from the defendant's conduct to
date?
A. At the risk of repeating
myself, some of that is summarized in

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think basically what I'm saying is
what would -- or addressing, is what
would be the harm to the plaintiffs if
there's no permanent injunction.
BY MR. BRIDGES:
Q. Well, what did you mean by
"losing copyright protection" in the
paragraph -- in the heading VI on page 48?
A. In essence, you can think of it
as what would happen if there's no permanent
injunction. In other words, what the
defendant has done in the past and what it's
likely to do in the future is allowed to
continue.
Q. And you immediately go into
paragraph 112 talking about Emily Bremer,
correct?
A. I don't know what you mean by
"immediately." It's the first paragraph in
Section VI.
Q. Right. Was Emily Bremer in the
passage you referred to referring to the
presence or absence of a permanent injunction
in this case?
A. I don't think explicitly she

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paragraph 133, with regard to tangible
evidence on harm. With regard to other
evidence, it's throughout the report.
Q. So why would it make a
difference to what the defendant's harms
are -- strike -- strike that.
Why would it make a defendants
[sic] to the plaintiffs' harms if the
plaintiffs' harms were continue with -strike that.
Is it your testimony that harms
to plaintiffs would be different depending on
the particular basis of the Court's ruling?
MR. FEE: Objection. Vague.
THE WITNESS: I -- I don't
understand your question.
BY MR. BRIDGES:
Q. It looks as though you're
stating what the harms would be if the Court
found that incorporation by reference would
cause the plaintiffs to lose copyright
protection; is that correct?
A. I don't -MR. FEE: Objection. Vague.
THE WITNESS: -- think so. I

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was addressing that issue, no.
Q. Do you think implicitly she was
referring to this case?
A. No. I thought you were asking
about permanent injunction. I don't think
she was addressing the -- an injunction
issue. She was addressing the concept of
copyright protection.
Q. And that's what you quoted her
for, right, was for the concept of copyright
protection for standards?
MR. FEE: Objection. You're
referring just to paragraph 112?
BY MR. BRIDGES:
Q. You may answer.
MR. FEE: Objection to form.
THE WITNESS: I -- I don't
understand the question.
BY MR. BRIDGES:
Q. You quoted her in
paragraph 112, correct?
A. Yes. From one of her two
articles, yes.
Q. Right. Regarding the concept
of copyright protection?

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A. Generally. I think she's
talking about standards development and
incorporation by reference. I don't remember
if she said at the very beginning of the
article that it was about copyright
protection, but she certainly talks about
copyright protection.
Q. And you're quoting her about
losing copyright protection, and you're
placing it in the context of harms of the
loss of copyright protection, correct?
MR. FEE: Objection to form.
THE WITNESS: This excerpt
doesn't specifically talk about losing
copyright protection, but it talks
about the concept of it. If there was
no longer copyright protection granted
to the SDOs, what would be the
repercussions.
BY MR. BRIDGES:
Q. And that's the context that you
identified in the first line of
paragraph 112, correct?
A. Yes.
MR. FEE: Objection to form.

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Q. "Such products" -A. And in the next two sentences.
Q. And these are other products
that "could include more sophisticated
Web-based availability, published
compilations of incorporated standards, and
other ancillary products that incorporate the
standards"; isn't that correct?
A. You didn't read that right. It
starts "such products could include."
Q. Okay. Otherwise, that reading
is correct, correct?
A. I think so.
Q. You consider that to be harm to
the plaintiffs?
MR. FEE: Objection. Vague.
THE WITNESS: It could be, yes.
It's likely to be, if the copyright
infringement or the assumption of a
copyright infringement continues. It
could broaden.
BY MR. BRIDGES:
Q. Right. But the fact that these
other types of products would enter the
marketplace is part of the harm that you

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BY MR. BRIDGES:
Q. Let me direct your attention to
paragraph 35 of your report. It says, "With
regard to expansion beyond the specific
actions of Public Resource here, the
'product' offerings of Public Resource scans of paper copies of standards with some
rekeying of text and some redrawing of
diagrams (with some containing errors) represent a rudimentary first step in the use
of Plaintiffs' standards that is likely to
become much more sophisticated if the Court
holds that third parties are free to use
Plaintiffs' standards with impunity after
they are incorporated by reference into law."
Do you see that?
A. Yes, I do.
Q. That is your statement,
correct?
A. Yes.
Q. What are the steps that you're
envisioning there beyond the rudimentary
first step that you identify?
A. I think they're laid out in the
next sentence.

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envision from the defendant in this case?
MR. FEE: Objection to form.
THE WITNESS: It's potential -there's a potential that the defendant
could do that. There's also the
potential that other parties could do
that.
BY MR. BRIDGES:
Q. What -A. I don't know for sure what the
defendant has in mind.
Q. Why did you take into account
harms caused by other parties in this case?
A. Because -MR. FEE: Objection. Lack of
foundation.
Go ahead.
THE WITNESS: If no copyright
protection is allowed here, in other
words, there's no permanent
injunction, Public Resource and other
parties like it will have freedom to
do what the plaintiffs believe they
should not have freedom to do.
BY MR. BRIDGES:

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Q. In other words, if the Court
makes a decision in a certain way, there will
be harms from persons or entities other than
Public.Resource.Org to the plaintiffs? Is
that your testimony?
MR. FEE: Objection to form.
THE WITNESS: You used the
phrase "in a certain way." I don't
know what you mean by that. I'm
addressing the issue of whether there
should be a permanent injunction or
not.
BY MR. BRIDGES:
Q. So your view is that, if the
Court does not enter a permanent injunction,
the plaintiffs will suffer harms from parties
other than Public.Resource.Org. Is that your
testimony?
A. That potential exists. I don't
know for sure. That's, in part, why the harm
is irreparable or very difficult to quantify.
Q. The -- what harm?
A. Continuing activity of Public
Resource and others. I don't know exactly
what will happen, but the potential is that

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standards.
Q. What further harm would
Public.Resource.Org cause to plaintiffs with
respect to the standards at issue in this
case if no -- if the Court does not
permanently enjoin Public.Resource.Org?
MR. FEE: Objection to form.
THE WITNESS: If there's no
permanent injunction, there will, in
essence, be a message sent to the
marketplace that the standards that
have already been disseminated are out
there and can be used by others.
So right now my expectation is
that some number of consumers of the
standards have been reluctant or
unknowing as to the standards
disseminated by Public Resource. Now
there will be more knowledge about
that and more approval of that
activity. That is if there's no
permanent injunction.
BY MR. BRIDGES:
Q. What harms will plaintiffs
suffer if the Court rules that the plaintiffs

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there could be very broad dissemination of
the standards, which would impact these SDOs
tremendously.
Q. What harm would
Public.Resource.Org cause to plaintiffs if
there is no permanent injunction?
A. A permanent injunction would -lack of a permanent injunction would harm the
SDOs.
Q. That wasn't my question. My
question was, what harm would
Public.Resource.Org cause to plaintiffs if
there is no permanent injunction?
A. At the very least, it's
associated with its historical dissemination
of these standards, and there would be, in
essence, a carte blanche for other
organizations or individuals to access those.
So my expectation is that the
dissemination of the materials that have
already been disseminated will expand.
It could also be the case that
Public Resource will undertake further
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do not own the copyrights in this case?
MR. FEE: Objection. Calls for
speculation.
THE WITNESS: In essence,
you're asking if there's no copyright
infringement?
BY MR. BRIDGES:
Q. No. What harms -- have you
identified what harms the plaintiffs would
suffer if the Court rules that the plaintiffs
do not own the copyrights at issue, that
there are no copyrights that the plaintiffs
own -MR. FEE: Objection to form.
BY MR. BRIDGES:
Q. -- at issue in this case?
A. I haven't addressed or thought
about that issue. There are also, don't
forget, trademark issues.
Q. I'm asking about copyright, so
I ask you to confine your answers to my
questions.
My question is, what -- you
assume for purposes of your analysis that
plaintiffs own valid copyrights, correct?

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A. I assume that there's copyright
infringement. I don't know that I've made an
explicit assumption with regard to ownership.
Q. And you assume infringement
without assuming ownership of the copyrights?
A. I haven't made any explicit
assumption with regard to ownership. I know
that's an issue in this case, but it's well
beyond my expertise.
Q. So if it turns out that -- do
you understand your testimony to have any
bearing on whether plaintiffs' standards are
copyrightable?
MR. FEE: Objection. Calls for
speculation.
I would instruct you to not
disclose any communications you had
with counsel that weren't the basis
for any of your opinions in this case.
You can otherwise answer.
THE WITNESS: Could you read
that back or ask it again, please?
BY MR. BRIDGES:
Q. Do you understand your
testimony and opinions in this case to have

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plaintiffs deserve copyright protection for
these standards?
MR. FEE: Objection to form.
THE WITNESS: I don't have an
opinion on that one way or the other.
I have not thought about that topic.
BY MR. BRIDGES:
Q. Do you have any expertise in
copyright law as a field of law?
MR. FEE: Objection. Vague.
THE WITNESS: No, I don't have
legal expertise. I have expertise in
looking at harm associated with
copyright infringement.
BY MR. BRIDGES:
Q. Do you have any expertise with
respect to harm caused by invalidation of
copyrights?
MR. FEE: Same objection.
THE WITNESS: I'm not quite
sure I'm fully appreciating your
question. Again, I'm an expert in the
economics of IP protection. One of
the areas in which I do work is harm
associated with copyright protection.

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any bearing on whether plaintiffs' standards
are copyrightable?
MR. FEE: Same objection and
instruction. Plus objection, calls
for a legal conclusion.
THE WITNESS: I don't know one
way or the other. I've not taken on
that assignment.
BY MR. BRIDGES:
Q. Do you understand whether your
testimony and opinions in this case are
relevant to whether plaintiffs deserve
copyright protection in this case?
MR. FEE: Objection. Calls for
a legal conclusion.
And same objection with respect
to communications between you and
counsel that were not the bases for
your opinions or your report.
THE WITNESS: I don't know one
way or the other. I did not take on
that assignment.
BY MR. BRIDGES:
Q. Do you mean by your analysis
and opinions to suggest in any way that

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BY MR. BRIDGES:
Q. Have you done any work in this
case to quantify what harms plaintiffs would
suffer if a court were to rule that they
lacked copyright rights in the standards at
issue in this case?
MR. FEE: Objection to form.
Go ahead.
THE WITNESS: Not explicitly,
to my knowledge.
BY MR. BRIDGES:
Q. Have you done anything
implicitly?
MR. FEE: Same objection.
THE WITNESS: Not to my
knowledge.
BY MR. BRIDGES:
Q. Have you done any work in this
case to analyze the incentives that
participants have in the standards
development process?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I have in the
sense that I've examined the materials

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that I've cited, and some of those
talk about the standard development
process and why participants are
active in the process. So in that
regard, I've considered incentives.
BY MR. BRIDGES:
Q. What do you understand the
incentives to be?
A. Well, for the supply side
constituents, they're interested in effective
manufacturing and selling of products that
will -- and services that will be well
received in the marketplace; and on the
demand side, the constituents are interested
in products and services that address certain
quality and compatibility issues or problems
and help resolve those.
Q. Do you know who actually
creates the text of the standards?
MR. FEE: Objection to form.
THE WITNESS: Are you talking
about who actually types in the words?
BY MR. BRIDGES:
Q. No.
A. Because I don't know what you

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THE WITNESS: -- point to -MR. FEE: -- form.
THE WITNESS: -- any particular
instances as I sit here now.
BY MR. BRIDGES:
Q. Can you think of any other
motivations that the participants in the
standards writing process have?
A. I'm sorry. Other than what?
Q. Other than the incentives you
referred to earlier of the supply-side
constituents and the demand-side
constituents.
A. Nothing else comes to mind,
although I'm certainly open to the fact that
I haven't thought of or expressed all the
incentives.
Q. Well, what other incentives can
you think of as you sit here?
A. As I just said, nothing else
comes to mind.
Q. What incentives do you
understand the plaintiffs to have in
developing standards?
MR. FEE: Objection to form.

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mean by "creates the text."
Q. Who actually suggests the
words?
A. I think a number of
constituents do, typically.
Q. What types of constituents
suggest the words of the standards?
MR. FEE: Objection to form.
THE WITNESS: I think it's
sometimes SDO employees. I think,
more times than not, it's industry
participants, often supply-side
people, sometimes demand-side people.
Frequently those people are working
from preexisting standards or similar
standards and revising those as
appropriate.
So I think a number of people
have input to the words.
BY MR. BRIDGES:
Q. Do you actually know of
instances where SDO employees have proposed
text as opposed to editing text?
A. I can't -MR. FEE: Objection --

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THE WITNESS: I think,
generally, they want consensus among
interested parties in how to address a
particular issue or problem that those
constituents face.
They are each non-profit
organizations, so they're not
intending to profit off their
activities, but they're certainly
intending to fund their activities
going forward.
BY MR. BRIDGES:
Q. What do you understand the
activities of the standards development
organizations to be in creating the standards
at issue in this case?
MR. FEE: Objection to form.
THE WITNESS: At the very
least, they facilitate the process
through arranging logistics. They do
other things, including participate in
discussions, and -- as I understand
it, and create versions of proposed
standards.
They also serve as a

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clearinghouse for resources.
BY MR. BRIDGES:
Q. When you say they "create
versions of the proposed standards," it's, in
fact, the various groups, as you call them,
that create versions, perhaps with a staff
member from the organizations themselves,
correct?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I think that's
sometimes correct.
BY MR. BRIDGES:
Q. Do you know that -A. Perhaps often.
Q. Or perhaps always?
A. Perhaps always.
MR. FEE: Objection.
BY MR. BRIDGES:
Q. How do the plaintiffs serve as
clearinghouses for resources?
A. They allow a forum for the
various constituents to identify and address
issues that those constituents face in a
particular subject area.

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standards, print copies of standards,
and disseminate copies of standards.
They are involved in teaching
and training sometimes associated with
standards.
They participate in advertising
campaigns about the output of the SDO.
Those are among the things that
they contribute.
BY MR. BRIDGES:
Q. And when you say "providing
people to be involved and pay salaries,"
you're talking about the -- generally
speaking, the staff members who may functions
as liaisons to various committees and groups
that draft the standards?
MR. FEE: Objection to form.
Lack of foundation.
BY MR. BRIDGES:
Q. Is that what you understand?
A. Staff people that help
facilitate. Some are purely helping in a
logistics front. Others are helping on a
more substantive front. They pay their
salaries. They pay taxes, provide benefits.

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Q. What investments do you
understand the plaintiffs to make in the
standards development process?
MR. FEE: Objection to form.
THE WITNESS: Are you asking
for dollar amounts, or are you asking
for types of activities?
BY MR. BRIDGES:
Q. Types of -- types of
expenditures.
MR. FEE: Same objection.
THE WITNESS: There are many
types, as I understand it. One type
is simply providing people to be
involved in the process and paying the
salaries of those people.
I think they probably provide
computing resources to help produce
the standards.
I think they probably provide
meeting resources.
I think they probably provide
an e-mail exchange mechanism by which
information is shared.
I think they create copies of

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They provide travel expenses. Those are some
of the things that are done.
Q. On page 76 -- sorry -- page 33.
Let me ask you to turn to paragraph 76 of
your report. Are you there?
A. I am, yes.
Q. In the final sentence, it says,
"In fiscal year 2014, ASHRAE spent more than
$1 million to cover the costs of developing
or updating its standards."
Do you see that?
A. I do, yes.
Q. Are -- on -- how many years is
the typical cycle for revision of ASHRAE's
90.1 standard?
A. That is under continuous
maintenance, and I think that's -- it's
supplemented and updated automatically every
three years. Perhaps they address it more
frequently, but at least every three years.
Q. So it would be fair to assume
that, during one cycle, ASHRAE spent
something over $3 million to cover the costs
of developing or updating its standards?
A. You said at least $3 million?

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Q. Right. Or approximately
$3 million?
A. Are you limiting it just to
90.1 or all its standards?
Q. Well, that's a good question.
What -- what's -- what did you intend the
last sentence in paragraph 76 to refer to?
All of its standards or 90.1?
A. I think it's all of its
standards, but we could visit the screenshot
from the Web site to confirm that.
Q. Okay.
A. I -- I could be wrong. I don't
think I am, but I could be.
Q. Okay. In the previous
sentence, you say, "ASHRAE and its volunteer
members devoted more than 86,400 man-hours,
3,600 hotel nights, and 1,200 round-trip
flights as part of the process."
And that -- "the process"
appears to refer to updating the ASHRAE 90.1
standard, correct?
A. Yes.
Q. When you say "ASHRAE and its
volunteer members," and then you give those

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THE WITNESS: Again, I don't
have an estimate.
BY MR. BRIDGES:
Q. Do you know -- did ASHRAE pay
for the time, the hotel bills, and the plane
fares of its volunteer members in updating
the ASHRAE 90.1 standard?
A. I would expect rarely. It's
possible that there are certain instances in
which there was some set of out-of-pocket
expenses covered, but I would imagine the
bulk of the time it's the volunteer's
employer.
MR. BRIDGES: Sorry. How long
have we been going? I didn't get when
we went back on.
MR. FEE: 34 minutes.
BY MR. BRIDGES:
Q. Did you speak with Emily Bremer
at any point in this case?
A. No.
Q. How did you become acquainted
with her writings?
A. I think Kevin Fee and/or
Jordana Rubel brought to my attention that

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statistics, those statistics refer primarily
to the man-hours, hotel nights, and
round-trip flights of the volunteer members?
MR. FEE: Objection. Vague.
THE WITNESS: Probably. As
opposed to ASHRAE-employed staff.
BY MR. BRIDGES:
Q. Do you know how much ASHRAE's
volunteer members and their employers -strike that.
Do you know how much ASHRAE's
volunteer members and their employers spent
in salaries and disbursements for the
man-hours, hotel nights, and round-trip
flights that were part of the process of
updating the ASHRAE 90.1 standard?
A. I don't know, but it -- I would
imagine it's a noticeable amount, but I don't
know the amount.
Q. What would be your best
estimate?
A. I don't have a best estimate.
Q. Would it be probably over
$10 million?
MR. FEE: Objection to form.

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she had written on this topic. I don't
recall whether then we separately obtained
her two articles or Mr. Fee slash Ms. Rubel
provided those to us.
Q. What independent work did you
do to research writings regarding the
economics of standards development?
MR. FEE: Objection to form.
THE WITNESS: We did
independent research in the sense that
people that work with me did a
literature search to determine what
writings had been done in the area.
I was previously aware of some
amount of the scholarship to begin
with.
BY MR. BRIDGES:
Q. How is that literature search
reflected in any documents?
A. The results are shown in my
tab 2, and in particular it is page 2 of my
tab 2, at the bottom.
Q. And were these items found by
you or your team?
MR. FEE: Objection to form.

