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 45

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
----------------------------------AMERICAN SOCIETY FOR TESTING AND
) Case No.
MATERIALS d/b/a ASTM INTERNATIONAL;) 1:13-cv-01215-EGS
)
NATIONAL FIRE PROTECTION
)
ASSOCIATION, INC.; and
)
)
AMERICAN SOCIETY OF HEATING,
)
REFRIGERATING, AND
)
AIR-CONDITIONING ENGINEERS, INC., )
)
Plaintiffs,
)
vs.
)
)
PUBLIC.RESOURCE.ORG, INC.,
)
)
Defendant.
)
-----------------------------------)
AND RELATED COUNTERCLAIMS.
)
-----------------------------------)

RULE 30(B)(6) VIDEOTAPED DEPOSITION OF AMERICAN
STANDARDS SOCIETY FOR TESTING AND MATERIALS, BY AND
THROUGH ITS DESIGNEE,
JEFFREY GROVE
WASHINGTON, D.C.
WEDNESDAY, MARCH 4, 2015
Reported by:
NANCY J. MARTIN, CSR No. 9504, RMR
Job No. 2010158
PAGES 1 - 284
Page 1
Veritext Legal Solutions
866 299-5127

1
UNITED STATES DISTRICT COURT
2
FOR THE DISTRICT OF COLUMBIA
3 ----------------------------------AMERICAN SOCIETY FOR TESTING AND ) Case No
4 MATERIALS d/b/a ASTM INTERNATIONAL;) 1:13-cv-01215-EGS
)
5 NATIONAL FIRE PROTECTION
)
ASSOCIATION, INC ; and
)
6
)
AMERICAN SOCIETY OF HEATING,
)
7 REFRIGERATING, AND
)
AIR-CONDITIONING ENGINEERS, INC , )
8
)
Plaintiffs,
)
9
vs
)
)
10 PUBLIC RESOURCE ORG, INC ,
)
)
11
Defendant
)
-----------------------------------)
12 AND RELATED COUNTERCLAIMS
)
-----------------------------------)
13
14
15
Rule 30(B)(6) videotaped deposition of American
16 Standards Society for Testing and Materials, by and
17 through its designee, JEFFREY GROVE taken at Veritext
18 Legal Solutions, 1250 Eye Street NW, Suite 1201,
19 Washington, D C commencing at 9:20 A M , Wednesday,
20 March 4, 2015, before Nancy J Martin, CSR 9504
21 RMR
22
23
24
25

1 APPEARANCES OF COUNSEL: (CONTINUED)
2
3

MUNGER, TOLLES & OLSON LLP (VIA TELECON)

4

BY: THANE REHN, ESQ.

5

560 Mission Street

6

27th Floor

7

San Francisco, California 94105

8

[phone]

9

[e-mail]

10
11
12 ALSO PRESENT:
13

THOMAS B. O'BRIEN, JR., Vice President and

14

General Counsel, ASTM International

15
16

CARL MALAMUD, PUBLIC.RESOURCE.ORG (via telecon)

17
18

CHRIS SOMO, Legal Videographer

19
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Page 2

1 APPEARANCES OF COUNSEL:
2
3 FOR THE PLAINTIFFS:
4
MORGAN LEWIS & BOCKIUS LLP
5
BY: J. KEVIN FEE, ESQ.
6
1111 Pennsylvania Avenue NW
7
Washington, D.C. 20004
8
[phone]
9
[e-mail]
10
11 FOR THE DEFENDANT:
12
FENWICK & WEST LLP
13
BY: ANDREW P. BRIDGES, ESQ.
14
MATTHEW BECKER, ESQ.
15
555 California Street
16
12th Floor
17
San Francisco, California 94104
18
[phone]
19
[e-mail]
20
[e-mail]
21
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25

Page 4

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INDEX
TESTIMONY OF: JEFFREY GROVE
BY MR. BRIDGES..................................14
--EXHIBITS
--NUMBER
DESCRIPTION
MARKED
Exhibit 1022 Amended Notice of Deposition,
53
8 pages
Exhibit 1023 Return of Organization Exempt
56
from Income Tax, 2012,
43 pages
Exhibit 1024 Email string, ASTM015659 57
-15660, 2 pages
Exhibit 1025 Comments of ASTM International, 57
ASTM015661 - -15667, 7 pages
Exhibit 1026 Email string, ASTM030644 58
-30647, 4 pages
Exhibit 1027 Email string, ASTM015779 61
-15780, 2 pages
Exhibit 1028 Email string, ASTM015828 63
-15830, 3 pages

Page 3

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--EXHIBITS
--NUMBER
DESCRIPTION
MARKED
Exhibit 1029 Email string, ASTM015912 64
-15913, 2 pages
Exhibit 1030 Letter dated April 27,
65
2012, ASTM016538 - -16546,
9 pages
Exhibit 1031 Email string, ASTM024218 67
-024219, 2 pages
Exhibit 1032 ASTM Standards Regulations
82
& Trade, Power Point,
22 pages
Exhibit 1033 Memo from Jeff to Jim,
83
2012 Accomplishments and
2013 Objectives,
ASTM019297 - -19299,
3 pages
Exhibit 1034 Email string, ASTM100366 84
-100368, 3 pages
Exhibit 1035 Email string, ASTM101288 84
-101289, 2 pages

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--EXHIBITS
--NUMBER
DESCRIPTION
MARKED
Exhibit 1044 Email string, ASTM02893 134
-102897, 5 pages
Exhibit 1045 Email string, ASTM022627,
137
1 page
Exhibit 1046 Email string, ASTM022630 142
-022631, 2 pages
Exhibit 1047 Email string, ATM030712,
193
1 page
Exhibit 1048 Email dated February 7,
195
2013, ASTM023336, 1 page
Exhibit 1049 Email string, ASTM0255574 199
-025575, 2 pages
Exhibit 1050 Email dated May 13, 2013,
199
ASTM027093, 1 page
Exhibit 1051 Email dated August 2, 2013,
203
ASTM029833 - -029834,
2 pages
Exhibit 1052 Email string, ASTM027187 203
-027188, 2 pages

Page 6

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--EXHIBITS
--NUMBER
DESCRIPTION
MARKED
Exhibit 1036 Memo from Jeff to ASTM Senior
84
Staff, ASTM101778 - -101779,
2 pages
Exhibit 1037 Email string, ASTM101800,
86
1 page
Exhibit 1038 ASTM Organizational Chart as
99
of July 1, 2014, ASTM003479 -003489, 11 pages
Exhibit 1039 Email string, ASTM102072 103
-102076, 5 pages
Exhibit 1040 Email string, ASTM102089,
104
1 page
Exhibit 1041 Email string, ASTM102094,
128
1 page
Exhibit 1042 Email dated October 17, 2013,
128
ASTM102361, 1 page
Exhibit 1043 Structural Forum, Building Codes 132
and the Public Domain,
ASTM102388, 1 page

Page 8

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--EXHIBITS
--NUMBER
DESCRIPTION
MARKED
Exhibit 1053 Email string, ASTM098310 205
-98311, 2 pages
Exhibit 1054 Email dated April 24, 2014,
206
ASTM103024, 1 page
Exhibit 1055 Email string, ASTM101183 208
-101186, 4 pages
Exhibit 1056 Email string, ASTM102031 210
-102032, 2 pages
Exhibit 1057 Email string, ASTM102042 220
-102044, 3 pages
Exhibit 1058 Email string, ASTM102053 228
-102055, 3 pages
Exhibit 1059 Email string, ASTM018709 229
-18710, 2 pages
Exhibit 1060 ASTM License Agreement
229
(Reading Room), ASTM001814 -001815, 2 pages

Page 7

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--EXHIBITS
--NUMBER
DESCRIPTION
MARKED
Exhibit 1061 ASTM License Agreement,
230
ASTM001788 - -001791,
2 pages
Exhibit 1062 Email string, ASTM097943 232
-097945, 3 pages
Exhibit 1063 Email string, ASTM097980,
233
1 page
Exhibit 1064 Email dated July 21, 2011,
238
ASTM099269, 1 page
Exhibit 1065 Email string, ASTM099366 240
-099370, 5 pages
Exhibit 1066 Email string, ASTM099834,
242
1 page
Exhibit 1067 Email string, ASTM015162,
243
1 page
Exhibit 1068 Email string, ASTM0095371 257
-95372, 2 pages
Exhibit 1069 Email string, ASTM092006 257
-092009, 4 pages

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DEPOSITION SUPPORT INDEX
DIRECTION TO WITNESS NOT TO ANSWER:
Page Line

REQUEST FOR PRODUCTION OF DOCUMENTS:
Page Line

QUESTIONS MARKED:
Page
Line

Page 10

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--EXHIBITS
--NUMBER
DESCRIPTION
MARKED
Exhibit 1070 Email string, ASTM095373 258
ASTM95376, 4 pages
Exhibit 1071 Email string, ASTM019650 258
-19653, 4 pages
Exhibit 1072 Form and Style for ASTM
268
Standards, January 2015,
80 pages
Exhibit 1073 Incorporation by Reference
269
Public Workshop, July 13,
2012, 15 pages
Exhibit 1074 Email string, ASTM005399 270
-5400, 2 pages
Exhibit 1075 Email dated August 20, 2014,
271
ASTM003314 - -003315,
2 pages

Page 12
1 WASHINGTON, D C , WEDNESDAY, MARCH 4, 2015; 9:20 A M
2
3

-OoO-

09:11:47

09:11:47

THE VIDEOGRAPHER: Good morning My name is

4 Chris Somo from Veritext National Deposition Services
5 The date today is March 4, 2015, and the time on the

09:21 06

6 video monitor is 9:20 This deposition is being held
7 at Veritext, Washington, D C located at

09:20:59

09:21:00

09:21 09

09:21:15

8 1250 I Street, Northwest, Washington, D C The

09:21:18

9 caption of this case is American Society for Testing

09:21:21

10 and Materials, et al , v Public Resource O-r-z (sic),

09:21:24

11 Inc This case is filed in the United States District
12 Court for the District of Columbia, Case

09:21:30
09:21:33

13 No 1:13-CV-01215-EGS The name of the witness is
14 Jeffrey Grove
15

09:21:36

09:21:47

At this time the attorneys present in the

09:21:48

16 room and attending remotely, will you please identify
17 yourselves for the record
18

09:21:51

09:21:55

MR BRIDGES: This is Andrew Bridges and

09:21:58

19 Matthew Becker of Fenwick & West representing the

09:21:59

20 defendant, Public Resource Org, and listening in on

09:22 04

21 the telephone is Carl Malamud, M-a-l-a-m-u-d

09:22:08

22

MR FEE: Kevin Fee from Morgan Lewis on

09:22:10

23 behalf of ASTM, and I'm joined with -- by Tom O'Brien
24 from ASTM
25

09:22:17

09:22:20

THE VIDEOGRAPHER: Would the court reporter,

Page 11

09:22:24

Page 13

4 (Pages 10 - 13)
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THE WITNESS: I don't have any criteria.

09:24:56

2 Just I thought it would be a good idea to review

09:24:58

09:22:36

3 annual reports and that type of publicly available

09:25:02

09:22:40

4 information about ASTM.

09:25:04

5 BY MR. BRIDGES:

09:25:08

1 Nancy Martin, please swear in the witness, and we can
2 begin.
3

JEFFREY GROVE,

4

having been first duly sworn,

5

and testified as follows:

6

09:22:40
09:22:40

7

7

09:22:40

8 the ones he selected on his own or the ones --

Q. Good morning, Mr. Grove.

09:22:40

A. Good morning.

11

Q. Have you ever been deposed before?

12

A. I have not.

13

Q. Have you had a chance to meet with ASTM

10

09:22:45
09:22:49
09:22:51

A. I did.

16

Q. When did you meet with them?

17

09:22:57

A. I met with our attorneys over a period of

09:22:58

18 three days. The last two days, and once in December.

09:23:01

09:23:06

09:25:12
09:25:14

MR. FEE: Well, I'm going to instruct you not

09:25:14

11 to disclose the documents that you reviewed at the

09:25:16
09:25:18

13 other documents you reviewed.
14

09:25:21

MR. BRIDGES: I think I'm entitled to know

09:25:22
09:25:23

16 deposition. It might reveal attorney work product if

09:25:27

17 he told us what documents were discussed with counsel,

09:25:31

18 but I'm entitled to know which documents he reviewed

09:25:36

19 in general.

20

Q. With whom did you meet?

21

A. I met with Kevin Fee and with Jordana Rubel,

09:23:12

09:25:39

MR. FEE: I disagree.

21

You should follow my instruction.

22

THE WITNESS: I have no other documents that

09:23:32

Q. You understand that you are testifying today

20

09:23:19

22 and with our corporate attorney, Tom O'Brien.

A. Yes.

MR. BRIDGES: No --

23 I can recall to disclose.

09:23:13

09:23:34

09:25:41
09:25:43

09:23:38

25

Q. And you understand that you are testifying as

09:25:47

Q. So you're saying that all the documents -- of

09:25:47
Page 16

09:23:40

3 subject matters?
A. Yes.

5

3

Q. What did you do to educate yourself about

7
9
10

09:23:49

09:23:52

A. Over the last few days and in my own personal

09:24:03

09:24:07

Q. What did those articles concern?

7

A. Discussed generally ASTM's mission and work

09:26:08
09:26:13

9 in protecting everyday citizens due to the development

09:26:20
09:26:24

10 of standards that protect the environment, health, and

09:26:26

09:26:31

15

Q. Did you select those documents, or did the

12

09:24:13

A. Probably 8 to 10 hours.

13 may need a short break. I forgot, you know, I was

09:26:37

14 supposed to have real time. Can we get real time?

09:26:39

09:24:16
09:24:23

09:24:25

17

A. Personal knowledge, I selected them.

18

Q. What determined which documents you selected

15

MR. BRIDGES: One thing occurred to me. We

17

09:24:38 18

09:24:41
09:24:42

22 your determination, I'm going to instruct you not to

09:24:43

MR. BRIDGES: Thanks.

09:26:43

MR. BECKER: We also have an email from Thane

23 disclose that. If you have some independent review

09:24:48
09:24:50
09:24:53

09:24:55

20 take a break and set up real-time.
21

Sorry about this, but let's go off the record

Page 15

09:26:55
09:26:57

23 going to have to drop him and set up a bridge.
25 for a few minutes.

09:26:48

09:26:49

09:26:51

MR. BRIDGES: I think we've got a separate

22 bridge. I think Carl dialed in directly. So we're
24

09:26:43

09:26:43

19 stating he'd like to listen in. So perhaps we should

MR. FEE: Objection. To the extent that

09:26:35

REPORTER MARTIN: Yes, sir. I'm working on

16 it right now.

09:24:26

21 legal counsel or their guidance provided any basis for

25 that's fine.

09:26:03

09:24:11

14

24 criteria that you can share with the other side,

09:26:01

5 that I thought I should refresh my memory with.

11 safety.

Q. How much time did you spend reviewing

13 documents outside of meetings with attorneys?

20

09:25:56

8 we do to promote ASTM's mission and its important role
09:24:01

19 to review?

A. Right. I think the exception to that would

6
09:23:53

09:23:56

16 lawyers select the documents?

09:25:52
09:25:55

4 be standardization news. I contributed some articles

Q. And when did you review the documents?

11 time before then.
12

09:23:49

A. In addition to the meetings, I reviewed a lot

8 of documents.

2 are those that you thought to review on your own?

09:23:48

4

6 those subjects?

1 all the documents you reviewed, only annual reports

09:23:46

2 a representative of ASTM with respect to certain

09:25:44

09:25:46

24 BY MR. BRIDGES:
Page 14

1

09:25:08

09:25:11

15 what documents he reviewed to prepare for the
09:22:57

24 as a representative of ASTM?

MR. FEE: Objection. Are you asking about

12 request or direction of counsel. You can disclose any

09:22:46

15

25

9

09:22:41

14 attorneys to prepare you for this deposition?

23

Q. What else did you review among the documents?

09:22:40

10

19 A total of 15 hours.

1

6

EXAMINATION

8 BY MR. BRIDGES:
9

09:22:25

09:22:27

09:26:59
09:27:01

09:27:03
Page 17

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THE VIDEOGRAPHER: We're now going off the

2 record at 9:26

09:27:05

(A recess was taken from 9:26 a m

4

to 9:37 a m )

5

THE VIDEOGRAPHER: And we're back on the

8

09:38:32
09:38:33

Q Do you recall any other documents that you

A I do not

12

Q. Did those figures he gave you accord with
A. Generally, yes.

09:41:51

Q. Did that revenue trend -- strike that.

15

09:41:56

Was that revenue trend consistent with

09:42:03

16 revenue trends over previous years?

09:39:21

17

09:39:24

09:42:05

MR. FEE: Objection. Vague.
THE WITNESS: I don't know.

18

Q Who is that?

09:39:28

18

19

A John Pace

09:39:31

20

Q What did you discuss with him?

21

A Wanted to review ASTM's financials and

09:42:09

19 BY MR. BRIDGES:

Q What did you learn from him?

24

A Not much To be honest, I think I have a

09:42:14
09:42:15

Q. Do you know anything about revenue trends

21 before three years ago?

09:39:38

MR. FEE: Same objection.

23

09:39:46

THE WITNESS: Not that I can produce or

24 recall.

09:39:47

09:42:19
09:42:26

09:42:27

25 BY MR. BRIDGES:

09:39:52

09:42:15

09:42:17

22

09:39:42

23

25 good understanding

20

09:39:31

22 revenues so I was prepared

09:41:43

09:41:45

14

09:39:12

09:39:18

A I made a phone call to our vice president of

09:41:40
09:41:43

13

09:39:06

15 in preparation for your deposition today?

17 sales and publications

THE WITNESS: It did not.

09:41:34

12 your expectations?

09:39:01

14 conversation -- of today's deposition with anyone else

09:41:30

09:41:33

10 BY MR. BRIDGES:

09:38:59

13 attorneys, did you discuss the topics of today's

Q. Did it strike you as unusual or unexpected in
MR. FEE: Objection. Vague and compound.

11

Q Apart from conversations specifically with

09:41:28
09:41:30

9

09:38:50

09:38:53

11

THE WITNESS: No.

8

09:38:48

9 reviewed on your own initiative apart from annual

09:41:25

5 BY MR. BRIDGES:
7 any --

09:38:48

09:41:21

09:41:23

MR. FEE: Objection. Vague.

6

09:38:34

10 reports and standardization news?

16

3

09:34:30

7 BY MR BRIDGES:

Q. Did you attach any significance to that

4

3

6 record at 9:37

1

2 figure?

09:27:05

09:42:32

Page 18
1

Q. What did you ask him about?

2

A. I wanted to review with him what I knew about

4

Q. What else did you ask him about?

5

A. That's all I recall.

6

09:39:59

Q. Did you review -- did you discuss with him

09:40:07

09:40:12

MR. FEE: Objection. Form.

9

THE WITNESS: Not that I recall.

09:40:20

11

09:40:34

Q. And did you discuss with him any trends with

09:40:37

12 respect to revenue that ASTM gains from publications?
MR. FEE: Objection to form.

14

Go ahead.

15

THE WITNESS: I did ask -- I wanted to learn

16 over the last couple of years, roughly, what increase

Q. Did you have conversations with anyone else

4 to prepare for your testimony today?
MR. FEE: I assume you're excluding

09:42:49
09:42:50

7

MR. BRIDGES: Yes.

09:42:52

MR. FEE: -- of that question?

09:42:52

9

MR. BRIDGES: Yes.

09:42:54

THE WITNESS: Not that I recall.

09:42:55

11 BY MR. BRIDGES:

09:43:04

Q. How long have you worked for ASTM?

13

A. Just over 10 years.
Q. What have your job titles been?

09:40:48

15

16 representative. My second title was director of

09:41:02

Q. What did you learn about the increase in

19 affairs.

