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

Filing 204

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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

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

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,
Plaintiffs/Counter-defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

SUPPLEMENTAL DECLARATION OF MATTHEW BECKER IN OPPOSITION TO
[198] PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND PERMANENT
INJUNCTION AND IN SUPPORT OF DEFENDANT PUBLIC RESOURCE’S
SECOND MOTION FOR SUMMARY JUDGMENT
I, Matthew Becker, declare pursuant to 28 U.S.C. § 1746 as follows:
1.

I am an attorney admitted to practice in the District of Columbia and am an

associate with the law firm of Fenwick & West LLP, counsel of record for DefendantCounterclaimant Public.Resource.Org, Inc. (“Public Resource”).

Except where otherwise

indicated, I have personal knowledge of the facts herein and could and would testify competently
hereto.
I.

NEWLY OBTAINED OR NOW UNABRIDGED DEPOSITION TESTIMONY
2.

The first two deposition transcripts provide newly obtained testimony from current

and former government officials that is pertinent to several aspects of the incorporation process,

use of the standards as laws, and public access to those laws, among other issues. After those, I
attach here complete copies of deposition transcripts that had previously been provided to the
Court only in part. These complete copies are attached both for the convenience of having them
collected in one place, and also in case unabridged copies might aid the Court in its analysis.
3.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 36 is a

true and correct transcript of the deposition of Mia D. Marvelli, dated August 19, 2019.
4.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 37 is a

true and correct transcript of the deposition of Mary H. Saunders, dated August 15, 2019.
5.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 38 is a

true and correct transcript of the deposition of Plaintiffs’ expert, John Jarosz, dated August 27,
2015. Portions of this transcript were previously provided at Dkt. 122-1, Ex. 9.
6.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 39 is a

true and correct transcript of the deposition of Public Resource’s expert, James Fruchterman, dated
July 31, 2015. Portions of this transcript were previously provided at Dkt. 122-1, Ex. 7.
7.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 40 is a

true and correct transcript of the deposition of Daniel Smith, one of ASTM’s Rule 30(b)(6)
designees, dated July 24, 2015. Portions of this transcript were previously provided at Dkt. 1222, Ex. 13.
8.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 41 is a

true and correct transcript of the deposition of Christian Dubay, one of NFPA’s Rule 30(b)(6)
designees, dated April 1, 2015. Portions of this transcript were previously provided at Dkt. 1221, Ex. 6.

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9.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 42 is a

true and correct transcript of the deposition of Bruce Mullen, one of NFPA’s Rule 30(b)(6)
designees, dated March 31, 2015. Portions of this transcript were previously provided at Dkt. 1222, Ex. 11.
10.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 43 is a

true and correct transcript of the deposition of Stephanie Reiniche, one of ASHRAE’s Rule
30(b)(6) designees, dated March 30, 2015. Portions of this transcript were previously provided at
Dkt. 122-2, Ex. 12.
11.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 44 is a

true and correct transcript of the deposition of Steven Comstock, one of ASHRAE’s Rule 30(b)(6)
designees, dated March 5, 2015. Portions of this transcript were previously provided at Dkt. 1221, Ex. 5.
12.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 45 is a

true and correct transcript of the deposition of Jeffrey Grove, one of ASTM’s Rule 30(b)(6)
designees, dated March 4, 2015. Portions of this transcript were previously provided at Dkt. 1221, Ex. 8.
13.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 46 is a

true and correct transcript of the deposition of Donald Bliss, one of NFPA’s Rule 30(b)(6)
designees, dated March 3, 2015. Portions of this transcript were previously provided at Dkt. 1221, Ex. 4.
14.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 47 is a

true and correct transcript of the deposition of Carl Malamud, dated February 27, 2015. Portions
of this transcript were previously provided at Dkt. 122-12, Ex. 3.

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15.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 48 is a

true and correct transcript of the deposition of Carl Malamud as Rule 30(b)(6) designee for Public
Resource, dated February 26, 2015. Portions of this transcript were previously provided at Dkt.
118-12, Ex. 2.
16.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 49 is a

true and correct transcript of the deposition of Vikas Bhutada, Rule 30(b)(6) designee for third
party HTC Global Services, dated November 5, 2014. Portions of this transcript were previously
provided at Dkt. 122-12, Ex. 5.
17.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 50 is a

true and correct transcript of the deposition of Rebecca Malamud, Rule 30(b)(6) designee for third
party Point B Studio, dated November 13, 2014. Portions of this transcript were previously
provided at Dkt. 122-1, Ex. 10.
18.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 51 is a

true and correct copy of ASHRAE’s Answers and Objections to Public Resource’s Third Set of
Interrogatories, dated June 26, 2019.
19.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 52 is a

true and correct copy of NFPA’s Answers and Objections to Public Resource’s Third Set of
Interrogatories, dated July 1, 2019.
20.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 53 is a

true and correct copy of ASTM’s Second Supplemental Objections and Responses to Public
Resource’s Third Set of Interrogatories, dated September 9, 2019.

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21.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 54 is a

true and correct copy of ASTM’s Objections and Responses to Public Resource’s First Set of
Interrogatories, dated March 24, 2014.
22.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 55 is a

true and correct copy of ASHRAE’s 2016-17 Financial Update and Budget Board of Directors
Presentation, produced as begin Bates reference ASHRAE0045821.
23.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 56 is a

true and correct copy of ASHRAE’s 2017-18 Financial Update and Budget Board of Directors
Presentation, produced as begin Bates reference ASHRAE0045848.
24.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 57 is a

true and correct copy of Exhibit 5 from the deposition of Mary Saunders.
25.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 58 is a

true and correct copy of Exhibit 9 from the deposition of Mary Saunders. This exhibit is the Office
of

the

Federal

Register’s

“IBR

Handbook,”

dated

July

2018,

available

at

https://www.archives.gov/federal-register/write/handbook.
26.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 59 is a

true and correct copy of Exhibit 10 from the deposition of Mary Saunders.
27.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 60 is a

true and correct copy of Exhibit 11 from the deposition of Mary Saunders.
28.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 61 is a

true and correct copy of Exhibit 13 from the deposition of Mary Saunders.
29.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 62 is a

true and correct copy of Exhibit 14 from the deposition of Mary Saunders.