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THE WITNESS: Yes, with the
exception that, in the first instance,
lawyers at Morgan Lewis brought to our
attention the Bremer -- the existence
of Bremer articles.
BY MR. BRIDGES:
Q. Did you study any of the
materials that Bremer -- strike that.
Bremer's articles are law
review articles, correct?
A. Yes.
Q. Did any plaintiff -- did your
team's research identify any articles that
you chose not to include in tab 2?
A. I don't think so.
Q. Did any plaintiff or its
counsel furnish you with correspondence
between the plaintiffs and Emily Bremer for
review?
A. No, not to my knowledge.
Q. How many conversations with
representatives of the plaintiffs did you
have?
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I would instruct you not to

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the various plaintiffs.
Q. With whom?
A. They are all identified in
paragraph 10 of my report.
Q. Which of those did you
personally have conversations with?
A. All of them, as I recall. It's
possible there's someone I did not, but I'm
not remembering that being the case.
Q. Approximately how long did you
spend with -- did you have conversations with
any of them together?
A. Yes, several of them were
together.
Q. Which ones?
A. I don't recall all
combinations. I can say with some confidence
that there was never more than one plaintiff
on a call. In other words, there were
several people from a particular plaintiff on
a call, but not more than one plaintiff.
So I had various combinations
of calls with ASTM that may have occurred on
three occasions; with NFPA, one or two
occasions; and with ASHRAE, one or two

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answer questions regarding
communications with counsel, unless
they formed the basis of your
opinions, in which case you can answer
questions with respect to those
conversations.
BY MR. BRIDGES:
Q. So I -- I'll change my question
slightly.
How many -- how many
conversations did you have with non-lawyer
employees or former employees of the
plaintiffs?
A. None that the -- that did not
include the lawyers.
Q. Right. I'm -- so I'm asking
you to tell me what they were. If the
presence of lawyer -- if you had a
conversation with a -- with an employee or
former employee of the plaintiff, I'd like to
know what that was. So the fact that lawyers
may have been present wouldn't excuse it from
the scope of the answer.
A. I had somewhere between four
and six conversations with people who were at

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occasions.
Q. And approximately how long
total did you spend in conversations with
representatives of each plaintiff?
MR. FEE: Objection to form.
THE WITNESS: Cumulatively,
somewhere between three and five hours
is my best guess right now.
BY MR. BRIDGES:
Q. When you say cumulative -"cumulatively," you mean for all plaintiffs?
A. Yes. Meaning I'm -- I've added
up the conversations I had across all three
plaintiffs.
Q. Right. What's your best
estimate as to the period of time you spent
with each plaintiff?
A. With ASTM, it may have been two
to three hours. For NFPA, one to two hours.
For ASHRAE, one to two hours. That's my best
guess right now.
* * *
(Jarosz Exhibit 2 and Jarosz-3
marked for identification.)
* * *

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BY MR. BRIDGES:
Q. Mr. Jarosz, I'm handing you
Exhibits 2 and 3. I'll represent that these
were furnished to us by e-mail last night, I
think around 6 p.m. Eastern or thereabouts.
Can you please identify
Exhibits 2 and 3?
MR. FEE: Objection to form.
THE WITNESS: To the best of my
knowledge, Exhibit 2 is notes that
Mr. Chapman took in conversations that
we had with various people, and
Exhibit 3 is notes that Mr. Hamasaki
took in conversations with plaintiff
personnel.
BY MR. BRIDGES:
Q. Did you take any notes of
conversations with plaintiffs' personnel?
A. I believe I did, but I did not
keep those notes. Those were -- I followed
my normal procedure. And by the time we got
to the report, I had not kept those notes.
Q. Did you have those -- did you
refer to those notes in drafting your report?
MR. FEE: Objection. Vague.

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Hamasaki?
MR. FEE: Objection. Vague.
THE WITNESS: Yes, in part.
BY MR. BRIDGES:
Q. What else, other than relying
upon conversations with them?
A. And the memory that I had of
the conversations with the individuals.
Q. And you -- but you didn't rely
upon your own notes?
A. Not at the point that I was
drafting up footnotes, no.
Q. Why would you take notes and
then dispose of them before you wrote your
report?
A. Well, I find it -- I find it
useful to follow along in a conversation by
taking notes so that I can follow up with
certain points. I find it useful to write
things down. It helps in the memory process.
But I did not keep those notes in the final
drafting of the report.
Q. Why would you -- when you had
those conversations, did you anticipate that
you were going to prepare a report?

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THE WITNESS: Not that I
recall.
BY MR. BRIDGES:
Q. In your report -A. Well, I guess I should say, I
looked back at the notes at some time, and
the report was done over a period of time.
So I guess in some dimension I did, but as it
came toward the final stages, I did not.
Q. Well, I'm just curious, because
your report indicates, among a number of the
footnotes, there's citations to conversations
with various persons. And I'm trying to
figure out how -- on what you drew to cite
specifically to various conversations in your
report. And I'll give you examples.
Footnotes 193, 194, and 196 through 200.
On what were you relying in
referring to those conversations?
MR. FEE: Objection to form.
THE WITNESS: Conversations
with Mr. Chapman and/or Mr. Hamasaki.
BY MR. BRIDGES:
Q. So you were relying on
conversations with Messrs. Chapman and

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A. I thought that there was a very
good possibility, yes.
Q. Why did you not retain notes of
conversations to have on hand for the
preparation of your report?
A. I followed my normal procedure.
I don't typically take notes. I'm not a
great note-taker, and my handwriting leaves
much to be desired. So I tend to find my
notes themselves to be of limited assistance.
Q. And that's your normal
procedure, is to throw away notes that
reflect conversations that you rely on?
A. No. My normal procedure is to
keep materials that I do rely upon and not
keep materials that I don't need to rely
upon.
Q. And you didn't need to rely
upon any of your notes to recall your
conversations, so you went and discussed the
conversations with two other persons?
A. Yes.
Q. Did -- I see -- it's my
understanding that your report sites
conversations with Stephen Comstock 17 times,

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conversations with Jim Thomas 11 times,
conversations with Jim Pauley seven times,
conversations with John Pace four times,
conversations with Stephanie Reiniche four
times, and conversations with Mark Owen three
times.
Did you make the citations to
those conversations in the report based on
your memory?
MR. FEE: Objection. Lack of
foundation.
THE WITNESS: In part, and I
think in part the citations were put
there based on the memory and
knowledge of Mr. Chapman and
Mr. Hamasaki.
BY MR. BRIDGES:
Q. Did you get any materials from
Mr. Chapman and Mr. Hamasaki other than
Exhibits 2 and 3 on which you relied in
preparing this report?
MR. FEE: Objection. Lack of
foundation. Mischaracterizes his
testimony.
THE WITNESS: Actually, as a

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Q. Did you rely upon the writing
of the language by other people in deciding
to include language regarding information
learned from conversations in your report?
MR. FEE: Objection. Vague.
THE WITNESS: I can answer that
by saying Mr. Hamasaki, Mr. Chapman,
and I were all involved in this
project and the report. It was the
case that we all had some input in the
writing of the words, though I was
responsible for and directly
supervised all of it.
BY MR. BRIDGES:
Q. And did you rely upon input
from Mr. Hamasaki and Mr. Chapman in the form
of written input, such as drafts?
MR. FEE: Objection.
THE WITNESS: As I -MR. FEE: Hold on a second.
I don't believe that you're
entitled to discovery regarding his
drafts, and I'll instruct him not to
answer that -MR. BRIDGES: I --

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factual matter, this is the very first
time I've seen these notes. I've
never seen these before.
BY MR. BRIDGES:
Q. What did you rely upon in
making all of the detailed references to
conversations in the report?
A. My -MR. FEE: Objection. Asked and
answered.
THE WITNESS: My memory of
conversations with those individuals
and conversations that I had with
Mr. Hamasaki and Mr. Chapman.
BY MR. BRIDGES:
Q. Did anyone else prepare the
language regarding that -- the information
from those conversations that you relied upon
in creating your report?
A. No, not to my knowledge. Now,
lawyers did look at draft of the report,
although we're not going into the substance
of it. But that was -- we could, in part, be
refreshed if we were wrong as to any cite,
but I don't think we were.

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MR. FEE: -- unless you have -unless there's something in there that
makes this subject to an exception of
Rule 26, as limitation on discovery
from experts, which I'm not aware of.
MR. BRIDGES: I am entitled to
discovery about materials he relied
upon -MR. FEE: Okay. That's fair.
MR. BRIDGES: -- and that is my
question.
MR. FEE: Okay.
BY MR. BRIDGES:
Q. And I'd like to know if you
relied upon drafts prepared by other persons
regarding the statements and facts for which
conversations are mentioned in the citations.
MR. FEE: Objection to form.
THE WITNESS: I don't know how
to answer that besides what I said a
moment ago, and let me perhaps say it
a little bit differently and see if
that's responsive.
Mr. Hamasaki, Mr. Chapman, and
I were all involved in this project

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and in this report. We were all
2
involved in writing and rewriting and
3
talking and questioning one another.
4 BY MR. BRIDGES:
5
Q. And were you relying, in part,
6 upon the memories or recorded memories of
7 Mr. Hamasaki and Mr. Chapman?
8
MR. FEE: Objection. Vague as
9
to "relying."
10
And if you're asking him if
11
he's relied upon those conversations
12
as the basis for facts or assumptions,
13
you can answer it. If you mean relied
14
in any other context, you shouldn't
15
answer it.
16
THE WITNESS: I certainly
17
didn't rely on any recordings of
18
conversations. I had not seen any
19
notes. This is the first I've seen
20
notes from Mr. Chapman and
21
Mr. Hamasaki.
22
We talked about virtually all
23
of these topics. I don't know if you
24
would call that "relying" or not. But
25
we worked together on this project.

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go behind him or vice versa.
So I don't know if that answers
your question, but that's the process
that we followed.
BY MR. BRIDGES:
Q. And did the process include
their writing the facts that corresponded to
the conversations with plaintiffs' employees
and your reviewing and revising what they had
written?
MR. FEE: Objection.
To the extent that question
calls for responsive information that
is unrelated to bases that form your
opinions or conclusions or assumptions
that you made, I would instruct you
not to answer that portion of the
question. You can otherwise respond.
THE WITNESS: We all reviewed
and revised the document. I don't
think that there were any facts that
came only from one of them that I
wasn't aware of.
BY MR. BRIDGES:
Q. Were there recollections that

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BY MR. BRIDGES:
Q. Did they prepare draft language
referring to information from those
conversations with citations to those
conversations that you relied upon in
completing the report?
MR. FEE: Objection. Vague as
to "relied."
To the extent that should be
interpreted as meaning relied upon for
reaching any conclusions in your
report or relied upon for assumptions,
you can answer it. You shouldn't
answer it otherwise.
THE WITNESS: I just don't know
how to answer that question besides
saying, at various points in time, one
or the other -- others of us were
involved in the Word document that we
created. So it was almost never the
case that the three of us were in the
Word document at the same time.
So there were times that, for
instance, Mr. Hamasaki was doing some
work in the document and then I would

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came from them that you relied upon in
creating your report?
MR. FEE: Same objection and
same instruction.
THE WITNESS: There may have
been confirmations of things that I
recalled or knew, but I don't think
that they brought to my attention
things that I didn't previously know.
BY MR. BRIDGES:
Q. And what types of confirmations
were there things that you relied upon in
approving this report?
MR. FEE: Same objection and
instruction.
THE WITNESS: Virtually
everything you see in the report, all
three of us were involved in it, and
all three of us were confirming and
denying things or evaluating things
along the way.
MR. BRIDGES: I think we have
to pause for a change of media, so why
don't we take a break.
THE VIDEOGRAPHER: Off the

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record at 12:17. This is the end of
media unit number 1.
* * *
(Recess from 12:17 p.m. to
12:32 p.m.)
* * *
THE VIDEOGRAPHER: On the
record at 12:32. This is the
beginning of media unit 2 in the
deposition of John Jarosz.
BY MR. BRIDGES:
Q. Mr. Jarosz, your report, as I
referred to earlier, cites a number of
conversations with employees of the
plaintiffs. For what purpose did you have
conversations with the plaintiffs' employees?
A. To learn more about the
organization and their view as to the impact
of continued copyright protection -continued copyright infringement and
trademark infringement.
Q. What view did you learn from
them?
MR. FEE: Objection to form.
THE WITNESS: Well, I solicited

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you interview?
A. I don't think I interviewed any
members of the public either.
Q. What steps did you do to
ascertain the views of the members of the
organizations, other than the employees?
A. I read the materials that were
produced here. I read the deposition
testimony of the various individuals. I read
the articles published by Ms. Bremer. And I
read the other academic literature and
practical literature that I had.
Q. Which of those sources stated
the views of the non-employee members of the
various organizations?
A. I don't know that views of -that their views were explicitly addressed in
my report or represented. I understood what
the impacts of the lack of honoring the
copyrights and trademarks would have, but I
don't know that I saw non-employee member
views explicitly summarized.
Q. So what steps did you do to
ascertain the views of the members of the
organizations --

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and learned many facts about the
organizations. I also learned that
each one of them viewed continued
copyright infringement and trademark
infringement as quite detrimental to
their organizations, detrimental to
the members, detrimental to the
public.
They viewed continued IP
infringement as potentially
devastating to their organizations.
BY MR. BRIDGES:
Q. These were their views?
A. Yes. I'm just paraphrasing, of
course.
Q. What members did you interview?
A. None, other than the employees.
I don't know if you call those "members" or
not. But the volunteer membership, I didn't
go to.
THE VIDEOGRAPHER: Excuse me.
Counsel, could you move your
microphone to your lapel? Thank you.
BY MR. BRIDGES:
Q. What members of the public did

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MR. FEE: Objection.
BY MR. BRIDGES:
Q. -- other than their employees?
MR. FEE: Asked and answered.
THE WITNESS: Well, I talked to
the employees, and they interact with
the members on a very regular basis,
so they gave me some sense of what the
views of the members were.
It also could be that some of
the perspectives of the members are
reflected in some of the documents I
identified in tab 2.
BY MR. BRIDGES:
Q. Well, I'm just trying to find
out where -- it sounds as though -- strike
that.
It sounds as though a minute
ago you said you couldn't recall anything
specifically calling out views of
non-employee members, correct?
A. Correct. I think that's right.
Q. What did you do to verify the
statements that employees of the plaintiffs
made about the views of the non-employee

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members of their organizations?
A. I did what I normally do in an
assignment like this and look at the produced
materials.
Q. And the produced materials did
not call out specifically any views of
non-employee members of the plaintiff
organizations, correct?
A. I don't recall any specific
views being summarized. My memory may not be
perfect on that, though.
Q. What research, if any, did you
do among members of the public about whether
lack of copyright protection for the
plaintiffs' standards would be detrimental to
the -- to the public?
A. The information that I reviewed
is in tab 2. I didn't have material beyond
what is identified in tab 2.
Q. So what in tab 2 reflects your
steps to ascertain the views of members of
the public?
MR. FEE: Objection to form.
THE WITNESS: I think the
Bremer articles, in part, address

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States other than law review articles by
Emily Bremer?
A. As I sit here right now, I'm
not aware of any documents that discuss the
deliberations, but my memory is not perfect.
Q. Do you know if there was a
consensus in any relevant committee of the
Administrative Conference of the United
States regarding the conclusions that
Ms. Bremer states in her law review articles?
A. I don't.
MR. FEE: Objection. Vague.
BY MR. BRIDGES:
Q. Do you know whether there was
any dissent in any relevant committee of the
Administrative Conference of the United
States regarding the conclusions that
Ms. Bremer states in her law review articles?
MR. FEE: Objection to form.
THE WITNESS: I don't.
BY MR. BRIDGES:
Q. Do you know why persons get
appointed to the Administrative Conference of
the United States?
A. I may have known that, but I

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that. I think some of the federal
government's circulars that I
identify, in part, reflect the
reviews, in particular the NTTAA of
1995 and OMB Circular A-119. I think
they, in part, reflect public views.
There are probably other things.
BY MR. BRIDGES:
Q. Did you review OMB Circular
A-119 personally?
A. Yes. As I recall, I did.
Q. Did you review any materials
pertaining to the discussions or
deliberations of the Administrative
Conference of the United States in connection
with your research or analysis?
A. What particular materials or
meetings are you referring to?
Q. Any.
A. I don't recall, but it's
possible.
Q. Does tab 2 refer you to any
documents that would provide you information
about the discussions or deliberations of the
Administrative Conference of the United

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don't recall that sitting here now.
Q. Do you know whether
Ms. Bremer's articles -- strike that.
Do you know whether
Ms. Bremer's law review articles reflect a
view of the Administrative Conference of the
United States -MR. FEE: Objection to form.
BY MR. BRIDGES:
Q. -- or of any of its committees?
MR. FEE: Objection to form.
THE WITNESS: I'm not aware
that they officially reflect that. I
believe she gathered information, and
they may, in fact, represent the views
of some or all members, but I don't
think that's -- that either article is
an official representation -BY MR. BRIDGES:
Q. Are you -A. -- of that body.
Q. Are you aware of the fact that
her articles -- her law review articles
specifically disclaim her articles as the
views of any government entity and indicate

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that they are her personal views?
A. I wouldn't be surprised and
may -- I may have read that, but I would
expect that that would be in the first
footnote of one or both articles.
Q. What did you do to examine the
alleged facts that the representatives of
plaintiffs stated to you in their
conversations with you?
MR. FEE: Objection to form.
THE WITNESS: I looked at -MR. FEE: Asked and answered.
THE WITNESS: I'm sorry. I
looked at the document production and
the other materials shown in tab 2.
BY MR. BRIDGES:
Q. You looked at the document
production that the plaintiffs' counsel
furnished you?
A. In part. There were other
things in tab 2 that were not provided to me
by plaintiffs' counsel.
Q. What other materials in
tab 2 -- strike that.
Please identify for me in tab 2

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I believe counsel did not
provide the Web site screenshots, but I might
be wrong on that.
Q. And did you do anything -what, if anything, did you do to test the
validity of the factual assertions that the
plaintiffs made to you in your conversations
with their employees?
MR. FEE: Objection to form.
Asked and answered.
THE WITNESS: Well, we looked
at materials. If we found things that
conflicted with what we learned, that
would prompt us to investigate
further. But I don't recall seeing
any documentary evidence that
conflicted with facts that were
provided by plaintiff personnel, but I
might be wrong.
BY MR. BRIDGES:
Q. Did you investigate
independently whether documents existed that
contradicted plaintiffs' statements of facts?
A. Not with that in mind. We
looked at the documents and were mindful of

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the materials that plaintiffs' counsel
furnished you.
A. I don't know with absolute
certainty, but let me give you my best guess.
I believe all the depositions that are shown
on page 1. I believe the Bates ranges at the
very top of the page were provided by
counsel.
The deposition transcripts and
exhibits were provided by counsel. I believe
the financial statements and plans were
provided by counsel. I believe the legal
documents were provided by counsel. I
believe the miscellaneous items were provided
by counsel.
I don't know about the cases
and laws. I just don't remember if we
separately gathered those or were provided
those.
The analyst reports, articles,
books, and presentations, I think we gathered
all of those, with the possible exception of
the two Bremer articles. I don't recall if
counsel provided that or we obtained those
separately.

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whether there were conflicts within documents
or conflicts between documents and other
information, but I don't recall that we saw
anything that gave us substantial pause.
There were probably some things
where there were some uncertainties whether
there was a conflict or not and some where
there were insignificant conflicts, but I
think mostly the information we saw did not
conflict with the information we learned from
plaintiff personnel.
Q. Did you investigate
independently whether other documents, apart
from the documents plaintiffs furnished you,
existed that contradicted plaintiffs'
statements of facts -MR. FEE: Objection to form.
BY MR. BRIDGES:
Q. -- in conversations with you?
A. Yes, in the sense that we
gathered some information that we did not
receive from plaintiffs' counsel, but all of
that is identified in tab 2.
Q. Which part of tab 2?
A. Well, as I said, I think the

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Web sites we gathered ourselves, and I think
the reports and articles, with the exception
of the Bremer articles, we gathered
ourselves.
Q. Do you know why you got no
documents from NFPA, no Bates range documents
from NFPA?
MR. REHN: Object to form -THE WITNESS: I don't know why
we did not receive Bates documents -THE REPORTER: Wait.
MR. REHN: Sorry. Object to
the form. Lacks foundation.
THE WITNESS: I don't know for
sure that we didn't receive
Bates-stamped documents, but I believe
some of the documents we received were
NFPA documents.
BY MR. BRIDGES:
Q. Do you recall seeing any NFPA
documents that -- in which NFPA personnel
stated that they could not show any harm from
the defendant's activities?
A. Received any documents that
said that?