09:41:01

A. That's all I recall.

09:43:11
09:43:13
09:43:15

18 is vice president of global policy and industry

09:41:01

21

09:43:07

17 government and industry affairs, and my current title

09:40:56

20

09:43:04

A. My original job title was Washington

09:40:53

09:40:47

Q. What else?

09:42:40

09:42:43

6 conversations with counsel for purposes --

09:40:42 12

09:40:45

19

09:42:32

09:42:39

14

13

18 BY MR. BRIDGES:

3

10

09:40:37

17 in sales we've been experiencing.

A. That's all I recall.

8

09:40:25

09:40:30

10 BY MR. BRIDGES:

Q. What else did you discuss with Mr. Pace?

2

5

09:40:15

7 any changes in revenue to ASTM from publications?
8

1

09:39:55

3 sources of ASTM's revenue from the sale publications.

Page 20

20

09:43:29

Q. In that job title, what does the word

09:43:39

09:41:05

21 "industry" refer to?

22 sales that ASTM has been experiencing?

09:41:07

22

MR. FEE: Objection. Vague.

23

09:41:10

23

THE WITNESS: Well, the majority of ASTM

09:41:15

24 members under our system of private sector led

A. That there has been a very slight 2 to 3 to 5

24 percent increase over the last two to three years.
25 Revenue from sales of publications.

09:43:41
09:43:43

25 public/private collaboration come from industry. So I

09:41:18
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09:43:21

09:43:25

09:43:48
09:43:51
09:43:56
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1 work with industry to make them aware of ASTM and to
2 try to get them engaged in our process
3 BY MR BRIDGES:
4

Q So "industry" in that title doesn't refer to

6 industries of its members --

Q What was your undergraduate degree?

12

A My undergraduate degree is in -- I'm a double

09:44:40

15 equipped you for your job at ASTM?

11 chairman, yes

09:44:47

13

A It's a U S Department of Commerce

09:45 05

17

THE WITNESS: From 1993 to 2000 I worked for

09:45:21

09:45:29

09:48:22

A There is an organization called the American

09:48:27

17 National Standards Institute, and I serve on the

09:48:28
09:48:32

Q What else?

20

09:45:33

09:48:40

A In 2009 I served the State Department -- U S

09:48:44

21 State Department as a delegate to the -- I want to

09:45:42

09:48:50

22 make sure I get it right Asia-Pacific Economic

09:45:37

23 Association for Computing Machinery here in

09:48:55

23 Council APEC It involved meetings in Singapore

09:45:44
09:45:47

Q What else?

Q What other positions have you held?

19

09:45:33

25

09:48:11

18 National Policy Committee

09:45:32

24 Washington

09:48:08

14 Congressionally chartered committee

16

09:45:20

18 the U S House of Representatives in different

09:48:06

15

09:45:15

MR FEE: Objection Vague

A From 2001 to 2004 I worked for the

09:48:03

Q Is that a USTR committee?

16

22

09:47:55

12

Q What employment did you have before ASTM that

09:47:42

09:47:46

09:48:01

09:44:44

13 major in political science and public administration

Q What else?

09:47:40

9 served as the vice chairman of regulation,

11

21

A So I've been appointed to work for the

8 Advisory Committee where for the last four years I've

09:44:28

20 BY MR BRIDGES:

09:47:34

10 certification, and standards I'm sorry Vice

A Yes

19 positions

09:47:34

Q You may answer

7 Department of Commerce, Environmental Technology Trade

09:44:28

10

14

09:47:33

6

09:44:28

Q -- is that correct?

MR FEE: Objection to form

5

09:44:22

09:47:29

09:47:31

4 BY MR BRIDGES:

09:44:15

09:44:20

8 BY MR BRIDGES:
9

3

09:44:12

MR FEE: Objection to form

1 curiosity, but the question is broad enough that it
2 might call for that

09:44:12

5 industry that ASTM is in Instead, it refers to the

7

09:43:59

09:44:03

24

Q What else?

25

A That's all I recall

09:49:00

09:49:11
09:49:20

Page 22
1

A. 2004, I was hired by ASTM.

2

Q. Did you receive any training as an engineer?

3

A. I'm not an engineer, no.

4

Q. Did you receive any scientific technical

5 training?

09:45:48
09:46:07

09:46:11
09:46:13

MR. FEE: Objection. Vague and compound.

7

THE WITNESS: No. Science and technology

8 policy I was involved in, but not a scientist.

09:46:17
09:46:20

09:46:22
09:46:58

Q. In the time you have worked for ASTM, have

11 you held any type of position in any other the
12 organization?

09:46:58
09:47:01

MR. FEE: Objection. Vague.

14

16 BY MR. BRIDGES:

09:47:03
09:47:05

09:47:07

Q. Well, another association or industry group.

18

A. Okay.

19

Q. Any other entity that you've had a title in.

20

A. Okay.

09:47:08

8

09:49:47

09:49:47

THE WITNESS: I'm not aware of that

09:49:47

09:49:48

10 BY MR. BRIDGES:
11

09:49:37

09:49:47

MR. FEE: Objection. Vague. Calls for

7 speculation.

09:49:48

Q. Are you familiar with the domain name or

13

09:49:54
09:49:57

A. Okay. So I can't speak with certainty, but

09:50:00

14 that could be referring to work that ASTM and FPA and

17

09:50:06

09:47:16

09:47:19

19

THE WITNESS: Thank you.

20 BY MR. BRIDGES:

23 church he belongs to, et cetera, or just as an ASTM
09:47:27

MR. BRIDGES: Well, that's not a focus of my

09:47:20

21

09:50:20
09:50:21
09:50:26
09:50:37

Q. Did you understand the work that ASTM and FPA

09:47:21 22 and ASME undertook together to be as part of some
09:47:24

23 informal coalition?
24

09:47:28
25
Page 23

09:50:10

09:50:14

MR. FEE: I'll just remind you to answer

18 about your knowledge. Don't speculate.

22 his personal capacity too? Do you want to know what

25

6

16 standards back in 2012.

09:47:16

MR. FEE: Objection. Are you asking about

24 employee?

Q. Are you familiar with an organization that

15 ASME undertook together to educate the public about

09:47:08

17

21

4

09:49:25

09:49:34

12 website SDOAWARENESS.ORG?

THE WITNESS: Could you help define

15 "organization."

09:49:22

A. I'm not familiar with that title.

9 organization.

09:47:02

13

Q. Have you ever heard of an informal

2 organization called coalition for SDO awareness?

5 that title suggests?

6

10

1
3

09:46:16

9 BY MR. BRIDGES:

Page 24

MR. FEE: Objection. Vague.

09:50:37
09:50:40

09:50:44
09:50:46

THE WITNESS: Informal coalition would be my

09:50:49
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1 recollection of this group.

09:50:52

2 BY MR. BRIDGES:
3

Q. Do you recall any other name for that

5 questions ago?

09:50:57

09:51:00

6

A. I do not.

7

Q. Are you aware that that informal coalition

09:51:10

MR. FEE: Objection. Lack of foundation.

09:51:11

12 not aware that we retained a lobbyist for that

15

09:51:25

Q. Are you aware of any of the work of an
09:51:29

Q. Are you aware of its work with respect to

09:53:23

09:53:26

Q. Who else participated in the informal group?
A. My counterparts, being Washington

15

09:53:27
09:53:30
09:53:32

Q. Who are those counterparts?
A. At the time, for ASME, it was a

09:53:40
09:53:44

18 believe it was Megan Housewright.

09:51:32

21

THE WITNESS: I'm aware that we worked with

23 an organization called APCO on a public awareness

09:51:38 22
09:51:40

09:51:43

Q. Do you recall their titles at their

09:54:01
09:54:03

A. I don't. I do not.

09:54:04

Q. How did you first come to hear about the

09:54:09

23 possibility of these companies working with APCO?
24

09:51:46

09:53:48

09:53:54

20 respective organizations?

09:51:35

25 BY MR. BRIDGES:

09:53:21

12

19

MR. FEE: Objection. Vague. Calls for

24 project.

A. And, again, I wouldn't call it an

09:51:32

21 speculation.
22

9

09:53:19

17 representative named Robert Grains, and for NFPA I
09:51:30

19 standards development organizations?
20

09:53:19

Q. Did you participate in the organization?

16

09:51:28

18

7 BY MR. BRIDGES:

14 representatives for ASME and for NFPA.

09:51:25

A. Yes, I'm aware.

09:53:15

09:53:18

13

09:51:23

17

09:53:11

THE WITNESS: I don't know why -- how the

09:51:14 11 participated.

09:51:16

16 organization called APCO?

4 speculation.

09:53:09

10 organization. It's an informal group. But, yes, I

THE WITNESS: ASTM does not lobby. So I'm

14 BY MR. BRIDGES:

09:53:07

MR. FEE: Objection. Vague. Calls for

8

09:51:12

13 coalition.

3

6 organization was formed.
09:51:10

10 Calls for speculation.

09:53:07

Q. Why do you not know?

5

09:51:09

8 retained a lobbyist in Washington?

11

2

09:50:56

4 informal coalition than the name I used a few

9

1 BY MR. BRIDGES:

09:50:56

09:54:13

A. I don't recall exactly how I came to be aware

25 of it.

09:54:26

09:54:30

Page 26
1

Q When you said, "we" in the last answer, who

2 are you referring to?
3

A That was jointly undertaken between FPA and

A. I believe that we -- the representatives of

09:54:41

09:51:55

09:54:48

A We did, yes

7

Q You mentioned ASTM and FPA and ASME as part

09:52:02
09:52:17

09:54:58

7 Washington, D.C. and beyond. So I believe we got --

09:55:01
09:55:06

9 that would be to work with a firm that's more familiar

09:52:24

09:55:10

10 with public affairs capabilities and attributes.
09:52:33

09:55:15

11

09:52:25

THE WITNESS: My recollection is those are

09:54:52

8 had that discussion and decided the best way to do

09:52:23

MR FEE: Objection Mischaracterizes his

5 raise a greater awareness about the benefits the U.S.
6 Standards System with our key stakeholders in

6

10 testimony and vague

09:54:31
09:54:37

4 the organizations recognized that there was a need to

Q Did ASTM contribute to the payments to APCO?

11

3

09:51:50

09:51:55

8 of the group; is that correct?

Q. What's the first activity that you recall you

2 engaged in with respect to that group?

5

9

1

09:51:46

09:51:48

4 FPA and ASME

Page 28

09:55:26

Q. What was the first activity that you recall

12 the three organizations, correct

09:52:35

12 you engaged in with respect to that group?

13 BY MR BRIDGES:

09:52:38

13

MR. FEE: Objection. Asked and answered.

14

THE WITNESS: Identifying what -- some of the

14

Q Do you recall whether any other organization

15 participated with those three and the activities
16 relating to APCO?
17

19

17

09:52:46

Q. How did you first -- did you propose that

20 FPA and ASME with respect to APCO?

19 fashion?
20

09:52:52

21

MR FEE: Objection Lack of foundation

09:55:52

22

THE WITNESS: I wouldn't be able to answer

22

09:55:57

09:56:07

A. I don't recall how these three organizations

21 were the ones that worked together.

09:52:56

09:55:40

09:55:52

18 these three organizations work together in this
09:52:49

09:55:32
09:55:43

16 BY MR. BRIDGES:

09:52:48

Q Who organized the joint effort of ASTM and

23 that I believe it --

15 activities we'd like to undertake together.

09:52:41

09:52:44

A I do not recall any other organizations

18 participating

09:52:38

09:55:30

09:56:07
09:56:09

24

MR FEE: If you don't know, you don't know

25

THE WITNESS: I don't know

Q. Do you recall -- did somebody take the

09:56:15

23 initiative to convene this group with respect to

09:53 01

09:53:02

09:56:22

24 retaining a firm like APCO?

09:53 04

25

09:53:07

MR. FEE: Objection. Vague.

Page 27

09:56:24
09:56:26
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1

THE WITNESS: Right. So I believe we

09:56:29

1 BY MR BRIDGES:

09:56:33

2 identified the objectives, and I believe the next step

2

3 was to formulate a request for proposal that we wanted

09:56:36

09:58:47

Q Do you recall any interactions with Lorraine

3 Carli of NFPA?

09:58:47

09:58:49

4 to put out to a public affairs firm.

09:56:40

4

A I do recall Lorraine Carli

5 BY MR. BRIDGES:

09:56:46

5

Q With respect to this initiative?

09:56:46

6

MR FEE: Objection Vague

09:56:49

7

THE WITNESS: I believe Lorraine is the vice

6

Q. Who first brought the idea of this activity

7 to the attention of the others within this group?
8

MR. FEE: Objection. Vague.

09:56:51

9

THE WITNESS: I just don't recall.

09:56:52

10 BY MR. BRIDGES:
11

Q. Was it you?

12

A. I don't think it was me.

13

09:56:54

Q. Was it Megan Housewright?

09:58:52
09:58:53
09:58:55

09:59:00

9 Battery Park, Massachusetts So I do believe she was
10 involved in this now that you mention it

09:56:54

09:58:57

8 president for public affairs and communications in

09:59:06

09:59:09

11 BY MR BRIDGES:

09:57:02

09:59:12

12

09:56:55

09:59:12

Q How was she involved?

13

MR FEE: Objection Calls for speculation

14

MR. FEE: Objection. Calls for speculation.

09:57:04

14

THE WITNESS: I believe she helped to frame

15

THE WITNESS: Yeah, I don't know.

09:57:05

15 some of the issues that this informal group would want

16 BY MR. BRIDGES:
17

09:57:12

Q. Do you know on what occasion the idea these

19 about?
20

09:57:28

THE WITNESS: Could you restate the question,

09:59:19

09:59:23
09:59:29

09:59:46

Q Who else provided input for that RFP?

09:59:46

20

MR FEE: Objection Calls for speculation

THE WITNESS: I believe both ASTM and ASME

22 had an opportunity to provide input
23 BY MR BRIDGES:

09:57:33

Q. Do you know on what occasion the idea of

24

09:57:33
25
Page 30

1 these three entities working together came about?

09:57:35

2

MR. FEE: Same objections.

3

THE WITNESS: I don't recall the occasion.

5

09:57:32

09:57:33

09:57:46

09:57:46

Q. Do you recall when the idea of these three

1

Q And did they provide input?

09:59:49
09:59:50

09:59:53
09:59:59
09:59:59

MR FEE: Objection Calls for speculation

10:00:01

Page 32
THE WITNESS: I don't recall.

10:00:02

09:57:46

2 BY MR. BRIDGES:

10:00:03

3

Q. Did you provide input?

10:00:03

4

09:57:38

4 BY MR. BRIDGES:

18 BY MR BRIDGES:

09:59:16

21

09:57:30

24 BY MR. BRIDGES:

17 perhaps drafted -- helped to draft the RFP

19

MR. FEE: Objection. Vague. Calls for

23 please?
25

09:57:25

09:57:27

21 speculation.
22

16 to work with the public affairs firm to assist us, and

09:57:12

18 three entities working together in this fashion came

09:59:14

A. I recall that I reviewed it. I don't recall

10:00:04

5 if I commented specifically and requested any changes.

6 entities working together arose?

09:57:49

6

7

A. Right. I believe it was 2011.

09:57:49

7

MR. FEE: Objection. Calls for speculation.

8

Q. When in 2011?

8

THE WITNESS: I probably made our attorney

9

A. I'm sorry. I don't know -- recall the month.

09:57:54

10

Q. Did this activity arise because of concerns

09:58:12

09:57:52

Q. Did anybody else from ASTM review it?

10:00:06
10:00:15

10:00:19

9 aware of and asked for legal counsel advice.

10:00:22

10:00:24

10 BY MR. BRIDGES:

10:00:29

11

Q. Which attorney?

12 incorporation of standards by reference?

09:58:20

12

A. That would be Tom O'Brien, our vice president

13

09:58:21

13 and general counsel.

11 about political policy issues relating to

09:58:16

MR. FEE: Objection. Vague. Calls for

14 speculation.

10:00:29

14

09:58:23

Q. Who's sitting here in the deposition today?

THE WITNESS: I don't recall there being one

09:58:25

15

A. Correct.

16 single reason why -- that motivated the formation of

09:58:26

16

10:00:33

Q. Did anybody else at ASTM review it?

15

17 this informal group.
18 BY MR. BRIDGES:
19

Q. Was that a reason?

10:00:35
10:00:40

17

09:58:32

MR. FEE: Same objections.

21

THE WITNESS: I don't recall.

THE WITNESS: It could have been one reason.

09:58:34
09:58:35

20

10:00:44

10:00:49

19 BY MR. BRIDGES:

09:58:32

20

MR. FEE: Objection. Calls for speculation.

18

09:58:30

10:01:12

Q. A few questions ago you said that the

10:01:12

21 representatives of the organizations recognized that

10:01:14
10:01:17

22 BY MR. BRIDGES:

09:58:36

22 there was a need to raise a greater awareness about

23

09:58:36

23 the benefits of the U.S. Standards System with our key

Q. It could have been or it was?

24

MR. FEE: Objection. Calls for speculation.

25

THE WITNESS: I don't recall whether it was.

09:58:38

10:00:30

10:00:32

24 stakeholders in Washington, D.C. and beyond. Whom

25 were you referring to when you referred to "our key
09:58:42
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10:01:22
10:01:27
10:01:33
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1 stakeholders in Washington, D.C."?

10:01:37

1

2

10:01:40

2 this informal group communicated with respect to the

MR. FEE: Objection to the extent that it

Q And were these all stakeholders with whom

3 isn't an exact quote of what he said.

10:01:40

3 topics for which the group retained APCO?

4

You can answer, if you know.

10:01:43

4

5

THE WITNESS: Okay. I believe that our key

10:04:49

10:01:45

6 stakeholders in Washington, D.C., the business

10:01:46

7 community that's active on shaping and forming

10:01:50

8 Washington. So that would include organizations like
9 the National Association of Manufacturers.

10:02:00

10 BY MR. BRIDGES:
11

10:01:57

10:02:11

Q. Who else do you include within the scope of

12 "our key stakeholders in Washington, D.C."?
13

Q. Who else?

15

10:02:14

A. The U.S. Chamber of Commerce.

14

A. Consumer representatives, such as the

10:02:17
10:02:26
10:02:27

17

Q. Who else?

18

10:02:34

A. The U.S. Public Interest Research Group,

19 known as U.S. PIRG.

10:02:36

20

Q. Who else?

21

A. Environmental advocacy groups. To name one,
Q. Who else?

24

Q. Who else?
Q. Keep going.

4

10:03:12

A. I believe think tanks such as the Brookings
Q. Keep going?

10:03:25

Q. Keep going.

9

10:03:35

A. The American Enterprise Institute.

10:03:39

10

Q. Keep going.

10:03:44

11

A. That might close the business and consumer

A. Another category, then, would be policy

10:04:01
10:04:03

16

Q. And please list them.

17

A. That could include Congressional staff or the

20

A. That would include executive branch

24

A. I believe that's all I can recall at the

25 moment.

10:05:48

THE WITNESS: In the course of our meetings

10:05:49
10:05:50

24 Standards System, we would be asked questions about

10:05:54

10:06:03

2 BY MR BRIDGES:

10:06:08

Q Who asked those questions?

4

A That could be any of the stakeholders that we

10:06:08
10:06:09

10:06:12

Q I'm asking you to recall any specific source

7 of that question

10:06:12

10:06:14

A I believe during the course of this time,

10:06:22

9 Office of Management and Budget was having a review of

11 about the effectiveness of the U S Standards System

13

10:06:39
10:06:43

10:06:47
10:06:47

18 reason, but what did you, at the time, understand to

Q -- you may have been privy to the exact

19 be the reason?

10:04:18

20

22

10:04:32
10:04:42

24
25

10:06:49

10:06:52
10:06:54

10:06:56

THE WITNESS: I wouldn't know specifically

23 BY MR BRIDGES:

10:04:44

10:06:47

MR FEE: Objection Compound Calls for

10:04:21 21 speculation

Q You have no idea?
MR FEE: Same objections

Page 35

10:06:28

10:06:37

14 prompted OMB's review? I understand -MR FEE: Objection

10:06:24

10:06:35

Q What did you understand to be the reason that

10:04:12

10:04:23

Q. Yes.

21 speculation

10:05:44

10:05:46

17

21 officials, such as the Office of Management and Budget
23

MR FEE: Objection Vague Calls for

16 BY MR BRIDGES:

10:04:18

22 and specific agencies.