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30.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 63 is a

true and correct copy of Exhibit 21 from the deposition of Mary Saunders.
31.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 64 is a

true and correct copy of Exhibit 23 from the deposition of Mary Saunders.
32.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 65 is a

true and correct copy of Exhibit 24 from the deposition of Mary Saunders.
33.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 66 is a

true and correct copy of Exhibit 25 from the deposition of Mary Saunders.
34.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 67 is a

true and correct copy of Exhibit 26 from the deposition of Mary Saunders.
35.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 68 is a

true and correct copy of Exhibit 28 from the deposition of Mary Saunders.
36.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 69 is a

true and correct copy of Exhibit 37 from the deposition of Mary Saunders.
37.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 70 is a

true and correct copy of Exhibit 43 from the deposition of Mary Saunders.
38.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 71 is a

true and correct copy of Exhibit 46 from the deposition of Mary Saunders.
39.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 72 is a

true and correct copy of the December 31, 2015 and 2014 National Fire Protection Association
Financial Statements, produced as begin Bates reference NFPA-PR0097912.

6

40.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 73 is a

true and correct copy of the December 31, 2016 and 2015 National Fire Protection Association
Financial Statements, produced as begin Bates reference NFPA-PR0097936.
41.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 74 is a

true and correct copy of December 31, 2017 and 2016 National Fire Protection Association
Financial Statements, produced as begin Bates reference NFPA-PR0097961.
42.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 75 is a

true and correct copy of the December 31, 2018 and 2017 National Fire Protection Association
Financial Statements, produced as begin Bates reference NFPA-PR0097987.
43.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 76 is a

true and correct copy of the NFPA income statement, produced as begin Bates reference NFPAPR0098016.
44.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 77 is a

true and correct copy of the Code and Standard Units Sold, produced as begin Bates reference
NFPA-PR0098022.
45.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 78 is a

true and correct copy of page view and sales information, produced as begin Bates reference
NFPA-PR0098023.
46.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 79 is a

true and correct copy of NFPA Publication sales 2009-2013, produced as begin Bates reference
NFPA-PR0098028.

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47.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 80 is a

true and correct copy of NFPA Publication sales 2014-2018, produced as begin Bates reference
NFPA-PR0098029.
48.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 81 is a

true and correct copy of an email produced as begin Bates reference NFPA-PR0098030.
49.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 82 is a

true and correct copy of the NEC adoption maps, produced as begin Bates reference NFPAPR0098046.
50.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 83 is a

true and correct copy of CodeFinder Tool Disclaimer, produced as begin Bates reference NFPAPR0098059.
51.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 84 is a

true and correct copy of Exhibit 3 from the deposition of Mia Marvelli.
52.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 85 is a

true and correct copy of Exhibit 4 from the deposition of Mia Marvelli.
53.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 86 is a

true and correct copy of Exhibit 7 from the deposition of Mia Marvelli.
54.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 87 is a

true and correct copy of Exhibit 8 from the deposition of Mia Marvelli.
55.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 88 is a

true and correct copy of Exhibit 9 from the deposition of Mia Marvelli.
56.

Attached as Exhibit 89 is a table of the ASHRAE standards at issue in this case,

and text of applicable incorporations into law. Because incorporations into law are numerous and

8

occur at the federal, state, and local levels of government, this table does not exhaust every
incorporation for the relevant standards.
57.

Attached as Exhibit 90 is a table of the ASTM standards at issue in this case, and

text of applicable incorporations into law. Because incorporations into law are numerous and
occur at the federal, state, and local levels of government, this table does not exhaust every
incorporation for the relevant standards.
58.

Attached as Exhibit 91 is a table of the NFPA standards at issue in this case, and

text of applicable incorporations into law. Because incorporations into law are numerous and
occur at the federal, state, and local levels of government, this table does not exhaust every
incorporation for the relevant standards.
59.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 92 is a

true and correct copy of a printout from the National Archives website, titled “Incorporation by
Reference”, available at http://www.archives.gov/federal-register/cfr/ibr-locations.html.
60.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 93 is a

true and correct copy of the Declaration in Support of Probable Cause, California v. Harris, No.
17-CR-017349A

(Cal.

Super.

Ct.

June

5,

2017),

available

at

https://www.scribd.com/document/350446988/Ghost-Ship-fire-criminal-charges.
61.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 94 is a

true and correct copy of the Criminal Complaint, California v. Harris, No. 17-CR-017349A (Cal.
Super.

Ct.

June

5,

2017),

available

at

https://web.archive.org/web/20170729051241/https://cbssanfran.files.wordpress.com/2017/06/al
mena-and-harris-complaint.pdf.).

9

62.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 95 is a

true and correct copy of the internal document produced by ASTM at ASTM102031-2.
63.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 96 is a

true and correct copy of the Expert Report of James Fruchterman, previously submitted at Dkt.
122-6 and resubmitted for the convenience of the Court.
64.

Attached to Public Resource’s Consolidated Index of Exhibits as Exhibit 97 is a

true and correct copy of the internal document produced by ASTM at ASTM19297-9.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed this 12th day of November, 2019 at San Francisco, California.

/s/ Matthew B. Becker
Matthew B. Becker

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