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Q. What did you hear about
overseas litigation involving Public
Resource?
A. I think I heard that there was
a German -- or a suit in Germany, but I'm not
sure that I learned much more than that. I
don't recall what status that suit -- what
the status of that suit is.
Q. Do you recall anyone disclosing
to you litigation involving NFPA in the
United States that pertained to standards and
copyright?
A. It's possible, but I don't
recall any, sitting here right now.
Q. Do you recall inquiring about
public statements of fact that NFPA has made
regarding copyright and standards in
litigation other than this litigation in the
United States?
MR. FEE: Objection to form.
THE WITNESS: I do not.
BY MR. BRIDGES:
Q. Are you familiar with a case
called Veeck, V-E-E-C-K?
A. I'm familiar with an opinion in

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Q. Uh-huh.
A. Perhaps you would have
something that would refresh my memory. I
don't recall, sitting here right now, but
it's possible.
Are you talking about
historical -- historically no harm, or are
you talking about prospectively?
Q. Either one. Did you -- do you
recall seeing any internal NFPA documents
that call into question where NF -- whether
NFPA has suffered any harm from the
defendant's activities?
A. I don't recall documents on it.
There may have been some deposition testimony
about past activities, but I don't know if it
was activities prior to Public Resource
actions here or after.
Q. Do you recall learning about
any litigation that NFPA had engaged in
pertaining to standards and copyright?
A. I think I heard that there's
some overseas litigation involving Public
Resource. Whether that involves NFPA, I
don't know.

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the Veeck case.
Q. What do you know about that
opinion?
MR. FEE: Objection.
I would instruct you not to
disclose anything you know about that
opinion that was a result of
communications with counsel and that
did not form the basis of any of the
opinions in your report or any of the
assumptions that you relied upon in
reaching your conclusions.
THE WITNESS: I did talk with
counsel about that case, and that case
didn't form any basis for any of my
observations or conclusions here.
BY MR. BRIDGES:
Q. Why did the Veeck case not form
any basis for any of your observations or
conclusions here?
A. I don't know how to answer that
question. I -- it didn't present any facts
that were specific to this case, as far as I
recall.
Q. What do you recall of the facts

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of that case?
A. I recall generally it had to do
with activities of certain municipalities
using what was copyrighted or what was
claimed to be copyrighted material by a group
that developed materials explicitly to be put
into the law.
Q. Do you recall what the decision
was in the opinion you seem to be familiar
with?
MR. FEE: Objection to form.
THE WITNESS: I think,
generally, that copyright protection
was not available. I'm sure there was
more to it, but that's my general
opinion, my general memory.
BY MR. BRIDGES:
Q. And copyright protection was
not available for what?
A. Well, the asserted copyrights
in that matter.
Q. And do you recall what the
matter was that was at issue in Veeck?
A. Well, as I said, I think it was
certain municipalities were using certain

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a court rules that those codes are not
subject to copyright?
MR. FEE: Objection to form.
Vague. Lack of foundation.
THE WITNESS: What case
studies? Are you talking about
something akin to a business school
case study? I don't know what you
mean by that term.
BY MR. BRIDGES:
Q. I'm just -- what opportunities
do you -- have you identified for finding
comparable circumstances where a court has
made a ruling that building codes are not
subject to copyright in order to study what
the consequences were -MR. FEE: Objection.
BY MR. BRIDGES:
Q. -- what the economic
consequences were of the Court's decision?
MR. FEE: Objection to form.
Vague as to "comparable." Lack of
foundation.
You can answer.
THE WITNESS: I don't know that

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standards and using the materials from
certain standards and perhaps disseminating
it. I -- I forget the facts.
Q. Do you recall what kind of
standards they were?
MR. FEE: Objection. Vague.
THE WITNESS: They may
generally have had to deal with
building codes, but I could be wrong
on that.
BY MR. BRIDGES:
Q. What analysis did you do of
harms suffered by the code developers of
those building codes as a consequence of the
Veeck decision?
A. I didn't do any analysis
associated with the facts of that case.
Q. Why not?
A. Because those facts are
different than the facts here, including what
the organization was.
Q. Are the facts -- what -- what
case studies are you familiar of -- are you
familiar with regarding measurements of harms
suffered by entities that develop codes when

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I can answer. I don't -- I don't
under -- I don't know how to answer
your question. I read that court
case.
BY MR. BRIDGES:
Q. And did you stop to say at some
point -- strike that.
Why did you read the court
case?
A. Because I understand that
Public Resource believes it's of some
significance to this case.
Q. Do you believe that that -- do
you have an understanding as to whether the
Veeck case is of any significance to this
case?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: I don't know.
I'm not a legal expert.
BY MR. BRIDGES:
Q. What steps did you take to
ascertain what economic harms flowed from the
Court's decision in the Veeck case?
MR. FEE: Objection. Asked and

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answered.
THE WITNESS: Again, I read the
case. I didn't do any analysis beyond
that of that particular case.
BY MR. BRIDGES:
Q. What steps did you take to
ascertain what public harms flowed from the
Court's decision in the Veeck case?
A. Other than reading the case,
the opinion in the case, I didn't do anything
beyond that to understand the implications of
that holding.
Q. You didn't do any investigation
as to the economic consequences to any
entity, industry, or person as a consequence
of the decision in the Veeck case, correct?
MR. FEE: Objection to form.
THE WITNESS: I think that's
correct, yes.
BY MR. BRIDGES:
Q. How has the process of
standards development changed in the last 100
years, to your knowledge?
A. I don't know the specifics, and
I don't know that there is one standards

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A. Not sitting here right now, I
don't.
Q. Do you know whether ASHRAE took
over development of what became standard 90.1
from any other group or entity?
A. No, I do not.
Q. Have you ever quantified the
value of the contributions made by the
volunteers of the various organizations to
the standards at issue in this case?
MR. FEE: Objection to form.
THE WITNESS: Not other than
having some sense of hours or a
limited sense of dollars, but not
beyond that, no.
BY MR. BRIDGES:
Q. Can you put a rough dollar
value on the time and expenses of the
volunteers with respect to any of the
standards in this case?
MR. FEE: Objection to form.
THE WITNESS: Not sitting here
right now. That would entail a little
bit of a study. I have not done that.
BY MR. BRIDGES:

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development process. I think there are a
variety of processes pursued by a number of
SSOs or SDOs. I'm sure that there have been
changes on the margin. There may have been
larger changes. I just don't know. I have
not studied the trend in the standard
development process over time.
Q. What changes are you aware of
in the standards development process of NFPA
over the past 100 years?
A. I don't know. I've not studied
that topic.
Q. What changes are you aware of
in the standards development process of the
ASHRAE 90.1 standard?
A. I don't know. I've not studied
that.
Q. How did ASHRAE come to develop
the 90.1 standard?
A. I think, generally, a need was
identified and a group of constituents
convened to derive a standard, but I don't
know the specifics beyond that.
Q. Do you know who identified the
need?

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Q. What -- what would be required?
A. To understand basically the
out-of-pocket expenses incurred and the
opportunity costs incurred. So among other
things, one would want to look at time
records, have an understanding of
compensation, have an understanding of the
activities of those individuals. Those
are -- would be among the inputs.
Q. What changes are you aware of
in the distribution of standards in the past
100 years by the plaintiffs?
MR. FEE: Objection to form.
THE WITNESS: I haven't
investigated that particular issue,
but I understand that some of the
standards today are distributed
through the Internet that certainly
didn't exist 100 years ago.
Some of the standards are
distributed for free with limitations.
I don't know if that was true 100
years ago, but it might have been.
I would expect some of the
copying and dissemination capabilities

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are much greater today than they were
in 1915, but I don't know that the
general methods of -- I don't know how
the general methods of distribution
have changed.
BY MR. BRIDGES:
Q. What changes are you aware of
in sales trends over the past 20 years?
MR. FEE: Objection to form.
THE WITNESS: I don't have data
going back as far as 20 years ago. I
have some information on publication
sales, for instance, in tabs 3, 4, and
5. They only -- that information only
goes back a few years, however.
BY MR. BRIDGES:
Q. Did you review any information
earlier than the dates shown in the documents
at tabs 3, 4, and 5?
MR. FEE: Objection. Vague.
THE WITNESS: It's possible
that some of the source documents had
earlier information, but I don't
recall that. I would need to look at
those source documents.

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the right to reproduce, copy, or
disseminate those standards but can
look at them online.
BY MR. BRIDGES:
Q. Have you used the reading rooms
of any of the plaintiffs?
A. No, I have not.
Q. Have you reviewed the interface
that the -- have you reviewed the interfaces
that the plaintiffs offer to persons wishing
to view materials for free online?
A. No, I don't think so.
Q. Do you know what effect, if
any, the presence of those free materials on
the plaintiffs' Web sites has had on the
plaintiffs' revenues?
MR. FEE: Objection to form.
THE WITNESS: No, I don't.
BY MR. BRIDGES:
Q. Have you -- have you
investigated that?
MR. FEE: Same objection.
THE WITNESS: I've been
opening -- I've been open to learning
about that, but I haven't learned that

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BY MR. BRIDGES:
Q. And those source documents
would be within the Bates ranges identified
in tab 2 of your report?
A. Within the Bates ranges or
identified elsewhere in tab 2. For instance,
the AS team -- ASTM audited -- audited
consolidated financial statements, I think,
may not all be Bates-stamped. I could be
wrong on that. But I would look in that set
of financial documents.
Q. What do you know about what you
said -- strike that.
You said earlier that some
standards are distributed for free with some
limitations; is that correct?
A. Yes, that's my understanding.
Q. What do you know about that?
MR. FEE: Objection. Vague.
THE WITNESS: I've written
about that in my report. I believe
that each one of the plaintiffs has
provided what is sometimes called a
"reading room" so that people can look
at those standards but are not given

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there's a direct or indirect effect.
There might be, but I haven't seen
evidence of that.
BY MR. BRIDGES:
Q. My question was, have you
investigated that?
MR. FEE: Same objection.
THE WITNESS: Perhaps you could
read back my answer.
BY MR. BRIDGES:
Q. I've heard the answer. It was
not responsive to my question. The -- you
said you did not know what effect, if any,
the presence of those free materials on the
plaintiffs' Web sites has had on the
plaintiffs' revenues.
And my question is, have you
investigated that?
MR. FEE: Same objection.
THE WITNESS: No, I've not
undertaken a separate investigation.
I've been alert to that topic, but I
haven't assigned myself that
investigation.
BY MR. BRIDGES:

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Q. Was something that was -remained pending at the time you wrote this
report as something that you expected to do
in the future?
A. No.
MR. FEE: Objection. Vague.
THE WITNESS: I'm sorry.
No.
BY MR. BRIDGES:
Q. Did you study the practices of
any standards development organizations,
other than the plaintiffs, for purposes of
your work in this case?
MR. FEE: Objection. Vague.
THE WITNESS: Not that I
recall. I saw reference to other SDOs
in the Bremer articles, for instance,
but I didn't undertake a separate
investigation of the practices of any
other SDOs for purposes of my
assignment here.
BY MR. BRIDGES:
Q. Are you aware of practices or
policies of other SDOs with reference to
either copyright or free availability of

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SDOs, but the standard setting organizations
that are the candidates are the ones that I
identified earlier today.
Q. Which SDOs do you recall
treating copyright protection of their
standards as very important?
A. I just don't recall right now.
I -- I have some vague recollection that
copyright considerations are addressed by
ETSI, but I could be wrong on that.
Q. What do you know about policies
or practices of the Blu-ray organization with
respect to copyright protection?
A. I assume you're talking about
the Blu-ray Association? I may have known
when I was involved in that matter. I do not
remember, sitting here now.
Q. Do you recall that your report
actually refers to the Blu-ray Association?
A. I think I refer to Blu-ray
standards. I don't recall if I refer to the
Blu-ray Association, but perhaps you could
refresh my memory.
Q. I believe you point it out at
the bottom of page 62. "While certain SDOs

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their materials?
MR. FEE: Objection to form.
THE WITNESS: I may have been
aware through other assignments I've
undertaken in the past, but I didn't
undertake any separate investigation
for purposes of this matter.
BY MR. BRIDGES:
Q. What awareness do you have of
the practices or policies of other SDOs
through other assignments you've undertaken
in the past?
MR. FEE: Objection to form.
THE WITNESS: I can only recall
most generally that they view
intellectual property protection as
being very important, but I can't be
any more specific than that.
BY MR. BRIDGES:
Q. Which SDOs you -- do you recall
treating intellectual property protection as
very important?
A. Well, again, I've -- I've dealt
with standards setting organizations. I
don't know if any of those are technically

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(e.g., the Blu-ray disc association) provide
unrestricted access to their standard
publications for free, the Plaintiffs here do
not."
Do you recall that?
A. Now I do. Thank you for
refreshing my memory.
Q. What economic effects are you
aware of the fact that the Blu-ray Disc
Association provides unrestricted access to
its standard publications for free?
A. I have not investigated that
issue, so I don't know.
Q. What other SDOs have you
identified that provide unrestricted access
to their standards for free?
A. I don't think I've identified
any others in my report.
Q. Did you look for any others?
A. Not that I recall.
Q. Why not?
A. I don't know how to answer
that. I was aware of the Blu-ray Disc
Association's policy in this regard, so I
wrote about it here.

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Q. Why did you not consider the
economic effects of free distribution of
standards with respect to other
organizations?
A. I didn't quite see the
relevance to this matter.
Q. Why?
A. I don't know how to prove a
negative.
Q. What's the negative you were
thinking of that would need to be proved or
disproved?
A. That something is not relevant.
Q. You just didn't see the
relevance?
A. I don't understand how that
would be helpful in the assignment that I had
here.
Q. And what was the assignment you
had here?
A. Well, I've laid it out -Q. I can read the report. I'm not
asking you to read -- read the report. I'd
like your own words now, sitting here.
MR. FEE: Objection.

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perspective.
BY MR. BRIDGES:
Q. And what is the relevance of
economic analysis to that question, as you
understand it?
MR. FEE: Objection to form.
Vague. Might also be construed to
require a legal conclusion.
THE WITNESS: Economists have a
view and perspective at looking at
issues that some courts have found to
be useful.
BY MR. BRIDGES:
Q. Well, I'm asking, with specific
relevance to this case, what do you
understand the importance of economic
analysis to be in this case -MR. FEE: Objection. Calls -BY MR. BRIDGES:
Q. -- as you have purported to
practice it?
MR. FEE: Calls for a legal
conclusion.
Also, to the extent that
responding to that would require you

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BY MR. BRIDGES:
Q. How do you -- how do you
view -A. I'd like to answer it by
looking at my report.
Q. No, I'd like for you to give me
a straight answer, because if you're just
going to refer to the report, the report will
speak for itself, and I don't need you to
read it to me.
I'd like for you to tell me
what you understand, sitting here, to have
been your assignment in this case.
MR. FEE: Objection.
You can answer the question
however you deem appropriate.
THE WITNESS: I've aptly laid
it out in my report, so I defer to the
words in my report.
But I've, in essence, looked at
the topic of the impact of copyright
and trademark infringement here, and
asked myself the question whether a
permanent injunction would be
appropriate from an economic

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to disclose communications with
counsel that did not form the basis
for any of your opinions or
conclusions and did not provide any
assumptions that were the basis for
your opinions or conclusions, you
should not answer that portion of the
question.
THE WITNESS: I understand
that, generally, economists like me
are quite helpful in determining
questions of harm, particularly harm
as it relates to infringement of IP
rights.
BY MR. BRIDGES:
Q. How do you distinguish between
harms that are caused by an infringement by
the defendant versus harms that might be
caused by a court decision that plaintiffs
lack copyrights?
MR. FEE: Objection to the
extent it calls for a legal
conclusion.
THE WITNESS: I don't know how
to answer that question. I didn't ask

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myself the question of ownership or
impact of ownership. I asked myself
the question here of impact of
infringement.
BY MR. BRIDGES:
Q. If it turns out that the Court
rules that the plaintiff -- sorry. Strike
that.
If it turns out the Court rules
here that the defendant has engaged in fair
use, is it your understanding that none of
your harms analysis is relevant -MR. FEE: Objection.
BY MR. BRIDGES:
Q. -- because of a finding of
non-infringement?
MR. FEE: Calls for a legal
conclusion.
To the extent answering that
question would require you to disclose
communications you had with counsel
that don't form the basis for any of
your opinions or conclusions and don't
provide any assumptions that you
relied upon, you shouldn't disclose

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under the assumption that the
activities violate the law.
BY MR. BRIDGES:
Q. If the activities -- do you
believe -- do you understand that your
analysis is relevant to a determination of
whether the defendant has violated the law?
MR. FEE: Objection. Calls for
a legal conclusion.
To the extent that your
understanding is based upon
communications with counsel, you
shouldn't disclose them, unless they
formed the basis for your opinions or
conclusions or provided assumptions
that you relied upon in reaching your
conclusions.
THE WITNESS: I don't know.
BY MR. BRIDGES:
Q. Do you have any view as to
whether the defendant has violated copyright
law?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: No, I've not

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those communications.
THE WITNESS: You're asking for
a legal conclusion. I'm not an expert
on that.
BY MR. BRIDGES:
Q. I'm understanding your
understanding -- I'm asking for your
understanding of the relevance of your
contributions to this case.
MR. FEE: Objection. Asked and
answered. Plus all the prior
objections and instructions.
THE WITNESS: I believe my
testimony and report are relevant to
the issue of harm and potential harm.
BY MR. BRIDGES:
Q. From what?
A. From continuing -- the
continuing activities and possible expanded
activities of the defendant here.
Q. From activities or from
violations of law?
MR. FEE: Objection. Vague.
Calls for a legal conclusion.
THE WITNESS: I -- I'm working

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taken on that assignment.
BY MR. BRIDGES:
Q. Do you have any view as to
whether the defendant's activities constitute
fair use?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: No, I've not
taken on that assignment.
BY MR. BRIDGES:
Q. If a court determines that the
defendant has not infringed upon plaintiffs'
copyrights, do you understand that the
decision would result in economic harm to the
plaintiffs?
MR. FEE: Objection to the
extent it calls for a legal
conclusion.
THE WITNESS: I'm not following
your question. Could you ask it a
little bit differently, please?
BY MR. BRIDGES:
Q. No, I'll restate it if you just
need to rehear it.
A. No, I don't need to rehear it.