10:05:44

Q When did it become significant, in your view?

10:04:10

18 U.S. House of Representatives, the U.S. Senate.
Q. Yes.

10:05:31

10:05:37

18 BY MR BRIDGES:

15

10:04:09

19

10:05:29

16 any legislation or any significant reason to raise

12 and how the Standard System works

10:03:59

15 makers in Washington, D.C.

10:05:28

10 the U S Standards System and asked specific questions

10:03:54

10:03:56

Q. Keep going with more stakeholders.

14

10:05:27

15 corporation by reference I don't believe there was

8

10:03:39

13

THE WITNESS: I don't recall that in 2011 a

6

10:03:36

12 groups stakeholder category.

MR FEE: Same objection

5 interacted with

A. The Council for Competitiveness.

8

13

3

10:03:28

7

10:05:18

10:05:25

1 their funding model

10:03:13

10:03:17

6

12 reference with?

10:03:04
25 how organizations like ASTM and FPA and ASME sustained 10:05:57
Page 34
Page 36

A. The Transportation Resource Board.

3

10:05:15

23 and raising a greater awareness about the U S

10:03:03

25 tanks, such as the National Academies of Science.

5 Institute.

10:02:47

10:02:59

2

10:05:15

Q Is this the same audience you would wish to

11 raise the policy issues surrounding incorporation by

22

A. Important research organizations and think

1

10:05:12

9 BY MR BRIDGES:

20

10:02:52

10:05:07
10:05:07

8 importance of the U S Standards System

19

10:02:40

23

THE WITNESS: Generally, this would be the

7 audience that we'd be trying to inform about the

17 IBR

10:02:40

22 Friend of the Earth.

10:05:02

10:05:04

14

10:02:24

16 Consumer Federation of America.

6

10

10:02:11

MR FEE: Objection Vague Calls for

5 speculation

10:04:51
10:04:57

10:06:56

10:06:59
10:06:59
10:07:00

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THE WITNESS: Right I believe it hadn't

1

10:07:01

2 been revised in 10 years The OMB circular, which
3 provides key important information for federal

Q. Did ASTM have any written communications

2 with -- strike that.

10:07:02

3

10:07:07

10:10:03

10:10:11

Did ASTM have written communications

10:10:18

4 agencies, informing them that they should work with

10:07:10

4 regarding public resource regarding Carl Malamud or

5 voluntary consensus standards organizations and use

10:07:11

5 regarding incorporation by reference with any of the

6 voluntary consensus standards to the extent that it's

8 had not been revised for a period of 10 years So

12

14

10:07:29

16

A I'm not --

10:11:04

10:11:09

16 like ours maintain our independence and keep barriers

10:07:40

17 to participation low by providing our standards,

18

MR FEE: Let me object

19

Objection Calls for speculation

20

10:11:11

10:11:16

18 making them widely available at a very reasonable and

10:07:43

THE WITNESS: No, I don't have any, why OMB

19 flexible basis.

10:07:44
10:07:47

10:11:19

Q. What were the materials that were

22 distributed?

10:08:09

10:11:19

10:11:19

20 BY MR. BRIDGES:
21

10:07:55

22 BY MR BRIDGES:

10:11:01

15 enterprise, and the process by which organizations

10:07:42

21 conducted their review

10:10:59

14 System, the independence of our standards development

10:07:40

Q -- OMB was --

17

10:10:55
10:10:57

13 that discussed the benefits of the U.S. Standards

10:07:38

15 BY MR BRIDGES:

10:10:54

THE WITNESS: I believe we produced some

12 stakeholders, including the groups that you mentioned,

10:07:33

10:07:35

MR FEE: Objection

10

11 materials which were distributed broadly to our

10:07:33

13 apart from general updating --

10:10:53

MR. FEE: Objection. Compound. Calls for

9 speculation.

10:07:24

Q And you have no idea of any particular reason

10:10:36

8

10:07:21

9 there was a fresh look in the new administration, the

10:10:30

7 groups, Friends of the Earth, Brookings Institute?

10:07:16

10 Obama administration which had come to Washington
11 BY MR BRIDGES:

6 following: Consumer Federation, U.S. public interest

10:07:13

7 relevant to their mission That specific OMB circular

10:10:21
10:10:26

10:11:24

10:11:26

23

MR. FEE: Same objections.

24 with its key stakeholders in Washington, D C ?

10:08:18

24

THE WITNESS: One-pager or two-pager of

25

10:08:23

25 printed materials.

23

Q When did ASTM start discussing Carl Malamud

MR FEE: Objection Foundation Vague

10:08:09

10:11:27
10:11:31

10:11:33

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1

THE WITNESS: I wouldn't be able to give you

2 the exact date, but I believe it was 2012

4

10:08:29

MR FEE: Objection Vague

7

THE WITNESS: I believe there was an event

MR FEE: Objection Vague

17

10:12:05

THE WITNESS: I wouldn't be able to answer.

10:12:08

10:12:09

Q. I don't mean how many copies were circulated.

10:12:09
10:12:11

20 BY MR. BRIDGES:

10:09:26

22 Malamud with its key stakeholders in Washington, D C ?

24

THE WITNESS: To the best of my knowledge

THE WITNESS: Yeah. I'm familiar with more

19 than two.
21

10 09:31

MR FEE: Same objections

MR. FEE: Objection to form.

18

10:09:26

23

10:12:18

17

10:09:18

Q That wasn't exactly an answer to my question

10:12:15

16 generate for use with the key stakeholders?

10:09:19

21 Is that the first time that ASTM discussed Carl

25 BY MR BRIDGES:

10:11:55

10:12:02

15 either alone or with these other organizations,

THE WITNESS: That's when I recall the

20

10:11:51

Q. How many distinct literature pieces were

14 I mean how many different literature pieces did ASTM,

10:09:12

10:09:16

18 Washington office becoming aware of it
19 BY MR BRIDGES:

10:11:43

MR. FEE: Objection. Vague.

13

10:08:59

10:09:16

16

8

12 BY MR. BRIDGES:

10:08:57

14 Carl Malamud with its key stakeholders in Washington,
15 D C ?

A. A literature piece. Just a one-pager that

11

10:08:57

Is that the first time that ASTM discussed

10:11:42

10

10:08:51

Q Is that the first awareness -- strike that

Q. They're called what?

9 distributed?

10:08:48

11 BY MR BRIDGES:

13

10:08:42

10:11:38

10:11:40

7 you prepare that discusses your relevance.

10:08:40

8 where there was a number of ASTM copyrighted standards

10 Washington, D C

4 called "lit pieces."
6

10:08:39

9 which were provided to various officials in

10:11:35

A. In Washington speak, I believe they're just

5

10:08:36

6

Q. Exactly what were they?

3

Q What caused ASTM to discuss Carl Malamud with

10:11:35

2

10:08:29

5 its key stakeholders in Washington, D C ?

12

1 BY MR. BRIDGES:

10:08:25

10:08:26

3 BY MR BRIDGES:

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10:09:35

22

Q. How many?

24

10:09:41

25

10:10:03

Q. How many?
MR. FEE: Objection.

Page 39

10:12:25

10:12:27
10:12:28
10:12:28

MR. FEE: Objection. Asked and answered.

23 BY MR. BRIDGES:

10:09:40

10:12:24

10:12:29

10:12:33
10:12:33
10:12:34
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THE WITNESS: I don't have an exact number.

10:12:35

1 to APCO?

2 BY MR. BRIDGES:

10:12:36

2

3

10:12:36

10:15:09

3 answered.

Q. What's your best estimate?

4

MR. FEE: Objection.

5

I instruct you not to speculate. If you have

10:12:37

4

10:12:38

6 an estimate beyond what you've said, then you can go
7 ahead and give it.
8

10:15:14
10:15:15

Q. What other public relations or government

9 reference?

10:12:46

MR. FEE: Objection. Lack of foundation.
THE WITNESS: No other public affairs firms

MR. FEE: Objection. Calls for speculation.

10:12:48

11

12

THE WITNESS: It would be an iterative

10:12:50

10:15:38

12 or other firms that I'm aware of for this type of

13 process. Our public affairs firm would be informed by

10:12:52

14 the interests and comments that we would make to help
15 shape them to reflect more accurately the operations

18

10:13:01

Q. Are you saying that only the public affairs

10:13:08

MR. FEE: Objection. Vague. Compound.

21

22 this APCO related effort.
24

10:13:17
10:13:19

10:13:20

23 BY MR. BRIDGES:
25 firm you just referred to.

10:15:52

Q. What other -- strike that.

10:15:52

Did ASTM engage, during the same period of

10:16:01
10:16:08

18 other types of public relations from the period 2011

10:16:15

10:16:20

20

MR. FEE: Objection. Calls for speculation.

21

MR. BRIDGES: I'm going to change the

10:16:21
10:16:24

22 question because it's inconsistent.

10:13:22

10:13:23

10:16:25

23 BY MR. BRIDGES:

10:13:20

Q. I'm referring to whatever public relations

10:15:48

19 to today?

THE WITNESS: I believe you're asking about

10:15:41

10:15:44

17 time, any public relations firms to engage in any

10:13:12

20

15
16

10:13:08

19 firm drafted those pieces?

13 activity.

10:12:56 14 BY MR. BRIDGES:

10:13:05

17 BY MR. BRIDGES:

10:15:18
10:15:31

10:15:37

10

11

16 of our organizations.

10:15:15

8 work related in any way to standards incorporated by

10:12:46

Q. Who drafted them?

THE WITNESS: No further information.

5 BY MR. BRIDGES:
6

10:15:10

10:15:13

7 relations firm -- firms did ASTM work with where the

10:12:46

9 BY MR. BRIDGES:
10

10:12:42

10:12:44

THE WITNESS: I'd say three.

MR. FEE: Objection. Vague. Asked and

10:16:38

24

Q. What other public relations firms has ASTM

25 retained since 2011 to today?

10:16:39

10:16:45

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1

1

A Yes

2

Q No one else, to your knowledge, drafted the

10:13:25

3 literature pieces you referred to?

MR FEE: Objection Vague Compound

5

THE WITNESS: Not that I recall

7

THE WITNESS: Well, I would -- so I'm not

6

10 that were provided Who, to your knowledge, provided

MR. FEE: Hold on. Let me also make sure you

8 taken at the direction of counsel in connection with

10:13:49

9 firm would be informed by the information and comments

10:13:53

9 this matter.
10

10:14:00

10:14:06

12 litigation.

13

Q Anybody else from ASTM?

10:14:10

10:17:10

13 BY MR. BRIDGES:

15

THE WITNESS: No I think I was the person

17 materials
18 BY MR BRIDGES:
19

21

10:17:23

10:17:28

MR. FEE: Objection. Vague. By "outreach,"

18 publicly available?
10:14:28

10:17:31

20

10:14:31

10:17:40

Q. I mean outreach meaning communications

10:17:40

21 outside of ASTM and outside the plaintiffs in this

10:14:35
10:14:37

22 case.

23 believe the billings were between $15- to $20,000 per

10:14:45

23

10:17:43

10:17:46
MR. FEE: Okay. Well, I will instruct you

10:17:47

24 not to answer to the extent those communications are

10:14:49

Q Any further information on how much ASTM paid

10:17:34

10:17:38

19 BY MR. BRIDGES:

22 period of between 12 months and 18 months, and I

25

10:17:23

17 are you saying not at the direction of counsel and

10:14:28

24 month divided by the three organizations equally

10:17:12

Q. What public relations outreach has ASTM

16

10:14:19

10:14:27

A So I believe that we engaged APCO for a

10:17:10

10:17:16

15 engaged in relating to the litigation?

10:14:16

Q How much did ASTM pay to APCO in the course

20 of the engagement?

14

10:14:13

16 that directly commented for ASTM on those types of

10:17:01

11 would have been between -- would have involved

10:14:05

A For ASTM, that would be me

MR FEE: Objection Calls for speculation

10:16:59
10:17:05

THE WITNESS: Right. So any other activity

12

14

10:16:50

10:16:54

7 don't disclose any communications or actions that were

10:13:46

11 the information and comments?

10:16:48

5 involved in the litigation directly, but --

10:13:46

8 was an iterative process and that the public affairs

10:16:46

But to the extent you know, you can answer.

4

10:13:36

Q Was the public affairs firm -- you said it

10:16:45

3

10:13:38

6 BY MR BRIDGES:

MR. FEE: Objection. Calls for speculation.

2 This is clearly outside the scope of his designation.

10:13:25

10:13:34

4

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2

10:17:52

1 outside the plaintiffs in this case and their counsel,

MR BRIDGES: Now, I want to be very clear

10:17:54

3 what we mean "publicly made available " In my view,
4 it's fair game for me to get an answer regarding any

10:17:56

6

MR FEE: Yeah That's fair Why don't I go

9

11 10:17

8 or its counsel

10:18:12

10:18:18
10:26:54

13

to 10:26 a m )

14

THE VIDEOGRAPHER: We are back on the record

10:29:05

THE WITNESS: Okay I recall that in August

10 of 2013 I was invited to be on a panel by the

10:29:22

10:29:23

10:26:55

Q There was a pending question, I think, when

10:29:33

14 was asked and questioned about the status of the
15 lawsuit

10:27:04

10:29:41

10:29:46

16 BY MR BRIDGES:

10:29:52

10:27:04

17

Q What else?

10:27:06

18 we broke The question I had was what public

10:29:26
10:29:28

13 representatives Washington-related topics in which I
10:26:54

10:29:52

18

A I recall that on two occasions in 2013, while

19 relations outreach was ASTM engaged in relating to the

10:27:12

20 litigation And by "outreach," I mean communications

10:27:16

10:29:54

19 serving on the National Policy Committee of ANSI,
20 American National Standards Institute, there were

21 with persons outside ASTM and outside the plaintiff
22 group in this case

10:27:19

21 questions about the lawsuit, and again, I gave an

10:27:23

22 update as to the status of the lawsuit

10:29:59
10:30:03
10:30:08

10:30:15

23

MR FEE: Okay I would object

10:27:27

23

Q What else?

24

And instruct you not to disclose any

10:27:29

24

A That's all that I specifically recall

25

Q So you recall only instances where ASTM was

25 communications made at the direction of counsel that

10:27:31

10:29:09

10:29:12

12 discuss relevant topics with a number of other

10:26:54

16 BY MR BRIDGES:

10:28:58

10:29:02

11 Standards Engineering Society in Ottawa, Canada, to

(A recess was taken from 10:17 a m

17

9

10:18:15

12

15 at 10:26 a m

5 lines except communications at the direction of

7 than the person receiving the communication from ASTM

10:18:10

THE VIDEOGRAPHER: We are off the record at

10:28:54

10:28:57

6 counsel that were not made publicly to persons other

10:18:07

MR BRIDGES: Okay We'll go off the record

10

MR FEE: My instruction with respect to that

4 is you could disclose any communications along those

10:18:02

10:18:05

7 outside I'm going to discuss this with him and see
8 if there's really anything to worry about

3

10:17:59

5 communication that was not a privileged communication

10:28:48

2 I would like to know what those communications were

10:30:21
10:30:23
10:30:26

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1 were not disseminated to the public generally.

10:27:34

1 responding to questions from others?

2

10:27:36

2

MR. BRIDGES: Okay. I think that's an

3 improper instruction because if a statement was made

10:27:37

4 to the public -- I'm not asking why it was made to the
5 public. I'm not asking for legal discussions that

10:27:41

10:27:45

10:30:30

MR. FEE: Same instruction, of course, with

3 respect to privilege.
4

THE WITNESS: Thank you.

5

That's correct.

6 were made about what to make to the public --

10:27:48
10:27:54

7

10:30:44
10:30:44

6 BY MR. BRIDGES:

7

MR. FEE: And we're not disagreeing with

8 that.
9
10

10:27:54
But if a statement was made to the public,

10:28:02

12 of counsel or not. If it was to people outside the

10:28:04
10:28:07

MR. FEE: You're arguing with me about
If a statement was made to the public that's

17 responsive to that, feel free to answer it.
18

19 question.
20

10:28:12

10:28:14
10:28:14

MR. BRIDGES: No. No. That's not my

9 topics" without being requested to do so?
10

10:30:45

11 topics."
12

10:28:16

10:28:17

14

10:31:02

THE WITNESS: I don't recall.

10:31:07
10:31:11

Q. You said that you were invited to a panel by

17 the "relevant topics" you were referring to in that
18 answer?

A. Yeah. I believe my comments on my panel

10:28:17

20 involved an update on funding for the National

10:28:22

21 Institute of Standards and Technology, an update that

24

10:28:33

If ASTM caused any communication to be made

25 or engaged in any communication to persons or entities

10:31:12
10:31:17

10:31:21

10:31:23

My question is if a statement was made to any

23 what -- strike that.

10:31:11

16 relevant topics with other representatives. What were

21 person or entity outside the plaintiff's group and the

10:28:27

10:31:00

15 the Standards Engineering Society where you discussed

19

22 plaintiff's group counsel, then I would like to know

10:30:49

10:30:55

MR. FEE: Objection. Vague as to "relevant

13 BY MR. BRIDGES:

10:28:10

15 something I'm not instructing him to refuse to answer.
16

10:27:56

10:28:00

11 I'm entitled to know whether it was at the direction

14

10:30:45

Q. You don't recall any instance where ASTM

8 initiated a communication on what you call "relevant

MR. BRIDGES: Let me make my record, please.

13 plaintiff group, I'm entitled to know.

10:30:40

10:30:43

22 the Office of Management and Budget was still
23 preparing to revise their circular, but it hadn't come

10:28:35 24 out yet. That there may have been other actions of
10:28:43 25 interest to the standards community. I believe the
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A. On the panel that I was a panelist with was

10:34:29

1 National Archives and Records Administration, Office

10:31:55

1

2 of Federal Register had come out with some additional

10:31:59

2 the American National Standards Institute. Someone

3 findings and information.
4

10:32:02

So those are the other kinds of things that I

5 reported on.

10:32:04

10:32:08

10:34:32

4 Myself. And I'd be speculating to name the other

10:34:37

5 person. And Doug Morton was the moderator

6

Q. What else apart from those?

10:32:09

7

A. Transatlantic Trade Investment Partnership.

6 participant.

10:32:18

8 The U.S. Free Trade Agreement that's being negotiated
9 with the European commission is of key interest to
10 standards developers.

10:32:20
10:32:24

10:32:28

7
9

MR. FEE: Objection. Asked and answered.

10

THE WITNESS: I do not.

Q. And you consider that to be a relevant topic?

10:32:38
10:32:40

12

10:32:41

13 was from?
A. I do not.

10:32:45

15

Q. Who is on the policy committee of ANSI?

19
21
23

10:33:06

10:33:07

MR. BRIDGES: Well, my question was

25 this litigation.

THE WITNESS: It's currently chaired by

10:35:28

19 Sharon Stanford from the American Dental Association

22

10:35:35

Q. Is she the only person on the committee? I

10:33:08

23 asked who was on the committee.
24

10:33:13

10:35:35
10:35:37

A. In addition, myself. There's a

10:35:39

25 representative from the Underwriters Laboratories.

10:35:43
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1

MR. FEE: And he said that he testified about

10:33:15

2 numerous relevant topics at a presentation. He didn't
3 say that they were relevant to this litigation. They
4 were relevant to the presentation.
5

9

10:33:35

12 and I provided it.

10:33:47

Q. Who asked you for the update?

15

A. I believe one of the -- the moderator or the

17

Q. Who is that?

18

10:33:56

A. He's with the Canadian standards

10:34:04

A. Uh-huh.

24

Q. Who are the "other representatives" you're

25 referring to?

(Deposition Exhibit 1022 was marked for
identification.)

7

MR. BRIDGES: Mr. Grove, I'd ask you to look

9

10:34:10
10:34:16

10:36:41

10:36:41

11 deposition today?