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If you could recast it, please.
Q. No. Then please answer my
question.
MR. FEE: Objection.
BY MR. BRIDGES:
Q. I get to ask the questions.
MR. FEE: He just said he
couldn't answer it.
THE WITNESS: I don't
understand the question.
BY MR. BRIDGES:
Q. What is it you don't
understand?
A. I understand each word but not
how you put them together.
Q. If a court determines that the
defendant has not infringed upon the
plaintiffs' copyrights, do you believe that
that decision would result in economic harm
to the plaintiffs?
MR. FEE: Objection to the
extent it calls for a legal
conclusion. Plus asked and answered.
THE WITNESS: It sounds like
exactly the same words, so I'm not

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that's fine.
A. I want to, but I cannot.
Q. Well -A. I do not understand the
question.
Q. I'll say it again.
Would a decision by the Court
that the defendant has not infringed upon the
plaintiffs' copyrights result in economic
harm to the plaintiffs?
MR. FEE: Objection. Calls for
a legal conclusion. Asked and
answered.
THE WITNESS: I -MR. FEE: Vague.
THE WITNESS: I cannot answer
it any differently. I'm sorry.
Is this a good time for a
break, or do you want to keep going?
MR. BRIDGES: Sure. We can
take one if you want.
THE VIDEOGRAPHER: Off the
record at 1:17.
* * *
(Recess from 1:17 p.m. to

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sure how to answer that question.
BY MR. BRIDGES:
Q. Would a decision that the
defendant has not infringed upon plaintiffs'
copyrights result in economic harm to the
plaintiffs?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: I'm just not
following. I under -- I'm worked -I'm working under the assumption that
the activity here represents a
copyright infringement. I'm -- and
I'm being asked and answering the
question of the impact of that and
whether there would be harm and what
kind of harm and whether that's
reparable harm.
So I'm focusing on what has
been done and what may continue to be
done by the defendant.
BY MR. BRIDGES:
Q. That's non-responsive. I'll
ask you to answer my question. And if you
just don't want to answer the question,

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2:12 p.m.)
* * *
THE VIDEOGRAPHER: On the
record at 2:12.
BY MR. BRIDGES:
Q. Good afternoon, Mr. Jarosz.
A. Good afternoon.
Q. Could you outline for me,
please, what steps you took in your
engagement in this case? What are the
different activities you engaged in?
A. Generally, I had a discussion
with counsel about the matter. Then we
examined documents that would -- were
provided to us to give us background. We
then proceeded to gather our own information
from third-party sources, primarily through
Internet searches.
We obtained information that
had been produced as part of discovery. We
had conversations with people at the various
plaintiff organizations.
We outlined the report and
summarized some of the information that you
see in the tabs. We had discussions with

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counsel. And then we finalized the report,
submitting it to counsel on June 5th, 2015.
Q. Do you know how many standards
of each plaintiff are at issue in this case?
A. How many -- I'm sorry -standards are at issue?
Q. Yes.
A. I have that number written
down. It's in the hundreds, and I forget, as
I sit here right now, precisely the number.
I will look it up. And I was giving you an
answer that was a cumulation across the three
plaintiffs.
I am not seeing that number
right now. I'll keep looking.
Q. Do you know what -A. You may be able to point me
quicker than I recall where it was.
Q. Do you -- do you know what
proportion of plaintiffs -- of each
plaintiffs' standards is at issue in this
case?
A. Are you asking me the ratio of
the standards at issue versus the total
standards developed by the organizations?

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Q. Have you analyzed any
differences in sales trends between those of
plaintiffs' standards that have been
incorporated into law and those of
plaintiffs' standards that have not been
incorporated into law?
A. I don't think so. I don't
think I have those data, and I'm not sure
that each plaintiff knows precisely how many
have been incorporated into law.
Q. Did you ask for any data
regarding the distinction between standards
incorporated by reference and standards not
incorporated by reference in the law?
A. I don't -MR. FEE: Objection to form.
THE WITNESS: I'm sorry. I
don't recall.
BY MR. BRIDGES:
Q. You made observations about
sales trends earlier in your deposition. I
think you said that there's been a reduction
in sales of certain of plaintiffs' standards;
is that correct?
A. I'm not quite sure what the

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Q. Yes.
A. I think it's less than a
majority for each organization. I'm fairly
certain of that with regard to ASTM. I think
that's true with regard to NFPA. I think
it's true with regard to ASHRAE.
Q. Do you have any better
information than less than a majority -A. Well, I -Q. -- for each of them?
A. The precise numbers are in the
report. Let's see here. One can figure that
out. You may remember where I summarized the
number of standards. I just don't remember.
It's easy to determine because the data are
all here.
Q. Have you analyzed differences
in sales trends between standards that are at
issue in this case and plaintiffs' other
standards?
A. No, I don't think I have those
data at my disposal.
Q. Did you ever ask for those
data?
A. I don't recall.

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earlier testimony was, but I think I was
pointing you to paragraph 133 with regard to
downloads of -- and other measures of
activity, as I had at my disposal.
Q. Well, I'm trying to find out
what changes you have studied in plaintiffs'
economics that you attribute to defendant's
activities.
A. I'm not quite sure what your
question is.
Q. Well, I'm trying to find out
what information you have studied to
determine what changes in the finances of
each of the plaintiffs have occurred as a
consequence of the defendant's activities.
MR. FEE: Objection to form.
THE WITNESS: I'm still not
sure that I'm hearing a question. But
to the extent that I had information
on changes in activity level, I
summarized that in paragraph 133.
BY MR. BRIDGES:
Q. My question is, what
information did you study to determine any
changes in finances of each of the

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plaintiffs?
MR. FEE: Same objection.
THE WITNESS: It's reflected in
paragraph 133 and in the tabs,
particularly 3, 4, and 5. But the
tabs are not at the granular level
that I think are of interest to you.
BY MR. BRIDGES:
Q. What do you mean by the
"granular level" that would be of interest to
me?
A. I don't think it breaks out
publications by standard, for instance.
Q. Does it break out publications
by whether a standard has been incorporated
by reference or not?
A. I don't think so.
Q. Does it break out by whether a
standard has been publicly made available by
defendant or not?
A. I don't think so. Not in
tabs 3, 4, and 5.
Q. How do you establish causation
between defendant's activities and any of the
data that you provide in section -- in

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of certain of the standards. I've
presented that.
I don't have direct evidence of
the precise impact historically of
defendant's activities on plaintiffs'
financials.
BY MR. BRIDGES:
Q. What evidence of any kind do
you have of any kind of impact historically
of the defendant's activities on plaintiffs'
financials?
MR. FEE: Objection to form.
THE WITNESS: That which is
reported in paragraph 133, that of
which is contained in deposition
testimony, and that of which I
summarized in other parts of the
report.
BY MR. BRIDGES:
Q. So when you're referring to
deposition testimony, you're referring to the
citations to the footnotes in paragraph 133?
A. No, I don't think it's just
limited to that. I think there's some other
deposition transcripts that talk about the

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paragraph 133?
MR. FEE: Objection. Calls for
a legal conclusion. Form.
THE WITNESS: One can and
should look at all evidence available,
including circumstantial evidence. I
don't have direct information about
the precise impact of defendant's
activities, but I have important
information that bears on that issue,
including information that's in
deposition transcripts.
BY MR. BRIDGES:
Q. So my question is, how do
you -- do you -- strike that.
Are your conclusion -- are you
making conclusions in paragraph 133 about the
cause of changes in sales of the plaintiffs'
products?
MR. FEE: Objection to form.
THE WITNESS: Not definitively.
I have observations about the
magnitude and trend of the downloads
of -- through defendant's sites. I
have some information on the downloads

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impact or potential impact of defendant's
activities on each one of the plaintiffs.
Q. Did you make any independent
assessment of causation of any financial
effects on plaintiffs by the defendant's
activities?
MR. FEE: Objection to form.
Calls for a legal conclusion.
THE WITNESS: What do you mean
by the term of "independent assessment
of causation"?
BY MR. BRIDGES:
Q. You, as an expert, not relying
just on what other people have said or
speculated or thought.
MR. FEE: Same objections.
Plus compound.
THE WITNESS: We experts rely
on other information to draw the
conclusions that we do, and then we
bring our training to it. So our
observations shouldn't be in a vacuum.
BY MR. BRIDGES:
Q. But they should be objective,
correct?

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A. Yes.
Q. And that means perhaps not
relying upon the views of the parties to the
lawsuit alone, but doing independent analysis
and research, correct?
MR. FEE: Objection to form.
THE WITNESS: I think one can
and should evaluate and consider the
views of the parties, but not limited
investigation to that.
BY MR. BRIDGES:
Q. So what independent analysis
and research did you do other than reviewing
the views and statements of the parties in
this case?
MR. FEE: Objection. Vague.
THE WITNESS: I reviewed and
summarized the data, as you see in
133, that I had at my disposal. I
reviewed writings about the impacts.
And I took important
information from the fact that the
plaintiffs have brought this lawsuit.
The plaintiffs don't want this
activity to continue. That is

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A.

I took all the data -MR. FEE: Objection. Form.
Objection to form.
THE WITNESS: I took all this
data into account. That's why I
reported it here.
BY MR. BRIDGES:
Q. And the data that you
identified in the footnotes in
paragraph 134 -- sorry -- 133?
A. Yes, I considered that
information.
Q. Do you know in what year the
defendant posted the 2008 version of the
National Electrical Code on its Web site?
A. I don't know with absolute
certainty. I do know a number of the alleged
activities occurred in late 2012. I don't
know if it's specific to that code or not.
Q. Does it matter to your analysis
exactly when the defendant posted the 2008
National Electrical Code on its Web site or
to Internet Archive?
A. I would -MR. FEE: Objection to form.

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revealed preference information that's
quite important.
BY MR. BRIDGES:
Q. Tell me about what you mean by
repealed -- sorry. Strike that.
Tell me what you mean by
"revealed preference."
A. What people do often provides
information on what their preferences are.
Q. And so the fact that plaintiffs
brought this lawsuit has revealed to you that
they prefer to bring the lawsuit, correct?
MR. FEE: Objection. Vague.
THE WITNESS: Given the cost,
they prefer to bring the lawsuit
rather than not bring it, yes.
BY MR. BRIDGES:
Q. What else -- strike that.
What are the data you're
referring to in page -- strike that.
What are the data you're
referring to in paragraph 133 that you took
into account in discussing or analyzing
effects of defendant's activities on
plaintiffs?

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THE WITNESS: I would consider
that information if I had it, but I
don't have any reason to think that it
would change any of the conclusions
that I drew.
BY MR. BRIDGES:
Q. The timing of when the
defendant posted certain matters wouldn't
change your conclusions?
A. Not based on what I know right
now. My understanding is that much of the
activity occurred in 2012, the later half of
2012, and I still have the whole body of
evidence that I have considered. So I'm not
sure if the precise timing would change, but
I certainly would consider that.
Q. Do you know in what year
Public.Resource.Org posted the 2011 version
of the National Electrical Code?
A. Same answer to the question
that you had with regard to the 2008 code.
Q. Can you look at the data in
your -- the tables attached to your report
and see if that helps refresh your memory as
to when the defendant posted NEC 2008 and

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NEC -- NEC 2011?
A. I can look, and I will.
No, it doesn't answer that
question, I don't think.
Q. Can you make a prediction as to
when the defendant posted NEC 2008 and
NEC 2011, based on the data attached to your
report in Exhibit 1?
MR. FEE: Objection to form.
THE WITNESS: No, I don't
think, based on just those data.
BY MR. BRIDGES:
Q. Can you make -- give an
estimate as to when the defendant posted
NEC 2008 and NEC 2011, based on the data
attached to your report as Exhibit 1?
MR. FEE: Same objection.
THE WITNESS: No, I don't
think, based on just that information.
BY MR. BRIDGES:
Q. Well, just looking at your
report, can you tell when defendant posted
NEC 2008 and NEC 2011?
A. My answer hasn't changed. I
still don't know precisely when those were

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appropriateness of a permanent
injunction here.
BY MR. BRIDGES:
Q. Is the appropriate of -- is the
appropriateness of a permanent injunction an
economic question?
A. I think, in part, economic
considerations can be and often are taken
into account in answering that question.
Q. Is it an economic question?
MR. FEE: Objection.
BY MR. BRIDGES:
Q. That was my question.
MR. FEE: Asked and answered.
THE WITNESS: Again, in part.
BY MR. BRIDGES:
Q. The propriety of
a preliminary -- of a -- strike that.
It's your testimony that the
propriety of a permanent injunction is, in
part, an economic question?
MR. FEE: Objection. Asked and
answered. Form. Calls for a legal
conclusion.
THE WITNESS: Yes. As I

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posted.
Q. But that doesn't make a
difference to your economic analysis of the
effects of defendant's activities on the
plaintiffs?
A. Well, I would be curious -MR. FEE: Objection to form.
THE WITNESS: -- curious about
that information, but I don't have any
reason to think it would change the
conclusions that I drew, and that is
that a permanent injunction is
appropriate here.
BY MR. BRIDGES:
Q. Is it your job to determine
whether a permanent injunction is
appropriate? Is that what you were hired to
do?
A. No.
MR. FEE: Objection. Calls for
a legal conclusion. Form. Compound.
THE WITNESS: I think it's
ultimately the Court's decision to
make, but I've been asked what my
economic view is as to the

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understand it, one factor to consider
is the reparability or irreparability
of harm. I believe, at its core,
that's an economic question.
BY MR. BRIDGES:
Q. And what economic theories did
you rely upon to conclude that, as an
economic matter, a preliminary -- strike
that.
What economic theories did you
rely upon to conclude that, as an economic
matter, a permanent injunction is appropriate
in this case?
MR. FEE: Same objections.
THE WITNESS: I don't know what
candidates you have in mind for
economic theories.
BY MR. BRIDGES:
Q. Whichever ones you relied upon.
A. I -MR. FEE: Same objections.
THE WITNESS: -- used all of my
training and applied it to the facts
of this case and drew the conclusions
that I did.

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BY MR. BRIDGES:
Q. And are there any particular
aspects of training that you have beyond what
a first-year college student would have
gotten in a first-year economics course that
you have brought to bear by applying
particular economic theories to this case?
A. I think my training makes me
who I am and has helped me in assignments
like this. I have beyond a first-year-incollege understanding of basic economics, but
they're very important concepts that are
taught and learned in first-year economics.
Q. Well, I want to know if there
are any economic concepts beyond first-year
economics that you have brought to bear in
rendering your conclusions in this case.
MR. FEE: Objection to form.
Asked and answered.
THE WITNESS: Generally, there
are, yes.
BY MR. BRIDGES:
Q. What economic concepts have you
brought to bear in your report and analysis
in this case?

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THE WITNESS: We learn about
price theory. We learn about consumer
behavior. We talk -- we learn about
manufacturer and supplier actions. We
learn about game theory. We learn
about econometrics. We learn more
broadly about quantitative methods.
We learn about a variety of aspects of
industrial organization. There are
many things that we learn beyond the
first year of economics training.
BY MR. BRIDGES:
Q. No, I'm asking what you brought
to bear in your analysis in this case.
A. All those.
Q. Okay. What aspect of price
theory did you bring to bear in this case?
A. I don't know how to answer that
question besides I understand basic price
theory and have researched it much and
applied that to the facts here.
Q. What was the specific
application of price theory that you brought
to bear in this case?
A. I can't be any more specific

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A. I'm sorry, because I don't know
what you mean by "economic concepts." We get
trained in things like quantitative methods
and intermediate microeconomics, in price
theory, in econometrics, in consumer
behavior. All those things are beyond the
first year. I don't know if you're calling
those economic theories. Your -- your
questioning confuses me.
Q. Well, you referred to the
important concepts in response to my question
to you about particular aspects of training
that you have beyond what a first-year
college student would have gotten in a
first-year economics course that you brought
to bear by applying economic theories to this
case, and your answer refers to very
important concepts that are taught and
learned.
And so I'm asking you, what
very important economic concepts have you
brought to bear in your analysis of this
case?
MR. FEE: Objection to form.
Lack of foundation.

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than that. I don't understand your question.
Q. What aspect of training about
consumer behavior did you bring to bear in
this case?
A. I can't be any more specific
than saying that.
Q. What aspects of your training
about game theory have you brought to bear in
your work on this case?
A. I can't be any more specific
than that.
Q. What aspects of econometrics in
your training have you brought to bear on
this case?
A. I can't be any more specific
than that.
Q. What inform -- what aspects of
training in qualitative methods have you
brought to bear on this case?
A. I didn't say "qualitative
methods," and so it may have been mis-keyed
in. I said "quantitative methods."
Q. All right. What aspects of
quantitative methods of your training did you
bring to bear on this case?

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A. I can't be any more specific
than that.
Q. What aspect of your training
regarding aspects of industrial organization
have you brought to bear on this case?
A. I can't be any more specific
than that.
Q. But you did bring the theory of
reveal -- revealed preferences to bear on
this case, correct?
A. Yes.
Q. What other economic theories do
you recall bringing to bear on this case?
MR. FEE: Objection. Asked and
answered.
THE WITNESS: Everything that
I've -MR. FEE: And vague.
Go ahead.
THE WITNESS: -- I've learned
in my training, both educational
training and career training.
BY MR. BRIDGES:
Q. Can you be more specific than
that?

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just on this information.
Q. What else would you need?
A. I don't know, because I think
it's probably a very easy factual question to
determine when the downloading first
occurred, so I don't know why one would need
to back into it.
Q. Well, when -- would one be able
to use sales trends as a way of identifying
likely effects of a posting of each standard
by the defendant?
MR. FEE: Objection. Vague.
Compound.
THE WITNESS: Maybe; maybe not.
BY MR. BRIDGES:
Q. Why do you say "maybe; maybe
not"?
A. I just wouldn't think to do it
that way, so I don't know what you exactly
have in mind.
Q. Do you associate the posting of
standards by defendant with changes in sales
volume of the standards that the defendant
has posted?
MR. FEE: Objection to form.

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A.

No.
* * *
(Jarosz Exhibit 4 marked for
identification.)
* * *
BY MR. BRIDGES:
Q. Mr. Jarosz, do you recognize
Exhibit 4 as a document that you produced in
response to a subpoena in this case?
A. Yes.
Q. What is this document?
A. It appears to be a summary over
the years 2009 through 2013 of dollars and
quantity of NFPA standards that were sold in
the marketplace.
Q. Based upon the trends that you
see in this exhibit, can you estimate when
you believe it is most likely that the
defendant first published -- strike that.
Based upon the trends that you
see in this Exhibit 4, can you estimate when
you believe it is most likely that the
defendant first posted each of the standards
identified here?
A. I don't think so, not based

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THE WITNESS: I don't know what
you mean by that question.
BY MR. BRIDGES:
Q. You don't understand the
question?
A. I do not.
Q. Can you correlate the posting
of standards by defendant with any changes in
sales volumes of the standards that the
defendant has posted?
MR. FEE: Objection to form.
THE WITNESS: I don't think
I've attempted to compute the
correlation coefficient here
associated with postings.
BY MR. BRIDGES:
Q. I'm not asking for a specific
correlation coefficient. I'm just asking,
generally, can you correlate the posting of
standards by defendant with any changes in
sales volumes of the standards that
defendants has -- that the defendant has
posted with reference to Exhibit 4?
A. I don't know -MR. FEE: Objection. Form.

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THE WITNESS: I don't recall
attempting to do that. And I wouldn't
necessarily think that the historical
impact would -- is the end of the
story as to the harm here.
BY MR. BRIDGES:
Q. Is historical impact part of
the story as to the harm here?
A. Yes.
Q. What -- what can you say by
looking at Exhibit 4 about the historical
impact of the posting of the defendant -- of
the plaintiffs' standards by the defendant?
A. I don't know that I can say
much, because I believe the postings largely
occurred in late 2012, and I only have one
period after that.
Q. If it turns out that
defendant's postings were well before 2012,
would that affect your analysis of the trends
in sales data of the plaintiffs'
publications?
MR. FEE: Objection to form.
Compound. Vague.
THE WITNESS: Maybe. I would

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Q. Have you determined in any way
the dates at which defendant posted various
standards to its Web site or to the Internet
Archive?
A. I don't recall doing a separate
analysis of that, no.
Q. How did you learn about the
dates at which defendant posted various
standards to its Web site or to Internet
Archive?
A. I had conversations with
counsel on that topic, and I may have seen
that information contained in certain
documents like the Complaint, but I don't
recall.
Q. Did you rely upon information
regarding those dates from conversations with
counsel?
MR. FEE: In arriving at his
opinions, you're asking?
MR. BRIDGES: Arriving at his
understanding of the facts.
THE WITNESS: I don't know that
I did, because I don't recall
reporting those specific dates

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consider that information in
conjunction with these data if you
wanted me to.
BY MR. BRIDGES:
Q. How -- what -- what would
change?
A. I don't know. I haven't done
that analysis.
Q. Have you verified the dates on
which plaintiffs -- strike that.
Have you verified the dates at
which defendant posted the various standards
to its Web site or to Internet Archive?
A. I don't -MR. FEE: Objection. Vague.
THE WITNESS: I don't recall
verifying it.
And are you asking did I
separately go out and determine what
that date is and see if that was the
same as what was represented in the
Complaint, for instance?
BY MR. BRIDGES:
Q. Yes.
A. No, I don't recall doing that.

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anywhere in my report.
BY MR. BRIDGES:
Q. Do you recall taking specific
dates into account in analyzing the effect of
defendant's actions?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I don't recall
one way or the other.
BY MR. BRIDGES:
Q. Do you know how -- strike that.
Do you know how much revenue
each plaintiff derives from the standards at
issue in this case?
A. I don't think I know that
precise number.
Q. Did you -- did you ever know
that number?
A. I don't think so.
Q. Did you ever know how much
revenue each plaintiff derives from standards
that have been incorporated into law?
A. As opposed to those that have
not been incorporated? Is that -Q. Well, I'm -- I'm asking about

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those standards that have been incorporated
in the law. I'm asking if you know how much
revenue each plaintiffs derives -- each
plaintiff derives from those standards.
A. I don't -MR. FEE: Objection. Form.
THE WITNESS: -- think I know
that number, and I'm not sure the
plaintiffs know that number.
BY MR. BRIDGES:
Q. Do you know the percentage of
revenue that each plaintiff derives from
standards that have been incorporated into
law?
MR. FEE: Objection to form.
THE WITNESS: I don't think I
do, and I don't believe the plaintiffs
do.
BY MR. BRIDGES:
Q. Are you aware of any difference
in profitability to plaintiffs between those
standards that have been incorporated into
law and those standards that have not been
incorporated into law?
MR. FEE: Objection to form.

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something just north of 50 percent for
ASHRAE.
BY MR. BRIDGES:
Q. What do you mean by "if you add
in memberships"?
A. I'm not -- I'm not quite sure
what you're asking me to define.
Q. I'm asking you to explain the
phrase that you just used, "if you add in
memberships." What did that mean?
A. I talked about that in my
report. Membership fees are a fairly good
recollect -- a fairly good reflection of
amount that would have been paid for
publications. In other words, publication
fees -- it -- let me start this over again.
It makes about as much sense to
become a member of ASHRAE as it is to buy
some of the individual publications. As a
result, many people choose to become members
rather than just buying the publication, as I
understand it.
Q. How did you learn that?
A. Having knowledge of the -- of
the price difference and through discussions

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THE WITNESS: I don't believe

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so.
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BY MR. BRIDGES:
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Q. Do you know -- strike that.
4
Are you aware of any difference
5
in profitability to plaintiffs between those
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standards that defendant has posted to the
7
Internet and those standards that defendant
8
has not posted to the Internet?
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MR. FEE: Objection to form.
10
THE WITNESS: I don't believe
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so. And as with the previous
12
question, I don't think the plaintiffs
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have that information at their
14
disposal.
15
BY MR. BRIDGES:
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Q. For each plaintiff, what do you
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understand to be the percentage of gross
18
revenue from the sale of standards?
19
MR. FEE: Objection to form.
20
THE WITNESS: I -- I've
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reported that in my report. My memory
22
is that it's something on the order of
23
66 percent for ASTM and for NFPA. And 24
if you add in memberships, it's
25

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with people at ASHRAE.
Q. How did you learn about the
price difference?
A. I don't recall how I learned
it, but I report it in my report based on
certain documents I've seen. Perhaps I
learned it from their Web site.
Q. Did you do any surveys of
ASHRAE members to validate that assumption?
A. I'm sorry. Validate what
assumption?
Q. About purchase of a membership
instead of buying the publication.
A. I'm not sure that there's an
assumption in there. My understanding is
that ASHRAE people are of the belief that
many people buy membership rather than
individual publications.
Q. And in your work, did you
assume that?
A. I didn't assume that. I worked
on that -- under that understanding.
Q. Oh, it's an understanding, but
not an assumption?
A. Yes.

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Q. Did that understanding make a
difference to your analysis?
A. It was a factual underpinning.
Q. An underpinning, but not an
assumption?
A. It was not an explicit
assumption.
Q. But it was an underpinning, not
an assumption, is your testimony?
MR. FEE: Objection. Asked and
answered.
THE WITNESS: Yes. I don't
know what or why you're arguing with
me on this.
BY MR. BRIDGES:
Q. I'm not arguing.
A. I don't understand.
Q. I'm just trying to understand
your testimony. That's all. So I'm asking
some follow-up questions.
You stated earlier some
percentages of revenue from the sale of
standards. Did you mean to be identifying
what you thought were the percentages of
revenue from the sale of standards or from

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are to copyrighted publications, correct?
A. With the exception of number 3,
which refers to copyrighted publications and
memberships.
Q. Okay. So my question wasn't
about copyrighted publications. My question
is, what percentage do you understand of
plaintiffs' revenues comes from the sale of
standards at issue in this case?
A. Thank you for that reminder of
what the question is.
I don't think I know that
precise percentage.
Q. What percentage of plaintiffs'
revenues, to your knowledge, comes from the
sale of standards incorporated into law?
A. I don't know that number.
Q. What percentage of plaintiffs'
revenues, to your understanding, comes from
the sale of all standards?
A. I'm sorry. I thought you asked
that question. I thought the immediate one
before that was standards.
Q. No. It was standards at issue
in this case. Then --

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the sale of all publications?
A. Let me -- let me double-check
that.
Well, in the case of ASTM, for
instance, I believe it's copyrighted
publications.
Q. What page are you referring to
in your report?
A. Right now I'm looking at
page 36, but I think I talk about it at other
areas.
Q. So page 36, you're talking
about which paragraph?
A. Well, right now I was -Q. 83?
A. -- I was looking at 83, but I'm
turning back to, for more reliable
information, to paragraph 15, for instance,
which says in 2014, 67.1 percent of the
revenue was generated by the sale of
copyrighted publications. For NFPA, that
information is shown in paragraph 18. And
for ASHRAE, that information is shown in
paragraph 22.
Q. All three of those references

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A. The one before that.
Q. -- standards incorporated into
law. And now it's all standards.
A. Right. Thank you.
I don't know that number
either.
Q. What percentage of
plaintiffs' -- strike that.
What dollar value do you
associate with the investments that each
plaintiff has made in the development of the
standards at issue in this case?
A. I don't think I attributed a
dollar amount to that precise activity,
because I don't know that amount.
Q. What percentage of plaintiffs'
operating expenses do you associate with the
plaintiffs' development of the standards at
issue in this case?
A. I don't think I know that
number.
Q. What percentage of plaintiffs'
operating expenses do you associate with the
plaintiffs' development of standards
incorporated into law?

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A. I don't think I know that
number.
Q. What percentage of plaintiffs'
operating expenses do you associate with the
plaintiffs' development of standards
generally?
A. I don't think I know that
number.
Q. Do you have any estimates of
any of those numbers that you just said you
don't think you know?
MR. FEE: Objection to form.
THE WITNESS: Not sitting here
right now.
BY MR. BRIDGES:
Q. Did you at one point ever
determine those numbers?
A. Not that I recall.
Q. Do you know what percentage of
the staff or employees of each plaintiff has
worked on the development of standards at
issue in this case?
MR. FEE: Objection to form.
THE WITNESS: I don't think I
know that number.

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Q. Have you ever had access to any
information that I've asked in the last
several questions?
MR. FEE: Objection to form.
THE WITNESS: I don't believe
so.
BY MR. BRIDGES:
Q. Do you know whether plaintiffs
prepare standards through joint sponsorship
with any other organizations?
MR. FEE: Objection. Vague.
THE WITNESS: I think I may
have seen a reference to that. I
don't know the extent to which it
occurs, but I wouldn't be surprised to
be reminded that it does occur.
BY MR. BRIDGES:
Q. Are you aware of any, as you
sit here?
A. Not as I sit here right now,
but I think I'm aware that it has occurred.
Q. Do you know whether plaintiffs
receive grants, revenue, or stipends from
governments that use, reference, or adopt
their standards?

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BY MR. BRIDGES:
Q. Do you know what percentage -do you have an estimate?
A. No.
MR. FEE: Objection to form.
THE WITNESS: Not as I sit
here, no.
BY MR. BRIDGES:
Q. Do you know what percentage of
the staff or employees of each plaintiff has
worked on the development of standards
incorporated into law?
MR. FEE: Objection to form.
THE WITNESS: Not as I sit here
right now.
BY MR. BRIDGES:
Q. Do you have an estimate?
A. Not as I sit here right now.
Q. Do you know what percentage of
the staff or employees of each plaintiff has
worked on the development of standards in
general?
A. Not as I sit here right now.
Q. Do you have an estimate?
A. Not as I sit here right now.

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MR. FEE: Objection to form.
THE WITNESS: There are grant
monies that go to NFPA. I don't know
the source of those grants. I don't
see a line for grant revenues for the
other two organizations.
BY MR. BRIDGES:
Q. Did you ask any of the
plaintiffs about the revenues or expenses
they have specifically attributable to the
standards that defendant has posted to the
Internet?
MR. FEE: Objection to form.
THE WITNESS: We generally
talked about that topic with each
plaintiff, and I don't think the
plaintiffs know that amount. They
undertake activities that are
standards oriented. They don't know
which of those standards will be
incorporated by reference.
BY MR. BRIDGES:
Q. Did you -A. Or which have been. I don't
think they systematically track those.

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Q. I guess my question didn't have
anything to do with incorporated by
reference. My question is, did you ask any
of the plaintiffs about the revenues or
expenses that they have had that are
specifically attributable to the standards
that the defendant has posted to the
Internet?
MR. FEE: Objection to form.
THE WITNESS: I think we
generally talked about that topic, and
I don't believe they have information
at that level.
BY MR. BRIDGES:
Q. Did you ask the plaintiffs to
estimate revenues or expenses specifically
attributable to the standards at issue in
this case?
MR. FEE: Objection to form.
THE WITNESS: Not that I
recall. We may have asked whether
they are collected, but we didn't ask
for the plaintiffs to separately
estimate those numbers, as I recall.
BY MR. BRIDGES:

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the plaintiffs told you in this case?
MR. FEE: Objection to form.
THE WITNESS: Well, I kept an
open mind to the facts that I was
given over the phone and sought to
determine if I learned things that
conflicted or not with that
information.
BY MR. BRIDGES:
Q. Where did you -A. But -Q. I'm sorry. I didn't realize
you were still -A. But I didn't separately go out
and write down the facts and attempt to get
separate verification of each fact.
Q. So you were looking for
internal inconsistencies in the
communications that plaintiffs had with you
in order to determine whether to question any
of the facts that the plaintiffs' employees
related to you?
MR. FEE: Objection to form.
BY MR. BRIDGES:
Q. Is that your testimony?

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Q. In paragraph 49, you state that
ASHRAE standard 90.1 was first published in
1974. What's your basis for that statement?
A. I don't recall. It may have
been in a produced document. It may have
been in conversations. I just don't recall.
Q. Did you attempt to verify that
information independently?
A. Not that I recall.
Q. Do you know if ASHRAE standard
90-75 was first published in 1975?
A. I don't happen to know, sitting
here now.
Q. You cite to an article in
footnotes 73, 74 of your report. Did you
review that article?
A. Yes.
Q. Did you independently verify
the information in it?
A. Not that I recall.
Q. You just took it at face value?
A. I think so. I didn't have
reason to question any of the facts there.
Q. Did you ever have reason to
question any of the facts that anybody from

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MR. FEE: Mischaracterizes the
testimony.
THE WITNESS: I'm not sure if
it is. Let me try and answer and see
if that's responsive.
I was aware of the information
we received over the telephone, and in
the process of looking through the
documents that we had, I kept an open
eye toward learning things that
conflicted with those oral
conversations.
BY MR. BRIDGES:
Q. And the documents -- what
are -- what were the documents that you're
saying you had?
A. Everything that's in tab 2.
Q. Most of which, apart from the
Web-based resources and the articles other
than Ms. Bremer's law review articles, the
plaintiffs' counsel furnished to you,
correct?
MR. FEE: Objection to form.
THE WITNESS: I think that's
right. They didn't author those

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documents, but they provided them as
part of the discovery process.
BY MR. BRIDGES:
Q. Did you ask them for any
documents that they had not provided?
A. I think we generally described
the kinds of information that we find useful
or typically find useful in matters like
this.
Q. After you received documents
from plaintiffs' counsel, did you ask them
for any more?
A. That -- that's possible. I
don't recall that.
Q. You don't recall. Did you -do you have any understanding as to the
dollar value of staff time and expenses that
the plaintiffs have incurred in promoting
incorporation of their standards into law?
MR. FEE: Objection to form.
Lack of foundation.
THE WITNESS: I don't think I
have that number, no.
BY MR. BRIDGES:
Q. Do you have an estimate?

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A. I looked at some parts of it.
I don't recall that I looked at all aspects
of the database.
Q. Did you verify how many
standards were incorporated by reference
according to that database?
A. No, I did not.
Q. What do you mean by, "This
database reports nearly 13,000 instances of
incorporation by reference"?
A. I don't know what you're asking
me to define.
Q. I'm not asking you to define
anything. I'm asking you to explain what you
meant by that clause, "This database
reports" -A. I'm sorry. I'm just -- I'm
going to be just rearranging words a little
bit. There were 13,000 times that there was
incorporation by reference of a standard.
I -- I don't -- I'm sorry. I
don't understand what your confusion is.
Q. I'm not confused. I'm just
asking you questions. Okay? So please don't
understand -- please don't assume that I'm

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MR. FEE: Same objections.
THE WITNESS: Not as I sit here
now, no.
BY MR. BRIDGES:
Q. Did you discuss that issue with
anyone representing the plaintiffs?
MR. FEE: Same objections.
THE WITNESS: It's possible,
but I don't recall having that
discussion.
BY MR. BRIDGES:
Q. In paragraph 57 of your report,
you refer to "thousands of private-sector
standards." Was your sole support for the
statement in paragraph 57 the Bremer article
you cited in footnote 88?
A. No. You see I discuss and
provide support for that in subsequent
paragraphs in that section.
Q. And that includes in
paragraph 58?
A. Yes.
Q. And did you review the
Standards Incorporated by Reference Database
that you refer to in paragraph 58?

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confused. I'm trying to understand what you
meant by that.
You mean separate instances?
You mean separate laws? What do you mean?
A. Yes. Separate instances slash
separate laws.
Q. What did you count as an
instance?
A. Mention in a particular law of
a standard.
Q. Did you or anybody working with
you attempt to determine the number of
standards that those 13,000 instances of
incorporation by reference referred to?
A. Not entirely. But if you read
on that -- in that same section, it talks
about the number of ASTM standards, the
numbers of -- the number of NFPA standards,
and the number of ASHRAE standards.
Q. Well, please tell me where it
refers to the number of standards.
A. It says, "Including more than
2,400 instances involving ASTM standards."
So you're right. It doesn't
have the number of standards. It just has

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mentions of standard. You're absolutely
right.
Q. And the same thing is true of
the NFPA standards and ASHRAE standards?
A. You're absolutely right, yes.
Q. Do you know how many standards
that database shows as having been
incorporated by reference?
A. Not sitting here right now.
One could perhaps look at what I cited to
answer that question, but I don't know right
now.
Q. Do you know whether anyone
working for you ever did that work to make
that determination?
A. I don't recall that being done.
Q. Paragraph 59, you say, "At the
state level, privately-developed standards
are incorporated by reference as part of the
exercise of a range of governmental
functions."
Do you see that?
A. Yes.
Q. What do you mean by
"governmental functions" in that statement?

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Q. What are the governmental
functions with respect to driving that you
have in mind?
A. I don't have any particular
ones in mind.
Q. In paragraph 59, you say, "At
least 44 states and territories have adopted
ASHRAE 90.1 as part of the commercial
building energy code."
Do you see that?
A. Yes, I do.
Q. And that also has footnote 95
associated with that as well, correct?
A. Yes, that's correct.
Q. How do you explain the fact
that that reference in footnote 95 shows that
those 44 states, in fact, adopted the
International Energy Conservation Code that
merely has a reference to an option to use
ASHRAE 90.1?
MR. FEE: Objection. Lack of
foundation.
THE WITNESS: I don't have any
explanation for that.
BY MR. BRIDGES:

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A.

Things that government agencies

do.
Q. And you give a couple of
examples, but speaking broadly, what are
governmental functions that involve
incorporation by reference of privately
developed standards at the state level?
MR. FEE: Objection to form.
THE WITNESS: I can only answer
generally. Health and human services,
things that are related to that,
safety, driving rules and regulation.
Those are among the things that come
to mind.
BY MR. BRIDGES:
Q. What are the governmental
functions related to health and human
services that you have in mind?
A. I don't have any particular
ones in mind.
Q. What are the governmental
functions relating to safety that you have in
mind?
A. I don't have any particular
ones in mind.

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Q. Did you verify that?
A. I did not, no.
Q. Who did?
A. I'm sorry. Who verified what?
Q. On what -- on what did you rely
to make that statement with that footnote?
A. I may not understand your
question. I relied on what's identified in
footnote 95.
Q. But you didn't review foot -what's in footnote 95, right?
MR. FEE: Objection. Lack of
foundation.
THE WITNESS: I did.
BY MR. BRIDGES:
Q. You -- you reviewed that Web
site?
A. Yes.
Q. Personally?
A. Yes, I believe so.
Q. Do you have an explanation as
to why the resource cited in footnote 95
actually shows that the 44 states adopted the
International Energy Conservation Code?
MR. FEE: Objection. Lack of

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foundation.
THE WITNESS: I would like to
understand the facts that you're
positing right now.
BY MR. BRIDGES:
Q. Well, we're not going to take
time to go look at a Web site right now, so
I'm asking you based on what you know.
Do you have an explanation as
to why the resource cited in footnote 95
actually shows that 44 state -- the 44 states
adopted the International Energy Conservation
Code?
MR. FEE: Objection. Lack of
foundation.
THE WITNESS: I don't know if
your factual representation is
accurate or not, and I don't recall
investigating that particular issue.
BY MR. BRIDGES:
Q. Have you made any effort to
determine what resources were expended,
incurred, or contributed by parties other
than ASHRAE in the development of standard
90.1?