10:36:46

Q. Which of these topics are you prepared to

14 testify on?
15

10:34:21

10:36:56
10:36:57

10:36:59

MR. FEE: I'll answer that question. He's

10:37:03

16 our designee with respect to all the topics except for

10:37:15

Q. Do you adopt your counsel's response?

10:37:15

MR. FEE: Counsel, could you repeat which

21 sections I'm not responding --

24

10:37:04

10:37:08

18 BY MR. BRIDGES:
20

10:36:49

10:36:55

A. Yes, I do.

10:37:18

10:37:20

MR. FEE: 2, 3, and 24, I believe are the

23 ones.

10:34:24

10:36:41

10:36:44

Q. Do you recognize this as an amended

22

10:34:21

10:36:41
10:36:41

10 deposition notice with topics for examination for your

19

10:34:21

23

5

17 Topics 2, 3, and 24.

10:34:08

Q. And in referring to that Canadian meeting,

22 answer.

10:34:01

10:34:04

21 you also mentioned "other representatives" in your

THE WITNESS: I said 25 to 30.

13

10:33:54

16 session chair for the panel that I was presenting on.

REPORTER MARTIN: 35 to -- how many?

12

10:33:54

14

20

10:33:44

10:33:52

13 BY MR. BRIDGES:

10:35:52

3

8 at Exhibit 1022.
10:33:42

11 asked for an update about the status of the lawsuit,

19 organization. Doug Morton.

10:33:24
10:33:30

THE WITNESS: As I previously stated, I was

10:35:49

2 probably 25 to 30 voting members.
4

10:33:28

Q. So what discussions at the Canada meeting
MR. FEE: Objection. Asked and answered.

1 There's actually many representatives. There's

6

MR. BRIDGES: Well, my question was about

8 related to this litigation?
10

10:33:22

10:33:24

6 relating to this litigation.
7

10:33:16

10:35:31

10:35:35

21 BY MR. BRIDGES:

10:33:10

24 originally about public relations outreach relating to

10:35:17

10:35:19

20 in Chicago, Illinois.

MR. FEE: Objection. Mischaracterizes his

10:35:14

MR. FEE: Objection. Foundation. Calls for

18

10:32:55

10:33:06

22 previous testimony.

10:35:02

17 speculation. Vague as to time.

10:32:54

Q. That's a relevant topic with respect to this

20 case?

10:32:50 16

10:32:53

18 BY MR. BRIDGES:

10:34:58

10:35:00

14

16 trade agreement, which many standards developers are
17 quite concerned about.

10:34:58

Q. Do you recall what organization that person

10:32:42

15 standards technical barriers to trade chapter to the

10:34:56

10:34:57

11 BY MR. BRIDGES:

MR. FEE: Objection. Vague as to "relevant
THE WITNESS: I do because there's a

10:34:51

10:34:52

12
14

10:34:45

10:34:47

Q. You have no memory of who that other person

8 was?

11

13 topic."

10:34:30

3 from their New York office. I don't recall her name.

10:37:22

10:37:25
THE WITNESS: Yes, I do.

25 BY MR. BRIDGES:
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10:37:34
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1

Q Who at ASTM has the most information about

2 questions of copyright -- strike that
3

6 copyrights in their work to ASTM?

4

MR. FEE: Objection. Calls for speculation.

10:40:52

10:40:55

6

10:38:18

You can answer if you know.

7

10:38:14

THE WITNESS: Our membership department

10:40:58
10:41:00

8 reports to our vice president for Technical Committee

10:38:18

MR BRIDGES: I'm asking him, and he can

10:40:38
10:40:45

10:40:51

5 Outside the scope of his designation.

10:38:06

MR FEE: Objection Calls for speculation

8 It's beyond the scope of his designation
9

3 membership applications?

10:37:49
10:37:52

5 participants in the standards writing process transfer

Q. What person who have that membership function

2 would have most information about the receiving of

Who at ASTM do you understand have the most

4 information about the efforts by ASTM to have

7

1

10:37:34

10:37:39

9 Operations, Daniel Smith.

10:38:23

10:41:02

10:41:05

10 answer based on his personal knowledge

10:38:25

10 BY MR. BRIDGES:

11

10:38:27

11

10:38:28

12 membership department who reports to him?

10:41:16

13

10:41:19

MR FEE: Calls for a legal conclusion to the

12 extent it implies that an assignment is required
13

You can answer if you know

14

THE WITNESS: General counsel for ASTM would

10:38:32

15 be responsible for that

MR FEE: Same objection
THE WITNESS: I guess I wouldn't know

20 specifically

22
23

25

10:41:23

10:41:33

Q. Who within the membership department has most

21 renewals?
22

10:38:52

MR FEE: Objection Vague Calls for

MR. FEE: Objection. Calls for speculation.

23 It's beyond the scope of his designation.

10:38:53

10:41:45

THE WITNESS: That, I wouldn't know.

25

10:38:59

1 well known amongst staff. So it wouldn't surprise me

10:39:01

2 if many members of the ASTM staff are very familiar
3 with the copyright policies that are part of our

10:39:05

10:39:10

4 standards development at enterprise.

(Deposition Exhibit 1023 was marked for

10:41:50
10:42:39
Page 56

identification.)

2

MR. BRIDGES: Mr. Grove, I've handed you

3 Exhibit 1023.

10:42:39
10:42:39

10:42:42

Q. Do you recognize this as a copy of ASTM's

10:42:43

5 Form 990 filed with the Internal Revenue Service?

10:39:20

Q. I'm not asking, actually, about copyright

1

4

10:39:18

5 BY MR. BRIDGES:

10:41:37

10:41:48

24

10:38:55

THE WITNESS: Our copyright policy is very

10:39:20

10:42:45

6

10:42:52

MR. FEE: Take a look at the document before

7 policies. I'm asking about actual actions of persons

10:39:23

7 you answer that question.

8 who contribute to the writing of standards to assign

10:39:30

8

(The witness reviewed Exhibit 1024.)

9

THE WITNESS: Yes, it appears to be our 990

9 their rights to ASTM.
10

MR. FEE: Objection.

10:39:37

13

10 forms.

10:39:39

11 BY MR. BRIDGES:
12

10:39:39

MR. FEE: Objection. Vague. Calls for

10:39:40

identification.)

13

MR. BRIDGES: Mr. Grove, I've handed you

14 Exhibit 1024.

15

10:39:46

15

Q. Who is in charge of receiving and acting on

18 membership applications?
19

20 Beyond the scope of his designation.
21

10:40:17

22 at ASTM where there are staff that work closely with
23 our Technical Committee Operations that would be most

A. Yes, it appears to be an E-mail.
Q. Who is Mr. Thomas?

19

A. In this instance, Jim Thomas is the president

10:40:25 21
10:40:26

22

10:40:33 23

10:44:39
10:44:42
10:44:44

10:44:46

(Deposition Exhibit 1025 was marked for
identification.)

10:44:17

10:44:19

17

20 of ASTM International.

10:40:20

THE WITNESS: We have a membership function

10:44:14

10:44:16

18

10:40:04

10:40:14

MR. FEE: Objection. Calls for speculation.

10:44:02

10:44:02

Q. This is an E-mail exchange between you and

16 James Thomas; correct?

10:40:04

10:43:36

10:43:42

(Deposition Exhibit 1024 was marked for

10:39:41

17

10:43:36

12

14 speculation. Beyond the scope of his designation.
THE WITNESS: I'm not able to answer that.

10:42:54

11

10:39:39

Q. Who would have knowledge of that?

16 BY MR. BRIDGES:

10:41:33

10:41:44

Page 54

6

10:41:26

10:41:28

20 knowledge about the receipt by ASTM of membership

10:38:52

24 speculation Asked and answered

THE WITNESS: Ileane Smith who is not -- no

19

10:38:48

10:38:50

Q Would you know generally?

You can answer if you know.

17 relation, to my knowledge.

10:38:43

10:38:45

21 BY MR BRIDGES:

10:41:21

18 BY MR. BRIDGES:

Q Who else would have knowledge of those facts?

19

MR. FEE: Objection. Beyond the scope of his

14 designation.
16

10:38:43

18

10:41:13

15

10:38:42

16 BY MR BRIDGES:
17

10:38:39

10:41:13

Q. And who is the senior most person in the

10:44:48

10:45:11

MR. BRIDGES: Mr. Grove. I've handed you

24 familiar with membership.

10:40:36

24 Exhibit 1025.

25 BY MR. BRIDGES:

10:40:38

25

10:45:13

Q. Is this a copy of the comments that ASTM made

Page 55

10:45:11
10:45:14
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1 to OMB in connection with the OMB activities you
2 described earlier in your testimony?
3

10:45:19

10:45:23

MR. FEE: Please read that carefully before

4 you answer the question.

10:45:29

10:45:31

5

THE WITNESS: Okay.

6

(The witness reviewed Exhibit 1025.)

7

THE WITNESS: It appears to be, yes.

8

(Deposition Exhibit 1026 was marked for

9

identification.)

10
12

10:45:55
10:46:18
10:46:18

10:46:20

A. At the time of this E-mail, Dan Smith was the

10:48:42
10:48:46

6 associate vice president for Technical Committee

10:48:50

7 Operations and Kate McClung's supervisor.

10:48:53

8

Q. What is Mr. Smith's role now?

10:48:57

A. He's been promoted to be vice president of

10:49:00

10 TCO, Technical Committee Operations.

10:49:08

11

Q. To whom does he report?

12

A. He reports to our executive vice president,

10:46:33

13 and Sarah Petre, and also, Kate McClung; is that

10:48:34

Q. Who is Dan Smith?

10:46:21

Q. This is an exchange of E-mails between you

10:48:31

10:48:39

9

10:46:18

13 Katherine Morgan.

10:46:36

10:49:08
10:49:10

10:49:15

14

15

(The witness reviewed Exhibit 1026 for

16

identification.)

10:46:36

17

THE WITNESS: Yes. It's an E-mail exchange

10:47:14

Q. And who is Anthony Quinn?

15

A. Anthony Quinn works in the Washington office.

10:49:20

16 His title is director of public policy, international
17 trade.

10:47:15

18

Q. Does he report to you?

19

A. He does.

20

Q. Who else reports to you?

21

A. At ASTM I'm responsible for -- in addition to

10:47:17

10:49:32
10:49:32
10:49:33

20

Q. Sarah Petre recently left ASTM; correct?

21

A. She did, correct.

22

Q. How recently did she leave?

10:47:22

22 the Washington office, I'm responsible for corporate

23

A. February 11 was her last date.

10:47:24

23 communications. So we have a team of five people at

24

Q. And what was her job title at ASTM?

10:47:26

25

A. Her final title at ASTM was regulatory

10:47:30
25 report to me, and that's it for direct reports of ASTM
Page 58

1 counsel.
2

10:47:22

10:47:35
10:47:35

MR. FEE: Objection. Calls for speculation.

6

10:47:39
10:47:41

THE WITNESS: I'd have to consult with our

10:47:45

7 attorney to see what functions, if any, she was

10:47:47

8 providing in the form of an attorney.

10:47:51

9 BY MR. BRIDGES:
10

12 the organization, or is it a government affairs
13 representative?
14

15 conclusion.

10:48:04

10:48:05

10:49:44

4

Q. Do any outside vendors report to you

5 directly?

10:49:59
10:50:03

10:50:05

6

MR. FEE: Objection. Vague.

7

THE WITNESS: Not that I can think of. No,

10

10:50:06
10:50:15

10:50:16
10:50:17

Q. Do any outside consultants report to you

11 directly?

10:49:48
10:49:52
Page 60

10:50:17

10:50:19

12

MR. FEE: Objection. Vague.

THE WITNESS: I'm sorry. I did forget one.

10:50:20
10:50:21

14 We do -- I have a consultant that reports to me in

10:50:23

15 Brussels. We have an office of -- office of European

10:48:06

Q. I'm asking for your understanding.

16 affairs in Brussels, Belgium.

10:48:06

18

MR. FEE: Same objection.

19

THE WITNESS: She was providing analysis of

10:50:26

10:50:29

10:48:14
10:48:15

17 BY MR. BRIDGES:

10:50:33

18

10:48:09

20 rules and regulations to help inform our decision
21 making. So...

10:49:42

10:50:02

13

10:48:03

16 BY MR. BRIDGES:
17

10:47:57

10:48:00

MR. FEE: Objection. Calls for a legal

A. That's correct.

9 BY MR. BRIDGES:

10:47:55

11 to your understanding, functioning as an attorney for

Q. Sarah Petre used to report to you directly?

8 they do not.

10:47:55

Q. Insofar as you interacted with her, was she,

10:49:39

10:49:58

2
3

10:47:37

5 Beyond the scope of his designation.

10:49:36

24 our headquarters in Conshohocken, Pennsylvania that

1 employees.

Q. Was she functioning as an attorney or as a

3 government affairs person?
4

10:47:17

10:49:24

10:49:26

10:47:14

18 between myself and Sarah and Kate McClung.
19 BY MR. BRIDGES:

3 Operations division.
5

10:45:55

MR. BRIDGES: Mr. Grove, I've handed you

14 correct?

A. Kate McClung is a staff manager for technical

4

10:45:32

11 Exhibit 1026.

1

2 committees within ASTM's Technical Committee

Q. And who is that person?

10:50:33

19

A. Her name is Sara Gobbi, G-o-b-b-i.

10:50:34

20

(Deposition Exhibit 1027 was marked for

21

10:48:21

identification.)

MR. BRIDGES: I'm handing you Exhibit 1027.

22 BY MR. BRIDGES:

10:48:26

22

23

Q. Does she report to you?

10:48:27

23 I'd ask you if you've seen that before.

24

A. She does, correct.

25

Q. Who is Kate McClung?

10:48:27

(The witness reviewed Exhibit 1027.)

25

THE WITNESS: I don't recall if I've seen

Page 59

10:51:21

10:51:23

24

10:48:28

10:50:36

10:51:20

10:51:35
10:52:05
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1 this before.

10:52:06

2 BY MR. BRIDGES:
3

1

Q. In your capacity as a representative of ASTM,

4 is it your understanding that this document is a

10:52:07
10:52:11

5 response by Mr. Thomas, whom you identified earlier,

10:52:15

6 to communication from a Boeing representative?
7

10:52:18

MR. FEE: Objection. Calls for speculation.

10:52:21

8 He is not designated as to this document.
9

10:52:24

But you can answer if you have an answer in

10 the capacity individually.
11

10:52:28

10:52:30
10:52:32

12 many roles in the standards community. So I'm not

10:52:35
10:52:38

14 written to Jim Thomas, but Laura is involved in a

10:52:42

15 number of different standards organizations.

10:52:49

16 BY MR. BRIDGES:
17

10:52:55

18 response. Does this response in Exhibit 1027 appear

10:52:58

19 consistent with your understanding of views that ASTM
20 or Mr. Thomas had at about the time of this -- strike
21 that.
22

3

Q What is it?

4

A It is an E-mail from Anthony Quinn to myself

10:56:15

5 and Jim Thomas
6

8

Q What was the ACUS chambered event that is

10:53:08

10:53:14

23 consistent with communications that ASTM had outside
24 the organization at approximately the time of this

10:56:16

10:56:24

A Well, I believe the ACUS is the

10:56:25

9 administrative council of the United States In

10:56:28

11 event highlighting some of the recommendations and

13 in 2011 on incorporation by reference and

10:56:46

15

(Deposition Exhibit 1029 was marked for
identification )

17

MR BRIDGES: Mr Grove, Exhibit 1029 is an

10:56:52

10:56:52

10:53:16 23

10:53:23

10:53:26

10:58:03

18 E-mail that is produced to us by ASTM, and you're

22

10:58 06

10:58:16

Q Is it correct this is an E-mail from Maureen

A Yes, it appears to be

10:58:18
10:58:21

10:58:30

Q She was forwarding an E-mail from Jonathan

10:58:31

24 Gregory of APCO worldwide; is that correct?
25

10:56:37

10:56:40

14 international regulatory cooperation

20

10:56:31

10:56:33

12 discussing the recommendations that came out of ACUS

21 Brodoff at NFPA to you and others?

Does this response in Exhibit -27 appear

10:56:16

10:56:16

7 mentioned in the E-mail?

10:53:03 19 copied on it, it appears

10:53:13

25 E-mail?

10:56:14

10:56:15

16

10:52:55

Q. I'm wanting to focus on Mr. Thomas's

A I do, yes

10 working with the U S Chamber of Commerce, they had an

THE WITNESS: Right. Laura Hitchcock serves

13 certain as to what capacity this E-mail is being

Q Do you recognize this document?

2

10:52:07

10:58:34

MR FEE: Did you say this was directed to

10:58:38

Page 62
1

MR. FEE: Objection. Vague. Calls for

10:53:27

2 speculation. Beyond the scope of his designation.
3

10:53:28

THE WITNESS: This may be the first time that

4 I became aware of who Carl Malamud is.

10:53:40

5 BY MR. BRIDGES:

10:53:47

6

Q. This E-mail may be?

7

A. Yes.

8

Q. Do you know if she got bcc'd on this?

9

A. I do not believe -- I do not believe that I

10 was, no.
11

10:53:47
10:53:50
10:53:53

10:53:58
10:54:00

14 and I'm thinking of the event that this E-mail

10:54:01

10:54:04

19

10:54:58

20

MR. FEE: Take your time to read it.

21

THE WITNESS: Okay.

22

(The witness reviewed Exhibit 1028.)

23

10:55:00

THE WITNESS: Would you please repeat the

25 BY MR. BRIDGES:

10:58:47

10:58:49

THE WITNESS: It appears that there is

10:58:50
10:58:51

10:58:53

8 BY MR BRIDGES:
9

10:58:54

Q Does this relate to the efforts that ASTM and

11 APCO?

10:58:54

12

MR FEE: Objection Vague Calls for

13 speculation
14

10:55:05
10:55:07

10:59:03

10:59:06

THE WITNESS: Yes It appears to be an

10:59:08

10:59:11

16

(Deposition Exhibit 1030 was marked for
identification )

11:00:56

MR BRIDGES: I'll hand you Exhibit 1030

11 00:56
11:00:56

19 which is produced to us by ASTM in this litigation

11:01:00

20 This appears to be a letter from ASME regarding the
21 OMB process that you described earlier in your

10:56:08
10:56:08

10:56:12

22 testimony
23
24

10:56:14

11:01:06
11:01:14

11:01:17

Q Is that your understanding?
MR FEE: Objection Vague Calls for

11:01:18
11:01:19

25 speculation It's beyond the scope of his designation

Page 63

10:58:58

10:59:02

18

10:55:00

Q. Mr. Grove, do you recognize this document?

24 question now that I've reviewed it.

4 apologies

10:58:46

17

10:54:58

18 BY MR. BRIDGES:

MR FEE: Oh, I'm sorry I missed it My

15 agenda for a conference call

(Deposition Exhibit 1028 was marked for
identification.)

3

10 FPA and ASME were engaged in together with respect to

10:53:56

A. Well, we were referring to the E-mail here,

17

MR BRIDGES: Yes, I did

6 something from Jonathan Gregory that's being

10:53:55

16

10:58:44

2

7 forwarded, yes

Q. Then how would this be the first time you

15 pertains to.

1 Jeff Grove?

5

10:53:49

12 became aware of Carl Malamud?
13

10:53:36

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11:01:21

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17 (Pages 62 - 65)
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1 He wasn't designated to describe ASME documents
2

(The witness reviewed Exhibit 1030 )

3

THE WITNESS: It appears there's a response

14

16

A. Correct.

11:05:16

Q. And you're the "Jeff" that's referred to

11:05:18
11:05:22
11:05:42
11:05:44

THE WITNESS: I'm sorry. I don't see that.

11:05:49

12 Can I --

11:02:09

11:05:50

13 BY MR. BRIDGES:

11:02:11

THE WITNESS: I don't recall sharing drafts

11:05:51

14

11 02:15

A. First paragraph?

16

11:02:15

Q. First paragraph of Exhibit 1031.

15

11:02:14

Q You don't have any recollection of that?