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change in membership sales by ASHRAE over the
past ten years?
A. I don't think I have data that
goes as far as ten years ago. I do have
information on ASHRAE membership revenue back
to 2012. That's summarized in tab 5.
Q. And that membership figure has
risen each year since 2012, correct?
A. Yes. Slightly each year, it
has risen.
Q. Do you draw any conclusions
with respect to this case from that trend?
A. I don't think so.
Q. Have you calculated the
effects -- the financial effect on the
plaintiffs of the incorporation into law of
their standards?
MR. FEE: Objection to form.
THE WITNESS: No, I don't think
I've independently -- I don't think
I've separately done that.
BY MR. BRIDGES:
Q. Are you aware of any data
regarding the financial effect on the
plaintiffs of the incorporation into law of

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MR. FEE: Objection to form.
THE WITNESS: I generally
understand that there were many
members who participated in that. I
think I reported earlier in the report
the number of hours and other
indications of activity undertaken by
members.
BY MR. BRIDGES:
Q. My question is, have you made
any effort to determine what resources were
expended, incurred, or contributed by parties
other than ASHRAE and ASHRAE members in the
development of standard 90.1?
MR. FEE: Same objection.
THE WITNESS: I didn't realize
that you had in your original question
"and other than ASHRAE members."
BY MR. BRIDGES:
Q. I didn't. Now I -- now my
question does.
A. Beyond that, I don't recall
undertaking that investigation, meaning
beyond ASHRAE and its members.
Q. Have -- are you aware of any

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their standards?
MR. FEE: Same objection.
THE WITNESS: I'm aware that
the plaintiffs benefit greatly by
incorporation by reference, but I
don't know that I've seen a
quantitative study of that topic.
BY MR. BRIDGES:
Q. What do you understand about
the benefits that accrue to plaintiffs by
incorporation by reference?
A. Some of those are laid out in
my report on pages 19 through 26. I have a
particular section called "Benefits of
Incorporation" that starts at page 20.
Q. Well, I'm asking you, what
benefits accrue to the plaintiffs from
incorporation by reference?
A. Generally, it allows each one
to satisfy its mandate of providing services
to the entirety of the industry that it
focuses its attention on. And so it allows
for the collection and then dissemination of
standards that allow and achieve outcomes
that are good for the industry.

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Q. What other benefits do
plaintiffs gain from incorporation by
reference of their standards?
A. I think that generally covers
it. I may be forgetting things that are laid
out in my report, but that's what covers it,
to the best of my memory right now.
Are we at a good point for a
break?
Q. If you want. Sure.
A. Thanks.
THE VIDEOGRAPHER: Off the
record at 3:12. This is the end of
media unit number 2.
* * *
(Recess from 3:12 p.m. to
3:41 p.m.)
* * *
THE VIDEOGRAPHER: On the
record at 3:41. This is the beginning
of media unit number 3 in the
deposition of John Jarosz.
* * *
(Jarosz Exhibit 5 marked for
identification.)

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a particular period.
Q. And then you do the same for
NFPA documents, correct?
A. Yes.
Q. What do you calculate as the
dollar value of harm to the -- to ASTM from
the accesses and downloads that you refer to
in paragraph 133?
A. I haven't calculated that harm.
Q. Why not?
A. I'm not sure if I can at this
stage. One estimate would be those number of
downloads times the -- well, actually, no,
let me take that back. I just don't know how
to do it.
Q. Can you be certain that these
accesses or down -- and downloads referred to
in paragraph 133, in fact, resulted in
economic loss to ASTM?
MR. FEE: Objection to form.
THE WITNESS: Not with absolute
certainty, but with reasonable
certainty I can say some -- in some
number of these instances, it's likely
the case that the -- that the

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* * *
BY MR. BRIDGES:
Q. Mr. Jarosz, I've handed you
Exhibit 5. This is an article that you cited
in your report, correct?
A. Yes, I believe so.
Q. Do you recall how this article
came to your attention?
A. I do not.
Q. Is this an article that you
understand to have been published by
plaintiff ASHRAE in its journal?
A. Yes, that's my understanding.
Q. And this is an article you
relied upon with respect to the development
of standard 90, which became standard 90.1,
correct?
A. Yes.
Q. In paragraph 133 of your
report, you talk about a number of
downloads -- strike that -- you talk about a
number of documents accessed through Public
Resource's Web site. Do you see that?
A. I talk about the number of ASTM
documents that are -- that were accessed over

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information would have been obtained
from ASHRAE in -- or ASTM, rather,
in -- through legal means.
BY MR. BRIDGES:
Q. Would that -- in those
instances where you say that the information
would have been obtained from ASTM through
legal means, can you put a dollar value on -or even an estimate of the increased revenue
that ASTM would have gotten from those
instances where people obtained the
information from ASHRAE -- sorry -- from
AST -MR. FEE: Object -BY MR. BRIDGES:
Q. -- from ASTM?
MR. FEE: Objection to form.
THE WITNESS: No, not based on
the information I have. I don't think
I have any indication of who was doing
the downloading and why.
BY MR. BRIDGES:
Q. And do you know what
alternatives persons who were doing the
downloading may have had for obtaining the

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information?
A. Not with certainty, because I
don't know who those persons were, but I
would expect one alternative would be to
obtain it properly, directly from ASTM.
Q. Would that have resulted in
more revenue to ASTM?
A. It may have. If they're
materials that were taken improperly that
would have been paid for, then that would
represent a loss of revenue to ASTM.
Q. Do you know whether any of the
persons who obtained this information from
defendant would have paid for the information
from ASTM?
A. No, not with certainty, because
I don't know the identity of the downloaders
or the reasons for their downloading.
Q. Moreover, those persons might
have accessed the standards from ASTM's
reading room for free and with no revenue to
ASTM, correct?
A. You mean in a but-for world?
Had they not done what they actually did,
alternatively they could have gone to the

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more extended use of that document.
Q. Do you have any evidence about
wide distribution of plaintiffs' standards as
a consequence of defendant's actions?
A. I do not.
Q. Have you reviewed any studies
that would allow you to establish any
connection between the number of accesses or
downloads that Public Resource made possible
and any financial harms to the plaintiffs?
MR. FEE: Objection to form.
THE WITNESS: I don't think
I've seen any study on that, no.
BY MR. BRIDGES:
Q. Have you conducted any studies
that would have allowed you to establish any
connection between the number of accesses or
downloads that Public Resource made possible
and any financial harms to the plaintiffs?
MR. FEE: Objection to form.
THE WITNESS: Not other than
what's contained in my report.
BY MR. BRIDGES:
Q. Please turn to page 45,
paragraph 107, which spills into page 108.

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free reading room?
Q. Right.
A. That's a possibility, yes.
Q. Do you have an understanding as
to why persons would want to download a file
of a standard instead of viewing it at one of
the plaintiffs' reading rooms?
A. Not with absolute certainty,
but I would imagine downloading would allow
more flexibility in referring to the standard
and using it and sharing that information
with others, whereas reading it in -- through
an Internet site is somewhat less flexible,
provides less flexibility for the use of that
information.
Q. What did -- what do you
understand to be the difference in
flexibility between possession of a download
and access to a standard through a reading
room?
A. Well, I think that a download
typically has a document that's in hard-copy
form. Copies can made -- be made of that and
distributed. Reading things just online
doesn't allow for the wide distribution and

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MR. FEE: Page 108?
THE WITNESS: I'm sorry.
Page 108 or paragraph?
BY MR. BRIDGES:
Q. I'm sorry. Paragraph -- strike
that.
Let me ask you to turn
paragraph 107 on pages 45 to 46.
A. Okay. I'm there.
Q. I just want to make sure I
understand your language correctly at the
bottom of page 45 and the top of page 46.
Is it your opinion that the
copyright that the plaintiffs assert in their
standards drives sales of other publications
other than the standards themselves?
MR. FEE: Objection. Form.
Vague.
THE WITNESS: I think they're
important for driving sales of
publications that embody those
standards. I don't know that I've
drawn a conclusion that it drives the
sale of other products, but that makes
some sense.

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BY MR. BRIDGES:
Q. Well, doesn't that sentence at
the bottom of 45 and going on to 46 say that
copyright on plaintiffs' standards drive
sales of "handbooks that provide commentary
on the standards by referring to them"?
A. You haven't read -MR. FEE: Objection.
Mischaracterizes the document.
THE WITNESS: You haven't read
the whole sentence. I see that
sentence to which you refer.
BY MR. BRIDGES:
Q. Right. I know I haven't read
the whole sentence, but didn't I fairly
capture one part of it, which is the sales
of -- strike that -- that copyright on
plaintiffs' standards drives sales of, among
other things, "handbooks that provide
commentary on standards by referring to
them"?
MR. FEE: Same objection.
THE WITNESS: I think you have
generally paraphrased it accurately,
yes.

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whether plaintiffs have copyright in -rights in their value-added publications?
MR. FEE: Objection. Vague.
THE WITNESS: I would be
curious to know that, but I'm not sure
of the significance. I don't think it
would change my conclusions, but I
would be curious to know that.
BY MR. BRIDGES:
Q. Do you know whether
incorporation into law drives -- strike that.
Do you know whether
incorporation into law of plaintiffs'
standards drives sales of plaintiffs'
standards?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I don't know with
absolute certainty, but it would make
some sense to me.
BY MR. BRIDGES:
Q. Is it your understanding that
it does?
MR. FEE: Same objection.
THE WITNESS: It would make

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BY MR. BRIDGES:
Q. And that plaintiffs' copyright
protection -- this is the top of -- strike
that.
And turning to the top of
page 46, plaintiffs' copyright protection on
their standards provides plaintiff with a
competitive advantage with respect to what
you call value-added publications, correct?
A. You've read part of a sentence,
but I do see that sentence, yes.
Q. And I've fairly paraphrased it
correctly, correct?
MR. FEE: Objection to form.
THE WITNESS: I think,
generally, yes.
BY MR. BRIDGES:
Q. Do plaintiffs, to your
understanding, have separate copyrights in
those value-added publications, such as
commentaries and handbooks?
A. I don't know.
Q. You don't know?
A. Correct. I do not know.
Q. Is it important to you to know

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some sense to me, yes.
BY MR. BRIDGES:
Q. Are you aware that, in some
instances, at least one plaintiff uses the
legal status of its code to promote the sale
of handbooks?
MR. FEE: Objection to form.
THE WITNESS: I don't know one
way or the other. I don't have reason
to dispute it, but there's not a
particular instance that comes to mind
right now. Maybe you have something
to refresh my memory.
BY MR. BRIDGES:
Q. Can you provide a dollar value
benefit that plaintiffs receive economically
from the incorporation of their standards by
reference?
MR. FEE: Objection. Vague.
Form.
THE WITNESS: I want to make
sure that I'm understanding. Could
you read that back, please?
BY MR. BRIDGES:
Q. I'll restate it.

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Can you provide a -- can you
put a dollar value, even an estimate, on the
economic benefit that plaintiffs receive from
incorporation of their standards into law?
MR. FEE: Objection to form.
THE WITNESS: I have not. And
I'm not sure how one would do that,
subject to thinking more about it.
BY MR. BRIDGES:
Q. At the top of page 46, you say,
"The Plaintiffs' copyright protection on
their privately-developed standards provides
a competitive advantage with regard to the
sale of these value-added publications as the
copyright protection limits the ability of
others to sell those publications unless they
are unwilling [sic] to compensate the
Plaintiffs for such use."
MR. FEE: Objection.
Mischaracterizes the statement.
BY MR. BRIDGES:
Q. Is there something unfair about
my characterization of that statement?
A. I think you read it wrong. You
read "willing" to read "unwilling" for some

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Q. What else?
A. That's what comes to mind.
Q. Anything else?
A. Not this moment, no. I guess,
potentially, when I think some more about it,
training and seminars, for instance.
Q. Providers of training and
seminars?
A. Yes. So that's broader than
value-added publications, but there are
potentially alternative providers of training
and seminars.
Q. In paragraph 109, you say, "In
addition to direct sales of copyrighted
materials, the Plaintiffs' materials
associated with their privately-developed
standards provide a competitive advantage
with regard to the sale of downstream
ancillary/complementary services and
products."
Do you see that?
A. Yes. That's what I had in
mind.
Q. And who are the competitors you
have in mind in paragraph 109?

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reason.
Q. Oh, I'm sorry. Thank you.
I'll restate the sentence.
"In particular, the Plaintiffs'
copyright protection on their
privately-developed standards provides a
competitive advantage with regard to the sale
of these value-added publications as the
copyright protection limits the ability of
others to sell those publications unless they
are willing to compensate the Plaintiffs for
such use."
Do you see that statement?
A. I do, yes.
Q. And the competitive advantage
you've identified there, whom do you
understand to be the competition?
A. Other potential providers of
these so-called value-added publications.
Q. And what -- when you say
"value-added publications," please give me
more examples of what types of things fall
into that category, as you use the term.
A. Examples would be handbooks
that provide commentary on the standards.

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A. I don't know particular names,
but -- at least I don't recall any sitting
right now -- sitting here right now, but I
think there are other providers of these
downstream services and products.
Q. And please give me examples of
what you're calling "downstream services and
products."
A. Again, seminars and training,
for instance.
Q. Anything else?
A. That's what comes to mind right
now.
Q. Turning to paragraph 110, you
state, "I understand that the ability to
control these downstream products and
services is particularly important to the
Plaintiffs here because the barriers to entry
in the marketplace for downstream products,
such as training and user manuals, are
relatively low. For example, according to
Mr. Comstock of ASHRAE, it is relatively easy
for unauthorized instructors to read a
standard and become (or think that they have
become) qualified to provide training or

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guidance on that standard."
Do you see that?
A. I do, yes.
Q. What do you understand -- what
did you mean by "unauthorized instructors"?
A. People that have provided or
trying to provide services to the marketplace
that have not been explicitly approved by,
for instance, ASHRAE.
Q. What do you understand the -the nature of -- strike that.
You called them "instructors,"
correct?
A. Yes.
Q. Does that mean that you
envision that these persons are providing
some kind of instruction?
A. Yes.
Q. What instruction do you
understand -- what instruction did you have
in mind when you referred to "unauthorized
instructors"?
A. Generally, how best to
implement standards or provisions of certain
standards.

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Q. You're just parroting what
Mr. Comstock said, or did you have an
independent view?
A. No, I heard what he said, and
it made sense to me.
Q. So you put it in your report?
A. Yes.
Q. What independent thought or
investigation did you do before you put that
in your report?
MR. FEE: Objection. Vague.
Compound.
THE WITNESS: I can't point to
anything in particular.
BY MR. BRIDGES:
Q. Would a law-school course on
the law and regulation of building
construction provide instruction to law
students?
MR. FEE: Objection. Vague.
Calls for speculation.
THE WITNESS: I guess it could.
I have a hard time imagining there
would be much demand for such a
course, but I'm in general agreement

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Q. What else?
A. Nothing else comes to mind
right now.
Q. Would your understanding of
"unauthorized instructors" include persons
who were instructing the public as to what
the standards require?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I didn't have
that in mind. I guess that's a
possibility.
BY MR. BRIDGES:
Q. And would it be relatively easy
for unauthorized persons like that to read a
standard and think that they have become
qualified to provide training or guidance on
that standard?
MR. FEE: Objection. Vague.
BY MR. BRIDGES:
Q. Is that your understanding?
A. According to Mr. Comstock, I
believe that's correct.
Q. What do you believe?
A. I have no reason to doubt him.

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that that, in concept, could occur.
BY MR. BRIDGES:
Q. Would it be possible to
envision that, in the course of such
teaching, a teacher may wish to analyze some
of plaintiffs' standards that have been
incorporated into law as law and as
regulation?
MR. FEE: Objection. Calls for
speculation. Vague. Form.
THE WITNESS: I guess that's
possible, but I would expect a law
professor would be talking about legal
implications, not the technical
aspects of a standard. I think they
might talk about the implication in a
business that's different from a
vendor business.
BY MR. BRIDGES:
Q. Well, what about the legal
implications of a code for contractors?
MR. FEE: Objection.
BY MR. BRIDGES:
Q. Is that -- is that fair ground
for a law professor to discuss with law

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students?
MR. FEE: Objection. Compound.
Form. Vague.
THE WITNESS: I guess, in -- in
concept. I'm having a hard time
imagining that that would, in fact,
occur at any law school, but it might.
I somehow doubt that the law professor
would be talking about the substance
of the standard as opposed to the
process or implications of a standard.
BY MR. BRIDGES:
Q. You're not familiar with
courses in construction law?
A. I'm generally aware that there
are courses in construction law.
Q. Is it your view that, for a law
professor to provide a copy of, let's say,
the National Electrical Code to students for
their study would require permission of the
National Fire Protection Association?
MR. FEE: Objection. Calls for
a legal conclusion.
THE WITNESS: I don't know.
That seems to be a legal question. I

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professor was an unauthorized instructor?
MR. FEE: Objection. Form.
Compound. Calls for a legal
conclusion. Vague.
THE WITNESS: That seems to be
a legal question. Just as an economic
proposition or just as a matter of the
English language, I would think that
they might be an unauthorized user but
not an improper user.
I don't think they've gotten
explicit authorization; therefore,
they're unauthorized. But I'm not
sure if it's illegal for them to refer
to a standard.
BY MR. BRIDGES:
Q. What about making copies of the
standard and furnishing it to students?
MR. FEE: Same objections.
THE WITNESS: Same answer.
BY MR. BRIDGES:
Q. Do you have any opinion about
the economic harms that plaintiffs would
suffer if a law professor were to provide
an -- a copy of the National Electrical Code

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do not know.
BY MR. BRIDGES:
Q. Is it your view that a law
professor who does not get any permission
from NFPA or who does not purchase a copy of
the National Electrical Code would be an
unauthorized instructor -MR. FEE: Objection.
BY MR. BRIDGES:
Q. -- by using that code with his
or her students as part of a law-school
course?
MR. FEE: Objection to form.
Compound. Calls for a legal
conclusion.
THE WITNESS: Again, that seems
to be a legal question. I'm not sure
it would be authorized, but I'm also
not sure that it would be improper.
BY MR. BRIDGES:
Q. Well, you've used the term
"unauthorized" in your report, so I'm asking
you, given the term "unauthorized" as used -you have used it in the report, would the
scenario I have described mean that the law

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to each student in a construction law class
without having purchased those copies?
MR. FEE: Objection.
Incomplete hypothetical. Form.
You can answer, if you know.
THE WITNESS: I don't know. I
have not investigated or even thought
about that issue.
BY MR. BRIDGES:
Q. In paragraphs 117 through 119,
I see no footnotes referencing sources of
your conclusions or referencing facts on
which your conclusions are based.
What studies, if any, did you
rely on for your assertions in paragraphs 117
to 119?
MR. FEE: Objection to form.
Lack of foundation.
THE WITNESS: The study that's
summarized in Exhibit 1.
BY MR. BRIDGES:
Q. I'm referring specifically to
paragraphs 117 to 119.
A. I thought you were. I was
answering that question.

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Q. You can't point to any
particular investigation or fact that you're
relying on in paragraphs 117 to 119?
MR. FEE: Objection to form.
Asked and answered.
THE WITNESS: Everything that's
embedded in Exhibit 1 is, in part, a
basis for the observations that I draw
in those paragraphs.
BY MR. BRIDGES:
Q. What probability do you assign
to your prediction in the first sentence of
paragraph 119?
MR. FEE: Objection. Form.
Lack of foundation.
THE WITNESS: I'm not sure that
I've used the term "prediction," but I
wouldn't assign a particular
quantitative probability.
BY MR. BRIDGES:
Q. Can you give an estimate?
A. No.
Q. Why not?
A. I don't have a basis for that
estimate. I have reasoning underlying it,

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Q. What probability do you assign
to the likelihood that you refer to in the
first sentence of paragraph 121?
MR. FEE: Objection to form.
Lack of foundation.
THE WITNESS: I don't have a
particular quantitative likelihood
measure.
BY MR. BRIDGES:
Q. Can you give an estimate?
MR. FEE: Same objection.
THE WITNESS: No.
BY MR. BRIDGES:
Q. Turning to paragraph 126, you
refer to an "option available to Plaintiffs
to respond to the loss of protection for
incorporated standards."
Is it your belief that, if the
plaintiffs lose this case, they will shut
down their creation of new standards?
A. I think that's a possibility.
Q. What probability do you assign
to that?
MR. FEE: Objection to form.
Lack of foundation.

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but I don't have a basis to provide a
quantitative estimate of my level of
confidence.
Q. You refer to "uncertainties" in
the second sentence of paragraph 119,
correct?
A. I do, yes.
Q. What probability do you assign
to the likelihood that you refer to with the
word "likely" in the first sentence of
paragraph 120?
MR. FEE: Objection. Form.
Lack of foundation.
THE WITNESS: I don't have a
particular quantitative measure of
that. And are you referring to my use
of the term "likely"?
BY MR. BRIDGES:
Q. Yes.
A. Yes, I don't have a particular
quantification of that.
Q. What particular facts are you
relying on for that paragraph?
A. Everything that you see
reported in Exhibit 1.

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THE WITNESS: I don't have a
particular quantitative measure of
probability for that.
BY MR. BRIDGES:
Q. What's your best estimate?
MR. FEE: Same objection.
THE WITNESS: I don't have a
quantitative best estimate.
BY MR. BRIDGES:
Q. Is it more or less than
50 percent?
MR. FEE: Same objections.
THE WITNESS: I still don't
have a quantitative estimate.
BY MR. BRIDGES:
Q. Is it more or less than
80 percent?
MR. FEE: Same objections.
THE WITNESS: Still don't have
a quantitative estimate.
BY MR. BRIDGES:
Q. Is it more or less than
5 percent?
MR. FEE: Same objections.
THE WITNESS: Still don't have

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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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new in terms of a theory.
Q. Do you have the same answer
with respect to -- strike that.
What facts do you have -strike that.
What facts are you aware of to
disprove -- to disprove Mr. Malamud's theory
that you refer to in paragraph 144?
A. Again, it's the same theory
that's being referenced, but there's
additional facts; and that is, the downstream
products and services aren't particularly
substantial to these plaintiffs and don't
appear to be enhanced by a lack of copyright
protection; that is, the plaintiffs have had
copyright protection and have said -- had
some downstream products and services. It's
hard to imagine that elimination of that
copyright protection will enhance that
business.
Q. It's hard to imagine, but are
you aware of any studies to disprove
Mr. Malamud's theory?
A. No.
MR. FEE: Objection. Vague.

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rest of that paragraph?
MR. FEE: Objection. Vague.
THE WITNESS: I looked at the
financial information, and I talked to
people at the various plaintiffs.
BY MR. BRIDGES:
Q. You talked to people at the
various plaintiffs?
A. Yes.
Q. What did you do to verify the
truth and accuracy of the things that various
plaintiffs said to you in their
conversations?
MR. FEE: Objection to form.
THE WITNESS: I looked at the
financial information, and I kept my
eyes and mind open to the information
in the rest of the record to determine
if it conflicted with what I learned
from the company personnel.
BY MR. BRIDGES:
Q. Whose financial information did
you look at?
A. All three of the plaintiffs.
It's summarized in tabs 3, 4, and 5.

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THE WITNESS: I'm sorry.
BY MR. BRIDGES:
Q. Have you conducted any studies
to disprove Mr. Malamud's theory?
MR. FEE: Same objection.
THE WITNESS: Not other than
what's reflected here in Exhibit 1.
BY MR. BRIDGES:
Q. What academic literature have
you relied upon to criticize Mr. Malamud's
theory in paragraph 144?
A. Nothing specific comes to mind.
Q. In paragraph 145, you state
that, "Mr. Malamud's suggestion that the sale
of downstream products and services
represents an untapped and undeveloped
opportunity for the Plaintiffs is incorrect."
Do you see that?
A. Yes, I do.
Q. And then you go on and make
some statements for the rest of the
paragraph, correct?
A. Yes.
Q. What studies did you engage in
to determine the facts that you stated in the

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Q. Did you look at the financial
information of any entities other than the
plaintiffs?
A. I looked at Public Resource
financial information.
Q. Apart from Public Resource and
the plaintiffs, did you look at the financial
information of any other entities in making
the assertions that you made in
paragraph 145?
A. Not in undertaking my
assignment here.
Q. Did you consider the business
models of any entities other than the
plaintiffs and the defendant in making the
statements criticizing Mr. Malamud's theory
in paragraph 145?
A. Nothing in particular comes to
mind. I understand that there are
front-loaded business models, but -- at DIN,
for instance, but I don't recall undertaking
an investigation of the downstream activities
that they have.
Q. Did you undertake any
investigation of downstream activities of

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other US-based standards development
organizations that make their standards
freely available to the public?
A. Not that I recall.
Q. Would that have been relevant
to your analysis?
A. It wasn't necessary to do my
analysis, but I would be curious if I had
that information. If I -- if I had the
ability to examine that information, I would
be curious as to what that shows.
Q. In paragraph 146, you state,
"The loss of publications here will likely
reduce the Plaintiffs' sales of those
downstream products and services."
Do you see that?
MR. FEE: That's in 146?
THE WITNESS: Is that the last
sentence you were reading from?
BY MR. BRIDGES:
Q. Yes.
A. Yeah.
Q. Paragraph 146.
A. Yes, I do see that.
Q. Did you mean the loss of

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unable to quantify that with great
accuracy.
BY MR. BRIDGES:
Q. Have you considered any
comparable circumstances apart from this case
that would provide guidance for your
prediction in the last sentence of
paragraph 146?
MR. FEE: Objection to form.
Vague.
THE WITNESS: I kept my mind
and eyes open to that, but I didn't
see information of a good comparator.
BY MR. BRIDGES:
Q. Did you research whether there
might be good comparators?
A. I -MR. FEE: Same objection.
THE WITNESS: I did in the
sense of reading through the
literature and information to see if I
could learn of something that would be
a good comparator, but I didn't learn
of such comparator.
BY MR. BRIDGES:

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copyright in the publications here?
A. Certainly the loss of
publications, but I believe it would probably
be better to put the loss of copyright in the
publications as more reflective of the
assignment that I undertook here.
Q. What probability do you assign
to the likelihood that you refer to in that
sentence?
MR. FEE: Objection to form.
Lack of foundation.
THE WITNESS: I haven't
assigned a quantitative probability to
that.
BY MR. BRIDGES:
Q. Have you any estimate?
MR. FEE: Same objections.
THE WITNESS: I do not.
BY MR. BRIDGES:
Q. Have you any estimate as to the
magnitude of the likely reduction of
plaintiffs' sales of downstream products and
services?
MR. FEE: Same objections.
THE WITNESS: No, I have been

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Q. You looked only at the
information shown in tab 2 to Exhibit 1?
A. Yes, I think that's right.
Q. What economic effect are you
aware of to the Blu-ray Disc Association from
its providing unrestricted access to its
standard publications for free?
A. I don't know. I thought you
had asked that earlier. If not, I apologize.
Nonetheless, I don't recall knowing the
answer to that question or undertaking that
evaluation.
Q. Did Blu-ray Disc Association go
out of business?
A. I don't think it's out of
business, no.
Q. Has it suffered material harm,
to your knowledge, because of unrestricted
access to its standard publications for free?
A. I don't know.
Q. Do you believe that, on the
theory of revealed preference, Blu-ray Disc
Association has determined that unrestricted
access to its standard publications for free
is in its interest?

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A. Yes. It's a different entity
than the SDOs here; but for its purposes, it
would appear that it's of the belief that
that's the optimal path to follow.
MR. BRIDGES: I think -- I
think we may pause things now and
reserve the remainder of our time.
Just a second. Oh, yes.
BY MR. BRIDGES:
Q. Do you believe that the
plaintiffs are harmed when the defendant
posts a standard that has been incorporated
by reference -- let me strike that.
Do you believe that plaintiffs
suffer harm from defendant posting a standard
that is not the latest version of the
standard?
MR. FEE: Objection. Form.
Compound.
THE WITNESS: Potentially, it
could cause confusion in the
marketplace as to what's the latest
standard, and there may be some
entities out there that are interested
in obtaining an earlier standard that

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MR. FEE: Objection. Lack of
foundation. Vague.
THE WITNESS: I'm not -- I'm
not sure that I understand the concept
of a standard being out of print, so
maybe you could help me with that.
BY MR. BRIDGES:
Q. Do you know the term "out of
print"?
A. Generally, I do, yes.
Q. What do you understand it to
mean?
A. That it's no longer provided in
print form.
Q. All right. So what harm do you
understand plaintiffs would suffer if
defendants posted a standard that is out of
print?
MR. FEE: Objection to form.
THE WITNESS: Potentially, it
could be the harm similar to outdated
standards.
BY MR. BRIDGES:
Q. In other words, confusion in
the marketplace?

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would be obtaining it free rather than
through the legal routes established
by the plaintiffs.
BY MR. BRIDGES:
Q. Have you done any studies to
determine what confusion may be likely in the
marketplace in that regard?
MR. FEE: Objection to form.
THE WITNESS: I have not done a
likelihood of confusion study, no.
BY MR. BRIDGES:
Q. What research have you done as
to whether -- strike that.
What information do you have
about what market there is for earlier
versions of standards when there is a newer
version in the market?
MR. FEE: Objection to form.
THE WITNESS: I don't recall
undertaking specific research on that
topic.
BY MR. BRIDGES:
Q. What harm do you understand
plaintiffs would suffer if defendants post a
standard that is out of print?

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A. Potential confusion in the
marketplace and potentially providing -- yes,
that -- that would be one form of it.
Q. What other harms do -- would
you identify from the defendants posting a
standard that is out of print?
A. Nothing else comes to mind this
moment, but there could be other things
that -- that I'm not thinking of right now.
Q. What harms do you understand
plaintiffs would suffer if a condition of a
standard being incorporated into law is that
plaintiffs could not forbid other entities
from making that law available widely and
freely to the public?
MR. FEE: Objection to form.
Incomplete hypothetical. Compound.
Calls for speculation.
THE WITNESS: I don't know.
I've not undertaken that assignment.
I've not given that particular
question any thought.
It seems economically to be
quite similar to the actions that have
occurred here, but I don't know. I've

Page 255

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not thought about that pruticular
topic.
MR. BRIDGES: Okay. I think
we'll pause here and rese1ve the rest
of the time for a later visit with
you, Mr. Jarosz.
Kevin, this is in reliance on
an exchange of conespondence 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 .

* * *

1
2

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 'A~tness; 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
12

13
14
<"
/osiimatureo/o>

15

~ c ~j-J)R, CRR

Notary Public

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Page260

(Witness excused.)

* * *
(Off the record at 4:31 p.m.)

* * *

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&
& 2:2,8,14 3:2,7
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27:18,21 64:15 89:9
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166:16 233:20
234:7 235:25 247:7
253:2
1,200 90:18
10 91:24 96:4 242:6
100 130:22 131:10
133:12,19,22
100,000 244:1
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107 216:25 217:8
108 216:25 217:1,3
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10:09 1:20 6:21
11 102:1
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1111 2:15
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69:13,21 70:23
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234:3
119 115:5,10 233:10
233:16,23 234:3,13
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120 235:11
121 236:3
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12th 3:4
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131 241:7
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162:19 163:22
164:10 211:19
212:8,18
134 164:10
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245:17,25
140 245:1,23
144 245:1 246:8
247:11
145 245:2 247:13
249:10,17
146 245:2 250:12,17
250:23 252:8
15 187:18
150 13:11
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155 65:5
16 5:13
17 101:25
175 4:16
18 187:22
19 209:13
1915 134:2
193 99:17
194 99:17
196 99:17
1974 195:3
1975 195:11
1995 115:5
1:13 1:4 7:6
1:17 152:23,25
2
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93:21,21,22 94:14
97:23 98:3,7,10
102:20 110:9
113:13 114:18,19

114:20 115:22
118:15,21,24,25
121:23,24 135:4,6
197:17 210:14
253:2
2,400 201:23
20 134:8,11 209:15
200 99:17
20004 2:15
2008 164:14,21
165:21,25 166:6,15
166:23
2009 4:17 175:13
2011 165:18 166:1,7
166:15,23
2012 164:18 165:12
165:13 178:16,19
208:6,8
2013 4:17 175:13
2014 89:8 187:19
2015 1:21 4:13 6:20
154:2 258:24
260:11
202 2:16
210 4:18
22 187:24
2300 2:4
26 105:4 209:13
260 1:25
27 1:21
27th 2:10 6:20
258:24
29 41:4
2:12 153:1,4
3
3 4:15 89:23,25 90:2
97:23 98:3,7,13
102:20 134:13,19
158:5,22 188:2
210:21 248:25
258:23
3,600 90:18
30 14:6 25:20

318-1200 2:5
33 89:3
34 92:17
35 71:3
36 187:10,12
3:12 210:13,16
3:41 210:17,20
3c 26:12
4
4 4:16 134:13,19
158:5,22 175:3,8,21
177:23 178:11
248:25
415 2:5,11 3:5
44 204:7,17 205:23
206:11,11
45 216:24 217:8,12
218:3
46 217:8,12 218:3
219:6 222:10
48 68:8
49 195:1
4:31 258:22 259:3
5
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158:5,22 208:6
210:24 211:4
237:23 241:25
242:4 248:25
50 184:1 237:11
238:13 241:21
50,000 244:11
512-4000 2:11
555 3:3
560 2:9
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5th 154:2
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801 3:8
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875-2300 3:5
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90-75 195:11
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94041 3:9
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a.m. 1:20 6:21 61:19
61:20
ability 32:12 222:15
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abridges 3:5
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accesses 212:7,17
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accomplishing
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181:4
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218:24
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52:16
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acting 42:24
action 56:17 260:9
actions 18:16 71:5
123:18 172:4 181:5
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active 82:4 238:16
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actual 62:8
add 18:23 23:13
183:25 184:4,9
added 97:12 219:9
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addition 224:14
additional 246:11
address 15:12 17:25
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50:18 51:18 52:4,15
54:19 68:2 69:1,6,7
74:10

adjusts 40:13
administrative
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56:3
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ago 30:16 41:23
46:2 105:21 113:19
133:19,23 134:11
208:4
agree 6:16
agreement 228:25
ahead 17:12 54:10
73:17 81:8 174:19
ahri 238:25
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air 1:12 2:17 8:1
akin 128:7
al 7:2
alert 32:14 39:13
137:22
alleged 11:21,24
19:13 118:7 164:17
allow 46:22 63:11
86:22 209:24 215:9
215:25 216:7
allowed 68:13 73:19
216:16
allowing 54:5
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alter 11:20
alternative 214:4
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apart 121:13 197:18
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applying 170:6
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attention 40:5 51:21
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110:11 111:12,24
113:2,14 115:8
116:13,21 117:9,19
118:16 120:20
121:18 122:19
124:22 125:17
126:17 127:11
128:10,18 129:5,21
130:5,20 132:16,25
134:6,16 135:1

136:4,19 137:4,10
137:25 138:9,22
139:8,19 143:1
144:2,13,19 145:15
146:5,14 147:5,16
148:3,19 149:2,10
149:22 150:5,11
151:2,22 152:20
153:5 156:19
157:22 158:8
159:13 160:7,19
161:12,23 162:11
163:3,17 164:7
165:6 166:12,20
167:14 168:3,12,16
169:5,18 170:1,22
172:12 174:23
175:6 176:15 177:3
177:16 178:6 179:4
179:23 180:21
181:2,10 182:10,19
183:3,16 184:3
186:15 190:15
191:1,8,16 192:7,17
193:7,22 194:14,25
196:9,24 197:13
198:3,24 199:4,11
203:15 204:25
205:15 206:5,20
207:9,19 208:22
209:8 211:2 213:4
213:15,22 216:14
216:23 217:4 218:1
218:13 219:1,17
220:9,21 221:2,14
221:24 222:9,21
227:13,20 228:15
229:2,19,23 230:12
231:2,9,20 232:16
232:21 233:9,21
234:10,20 235:18
236:9,13 237:4,9,15
237:21 238:5,23
239:24 240:14,23
241:6 242:17 243:2

243:25 244:9,15
247:2,8 248:6,21
250:20 251:15,19
252:3,14,25 254:5,9
255:4,11,22 256:7
256:23 258:3,18
bring 161:21 163:12
163:15,16 172:17
173:3,25 174:8
238:9
bringing 174:13
245:12
broad 32:7 75:1
broaden 72:21
broader 31:21 32:24
33:9 224:9
broadly 172:7 203:4
brought 40:5 51:20
92:25 94:3 109:8
162:23 163:11
170:6,16,24 171:15
171:22 172:13,23
173:8,13,19 174:5
building 46:23
127:9,14 128:14
204:9 228:17
buildings 46:21
54:17
bulk 26:20 92:12
business 33:4 39:9
128:7 229:17,18
246:20 249:13,20
253:14,16
buy 184:18 185:17
buying 184:21
185:13
c
c 1:17 4:3,12 7:8 8:7
124:24 260:1,1
calculate 212:5
calculated 208:14
212:9
california 2:4,10 3:3
3:4,8,9
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[call - comes]
call 44:11 86:5
96:19,21 106:24
111:18 114:6
123:11 219:9
called 124:24
135:23 209:14
223:19 226:12
calling 113:20 171:7
225:7
calls 47:2 77:2 78:14
79:4,14 96:23
108:13 129:17
144:18,22 145:22
146:17 147:24
148:8,23 149:6,17
150:22 151:7
152:11 159:2 161:8
167:20 168:23
228:21 229:9
230:22 231:14
232:3 257:18
campaigns 88:7
candidates 140:2
169:16
capabilities 133:25
caption 6:25
capture 218:16
career 26:1 174:22
careful 31:17
carl 3:13
carry 240:3
carte 75:17
case 6:25 7:4,5 9:7
10:5 12:11 15:14
27:7,25 28:10 29:11
33:13 43:21 44:20
68:24 69:3 73:1,13
75:22 76:5 77:1,16
78:8,19,25 79:11,13
81:3,6,19 85:16
92:20 95:4 96:9
104:10 107:21
124:23 125:1,14,14
125:18,23 126:1
127:17,23 128:5,8

129:4,9,12,15,16,24
130:3,4,8,9,10,16
132:10,20 138:13
143:13 144:15,17
147:9 153:10 154:4
154:22 155:19
162:15 169:13,24
170:7,17,25 171:17
171:23 172:14,17
172:24 173:4,9,14
173:19,25 174:5,10
174:13 175:9
181:14 187:4 188:9
188:25 189:12,19
190:22 194:18
196:1 208:12
212:25 236:19
239:21 240:6 252:5
cases 27:18,20 28:8
32:14 119:16
categories 34:1
category 223:23
causation 158:23
161:4,11
cause 12:18,21
67:21 75:5,12 76:3
159:18 254:21
caused 21:22 66:1
73:13 80:17 145:17
145:19
cell 6:11
certain 18:15 47:7
48:19 49:18 50:8,18
55:5 57:24 58:12,13
60:19 64:22 74:2,8
82:15 92:9 100:19
126:3,25,25 127:2
140:25 155:4
156:23 160:1 165:8
180:13 185:6
212:16 226:24
243:14,14,16
certainly 28:24 36:4
39:13 40:3 47:11
60:10 62:9,21 70:6