MR. FEE: Objection. Calls for speculation.

11

MR FEE: Objection Lack of foundation

Q. Right. Last sentence. "Brian and Jeff did a

17

MR FEE: Objection Asked and answered

11:02:17

18

THE WITNESS: I don't recall sharing drafts

11:02:24

18

A. That's correct.

19

Q. Are you that Jeff that --

20

11:05:51
11:05:55

17 great job with the exercise."

A. I would be that Jeff.

19 BY MR BRIDGES:

11:02:29

20

Q Do you recall seeing this letter before?

21

11:02:29

A I know I read a number of submissions by

21

11:02:31

22 various organizations as it's a topic I'm very

11:06:00
11:06:02
11:06:03

MR. FEE: Objection. Same objection.

11:02:35

23

24 before I don't believe this is a draft This is

11:02:38

11:06:04
11:06:05

24 Brian?
25

11:02:48

11:05:56

11:05:58

22 BY MR. BRIDGES:

11 02:33

23 interested in So it's quite likely I've read this

25 their submission

11:05:19

10

11:02:05

11:02:09

15 BY MR BRIDGES:

11:05:13

Q. You were at that meeting; correct?

9 the first paragraph for Ms. McKiel?

11:02:00

13 Calls for speculation

4 senior staff of ASTM.

11:05:11

8 in -- I've lost where it is. In the last sentence of

11:01:56

10 respective letters to OMB regarding the OMB circular;

12

A. The board of ASTM international, and the

7

11:01:55

Q And it is correct that ASTM, NFPA, and ASME

9 shared with each other their drafts of their

11:05:09

5

11:01:54

11:01:55

7 BY MR BRIDGES:

11 is that right?

3

11 01:50

Q. Which board?

6

5 participation in the development and use of voluntary
6 consents of standards

11:05:09

2

11:01:49

4 by ASME to various questions posed by OMB on federal

8

1 BY MR. BRIDGES:

11:01:42

11:01:48

Q. And you did an exercise with someone named
A. We did. We put the board through a branding

Page 66
1

Q That's right Do you recall this as being

2 their submission?
3

11:02:48

11:02:51

THE WITNESS: It appears to be their

6 submission

identification )

9

MR BRIDGES: I've handed you Exhibit 1031

11:03:54

11:03:59

13

Q Have you seen this document before?

14

(The witness reviewed Exhibit 1031 )

15

11:04:10

14

11:04:36

15

11:04:39

MR FEE: Objection Lack of foundation

Q If any

A We've launched a new brand as of October 1 of

11:07:25

19 last year We've got a new tag line and a new logo,

11:04:43

20 which just is a -- is a -- it's an evolution over time

11:04:46

21 of ASTM's mission

11:04:49

22

MR FEE: Objection Calls for speculation

11:04:56

23 ASTM's mission

24

THE WITNESS: I believe it's referring to a

11:04:58

24

11:05:01

11:07:38

11:07:49
11:07:51

11:07:53

A Well, so our core purpose is helping our

25 world work better because we believe that's an

Page 67

11 07:27
11:07:31

Q Please describe that evolution over time of

23

25 senior staff executive committee of the board retreat

11:07:23

11:07:25

18

11:04:41

11:06:59
11:07:06

11:07:17

17

11:04:39

11 06:56

11:07:12

Q What steps has ASTM taken to do that?

16 BY MR BRIDGES:

Q This is not one of the documents you reviewed

22 referred to in the document?

11 idea of updating or refreshing ASTM's logo and coming

13 organization

11 04:37

Q Do you recall what the event was that is

11:06:49
11:06:53

12 out with a strong brand purpose and core purpose as an

THE WITNESS: No, I'm not familiar with this

A I could have I just don't recall this

A Well, I believe the executive staff -- the

10 executive committee of the board was excited about the

11:04 04

11:04:36

21

Q What was the outcome of that discussion?

9

11:04:09

20

11:06:42

8
11:03:54

11 ASTM's president, and Mary McKiel at the Environmental

19 to prepare for this deposition?

11:06:37

7 revise our brand and revise our logo

11 03:54

10 This appears to be an E-mail between Mr Thomas,

18

11:06:22

11:06:30

6 strengths and discuss whether or not it was time to

8

17 BY MR BRIDGES:

11:06:15
11:06:17

5 ASTM's logo and to reflect on its attributes and its

11:03:02

(Deposition Exhibit 1031 was marked for

16 specific document

A It was -- it was a very iterative process

4 where we asked the board to consider ASTM's brand and

11:03:00

7

12 Protection Agency

Q What was that branding workshop?

3

11:02:51

11:06:08
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11:06:11

2

MR FEE: Objection Calls for speculation

4 Beyond the scope of his designation
5

1 workshop

11:02:49

11:06:05

11:06:08

11:07:57
11:07:58

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1 impactful statement that summarizes ASTM's activities

11:08:03

1

2 to develop 13,000 standards which improve the lives of

11:08:09

2 "adopted."

3 people every day in countless ways
4

Q What are some of the main ways in which those

4

11:08:13

11:10:25

Q. Not at all?

11:10:25

5

11:08:16

MR. FEE: Objection. Asked and answered.

11:10:25

THE WITNESS: That's not a term of art that

11:10:28

A Sure Well, just looking around this room,

11:08:18

6

7 the water that we're drinking out of these bottles,

11:08:22

7 I'm familiar with in the standards community.

6

8 the coffee cups that become compostable and
9 recyclable The air that we're breathing is probably

11 08:28

12 standards are being used as we speak
13

Q Pick a standard, and explain to me how it --

15
16

20
21

11:10:55
11:10:57

MR. FEE: Objection. Vague.

17

THE WITNESS: And, again, the term

11:11:00
11:11:08

18 "incorporated" isn't the term of art that we would use

11:09:03

11:11:10

19 in the standards community. I would be speculating as

11:09:05

MR BRIDGES: Let me withdraw that

20 to what that might mean.

11:09:13

Q How many of those standards have the force of

11:09:15

22
24

11:11:17

Q. Have you ever -- are you familiar -- strike

23 that.

11:09:19

11:11:12

11:11:16

21 BY MR. BRIDGES:

11:09:13

11 09:18

24 conclusion Vague as to "adopted " Calls for
25 speculation

11:10:43

Q. Are you familiar with any ASTM standards

16

11:09:01

11:09:03

MR FEE: Objection Calls for a legal

11:10:38

15 being incorporated into law or regulation?

22 law because they have been adopted by some government?
23

A. Adopted by reference, no. Adopted as a

11:10:40

14

11:08:58

MR FEE: Objection Calls for speculation

19 Vague

11:10:34

11:10:36

13 different context. I've heard that context before.

11:08:55

Q How many of those are incorporated by

Q. You've never heard "adopted by reference" as

12 national standard around the world? That's a

11 08:47

A We've got a volume of 12,700 or so

18

11

11:08:41
11:08:43

14 how many standards did you say ASTM has?

17 reference?

9

11:10:34

10 a term in the standards community?

11:08:34

11 difficult to quantify the extent to which ASTM's

11:10:30

8 BY MR. BRIDGES:

11:08:25

10 impacted by a number of ASTM standards It's

11:10:22

11:10:24

3 BY MR. BRIDGES:

11:08:11

5 standards improve the lives of people every day?

THE WITNESS: I'm not familiar with the term

11:11:17

11:11:22
Are you familiar with whether any government

11:11:23

25 has incorporated ASTM standards by reference into law

11:09:21

Page 70
1

THE WITNESS: I'm not an attorney. So I

11:09:22

2 wouldn't be able to comment on whether they had the
3 force of law.

11:09:27

4 BY MR. BRIDGES:
5

11:09:24

11:09:28

Q. Have you ever expressed the view as to

4

11:09:28

9

11:09:30

MR. FEE: Objection. Calls for speculation.

8 Calls for a legal conclusion.

11:09:36

11:09:38

THE WITNESS: I'm not familiar -- I don't

11:09:41

11 BY MR. BRIDGES:

11:09:43

13

Q. You don't recall once --

14 BY MR. BRIDGES:
15

Q. -- expressing the view as to whether an ASTM
MR. FEE: Same objection.

11:09:46

THE WITNESS: Per my previous answer, no.

20

Q. Are you familiar with whether any government

22 regulation?
23

24 conclusion. Vague as to "adopted." Calls for
25 speculation.

Q Are you familiar with any government having

11:11:52

9 incorporated ASTM standards by reference?

11:11:56

A Yes

Q What did the government -- please give me any

11:12:04
11:12:05
11:12:11

13 incorporated any ASTM standard by reference

11:12:13
11:12:20

A Okay There's actually many incorporation by

15 reference of ASTM standards To pick one, I would

18

11:12:25

11:09:59
11:10:03

11:12:33

11:12:36

Q What governments have incorporated that

19 standard by reference?

11:10:13

MR. FEE: Objection. Calls for a legal

11:11:52

17 known as ASTM F963

11:09:52

11:09:59

21 has adopted ASTM standards as its law or as its

11:11:47

7 BY MR BRIDGES:

16 pick a specific ASTM standard related to toy safety

11:09:51

19 BY MR. BRIDGES:

6 comment whether that implies it's law

14

11:09:49

18

11:11:43
11:11:44

12 instance that you're aware of where a government has

11:09:45

17

THE WITNESS: I'm familiar with the term

11

11:09:46

16 standard has the force of law?

11:11:42

11:11:42

10

11:09:43

MR. FEE: Objection. Asked and answered.

11:11:34

MR FEE: Objection Calls or a legal

5 "incorporation by reference " I wouldn't be able to

8

11:09:39

10 recall expressing that position.
12

2

3 conclusion

6 whether any ASTM standard has the force of law?
7

1 or regulation?

11:12:57

11:12:58

20

MR FEE: Objection Calls for speculation

21

THE WITNESS: I'm aware that the U S

11:12:59
11:13:00

22 Consumer Product Safety Commission has incorporated by

11:10:14
11:10:15

11:10:21

11:11:26
Page 72

23 reference F963, and I'm also aware that other
24 governments around the world have incorporated, by
25 reference, F963 as one pathway towards -- as one of

Page 71

11:13:02

11:13:05
11:13:10
11:13:14

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1 other standards that they reference for toy safety
2 BY MR BRIDGES:
3

Q You started to refer to it as "one pathway "

4 Pathway to what?
5

1

11:13:23

MR. FEE: Objection. Calls for speculation.

11:15:45

2 To the extent your understanding is based on your

11:13:31

11:15:47

3 communications with counsel, I'd advise you not to

11:13:31

11:15:49

4 disclose that. If you have an independent

11:13:35

A Well, I'm familiar with Hong Kong and

11:15:51

5 understanding, you can disclose that.

11:13:36

6 Singapore having a consumer product safety policy that

11:13:38

6 BY MR. BRIDGES:

7 if a toy meets either ASTM F963, the European norm

11:13:42

7

11:15:53

8 known as EN 71, or the ISO standard known as ISO 8124,
9 that is the mechanism that their consumer product

11:13:48

11:15:58

8 contains on your own, then go ahead and say that.
9

11:13:55

10 safety ministry has determined constitutes whether or

11:15:57

Q. Well, if you're ignorant of what the CFR
MR. FEE: Objection. If you keep up with

10 that, we'll have to take a break here.

11:13:58

11:16:00
11:16:03

11:16:04

11 not a product is deemed to be safe and enter into the

11:14:01

11

12 marketplace in that country or in those two countries

11:14:04

12 Ignore the "ignorant" question. He's not answering a

13

Q So I still don't understand what the pathway

14 was to in your reference to a pathway

13 question as "ignorant."

11:14:07

14

11:14:11

15

MR FEE: Objection Asked and answered

16

THE WITNESS: Right The government has

11:16:05

11:16:14

MR. BRIDGES: I'm not accusing him of being

11:16:19

17 with that. Nothing to be embarrassed about.

11:16:21

18 reference-type manner, that the ASTM F963 is one

11:14:23

18

19 mechanism that they recognize as a pathway to selling

11:14:28

19 the question with "ignorant" in it. If you have

Q As a pathway to a governmental permission?

23

MR FEE: Objection Lack of foundation It

24 calls for now, I think, a foreign legal conclusion
25

21 it.

11:14:36

22

11:16:23
11:16:23

23

11:14:38

11:16:29

Q. What do you understand the Code of Federal

11:16:29

24 Regulations to contain?

11:14:44

11:16:33

25

11:14:39

11:16:34

MR. FEE: Objection.

Page 74
1 speak with certainty.

11:14:46

2 BY MR. BRIDGES:
3

Q. So what did the Consumer Product Safety

4 Council incorporate F963 into?
5

11:14:50

6 Vague as to "incorporate."
Q. I'm asking for your understanding.

9

A. Sure.

10

11:15:03

12

11:16:39

THE WITNESS: I mean I've seen the Code of

11:16:49

11:15:03
11:15:05
11:15:07

12 applied in the marketplace
13 BY MR BRIDGES:

11:15:10

Q. What did the Consumer Product Safety Council

17

11:15:12

A. So the Consumer Product Safety Commission has

20 that they indicate that F963 is one standard that's

11:15:30

Q. Into the Code of Federal Regulations?

23

A. That would be correct.

24

Q. What do you understand the Code of Federal

25 Regulations to contain?

11:17:17

15 understanding as to what the Code of Federal

11:17:18

11:17:21

MR FEE: Objection Asked and answered,

18 plus all my previous objections
19

11:17:22

11:17:23

THE WITNESS: I believe I answered that It

11:17:25

11:15:37
11:15:39

20 contains a variety of different information, including

11:17:28

21 it may reference -- incorporate by reference specific

11:15:34

22

11:17:15

11:17:17

11:15:17 17

11:15:26

11:17:11

Q Well, my question was do you have an

16 Regulations contains?

11:15:22

19 consumer product safety, and it's my understanding
21 incorporated by reference.

14

11:15:14

18 the Code of Federal Regulations that's related to

11:17:05

11 what's -- we don't decide how our standards are

11:15:08

16 incorporate F963 by reference into?

11:16:57
11:17:01

10 organization, and we're not involved in determining

MR. FEE: Your question did not have "by

15

11:16:52

9 that I'm aware of But I'm not -- ASTM is a nonprofit

Q. You used the term "incorporation by

MR. BRIDGES: Then I'll fix that.

11:16:46

8 incorporation by reference to specific ASTM standards

13 reference." That was the basis for my objection.
14

11:16:36
11:16:38

7 information in it Sometimes it includes reference --

11:15:01

11 reference." So I'm trying to figure out --

5

6 Federal Regulations before There's a lot of

11:15:01

8

11:16:34

3 those, but if you have an independent understanding,
4 you can go ahead and answer

11:14:54

11:14:56

7 BY MR. BRIDGES:

To the extent your understanding is based on

2 communications with counsel, you should not disclose

11:14:47

MR. FEE: Objection. Lack of foundation.

Page 76
1

11:14:47

11:17:33

22 ASTM document numbers in addition to numerous other
23 types of supplemental information

11:15:41

11:15:45

11:16:26

11:16:28

22 BY MR. BRIDGES:

11:14:36

THE WITNESS: Yeah I wouldn't be able to

MR. FEE: I'm instructing him not to answer

20 another question you want him to answer, you could ask

11:14:33

21 BY MR BRIDGES:

11:16:15

11:16:17

16 contains, that's all right. There's nothing wrong

11:14:18

11:14:19

20 their product in their marketplace

11:16:10

15 an ignorant person, but if he's ignorant of what it

11:14:14

17 indicated, as stated in an incorporation by

But you could answer the prior question.

24 BY MR BRIDGES:
25

11:17:44

Q What else are you aware that the Code of

Page 75

11:17:38

11:17:41

11:17:45

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20 (Pages 74 - 77)
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1 Federal Regulations contains? Are you aware it
2 contains federal regulations?
3

MR. FEE: Objection. Compound.

11:17:51

4

THE WITNESS: My knowledge of the Code of

5 Federal Regulations is -- I'm not an attorney. So
6 it's limited.
7

11:18:04

Since I've answered that question, this might

11:18:05
11:18:06

MR. BRIDGES: No. I'm in the middle of a

11:18:09

10 course of questions. We'll finish my course of

11:18:10

11 questions, and then we can take a break for your
12 convenience.
13
15

19

THE WITNESS: No problem.

11:18:21

11:18:24

MR. FEE: Objection. Calls for a legal

11:20:27

MR. FEE: Objection. Calls for speculation

8 and a legal conclusion.
9

11:18:28

THE WITNESS: I'm not an attorney. I

11:18:30
11:18:32

11:18:35

THE WITNESS: Sure. My independent

11 BY MR. BRIDGES:

11:20:39

Q. You wouldn't know? How many years did you

13 spend on the Hill?

25 understanding would be the federal agency would come

1 out with the notice of proposed rulemaking within the

11:20:43

A. About eight years.

15

Q. And what were your jobs on the Hill?

11:20:47

A. I worked as a staff assistant, a legislative

11:20:48
11:20:51

17 assistant, a legislative director, a committee staff

11:20:54

11:20:58

Q. In each of those jobs, to whom did you

11:21:00

11:21:02

21

MR. FEE: Objection. Compound.

22

THE WITNESS: It would -- I would have to

11:21:04
11:21:07
11:21:09

24 ultimately, the members of Congress.

11:21:12

11:18:37 25 BY MR. BRIDGES:
Page 78
11:18:41

11:18:47

1

11:21:16
Page 80

Q Whom were your direct superiors in each of

2 those positions?

11:21:16

11:21:19

3 responsible for. It would inform the public that they

11:18:51

3

MR FEE: Objection Compound

4 intend to enact the following regulation and invite

11:18:54

4

THE WITNESS: So working backwards from my

5 the public to comment on that regulation.

11:18:57

6 BY MR. BRIDGES:
7

11:19:00

Q. What do you understand the -- well, what

9 that context that you just cited?
10

11:19:04

11:19:09

MR. FEE: Could you read that question back

11:21:21

7 BY MR BRIDGES:
8

11:19:11

10

A Sure

11

12

(Record read.)

11:19:30

12

A Sure I'd be happy to

13

MR. FEE: Objection. Vague, and calls for
THE WITNESS: It's an action by an agency

19

Q. Expectations only?

11:19:39
11:19:47

11:19:50

18 BY MR. BRIDGES:

11:19:53

MR. FEE: Objection. Vague.

21

THE WITNESS: I think you'd have to --

24 BY MR. BRIDGES:
25

MR FEE: Objection Compound
Go ahead

11:21:48

15

THE WITNESS: Prior to that, it would have

11:21:50
11:21:54

16 been Congressman Jim Sensenbrenner from Wisconsin

11:20:03

11:20:05
11:20:08

11:21:56

11:22:00

19 three bosses that I served while I was on

11:20:00

Q. You couldn't comment beyond expectations?

13

18 Gunderson from Wisconsin And that would conclude the

11:19:55

22 there's so many different regulations, I wouldn't be
23 able to comment.

11:21:43
11:21:48

17 Prior to that, it would be Congressman Steven

11:19:53

20

11:21:43

14

11:19:33

16 describing their expectations for the areas that
17 they're responsible for.

11:21:40

11:21:43

Q So please continue backwards --

11:19:31

11:21:32

Q Keep going I thought you were working

11:19:13

15

11:21:27

11:21:40

9 backwards

11 for me, please.

14 speculation.

11:21:24

5 most recent employment on the Hill, chairperson was
6 Congresswoman Connie Morella from Maryland

11:19:01

8 purpose do you understand a regulation to serve in

11:20:39

23 state many different individuals, but I guess
11:18:36

2 areas that they're -- their mission of their agency is

11:20:36

11:20:37

20 report?

You shouldn't disclose communications with

11:20:32

11:20:34

10 wouldn't know.

19

11:20:27

11:20:32

18 person.

11:18:27

22 counsel, but if you have an independent understanding,
24

7

11:20:21

Q. Do federal regulations impose requirements on

16

11:18:21

23 go ahead and answer it.

4 BY MR. BRIDGES:
5

11:20:10

11:20:23

14

11:18:20

Q. Do you have any understanding as to what a

20 conclusion.
21

11:18:16

11:18:17

18 federal regulation is?