84:15 85:9 106:16
133:18 165:16
251:2
certainty 25:5 27:9
63:8 65:24 119:4
164:17 212:22,23
214:2,16 215:8
220:19
certified 1:23
certify 260:2
change 11:23 95:8
109:23 165:4,9,15
167:10 179:6 208:1
220:7
changed 130:22
134:5 166:24
changes 131:4,5,8
131:13 133:10
134:7 157:6,13,20
157:25 159:18
176:22 177:8,20
chapman 98:11
99:22,25 102:15,19
103:14 104:7,16
105:24 106:7,20
characterization
222:23
characterize 47:12
charter 49:16
240:10,12
chartered 40:8
charters 48:18 49:3
55:4
check 187:2
choose 184:20
chose 94:14 240:4
circular 115:5,9
circulars 115:2
circumstances
128:13 252:5
circumstantial
159:6
citations 99:12
102:7,13 105:17
107:4 160:22

cite 25:7 99:14
103:24 195:14
cited 22:15,17,22
24:25 82:1 199:16
202:10 205:22
206:10 211:4
cites 110:13
claimed 10:4 126:5
class 233:1
classify 38:25
clause 200:15
clear 16:8 35:5
clearinghouse 86:1
clearinghouses
86:21
close 63:13 64:2,20
closer 59:9
code 127:13 164:15
164:19,22 165:19
165:21 204:9,18
205:24 206:13
221:5 229:21
230:19 231:6,10
232:25
codes 127:9,14,25
128:1,14
coefficient 177:14
177:18
collected 194:22
collection 209:23
college 170:4,11
171:14
columbia 1:2 7:5
combinations 96:17
96:22
come 26:9,13 62:22
131:18 203:13
comes 28:23 29:1
36:4 40:11 66:8
84:14,21 188:8,15
188:19 221:11
224:2 225:12 227:2
245:18 247:12
249:18 257:7
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[coming - containing]
coming 45:12 58:8
commencing 1:20
commentaries
219:21
commentary 218:5
218:20 223:25
commerce 52:11
commercial 204:8
committee 116:7,15
committees 88:15
117:10
communications
78:17 79:17 95:2
125:8 145:1 146:21
147:1 148:12
196:19
companies 32:2,4
33:1 34:13 35:19
39:9 42:10 43:11,16
243:15
company 34:9 42:15
42:17 248:20
comparable 128:13
128:22 252:5
comparator 252:13
252:23,24
comparators 252:16
compatibility 82:16
compensate 222:17
223:11
compensation 133:7
compete 240:16,21
competition 223:17
competitive 219:8
222:13 223:7,15
224:17
competitors 224:24
compilations 72:6
complaint 179:22
180:14
complementary
224:19
complete 13:25
completed 48:5

completing 107:6
comply 32:16 34:15
35:22 46:11
compound 37:13
53:1 161:17 167:21
176:13 178:24
228:12 230:2
231:14 232:3
243:21 244:5
254:19 257:17
compute 177:13
computer 260:7
computing 87:18
comstock 101:25
225:22 227:22
228:2
concept 32:24 33:9
69:7,10,24 70:16
229:1 230:5 243:13
256:4
concepts 170:12,15
170:23 171:2,11,18
171:21
concern 45:12
conclude 58:24
169:7,11
conclusion 12:6
19:15,22 20:4 47:3
79:5,15 129:18
144:8,23 145:23
146:18 147:3,24
148:9,24 149:7,18
150:23 151:8
152:12 159:3,16
161:8 167:21
168:24 217:23
230:23 231:15
232:4 238:3
conclusions 11:11
11:13 13:7 15:25
16:5 17:2 18:12,20
18:25 19:4,6,11
107:11 108:15
116:9,17 125:12,16
125:20 145:4,6

146:23 148:15,17
159:17 161:20
165:4,9 167:11
169:24 170:17
208:11 220:7
233:12,13
condition 257:11
conditioning 1:12
2:18 8:1
conduct 64:18,19
66:22
conducted 216:15
247:3
conference 115:15
115:25 116:8,16,23
117:6
confidence 96:17
235:3 238:11
confident 14:25
15:6
confine 77:21
confirm 90:11
confirmation 23:24
confirmations 109:6
109:11
confirming 109:19
conflict 121:7,10
conflicted 120:13,17
196:7 197:11
248:19
conflicts 121:1,2,8
confused 200:23
201:1
confuses 171:9
confusion 12:18,21
19:1 34:25 200:22
254:21 255:6,10
256:24 257:1
conjunction 179:2
connection 28:10
115:15 216:8,17
consensus 32:6,7,8
40:15 45:16 58:3
85:2 116:7

consequence 62:2
63:5 127:14 130:15
157:15 216:4
consequences
128:16,20 130:14
conservation 204:18
205:24 206:12
consider 38:3 39:6
72:14 142:1 162:8
165:1,16 169:1
179:1 240:24
242:21 244:1
249:13
consideration 46:9
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39:14 140:9 168:8
considered 82:5
164:11 165:14
243:24 244:7,10
252:4
consolidated 135:8
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constituent 37:23
39:1
constituents 31:15
33:7,12,22 34:2,4
36:1 37:7 82:10,14
83:5,6 84:12,13
85:5 86:23,24
131:21
constitute 149:4
construction 228:18
230:14,16 233:1
construed 144:7
consulting 8:22 26:1
28:18 31:1
consumer 171:5
172:2 173:3
consumers 32:15
50:16 76:15
contained 10:21
11:12,14 160:15
180:13 216:22
containing 71:9
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[contest - curious]
contest 53:19,21
context 9:3 26:3
28:17 37:2 42:8
55:14 70:10,21
106:14 240:22
contexts 9:4
continue 6:15 67:9
68:14 151:20
162:25 239:18
continued 2:19 3:1
110:19,20 111:3,9
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continuing 66:4
74:23 147:18,19
continuous 89:16
contract 27:1
contractors 229:21
contradicted 120:23
121:15
contribute 88:9
contributed 206:23
207:12
contributions 132:8
147:9
control 225:16
convened 131:22
conversation 95:19
100:17
conversations 6:10
23:15 24:12 94:21
95:6,11,25 96:6,11
97:3,13 98:11,14,18
99:12,15,19,21,25
100:6,8,24 101:4,13
101:20,21,25 102:1
102:2,3,4,5,8 103:7
103:12,13,18 104:4
105:17 106:11,18
107:4,5 108:8
110:14,16 118:9
120:7 121:19
153:21 180:11,17
195:6 197:12
248:13

copied 20:11
copies 19:18 71:7
87:25 88:1,2 215:23
232:17 233:2
copy 136:1 215:22
230:18 231:5
232:25
copying 15:18 20:6
133:25
copyright 18:2,12
18:14,20 27:4,12,25
28:8 63:15 64:4
65:8 67:21 68:7
69:8,10,25 70:5,7,9
70:11,15,17 72:18
72:20 73:18 77:5,20
78:1 79:13 80:1,9
80:14,25 81:5
110:19,20 111:4
114:14 123:21
124:12,17 126:13
126:18 128:2,15
138:25 140:5,9,13
143:21 148:21
151:13 217:14
218:4,17 219:2,6
220:1 222:11,15
223:5,9 245:8
246:14,16,19 251:1
251:4
copyrightable 78:13
79:2
copyrighted 126:4,5
187:5,21 188:1,3,6
224:14
copyrights 11:18,21
11:24,25 12:5 65:16
77:1,11,12,25 78:5
80:18 112:20
126:20 145:20
149:13 150:18
151:5 152:9 219:19
core 169:3
correct 23:12 24:4,5
24:7 36:20 42:23,25

43:12,16 47:16,21
48:3,4 64:23 65:9
65:17 66:13 67:22
68:17 69:21 70:11
70:23 71:19 72:8,12
72:12 77:25 86:8,12
90:22 94:10 113:21
113:22 114:8
130:16,19 135:16
156:24 161:25
162:5 163:12
174:10 188:1
197:22 204:13,14
208:8 211:5,17
212:3 214:22 219:9
219:13,24 226:13
227:23 235:6
247:22 260:8
correctly 217:11
219:13 260:6
correlate 177:7,19
correlation 177:14
177:18
corresponded 108:7
correspondence
94:17 258:8
cost 163:14
costs 65:7 89:9,23
133:4
counsel 7:9 14:23
23:3,9,10,18 78:18
79:18 94:17 95:2
111:22 118:18,22
119:1,8,10,12,13,15
119:24 120:1
121:22 125:8,14
145:2 146:21
148:12 153:13
154:1,2 180:12,18
197:21 198:11
260:8
count 201:7
counterpart 18:6
couple 59:12,21
203:3

course 24:20 25:15
25:25 27:10 56:17
111:15 170:5
171:15 228:16,25
229:4 231:12
courses 25:17
230:14,16
court 1:1 7:4 8:3
12:6 63:14 64:4,21
65:15 66:2,6,10
67:19 71:12 74:1,15
76:5,25 77:10 81:4
128:1,13 129:3,8
145:19 146:6,9
149:11 150:16
152:7
court's 67:13 128:20
129:24 130:8
167:23
courts 144:11
cover 15:1 89:9,23
covered 13:10,11,15
92:11
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create 31:5 85:23
86:3,6 87:25
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103:19 109:2
creation 28:14
236:20 240:17
criticize 247:10
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crr 260:15
cumulation 154:12
cumulative 97:10
cumulatively 97:6
97:11
cunningham 2:3
7:22,23 258:17
curious 99:10 167:6
167:8 220:5,8 250:8
250:11
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[current - differently]
current 17:13
currently 240:2
cursory 14:17
cv 1:4 7:6
cycle 89:14,22
d
d 1:5 2:6
d.c. 6:24
damages 9:3
dar 1:5 7:6
data 64:10 134:10
155:15,22,24 156:8
156:11 158:25
162:18 163:19,21
164:1,5,8 165:22
166:7,11,15 178:21
179:2 208:3,23
database 199:24
200:3,6,9,15 202:7
date 6:20 62:2,9
64:18,20 66:23
179:20
dates 134:18 179:9
179:11 180:2,8,17
180:25 181:4
day 24:21 260:11
dc 1:20 2:15
deal 13:22 127:8
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debbie 1:21 8:3
260:15
decided 45:24
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decision 65:15 66:2
66:10 74:2 126:8
127:15 128:20
129:24 130:8,16
145:19 149:14
150:19 151:3 152:7
167:23
declined 62:20
deem 143:16
defective 24:4

defendant 1:16 3:6
3:10 7:14 12:9,21
21:9,12,21 23:20
65:17 66:5 68:12
73:1,4,11 145:18
146:10 147:20
148:7,21 149:12
150:17 151:4,21
152:8 158:20
164:14,21 165:8,25
166:6,14,22 175:19
175:23 176:11,22
176:23 177:8,10,20
177:22 178:12,13
179:12 180:2,8
183:7,8 193:11
194:7 214:14
249:15 254:11,15
defendant's 19:2,13
21:4 62:3 63:5
66:22 67:5 122:23
123:13 149:4 157:7
157:15 158:24
159:8,24 160:5,10
161:1,5 163:24
167:4 178:19 181:5
216:4
defendants 67:7
177:22 255:24
256:17 257:5
defer 143:18
define 56:14 58:4
184:7 200:12,13
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definition 55:18
56:2,20 57:13 242:4
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degree 47:16,17,21
47:23,24 65:24
deliberations
115:14,24 116:5
demand 33:19 34:21
35:12,18 36:22 37:4
38:2,7,16,21 39:7
39:14 82:14 83:13

84:12 228:24
denying 109:20
depending 67:12
depends 39:3
deponent 260:4,6
deposition 1:17 5:1
6:14 23:11 27:21
110:10 112:8 119:9
123:15 156:21
159:12 160:15,21
160:25 210:22
260:7
depositions 119:5
depth 30:24 62:25
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182:3,4,12
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231:25
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determination
21:20 148:6 202:15
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93:12 155:15
157:13,24 167:15
176:5 179:19
190:17 196:6,20
201:12 206:22
207:11 247:25
248:18 255:6
determined 10:19
180:1 253:23
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150:16
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145:11
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111:7 114:15
devastating 111:11

develop 32:5 39:19
42:5,12 127:25
131:18
developed 40:17
126:6 154:25
202:18 203:7
222:12 223:6
224:16
developers 127:13
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33:4 41:7 84:24
89:9,24
development 25:12
25:16 27:13 28:1,9
28:15 29:3,24 31:5
32:19 44:11,15 45:4
45:8 70:2 81:21
82:2 85:14 87:3
93:7 130:22 131:1,7
131:9,14 132:4
138:11 189:11,18
189:24 190:5,21
191:11,21 206:24
207:14 211:15
238:16 239:20
240:2,5 250:1
developments
239:17
devoted 90:17
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167:3 182:20 183:5
184:25 185:3 186:2
215:17
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41:24 155:17 156:2
different 33:7 40:19
47:22 53:3 58:4
67:12 127:20
153:11 229:17
240:10 254:1
differently 29:19
105:22 149:21
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[differently - economics]
152:17
difficult 20:12 21:8
74:21
dimension 30:21
37:24 99:8
din 249:20
diplomate 1:22
direct 25:6 71:2
137:1 159:7 160:3
224:14
directly 104:12
214:5
disasters 46:4
disastrous 46:12
disbursements
91:13
disc 141:1,9,23
253:5,13,22
disclaim 117:24
disclose 78:17 125:6
145:1 146:20,25
148:13
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discover 18:19
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105:4,7 153:20
198:2
discuss 62:24 116:4
199:5,17 229:25
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24:15 101:20
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163:23
discussion 29:15
62:10 65:11 153:12
199:10
discussions 22:19,23
23:8 85:22 115:13
115:24 153:25
184:25
displace 241:14
disposal 155:22
157:4 162:19
183:15

dispose 100:14
disprove 246:7,7,22
247:4
disproved 142:12
245:4,16,21
dispute 221:10
disputing 12:9
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88:2 136:2
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20:14 23:21 75:21
75:25 76:12,18
disseminating 21:12
127:2
dissemination 20:7
48:24 55:9 60:2,5
61:1,10 62:18 75:1
75:15,20 133:25
209:23
dissent 116:15
distinction 31:10
32:20,23 156:12
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distributed 133:17
133:21 135:15
215:24 241:8
distribution 133:11
134:4 142:2 215:25
216:3
district 1:1,2 7:4,5
diverse 42:20
doctor 47:21
document 24:1
107:19,22,25
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175:8,11 195:5
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documentary
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documents 5:6
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24:14,25 25:1 93:19
113:12 115:23
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121:13,14 122:6,6
122:10,16,17,18,21
122:24 123:10,14
134:18,22,25 135:2
135:11 153:14
180:14 185:6 197:9
197:14,15 198:1,5
198:10 211:22,25
212:3
doing 16:19 107:24
162:4 179:25 180:5
213:20,24
dollar 10:15 19:7,9
87:6 132:17 189:9
189:14 198:17
212:6 213:8 221:15
222:2
dollars 132:14
175:13
double 187:2
doubt 227:25 230:8
download 215:5,18
215:21
downloaders 214:17
downloading 176:5
213:21,25 214:18
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downloads 62:17
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independently
120:22 121:13
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index 4:1,9 5:1
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[indicate - issue]
indicate 117:25
indicated 54:6 260:4
indicates 99:11
indication 213:20
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49:6,14,19,24 50:7
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132:10 133:15
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[issue - lawsuit]
141:13 147:15
154:4,6,21,24
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k 124:24
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163:11,12,15
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[lawyer - materials]
lawyer 95:11,18
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95:21 103:21
lays 60:18
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172:1,2,3,5,5,6,8,10
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139:1 214:9 224:15
224:15
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[matt - never]
matt 258:9
matter 11:2 27:13
50:4 103:1 126:21
126:23 139:7
140:16 142:6
153:13 164:20
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8:23 171:4

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never 96:18 103:3
107:20
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[new - offerings]
new 16:10 46:2
236:20 246:1
newer 255:16
nf 123:11
nfp 54:15
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[resource's - sections]
resource's 211:23
resources 86:1,21
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[sector - specific]
sector 199:13
see 9:24 10:20 12:23
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[specific - strike]
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[strike - testimony]
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student 170:4
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talking 68:16 70:2
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talks 70:6,15 201:16
tangible 62:8,10
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taxes 88:25
teacher 229:5
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team 93:24 135:7
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technical 229:14
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telephone 197:7
tell 53:11 95:17
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ten 58:25 59:7,7,10
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term 31:8 38:12,14
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258:23 260:3,5,8
testing 1:4 2:6 7:1
text 71:8 82:19 83:1
83:23,23
thane 2:9 7:18
thane.rehn 2:11
thank 61:15 111:23
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thanks 210:11
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thereabouts 98:5
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thing 62:25 202:3
things 8:24 33:3
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third 71:13 153:17
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three 15:11 40:24
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thursday 1:21
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times 42:4 83:11
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timing 165:7,15
title 65:10
today 8:2 23:10
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topics 25:24 42:21
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total 97:3 154:24
touch 14:8
track 193:25
trademark 11:22
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transcribed 260:6
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transcripts 119:9
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tsc 1:4 7:6
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turning 187:17
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two 32:21 34:1
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type 47:24 87:13
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u
uh 123:1
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unable 252:1
unauthorized
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understanding
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use 19:2,13,17 31:8
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useful 100:17,19
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user 225:20 232:9
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users 32:15 35:20,21
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uses 221:4
v
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vacuum 161:22
vague 19:23 20:20
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valid 12:7 77:25
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valuation 9:1,21
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value 9:20 10:3,8,10
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[valued - witness]
valued 9:6
variety 48:15 58:8
131:2 172:8
various 29:16 45:6
62:21 86:5,23 88:15
96:1,22 98:12 99:13
99:15 107:17 112:9
112:15 132:9
153:21 179:12
180:2,8 248:5,8,11
veeck 124:24 125:1
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130:8,16
vendor 229:18
verification 23:23
196:16
verified 179:9,11
205:4
verify 23:17 24:1
113:23 195:7,18
200:4 205:1 248:10
verifying 179:17
veritext 1:18 6:19
6:23 8:4
versa 108:1
version 164:14
165:18 254:16
255:17
versions 85:23 86:4
86:6 241:9 255:16
versus 7:2 145:18
154:24
vi 68:8,20
vice 108:1
videographer 3:15
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videotaped 1:17
view 3:9 74:14
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136:11 139:15

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viewed 111:3,9
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views 111:13 112:5
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113:9,20,25 114:6
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162:3,9,14
violate 148:2
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violations 147:22
virtually 106:22
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visit 90:10 258:5
volume 176:23
volumes 177:9,21
volunteer 90:16,25
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volunteer's 92:12
volunteers 132:9,19
vs 1:14
w
wait 9:10 122:11
want 9:11,15 13:24
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wanted 179:3
wants 59:20
washington 1:20
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way 31:19 46:17,22
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ways 48:16 61:9
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web 40:1 72:5 90:11
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wider 32:1
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222:25 223:11
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withdrawing 16:8
witness 4:3 7:7 8:5
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witnesses 4:1
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82:22 83:3,7,19
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142:24 143:19
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200:18 256:24
work 8:18 9:2,4,5
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25:19 26:15 27:3,5
28:7,10 31:17 50:3
50:3 80:24 81:2,18

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written 20:25 21:1
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wrong 32:25 90:13
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Federal Rules o f Civil Procedure
Rule 30

(e) Review By the Witness; Changes .
(1) Review; Statement of Changes . On request by the
deponent or a party before the deposition is
completed, the deponent must be allowed 30 days
after being notified by the officer that the
transcript or recording is available in which :
(A)

to review the transcript or recording; and

(B) if there are changes in form or substance, to
sign a statement listing the changes and the
reasons for making them .
(2) Changes Indicated in the Officer ' s Certificate .
The officer must note in the certificate prescribed
by Rule 30(f) (1)

whether a review was requested

and, if so, must attach any changes the deponent
makes during the 30 - day period .

DISCLAIMER :

THE FOREGOING FEDERAL PROCEDURE RULES

ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY .
THE ABOVE RULES ARE CURRENT AS OF SEPTEMBER 1,
2014 .

PLEASE REFER TO THE APPLICABLE FEDERAL RULES

OF CIVIL PROCEDURE FOR UP - TO - DATE INFORMATION .