3 answer. I would be speculating.

12

MR. FEE: You can take a break as soon as you

16 BY MR. BRIDGES:
17

11:18:12

11:18:15

14 finish answering these questions.

MR. FEE: Objection. Asked and answered.
THE WITNESS: No, I can't give you a general

6 anybody?

8 be a nice time. Could I take a short break?
9

11:17:58

11:18:01

1
2

11:17:48

11:17:49

20 Capitol Hill

11:22:03

11:22:10
11:22:14

21 BY MR BRIDGES:

11:22:16

22

Q And what committees did you work for?

11:22:16

23

MR FEE: Same objection Compound

11:22:18

24

THE WITNESS: It was the house committee on

25 science and technology That's the only committee
11:20:08
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11:22:19
11:22:26

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1

MR BRIDGES: We can take a break now

2

THE WITNESS: Okay

3

THE VIDEOGRAPHER: We're off the record at

4 11:31

to 11:40 a m )

7

11:41:41

11:41:41
11:41:41

(Deposition Exhibit 1032 was marked for

11

11:41:58

MR BRIDGES: Mr Grove, I've handed you

MR. BRIDGES: Mr. Grove, Exhibit 1034 is an

11:47:43
11:47:44

7 exchange of -- it's an E-mail thread where you're

11:47:51

Q. Is this correct?

11:47:57

11:48:00
11:48:02

11

11:42:21

16

MR FEE: Remember to review it first

17

(The witness reviewed Exhibit 1032 )

18

THE WITNESS: Yes, I recognize the document

(Deposition Exhibit 1035 was marked for
identification.)

15

11:42:19

11:48:10

14

11:42:12

Q Do you recognize this as a document you

11:48:10

THE WITNESS: That is correct.

13

11:42:06

(The witness reviewed Exhibit 1034.)

12

11:41:58

12 Exhibit 1032 It's double sided flipping up along the

MR. BRIDGES: Mr. Grove, Exhibit 1035 is a

11:48:40

11:48:40

17 time she reported to you.

11:44:07

18

11:44:07

Q. Is that correct?

11:49:02

19

A Yes

11:44:13

23

Q Did you show this document at a presentation?

24

MR FEE: Objection Vague

25

11:49:25

(Deposition Exhibit 1036 for identification.)
MR. BRIDGES: Mr. Grove, Exhibit 1036 is a

11:49:25
11:51:16
11:51:16

23 memo from you to ASTM senior staff; is that correct?

11:44:19

THE WITNESS: My recollection is I did, yes

THE WITNESS: Yes, it is.

22

11:44:11

22

(The witness reviewed Exhibit 1035.)

20

11:44:09

11:48:48

11:48:59

21

Q Do you recognize this as a document that you

11:48:40

16 couple of E-mails from Sarah Petre to you during the

11:42:22

11:44:09

21 prepared?

11:46:56

(Deposition Exhibit 1034 for identification.)

10

identification )

20

A. It is. Correct.

9 E-mails.

11:41:58

10

19 BY MR BRIDGES:

11:46:54

8 either the author or the recipient of each of the

11:41:42

15 prepared?

Q. And this is a document you prepared; correct?

5

THE VIDEOGRAPHER: We're now back on the

14

11:46:52

3

6

6

13 side

A. That would be Jim Thomas, our president.

4

11:22:34

(A recess was taken from 11:31 a m

8 record at 11:40

11:46:52

2
11:22:32

5

9

1 beginning?

11:22:28
11:22:31

24

11:44:25

(The witness reviewed Exhibit 1036.)

25 BY MR. BRIDGES:

11:44:27

11:51:19

11:52:18
11:52:19

Page 82
1 BY MR BRIDGES:
2

3 page of Exhibit 1032?

5

Q When was the presentation?

6

A I wouldn't be able to give you an exact date

(Deposition Exhibit 1033 was marked for
identification )

9

Please tell me what that document is

14

(The witness reviewed Exhibit 1033 )

15 BY MR BRIDGES:

11:45:29

THE WITNESS: I do recognize the document

19 BY MR BRIDGES:
Q What is it?

21

A I believe it's a statement that my supervisor

11:52:57
11:53:02
11:53:13
11:53:23

17 treasurer, Margaret Cassidy. And that may include two

11:46:12

18 others that aren't part of senior staff because of a

11:46:13

20 associate vice president or assistant vice president

23 of my previous year of employment, 2012

11:46:35

22 Jim S. Thomas.

11:53:44

Q. Is Jim S. Thomas James Thomas's son?

24

11:46:46

A. That would be correct. Associate vice

25 president for marketing and sales.

11:46:49

Page 83

11:53:47

11:53:52

23

11:46:39

24 accomplishments, and identifies some goals for 2013

11:53:40

21 level. That would have been Dan Smith and possibly

11:46:32

11:53:29

11:53:36

19 vice president title. They might be senior enough at

22 asked me for, summarizing some of the accomplishments

11:53:04

16 information technology. That would include our

11:46:31

Q Who is the "Jim" that it refers to at the

11:52:53

15 certification programs. Phil Lively, president for

11:46:31

20

A. Sure. That would be Jim Thomas, our

14 committees at the time. Tim Brook, vice president for

11:46:05

18

11:52:49

11:52:51

13 Katherine Morgan, our vice president for technical

11:46:05

(The witness further reviewed Exhibit 1033 )

11:52:37
11:52:40

12 president. Tom O'Brien, our general counsel.

11:46:05

17

25

11

11:45:30

11:45:34

Q Do you recognize the document?

11:52:30

11:52:49

Q. Tell me who the persons were that you

10 intended that to refer to?

11:45:33

13

16

8 who senior staff is.

11:45:26

MR BRIDGES: I'm handing you Exhibit 1033

12 copy to your counsel

A. So at ASTM we have a number of staff that are

7 vice presidents and associate vice presidents. That's

11:45:29

11 I'm sorry I gave you two copies Please hand one

11:52:21

11:52:25

6 responsible for the various divisions. That would be

11:44:43

11:44:45

9

Q. Whom does "ASTM senior staff" in this memo

5

11:44:42

8

11:52:20

4 refer to?

11:44:37

7 I want to say 2008 or -9

11:52:19

A. Correct, that is.

3

11:44:34

A Correct

Q. Is that correct?

2

11:44:32

4

10

1

11:44:32

Q Was it at a program referred to on the first

Page 84

11:53:57
11:54:00
11:54:03
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1

Q. Does he still work for ASTM?

2

A. He does.

11:54:10

3
4

identification.)

11:54:56

11:54:56

5 BY MR. BRIDGES:

Q. Mr. Grove, Exhibit 1037 is an exchange of

5

11:54:57

7 correspondence between you and John Pace; correct?
A. Yes.

9

Q. And the post that you're referring to is

11:55:01

11:55:11
11:55:12
11:55:20

12

A. That's correct.

13

Q. What interactions did you have with Emily

11:57:34
11:57:35

11:57:40

What standards community events do you

11:57:44

11:57:46

A. I recall there were some subsequent ACUS

11:57:47

10 public stakeholder opportunities for stakeholders to

11:57:50

11 come to ACUS events. I recall that Emily was at the

11:55:22

14 Bremer?
15

9

11:55:17

11:57:31

Q. And what standards community events do you

6 have in mind? Strike that.
7

11:57:56

12 NIST standards workshop in May of 2012. I know I've
11:55:24

11:55:26

13 seen her on other occasions at ANSI related events,

11:55:28

16 2011 but Emily Bremer was the lead investigator or

11:55:31

17 counsel that was working on the administrative counsel
18 of the United States review and potential

11:55:36

11:55:39

19 recommendations on incorporation by reference, and we
20 met on one occasion at my office at her request.

11:58:11
11:58:17

15 number of different opportunities for meetings and

11:58:22

16 topical discussions. So those would be the -- some of
17 the instances where I may have seen her.
18

Q. What other occasions have you seen her apart

11:58:36

11:55:44 19 from ACUS public stakeholders events, the NIST

11:55:49

11:58:39

20 standards workshop, and ANSI sponsored events?

Q. Did you meet with her only once?

11:55:55

21

22

A. Only once professionally. I see her at

11:55:56

11:58:42

22 interactions or times I've seen her in Washington.

23 various standards community events in Washington quite

1 quite understand the -2

11:56:06
25
Page 86
1

11:56:14

11:58:51
11:58:55

Q. I understand maybe most. I want to try to
A. Right. That's all I recall.

11:58:58

3

11:59:01
11:59:03
Page 88

Q. What were the ANSI sponsored events to which

2 you referred?

11:56:15

Q. You said you met with her only once

A. I recall there was one at the national -- I'm

11:59:10

4 sorry. It's at the consumer electronics association

11:56:17

5 in Arlington, Virginia. A panel where Peter Strauss,

6 standards community events in Washington quite a bit.
A. Yeah. Thanks for the opportunity to clarify.

8

MR. FEE: Objection. Vague.

9

11:59:07

11:59:09

11:56:15

5 professionally, and then you see her at various
7

A. I think that represents most of my

24 understand every single one that you recall.

11:56:09

MR. FEE: Objection.

3 BY MR. BRIDGES:
4

11:55:59 23

11:56:04

Q. Are those nonprofessional events? I don't

11:58:27

11:58:34

21

25

11:58:03

14 ANSI sponsors world standards week where there's a

A. I forget the time line. It was probably in

24 a bit.

11:57:24

11:57:25

A. I'd say at least a dozen. At least 10 to 12

8 recall?

10 indicated at the URL down below at the bottom of that
11 document; is that correct?

3

4 times.

11:54:57

8

Q. How many times have you seen her at standards

2 community events?

(Deposition Exhibit 1037 was marked for

6

1

11:54:12

11:56:19

11:56:25

THE WITNESS: So I only met in an official

11:56:25

11:59:20

6 Emily spoke, and now that you've refreshed my memory,
7 I believe I spoke also on a panel there. Oh, and the

11:56:32

11:59:24

11:59:28

8 ANSI events, the question. During world standards

11:56:29

10 capacity to be interviewed to represent ASTM's views

11:59:15

11:59:38

9 week every year there's four or five days in October

11:59:41

10 where each day there's a -- one or more events, such

11:59:45

11 once with Emily, but from time to time since then I

11:56:37

11 as the organizational member form of ANSI, where

12 see her at standards related events and quite possibly

11:56:40

12 organizations that are members of ANSI can come and --

13 would say, "Hi" or "Hello," or "What are you working
14 on" type of networking discussions.
16

11:56:53

Q. What networking would be going on in those

17 networking discussions?
18

11:56:56

A. Just in the course of normal relationship,

21

11:57:07

24

11:57:17

A. I don't recall, no. I don't believe I have

25 ever met with her besides the one time.

11:57:14

19 I belong to, during that week.
Q. And did she attend all of those?

A. I recall I've seen her at some ANSI events

24

12:00:29

12:00:34

22 before, but I wouldn't be able to tell you which ones

12:00:36
12:00:38

12:00:41

Q. Are there any other instances that you recall

11:57:21
25 being with her at an event?
Page 87

12:00:20

12:00:24

12:00:31

21

23 with any certainty.

11:57:20

12:00:13

18 meetings, such as the national policy committee, which
20

11:57:11

22 occasion other than the one time you said you were
23 interviewed?

11:57:04

12:00:07

16 from the standards community might go to discuss legal
17 issues. And, occasionally, there's official committee

11:56:57

Q. Have you ever met with her alone on any

There's a legal issues forum where members

11:59:57

12:00:02

14 consumer groups that are members of ANSI speak.
15

11:56:53

19 discussions that one might have with a colleague from
20 another organization.

11:56:45 13 for a program. There's the consumer interest forum or

11:56:48

15 BY MR. BRIDGES:

11:59:53

12:00:43

12:00:46
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1

A Not that I recall

2

Q Where is your office?

3

A The ASTM Washington office

4

Q Where you work?

5

1

12:00:51

A Yeah It's at 1850 M Street, Northwest,

A. Government cooperation, you said? I'm sorry.

2 Could you repeat the question.

12 01:08

3

12:01:10

Q. Yes. Was government cooperation part of the

12:03:31

4 public/private collaboration to which you just

12:01:15

12:03:34

5 referred?

12:01:16

12:03:26

12:03:28

12:03:36
12:03:37

6

A. Yes.

7

Q Who else works in ASTM's office there?

12:01:19

7

Q. What government cooperation, if any, did you

8

A Currently, Anthony Quinn, our director of

12:01:25

8 suggest would be beneficial when you were on that

6 Suite 1030

12:01:16

9 public policy and international trade, and we have a

Q What's the vacancy?

12

A It will be for a manager of global policy and

THE WITNESS: I'm sorry Global policy and

16 industry affairs

16 government.
17

12:04:14

12:04:17

Q. So for government cooperation, then, you're

12:04:20

20 to?

12:04:27

12:04:30

12:02:01

21

MR. FEE: Objection. Vague.

12:02:04

22

THE WITNESS: Yeah, including the government

12:02:11

A I don't think we were on the same panel, but

23 representatives in the process would be included, yes.

12:04:31

24 BY MR. BRIDGES:

12:02:13

25 we spoke the same day at the same event

25

12:02:15

Q Do you recall being on a panel called

3

A That sounds like the panel I was on, yes

4

Q Who else was on that panel?

5

A I believe Gordon Gillerman from the National

Q. In the process for developing standards?

12:04:39
Page 92

17

THE WITNESS: Yeah I think -- I don't have

12:05:16
12:05:22
12:05:27
12:05:30
12:05:35

17

12:03:01

20 public/private collaboration in standards development

25 referred?

12:05:15

16 industry standards for regulatory purposes"?

12:05:39

MR. FEE: Objection. Calls for speculation.

18 To the extent that mischaracterizes the document

12:05:43

19 you're reading, object that you don't give him the

12:03:06

12:05:44

20 document that you're reading. If you're asking him to

12:03:10

21 remember a quote -- and he certainly hasn't been

12:03:13

12:05:49
12:05:52

22 designated as an ASTM witness on quotes from

12:03:17

Q And government cooperation was part of the

Q. Do you recall that one of the questions

15 agencies take into consideration when examining

12:03:04

19 but I believe we were outlying ways to make the

A. That does.

12:05:12
12:05:14

14 was as follows: "What factors should government

12:02:59

18 my -- I don't recall the specifics of my presentation,

12:05:02

13 identified in the agenda published to the attendees

12:02:58

MR FEE: Objection Vague

12:04:58

12:05:10

Q. Does that refresh your recollection?

12

12:02:56

24 public/private collaboration to which you just

A. Thank you for pointing that out. I did not

11

12:02:55

Q Were you urging greater government in

12:04:53

12:05:08

10

12:02:47

16

23

8

12 02:39

12:02:56

22 BY MR BRIDGES:

Q. Do you recall that this was a panel moderated

7 Technologies, and you?

12:02:49

21 more effective, in our experience

12:04:41
12:04:53

9 recall that Emily was on the same panel but...

MR FEE: Objection Lack of foundation

15 industry cooperation?

12:04:41

MR. FEE: Objection. Vague.

6 from NIST, Emily Bremer, John Card from EchoStar

12:02:37

Q What was the greater government industry

13 BY MR BRIDGES:

A. Correct.

12:04:33

5 by Scott Cooper, that panelists were Gordon Gillerman

12:02:46

11 cooperation that you were urging?

14

4

12 02:29
12:02:34

8 Institute There's probably one more I'm sorry I

2

3 BY MR. BRIDGES:

12:02:25

7 Scott Cooper from the American National Standards

12

12:02:19

12:02:23

6 Institute of Standards and Technology I believe

10

1

12:02:17

2 "Towards Greater Government and Industry Cooperation"?

12:04:32

12:04:39

Page 90

9 just can't recall

12:04:25

19 development process? Is that what you're referring

12:02:01

Q Do you recall that the Consumer Electronics

23 were on a panel with Ms Bremer; is that correct?

1

12:04:07
12:04:10

18 suggesting government participation in the standards

12:02:01

22 Associates panel you're on -- I think you said you

24

12:02:01

12:02:01

20 BY MR BRIDGES:
21

15 have a seat at the table, including the U.S.

12:02:01

REPORTER MARTIN: And you said something

THE WITNESS: When we fill it

12:04:00
12:04:04

14 process that results in voluntary consensus standards

12:01:56

12:02:01

18 towards the end

12:03:56

13 open balance and transparent standards development

12:01:41

REPORTER MARTIN: What was the last --

15

12:03:55

A. I assume I presented some of the best

12 ensuring all diverse stakeholders that work in our

12 01:36

14

12:03:48

11 practices that we've observed in the ASTM system for

12:01:34

13 industry affairs when we fill it

19

10

12:01:32

11

17

9 panel?

12:01:27

10 vacancy at the moment So just the two of us

12:03:40

23 particular slides of presentations.

12:03:17

24

But you can answer if you know.

25

12:03:22

12:03:24

THE WITNESS: Okay. That sounds like

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12:05:54

12:05:57
12:06:01
12:06:05
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1 something that I would speak about.

12:06:06

2 BY MR. BRIDGES:
3

12:06:08

12:08:53

5 standards for regulatory purposes?

12:08:57

3 consensus standards in support of their agency's

12:09:01

12:06:08

4 take into consideration when examining industry

2 development activities and utilizing voluntary

12:06:08

Q. So what factors should government agencies

6

1 when they're looking at participating in standards

4 mission.

12:06:10

A. Well, one of the most important factors that

12:09:03

5 BY MR. BRIDGES:

12:06:13

6

12:09:11

Q. So my question is what are the regulatory

12:09:11

7 we believe is important to maintain the robust, viable

12:06:15

7 purposes that in your interactions with government on

8 system of standardization that we have in the U.S. is

12:06:24

8 behalf of ASTM, you believe government agencies have

9 looking to see if standards development organizations

12:06:26

10 meet the world trade organizations, technical barriers

12:06:28

12:09:16
12:09:20

9 when they examine industry standards? So I'm asking
10 what do you think the regulatory purposes are.

12:09:25

12:09:29

11 to trade agreement principles for international

12:06:31

11

MR. FEE: Same objections, plus compound.

12:09:31

12 standardization. It's a message that we believe

12:06:34

12

THE WITNESS: Yeah. And I don't believe

12:09:33

13 strongly in at ASTM, we've invested heavily in, and we
14 promote it as widely as possible.
15

12:06:37 13 there's any one answer to that. Each agency that

12:06:41

Q. What regulatory purposes do you anticipate

12:06:49

16 government agencies have that causes them to examine
17 industry standards?
MR. FEE: Read that back, please.

19

(Record read.)

20

MR. FEE: Objection. Calls for speculation.

22

12:07:03
12:07:14
12:07:15
12:07:23

23 that. I think you could assume that government

12:07:24

24 participants in the standardization process bring

12:07:30

25 knowledge of regulatory agendas and regulatory needs

3 others

5

9 I'm unclear as to what agenda you're referring

13

10

Page 96
THE WITNESS: Yeah. I think we discussed

12:10:09
12:10:11

12:08:16

12:10:28
12:10:33

12:10:36

MR. FEE: Objection. Calls for speculation.

12:10:41
12:10:42

You can answer if you know.

12:10:44

THE WITNESS: Generally, I believe the EPA

12:10:46

14 would look to -- has a mission of helping to keep the

12:10:48

15 air we breathe, the water we drink and the ground that

12:10:53

16 we habitate on as safe and as clean and sustainable as

12:08:22

17 designated as to speculation as to government

12:10:28

Q. Do you understand what regulatory purposes

13

12:08:10

12:08:20

MR FEE: Objection He's not been

12:10:24

12

Q So my question is what regulatory purposes do

12:10:16
12:10:19

11 It's also beyond the scope of his designation.

12:08:07

12:08:08

14 you understand government agencies to have when they

16

12:10:00

12:10:05

9 standards by reference into CFR?

12:08:00

MR BRIDGES: That's all right It's so

15 examine industry standards?

MR. FEE: Same objections.

8 federal agencies may have in incorporating ASTM

12:07:57

12:08:04

12 short, I can read it to him

12:10:00

Q. In using or in examining ASTM's standards.

2 earlier federal agencies do incorporate, by reference,

7

MR FEE: Objection Vague What agenda --

11

24

6 BY MR. BRIDGES:

12:07:52

12:07:56

10 There's no agenda in front of him

23 BY MR. BRIDGES:

5 potential factor.

12:07:50

6 agencies examining industry standards for regulatory

8

12:09:57

MR. FEE: Same objections.

4 like ASTM. So that could be one potential -- one

12:07:50

Q This agenda item referred to government

7 purposes

12:09:54

22

3 standards from voluntary consensus standards bodies

12:07:45

4 BY MR BRIDGES:

12:09:48
12:09:51

21 purposes are on a general basis?

1

12:07:40

12:09:48

Q. So beyond that, you can't give your testimony

20 as to what you think the government regulatory

12:07:32 25
Page 94

12:07:37

2 community of which ASTM is one member amongst 225

12:09:40
12:09:42

12:09:46

18 BY MR. BRIDGES:
19

THE WITNESS: I don't have an answer for

1 of agencies to the voluntary consensus standards

15 participate in our committees have different needs and
17 participating in our process.

12:07:13

21 It's beyond the scope of his designation.

12:09:38

12:06:54 16 different expectations and different motivations for

12:07:01

18

12:09:34

14 we're aware of that we interact with or that

12:10:56

17 possible. So they might look to organizations like

12:08:24

12:11:02

18 regulatory motivations, but to the extent you have an

12:08:26

18 ASTM and many others to see what work we're doing in

19 understanding individually, you can try to answer

12:08:31

19 many of these areas and ensure that their employees

12:11:08

20 are participating in our standards development process

12:11:10

20 that
21

12:08:34
THE WITNESS: Sure And I'm not an attorney,

22 but my understanding is the National Technology

25 guidance for federal agencies for them to consider

12:08:38

12:11:12

22 BY MR. BRIDGES:

12:08:36

23 Transfer and Advancement Act of 1995 combined with the
24 OMB circular A119 lays out criteria or further

21 to reflect the agency's mission.

12:08:35

12:11:17

23

Q. How would the government employees affect --

24 strike that.

12:08:41

25

12:08:50

12:11:05

12:11:22

What effect does the presence of government

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12:11:17

12:11:26
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2 ASTM?
3

MR. FEE: Objection. Vague.

12:11:37

4

THE WITNESS: In my experience, federal

12:11:43

5 government participation in standards development
6 helps to make a more effective public/private

12:11:47

7 collaboration in our process.
9

12:11:52

THE WITNESS: Yes, I have.

4 BY MR. BRIDGES:
5

12:15:23

A. I believe it is, yes.

12:15:25

Q. Have you seen a more recent organizational

10

11 slightly out of date.

12

THE WITNESS: In the area of drafting

12:11:58

12

12:11:59
12:12:03

12:12:03

MR. FEE: Objection. Calls for speculation.

17

THE WITNESS: Right. We have 140 different

12:12:04

18 technical committees and over 1,000 individual

12:12:07
12:12:09

19 subcommittees. So each agency's participation and

12:12:12
12:12:15

21 believe was your term, that would vary significantly.
22 BY MR. BRIDGES:
23

12:12:20

12:12:23

Q. Who are two or three people at ASTM you think

24 would be in a best position to answer the question of

2

12:12:23

3 Vague.
4

12:15:46
12:15:51

16 Executive Vice President," and then a number of

12:15:57

17 departments would be reporting up through Kathie.
18 This is as of just a few weeks ago.
19

12:16:01

12:16:04

Q. I see that she is almost directly under

12:16:10

20 Mr. Thomas in what looks like a direct report as vice

12:16:11

21 president of Technical Committee Operations. Would
23

12:16:16

12:16:18

A. It would be expanding her responsibilities.

12:16:23

24 For instance, now I report to Kathie Morgan, as does

12:16:25

12:12:32 25 Phil Lively, as does Teresa Cendrowska, as does Tim
Page 98

12:12:38

MR. FEE: Objection. Calls for speculation.

12:15:40

A. Under the direct line from Jim Thomas, that

22 that be simply changing the title in that box?

12:12:25

25 what effect the presence of government employees has

1 in the creation of standards?

12:15:36

15 would be a new box that would say, "Kathie Morgan,

16

20 what role they play in the drafting of standards, I

12:15:31

12:15:35

Q. What changes are necessary to make it

13 current?
14

12:15:27

12:15:29

A. I have not, but I believe that this is just

12:11:54

Q. Who would?

12:15:22

6 July 21, 2014?

MR. FEE: Objection. Lack of foundation.

15

12:15:21

Q. Is this an organizational chart as of

11

14 BY MR. BRIDGES:

12:15:20

9 chart of ASTM?

12:11:53

13 standards, I wouldn't have specific knowledge.

12:14:55
12:15:20

8

12:11:51

Q. How does it help in the drafting of

(The witness reviewed Exhibit 1038.)

7

12:11:50

8 BY MR. BRIDGES:
10 standards?

12:11:45

Q. Have you seen Exhibit 1038 before?

3

12:11:30

12:11:36

1
2

1 employees have in the standards development process at

12:16:30
Page 100

1 Brooke, and a new box would need to be created -- or

12:12:43

12:12:44

3 Daniel G. Smith.

THE WITNESS: Well, other than me, I would

12:12:49

5 say I'm one. Beyond that, you know, ASTM, it's a

12:12:50

12:16:38

2 in the old box that said Kathie Morgan, I would put

12:16:48

12:16:51

4

Q. That's on Page 5 of 11 of the document?

5

A. Page 6 of 11. So Kathie has been promoted,

12:16:53
12:16:56

6 decentralized process. So it would really vary again

12:13:01

6 and Dan has taken Kathie's old job, if that helps.

12:17:12

7 by the individual committees and the actions by the

12:13:05

7

12:17:16

8 committee officers. So if I had to give you another

12:13:08

9 name, I would say probably Katherine Morgan, who

12:13:14

10 formerly led our Technical Committee Operations.

12:13:17

Q. All right. In the standards development but

8 not Technical Committee Operations? Page 5 of 11 is

12:17:17

9 Technical Committee Operations. Page 6 of 11 is
10 standards development?

12:17:24

12:17:29

11 BY MR. BRIDGES:

12:13:23

11

12

Q. What is her current post?

12:13:23

12 the difference between Technical Committee Operations

13

A. She's the executive vice president.

14

Q. What are her duties?

15

12:13:25

MR. FEE: Objection. Calls for speculation.

17

14 able to tell you why we have it displayed that way.

12:13:28
12:13:31

THE WITNESS: Actually, I'm not certain what

18 her new duties are. She just assumed them in
20 she'll be serving as our president within the next two
21 to three years. So she's broad supervisory
22 responsibility.

12:13:39
12:13:48

12:13:51

12:13:54

23

(Deposition Exhibit 1038 was marked for

24

identification.)

25 BY MR. BRIDGES:

12:13:35

12:13:36

19 February. But I would assume she's serving as our --

12:17:30

13 and standards development, and in fact -- I would be

12:13:27

16 Beyond the scope of his designation.

A. Yeah. I actually wouldn't be able to explain

15 We think of them together.
Q. Where is Ms. Morgan's office?

17

A. Kathie is based at our corporate headquarters

12:14:54

12:17:59

12:18:02

Q. What offices does ASTM have apart from the

20 Pennsylvania office you just referred to and
21 Washington, D.C.?

25

12:18:14

A. Well, we have an office in Ottawa, Canada,

Q. Any other offices?

Page 99

12:18:11

12:18:18

23 but I believe the person that works for us there is a
24 contractor.

12:14:55

12:17:57

18 in Conshohocken, Pennsylvania.

22
12:14:54

12:17:48

12:17:48

16

19

12:17:32

12:17:34

12:18:24
12:18:26

12:18:32
12:18:33
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A I had previously mentioned an office in

1 an interview with Emily that appeared in our magazine.

12:18:34

2

12:18:35

3

Q Who else?

12:18:39

4

A We operated for many years an office in

(Deposition Exhibit 1040 was marked for

3

2 Brussels, Belgium where we have a contractor

identification.)

12:18:40

5

6 unfortunately, recently passed away So we are
7 re-evaluating what we're going to be doing in Mexico

7

12:18:51

MR. FEE: Read it first.

MR. BRIDGES: It's pretty short. It's pretty

8 obvious.

12:18:54

12:18:58

9

12:18:59

9 there for the time being

12:23:27

Q. Mr. Grove, have you seen Exhibit 1040 before?

6

12:18:47

8 City But I believe we will still have an office

12:23:27

4 BY MR. BRIDGES:

12:18:44

5 Mexico City That office, our representative,

10

11

A We do So we worked in collaboration with an

12:19:01

11 this E-mail, yes.

12 organization called the American Association of State

12:19:04

12:24:02

12 BY MR. BRIDGES:
13

12:19:09

15 facility in Buckeystown, Maryland, which is -- we do

12:19:12

12:24:12

Q. All right. And did you get -- did you see at

12:24:27

12:19:22

16

A. Yes.

12:19:30

17

Q. Is the "Jeff" in the middle of the large

21

25

22

12:19:55
12:20:38

A. I believe it is as I'm responsible for the

23

A I honestly don't recall speaking with Emily

25

12:20:46

12:24:39
12:24:41

Q. Why are you responsible for the reading room?
MR. FEE: Objection. Vague. Calls for

24 speculation.

12:20:41

12:24:34

12:24:37

21 ASTM's reading room.

12:19:50

Q How often do you speak to Emily Bremer on the

24 telephone?

20

12:19:47

A In 2013 I made approximately 24 trips to

22 ASTM's headquarters
23

19 reference to you?

12:19:44

20 headquarters in the course of a year?

12:24:30

18 paragraph at the top, do you understand that to be a

12:19:35

Q How often do you visit the corporate

12:24:54

12:24:57

12:24:59

THE WITNESS: For many years I've been

12:25:01
Page 104

Page 102
1 Bremer since 2012 on the telephone.
2

12:20:48

Q. What about your staff? Do you know how often

3 they speak to Emily Bremer on the telephone?
4

12:20:53

MR. FEE: Objection. Calls for speculation.

5 Beyond the scope of his designation.
6

12:20:50

12:20:56
12:20:57

THE WITNESS: I believe my staff would inform

7 me if they spoke with Emily, and I don't recall them
8 speaking with her by phone.
9

MR. BRIDGES: I'll hand you Exhibit 1039.
identification.)

12:21:14

13

12:21:25

12:21:25

Q. Do you recognize this as an E-mail to you

12:21:25

14 from Cicely Enright? And who is Cicely Enright?
MR. FEE: Objection. Compound.

16

12:21:26

THE WITNESS: Yes. I recognize this is an

12:21:46

21

22 published in that newsletter?
23
25

6 our organization through the distribution of our

12:25:17
12:25:25

7 standards under the model that served us so well for

12:25:27

12:25:30

9 BY MR. BRIDGES:

12:25:42

10

Q. How did you come by such an interest?

12:25:42

A. Well, working in Washington for ASTM for as

12:25:45

12:25:48

13 emerging interest in striking this delicate balance,

12:25:56

14 began to see efforts that other organizations were

12:26:04

15 taking, such as the NFPA, which, going back all the

12:26:06

17 documents on their website. And I've heard some

12:21:54

12:22:00
12:22:00

12:22:03
12:22:05

12:26:21
12:26:23

20 and other people associated with ACUS who served on

12:26:31

21 ACUS committees. So those are some of the factors and

12:26:35

22 things that have influenced my thinking on this
23 reading room.
24

12:22:07

THE WITNESS: It appears as if it does. It's

12:26:10
12:26:15

18 interesting testimony and ideas expressed by people
19 like Peter Strauss, who is a law professor, I believe,

12:21:58

MR. FEE: Objection. Beyond the scope of his

24 designation.

5 regulations while maintaining our ability to sustain

12:21:51

Q. Does this E-mail concern an article to be

12:25:09

12:25:12

16 way to 2004, started to provide some of their key code

18 associate editor of our ASTM magazine known as
20 BY MR. BRIDGES:

4 incorporated by reference in various laws and

12:21:50

17 E-mail from Cicely Enright. Cicely works as an
19 Standardization News.

12:25:05

3 the public with access to ASTM standards that become

12 long as I have, I've begun to hear and see the

12:21:25

15

12:25:01

2 I have in striking the right balance between providing

11

(Deposition Exhibit 1039 was marked for

11

1 working with senior staff because of an interest that

8 118 years.

12:21:08

10

12 BY MR. BRIDGES:

12:21:00
12:21:01

12:24:18

12:24:22

17 inspections To my knowledge, that's the scope of

19

12:24:12

14 any point the segment from John Pace to James Thomas

16 cement and concrete reference, related laboratory

18 ASTM's offices

12:24:07

12:24:09

15 up top?

12:19:16

12:23:35

12:23:37

THE WITNESS: Yes, I'm familiar -- I am on

Q Any other offices?

14 AASHTO, and AASHTO and ASTM work together in a

12:23:27

12:23:34

(The witness reviewed Exhibit 1040.)

10

13 Highway Transportation Officials It's known as

12:22:11

12:23:27

12:26:42

12:26:44

Q. I understand the factors that influenced your

25 thinking, but how did you come to have such an
12:22:08
Page 103

12:26:47
12:26:50
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27 (Pages 102 - 105)
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1 interest to begin with?

12:26:52

1 the development or for the funded research, that the

2

MR. FEE: Objection. Asked and answered.

12:26:54

3

THE WITNESS: Yeah. I guess I don't know the

4 difference in your question. ASTM is a nonprofit

12:26:58
12:26:59

5 organization that serves society in a number of

12:27:07

6 different ways. We're excited about our documents and
7 what they can do, and the idea that we could strike a

12:27:10

12:27:12

8 balance that would allow more access to some of those

12:27:18

9 documents was something that we thought would be a -11 well as for the public.
13

Q. Do you have any background in publications

14 before coming to ASTM?
A. I do not.

16

12:27:31

12:27:38
12:27:53

A. No.

19

Q. Did you have any background in archives

12:27:57

A. No.

22

Q. Did you have any background in educational

12:28:01

12:28:05

24

MR. FEE: Objection. Vague.

25

THE WITNESS: Yeah, it would depend what you

12:28:08

12:28:12

6

THE WITNESS: No

8

12:28:15

11

13

4

Q In the answer you just gave, you referred to

12:31:19
12:31:23

12:28:41

12:28:45

12:31:23
12:31:25
12:31:31

9 community So I've met the various Washington

12:31:34

12:28:48

12:28:58

12:31:56
12:31:59

18 began to -- when you started working with them on

12:32:02
12:32:06

19 exchanging information I'm just trying to find out

12:32:10

20 what year you're referring to when you said that

12:32:12

21

12:29 05

THE WITNESS: My recollection was that there

Q Well, I think that doesn't quite answer my

17 interest when you began to hear -- sorry When you

12:29:04

24

12:31:45

12:31:48

16 question I think you said you developed this

12:29:00

You can answer individually

12:31:39

13 individually whenever necessary throughout my career

15

12:28:59

23

12:31:35

12:31:41

14 at ASTM So

12:28:59

12:32:14

MR FEE: Objection Mischaracterizes his

22 testimony

12:29 07

25 was an idea that if the federal government paid for

A That would be, I think I've met -- the

12 career And I would say I've worked cooperatively and

12:28:56

MR FEE: Objection This is beyond the

22 scope of his designation

12:31:11

12:31:18

11 standards development organizations, many times in my

12:28:40

Q And what did you understand the interest in

12:31:00
Page 108

12:31 09

10 representatives for agencies Excuse me For SDO's,

17 Institute and others, and National Science Foundation

21

12:30:54
12:30:56

8 standards community in Washington is a small

12:28:38

12:30:44
12:30:49

24 Washington. And I learned suddenly that they've

5 when you started working with NFPA and exchanged

12:28:37

THE WITNESS: I was aware, during my time on

20 public access to mean?

12:28:18

12:28:31

15 the time "public access to science," which was mostly

19

12:30:41

23 information about some of the things happening in

3 2005

12:28:26

16 about academic journals funded by the National

12:30:35
12:30:38

22 began to start working with them or start exchanging

7

14 Capitol Hill, there was interest in what was called at

12:30:24

A. That's based on what the NFPA representatives

6 information with them When do you date that?

MR FEE: Objection Vague as to "government

18 BY MR BRIDGES:

12:30:19

19 all the way to 2004. Is that your understanding?

12:28:25

Q Did you have any background in public access

12 sponsored documents "

Q. Because you pointed out in your answer

12:28:26

9 to government sponsored documents before coming to
10 ASTM?

12:30:19

16

2 codes, but I believe it goes all the way back to 2004,

12:28:24

7 BY MR BRIDGES:

12:30:13
12:30:16

1 their codes, and I wouldn't be able to tell you what

4 education, widespread education before coming to ASTM?
MR FEE: Objection Vague

12:30:07

12:30:09

12:28:10 25 already been addressing this issue through some of
Page 106

12:28:15

Q Did you have any background in promoting

5

THE WITNESS: I would -- I actually wouldn't

21 told me, which was very informational to me once we

23 policy before coming to ASTM?

3

12:29:59
12:30:01

13 reasonably assume it's been within the last five

20

12:27:59

2 BY MR BRIDGES:

MR. FEE: Objection. Vague. This is also

18 some of the standards. I think you said going back
12:27:55

21

1 mean by "educational policy "

12:29:46
12:29:52

17 earlier how long NFPA had provided public access to

12:27:55

20 before coming to ASTM?

8 in giving some public access to its standards?

14 years. Probably 2009, 2010.

12:27:37

18

12:29:46

Q. When were you first aware of NFPA's actions

15 BY MR. BRIDGES:

Q. Do you have any background in libraries

17 before coming to ASTM?

6 BY MR. BRIDGES:
7

12:29:32

12:29:39

12 be able to give you an exact date, but I would

12:27:34

15

5 under that type of control.

11

12:27:31

12:29:25

4 were exclusively put into commercial journals and put

12:27:25 10 beyond the scope of his designation.

12:27:28

12 BY MR. BRIDGES:

12:29:22

3 public for a reasonable amount of time before they

12:27:21 9

10 very good for ASTM's standing in the community, as

12:29:14

2 resulting publications should be available to the

23
12:29:09

12:32:15

THE WITNESS: I wouldn't be able to give you

12:32:19

24 an exact year except for I know when we began the APCO

12:29:12

25 related work, that was 2011 time frame

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12:32:20

12:32:25

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28 (Pages 106 - 109)
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1 BY MR BRIDGES:
2

12:32:29

Q And did your interest in providing a reading

1 notice --

12:32:31

3 room arise about the same time as the APCO engagement
4 arose?
5

2

12:32:32

12:32:38
12:32:40

6 I began to introduce the idea and socialize it before
7 then Maybe a year or so before then

5

12:32:43

Q You introduced the idea of a reading room?

9

A The idea of figuring out a way to strike the

You can answer if you know

12:35:46

THE WITNESS: Yeah In my opinion, access

12:35:47
12:35:50

11 standards development organizations From ASTM's

12:33:01

12:35:54

12 standpoint, we just were not hearing from the public

12:33:04

14 abstracts So there was various ideas that I began to

12:35:42
12:35:44

10 just wasn't an issue that people were bringing to

12:32:57

13 our standards to the public rather than relying on

12:35:41

9

12:32:53

12 there was a way we could provide better summaries of

12:35:38

MR FEE: Lack of foundation Calls for

8

12:32:51

11 time that I introduced was perhaps figuring out if

Q -- from 2004 to 2011?

7 witness on behalf of ASTM

12:32:48

10 right balance I think another idea we had at the

12:35:38

6 speculation This is beyond his designation as a

12:32:45

8

12:35:38

3 BY MR BRIDGES:
4

A Similar time line I believe it began to --

12:35:38

MR FEE: Objection Calls for --

12:35:57

13 or from agencies that access to ASTM standards at the

12:33:07

12:36:01

14 reasonable and flexible, widely available way that we

15 socialize with ASTM staff about how to strike this

12:33:13

15 provided them, why that wasn't good enough So this

16 delicate balance between providing the public with

12:33:17

16 was all informational to me and was significant in the

17 greater access to our documents while still preserving

12:33:20

17 fact that NFPA was doing this

12:33:25

18 BY MR BRIDGES:

12:36:05

18 what we need to preserve in order to meet -- continue

12:36:10
12:36:14

12:36:19
12:36:36

19 the enterprise of developing standards, keeping the

12:33:28

19

20 barriers to participation low, and ensuring that would

12:33:31

20 determining what standards ASTM would make available

21 continue to provide the important value that we do in

12:33:35

21 on its reading room?

22 high-quality market-relevant standards that protect
23 the public
24

12:33:39

Q How did you establish priorities in

12:36:36

22

12:33:44

25 reading room in the discussion you were referring to?

MR FEE: Objection Vague

23

12:33:42

Q How did you introduce the idea of providing a

12:36:40

12:36:45
12:36:47

THE WITNESS: I believe there was some

12:36:51

24 discussion initially about there was a provision
25 introduced in legislation on the Hill that could

12:33:46

12:36:51
12:36:58

Page 110
1

A. Right. It would be as simple as talking to

1 potentially put ASTM in the position that if we did

12:37:03

2 other staff at ASTM about looking at solutions that

12:34:01

2 not provide public access at no cost to a few specific

12:37:08

3 other organizations are considering or have posted

12:34:04

3 standards, that an agency would be precluded from

4 towards providing greater access.
5

12:34:09

Q. What other organizations did you mean just

6 now?
7

12:33:52

Page 112

12:34:17

12:34:19

12:37:16

5 that was a difficult position for ASTM to be put in.

12:37:20

6 BY MR. BRIDGES:

A. I believe the NFPA would be one. The

12:34:19

8 American Petroleum Institute is a trade association

12:34:23

9 that also develops standards, and I believe that they

12:37:11

4 utilizing such standards in future rulemakings, and

12:34:25

7

12:37:25

Q. My question was how did you establish

12:37:25

8 priorities in determining what standards ASTM would
9 make available on its reading room?

12:37:27

12:37:29

10 took some steps to provide greater access to their

12:34:30

10

MR. FEE: Same objections.

11 documents that I can recall caught my attention.

12:34:32

11

THE WITNESS: So that same legislation that I

12:37:33

12 referenced was very specific to an organization called

12:37:38

12

Q. What other organizations?

12:34:39

13

A. There's probably others, but those are the

12:34:50

14 two I can think of that are what I would call "thought
15 leaders."
16

12:34:56

13 FIMSA or PIMSA, which deals with -- it's a division
14 within the Department of Transportation, which

12:34:58

12:35:03

12:37:45

16 pipelines and hazardous substances, and particularly
17 for pipelines, this provision that I referred to

A. The fact that they were making some of their

12:35:05

18 earlier would have caused this potential barrier on

12:35:07

19 the use of ASTM standards.

12:35:11

20

21 access to them, positioned them in a way that was

12:35:15

21 standards would be impacted by this potential

24

So we began -- I began to look at which

12:38:03
12:38:06

12:35:19 22 legislation and what steps would ASTM possibly take to

12:35:22

23 address this, either through legislation or through

Q. Can you explain why it took approximately

25 seven years for NFPA's reading room to catch your

12:37:56

12:38:01

20 first responders and those that they deemed needed

23 notice.

12:37:49

12:37:52

19 core documents available to the public at no cost to

22 beyond the norm for standards developers and caught my

12:37:40
12:37:43

15 regulates the safety and the safe operation of

Q. What made NFPA a thought leader with respect

17 to a reading room?
18

12:34:51

12:37:32

12:35:24

24 the fact that we make a decision that we'll go ahead

12:35:27 25 and put it up for the public to review.
Page 111

12:38:08

12:38:15
12:38:18

12:38:24
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29 (Pages 110 - 113)
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1 BY MR BRIDGES:
2

1

12:38:36

MR. FEE: Objection to form.

2

12:38:36

Q In your last answer you said, "I began to

THE WITNESS: That's not what I intended in

12:41:25
12:41:26

3 look at which standards would be impacted by this

12:38:39

3 my answer to your question. Taking steps to me, what

4 potential legislation and what steps would ASTM

12:38:41

4 I was implying there was that we were taking steps as

12:41:32

5 possibly take to address this " What did you mean by

12:38:46

5 an organization to implement this directive that might

12:41:34

6 "to address this" in that answer?
7

6 be passed by Congress.

12:38:51

A Well, personally, I felt that there was a

8 real dilemma for ASTM because, on one hand, we work

12:38:56

9 with stakeholders who come to ASTM with the

12 will help to benefit their industry or protect and

12:39:28

17 that they can no longer utilize ASTM standards if ASTM
18 does not make such standards available to the public

21 that
22

12:42:09

17 organizations like ASTM and our model of standards

12:42:15
12:42:18

12:42:22

20 letter from SDOs that went to Capitol Hill.

12:39:47

21 BY MR. BRIDGES:

12:39:49

Q Thank you Yeah, I'm not sure you did I

12:42:02
12:42:05

16 unintended consequences of this approach on

19 letter. I just don't recall. I know there was a

12:39:39

20 have to read back your question if I failed to answer

12:41:57

14 know that we did engage with Congressional staff on

18 development. And I should say we may have signed a

12:39:32

12:39:37

19 for free at no cost on an Internet website So you'd

12:41:52
12:41:54

15 this issue to discuss what we thought would be the

12:39:24

16 hand we had the situation where an agency may be told

THE WITNESS: Right. So I don't recall that

13 letters or signed any specific documents, but I do

12:39:21

15 demonstrate our significance, and then on the other

12:41:50

12 we took any official position, wrote any official

12:39:18

14 hand we have that commitment to our stakeholders to

12:41:42
12:41:48

MR. FEE: Objection. Vague.

11

12:39:07

12:39:12

13 ensure their industry is operating safely So on one

12:41:41

Q. Did, in fact, ASTM argue against the public

10

12:39:04

11 foremost developer of information and standards that

8

9 access provisions in the FIMSA legislation?

12:39:00

10 expectation at times that we are going to be the

12:41:39

7 BY MR. BRIDGES:

12:38:54

12:41:27

22

12:39:49

12:42:25
12:42:29

Q. So my question was a straightforward

12:42:30

23 was asking what you meant by "to address this" when

12:39:52

23 question. Did, in fact, ASTM argue against the public

24 you were referring to the discussions around the FIMSA

12:39:55

24 access provisions in the FIMSA legislation?

25 legislation I'm just trying to find out --

25

12:40:01

12:42:31

12:42:34

MR. FEE: Objection. Asked and answered now.

12:42:38
Page 116

Page 114
1 The problem is your vague question is "argue." He

1

A Sure

2

Q -- what you meant by "to address this," what

12:40:07

3 the "this" is and what it meant to address --

2 answered it.

12:40:07

3

12:40:12

4

MR FEE: Objection to form

5

Go ahead

6

THE WITNESS: I was thinking ahead I

But if you have something more to add, go

4 ahead.

12:40:16

5

12:40:17

12:42:41

12:42:45
12:42:45

12:42:47

THE WITNESS: We engaged Congressional staff

6 and discussed with them the potential impacts, made

12:40:18

7 believe it's my role to anticipate what changes could

12:40:20
12:40:22

8 BY MR. BRIDGES:

12:42:50

7 them aware on what impacts could be on ASTM.

8 be coming from Washington, and the fact that this
9 legislation was being considered, I thought was
10 significant enough that we should do some internal

13 taking steps to address it should it either be forced

15 want to do independent of any legislative or

17 BY MR BRIDGES:
18

12:43:00

Q. In that engagement did you express criticisms

12:43:04

MR. FEE: Objection. Vague.

12:43:06

THE WITNESS: Yeah. I recall that I asked

15 what the motivation was because I understood that

12:40:50

16 there was this perception that the consumers or the
17 general public would somehow glean some technical

12:40:57

12:43:07
12:43:08
12:43:14
12:43:16

18 knowledge out of our standards that would help them

12:40:58

19 look at what steps ASTM would possibly take to address

12:43:00

12 of those provisions of the legislation?
14

12:40:47

12:40:53

Q And you testified earlier that you began to

12:42:59

A. Sure.

13

12:40:38

12:40:43

14 upon us or should we decide it's something that we

Q. Well, "engage" is a very bland word.

11

12:40:33

12 amongst ASTM's management staff to ensure that we were

12:42:54

12:42:59

10

12:40:30

11 planning and have some socialization of the issue

16 government directive

9

12:40:28

12:42:47

12:41:00

12:43:24

19 understand better how pipelines could be made more

12:43:26

20 safely in their communities, and I wanted to -- in

12:43:31

21 that we make a decision that we'll go ahead and put it

12:41:08

21 fact, at that meeting I believe I brought a copy of an

12:43:35

22 up for the public to review What did you mean by

12:41:11

22 ASTM standard that they were particularly interested

20 this either through legislation or through the fact

23 "taking steps to address this through legislation"?
24 Did that mean opposing the provisions relating to
25 public access in the FIMSA legislation?

12:41:04

12:43:39

23 in to show them the technical nature of the standard

12:41:20

12:43:44

24 because I felt they were misinformed if that was their

12:41:14

12:43:48

25 perception.

12:41:22

Page 115

12:43:51
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1 BY MR. BRIDGES:
2

12:44:04

Q. Did your answer mean to imply that ASTM did

3 not criticize the public access provisions of the

12:44:09

4 legislation? Because your answer avoided my word

12:44:11

5 "criticism" by substituting other words and other
6 activities.
7

12:44:15

12:44:18
12:44:19

8 Vague. He doesn't have to adopt your wording. He

12:44:20

9 just has to respond substantively to your question.

12:44:22

MR. BRIDGES: He has to answer my question,

11 that's exactly right, and that's all I'm asking him to
12 do.
13
15

12:44:28

MR. FEE: You can do it again if you have

12:44:28

12:44:30

THE WITNESS: I would add that I did not

19

12:44:31

12:44:37

Q. Did my question have the word "support" in?

12:44:39

20 questions. That's his answer. If you don't like it,
22

12:44:41

MR. BRIDGES: It's not an answer to my

1

MR. BRIDGES: It's a yes or no.

2

MR. FEE: No, it's not a yes or no.

3
4

12:44:52
12:44:55
12:44:57

12:44:58
12:44:58

8

MR. FEE: He's already answered it twice.

9

MR. BRIDGES: I need a yes or no.

MR FEE: Can you read that question back,

19 please

12:46:15

12:46:16

20

(Record read )

MR FEE: Objection Vague as to "public

12:46:25
12:46:25

12:46:27

MR BRIDGES: I'll rephrase that

12:46:31

Q What other priorities have you had in

12:46:32

1 in this reading room?
2

12:46:33

Page 120

12:46:36

A. Well, on or about that time, I believe that

12:46:39

3 was when scholars, such as Peter Strauss and ACUS was
4 beginning to -- and OMB was beginning to discuss or

12:46:41
12:46:48

12:46:53
12:46:57

9 it's fair to say that when discussing what documents

12:47:01
12:47:05
12:47:09
12:47:20

12 standards that have been identified to us as having

12:47:24

12:45:09

13 been incorporated by reference, by federal agencies.
14 BY MR. BRIDGES:
15

12:45:09

12:45:14

MR. BRIDGES: It sounded like it to me.
MR. FEE: He's already answered that three

25 BY MR. BRIDGES:

18

12:46:05

12:46:13

11 for public access, we would look at some of the

12:45:09

20

12:46:02

10 would have a priority that would -- ASTM would put up

12:45:09

19

MR. FEE: No.

Q So what other priorities have you had in

16 determining what standards ASTM should make available

12:45:06

Q. Are you taking your lawyer's instruction not

Q. Yes or no --

15

12:45:56
12:46:02

12:45:07

MR. FEE: I did not instruct him to do that.

24

THE WITNESS: I have nothing to add

8 discussion was undergoing in Washington. So I think

12:45:08

18

23

13

12:45:54

7 "reasonably available" meant, and a lot of interesting

THE WITNESS: I believe I've answered the

22 BY MR. BRIDGES:

12:45:48

MR FEE: Objection Asked and answered

12:45:01

12 answer the question however you like.

21 times now.

Q Yes or no?

6 standards that are incorporated by reference and what

12:45:03

MR. FEE: No, you don't. You're not getting

17 to give a further answer?

11

12:45:41

12:45:43

12:44:58

11 a yes or no unless that's all you have to say. You

16

9 motivation for why they were interested in this
10 legislation

12:45:34
12:45:41

5 review how the public currently has access to

Q. You're not going to answer this question?

15 BY MR. BRIDGES:

12:45:28

8 potential and its consequences and explored the

24

12:44:54

7

14 question.

A My previous answer I explained the unintended

23

THE WITNESS: I believe I've answered the

13

Q Yes or no?

12:44:52
25 determining what standards ASTM should make available
Page 118

Answer however you deem appropriate.

10

12:45:28

7

12:44:46

12:44:49

6 BY MR. BRIDGES:

12:45:26

5 BY MR BRIDGES:

22 access "

MR. FEE: Objection. Asked and answered.

5 question.

4 however you deem appropriate

12:44:46

23 question did ASTM criticize the public access
25

12:45:25

21

12:44:44

24 provisions of the legislation.

MR FEE: You can answer that question

17 for public access?

12:44:37

MR. FEE: He doesn't have to mock your

21 then too bad.

3

14 BY MR BRIDGES:

12:44:32

17 BY MR. BRIDGES:

12:45:20
12:45:23

12

16 indicate that ASTM supports their legislation.
18

12:44:26

12:44:28

14 something more to add.

Q -- did ASTM criticize the public access

2 provisions of the FIMSA legislation?

6

MR. FEE: Objection. Asked and answered.

10

1

12:44:04

12:47:27

12:47:32

Q. Do you know where to go to find a publicly

16 available list of standards that the federal

12:47:32

12:47:38

17 government has incorporated by reference?

12:45:16

18

MR. FEE: Objection. Vague as to time.

12:45:17

19

12:45:17

12:47:43

THE WITNESS: The resource that I'm most

20 familiar with that is almost exclusively I've looked

12:45:18

12:47:45

21 at is called STANDARDS.GOV. It's a website that's

12:45:19

22 operated by the National Institute of Standards and

12:45:19

23 Technology and includes a database that they provide

12:45:20

24 to the public as to which standards are incorporated

12:45:20

25 by reference in the U.S. Code of Federal Regulations.
Page 119

12:47:16

12:47:51
12:47:52
12:47:55
12:48:00
12:48:03
12:48:07
12:48:12
Page 121

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1 BY MR BRIDGES:
2

12:48:17

1 of working with agencies during the notice of proposed

Q How many ASTM standards do you understand are

3 listed at that location?

12:48:17

12:48:21

2 rule-making process
3

4

MR FEE: Objection Vague as to time

5

THE WITNESS: So there's -- if I'm answering

12:48:23

12:51:41

12:51:45

Any agency that comes to us and asks us to

12:51:46

4 put a standard up for public review during the public

12:51:50

12:48:34

5 review period of a rule, we work with them to make

12:48:35

6 that possible So at times we know that a certain

7 many standards, I believe there's 885 or so ASTM

12:48:38

7 number of ASTM standards have been in a notice to

12:52:01

8 standards that are incorporated in the NIST database

12:48:41

8 proposed rulemaking and that the new rule's expected

12:52:04

6 your question exactly as you phrased it to me, how

9 BY MR BRIDGES:
10

12:48:50

Q How many of those standards are currently

11 available at ASTM's reading room?
12

9 to come out, so we can look for it

12:48:50
12:48:52

A Well, if it's in the NIST database, we built

16 reference, just an agency, for instance, might

13 reference?

12:49:06

15 885 ASTM standards that have been also incorporated by

18 different versions of the standard

12:49:10

15

THE WITNESS: So we do -- I'm familiar with a

12:52:24
12:52:29
12:52:31

17 does We look to see -- when we're aware that an ASTM

12:49:25

12:52:39

19 reference in some type of an action, we look to see

12:52:43

20 well, and I believe our reading room has a volume of

12:49:30

20 what version of the standard and what designation of

21 13- to 1,400 ASTM standards that are available to the

12:49:32

21 the standard is being used, and I believe on occasion

23

12:49:36

Q Are every one of the 885 standards from the

25

A I wouldn't be able to answer that

22 if they're using -- proposing to use an outdated

12:52:46
12:52:50

12:52:54

12:49:41

23 version of a standard, or, quite frankly, we've seen

12:49:45

24 NIST database available in the reading room?

12:52:34

18 standard is going to be used and incorporated by

12:49:27

22 public at no cost on our website for their review

12:52:20

12:52:23

MR FEE: Objection Vague

16 couple things that either I do or a member of my staff

12:49:21

So we counted them in the reading room as

12:52:18

14

12:49:17

17 reference the same ASTM standard but reference two

12:52:16

12 considering whether to incorporate an ASTM standard by

12:49:02

14 baseline, and we added in other versions of those same

12:52:08

Q Does ASTM provide assistance to the

11 government in any way when the government is

12:48:55

13 the ASTM reading room using the NIST database as a

19

10

12:51:53
12:51:57

24 errors where they've attempted to use an ASTM biofuel

12:49:51

12:52:59

25 standard, and rather than referencing D6751 they've

12:53:02
12:53:06

Page 122

Page 124

1 specifically. Using the NIST database as a guideline,

12:49:53

1 referenced D56571, gotten the numbers wrong, we will

2 we've incorporated, you know, as much of that as

12:50:02

2 engage with an agency and either make them aware

12:50:04

3 there's a more recent version or make them aware that

3 possible in the reading room. At times I believe we
4 also tried to add a little bit more intelligence to it

12:50:06

5 to determine if an agency was undertaking a subsequent

12:50:09

6 rule-making, and we became aware that the agency had

12:50:18

7 published a new final rule which either changed the

12:50:24

8 reference to an ASTM standard that we had placed in

12:50:27

9 the reading room or added a new ASTM standard to the
10 reading room.
11

12:53:22

6 BY MR BRIDGES:
7

12:53:20

12:53:23

Q Does ASTM bring standards to the attention of

8 the federal government with some sort of

12:53:26

12:53:36

12:50:31 9 recommendation that the federal government incorporate 12:53:38

12:50:38

10 the standard by reference?

Then we took steps to add that to the reading

12:53:16

4 what they are trying to reference doesn't make a lot
5 of sense

12:53:41

12:50:39

11

MR FEE: Objection Vague

12:50:42

12 room. It's not an exact science. We don't pay a

12:53:09
12:53:14

12

THE WITNESS: That's not part of what we call

12:53:43
12:53:45

13 vendor to perform the service for us. We rely either

12:50:48

13 engaging federal agencies in Congress What we will

12:53:49

14 exclusively on the NIST database or we -- it's based

12:50:55

14 do is work with agencies and work with Congress to

12:53:53

15 on intelligence that we've gathered about new
16 rulemakings.
17

12:50:58

12:51:01

16 that we're developing in any given area that they

Q. How do you gather intelligence about

12:51:03

18 incorporations of ASTM standards by reference?
19

12:51:08

A. Well, as much as possible we read the federal

20 register. I'd like to think we read it on a regular

15 make them aware of the voluntary consensus standards

12:51:14

12:51:17

21 basis, but sometimes it's more infrequent than that.

17 might have an interest But the ultimate decision of
18 whether or not to utilize and reference those

22 So we will search key terms in the federal register to

12:51:24

22 BY MR BRIDGES:

23 see if it's mentioning ASTM and if there's a rule that

12:51:30

23

24 has resulted in the publication of standards. And

12:51:34

25 sometimes we're ahead of it because ASTM has a policy

12:54:08

20 give you a specific example of a time that we have
21 taken an example on -- taken a position on

12:54:02
12:54:07

19 standards we rarely take positions on, and I can't

12:51:20

12:53:56

12:53:59

12:54:14
12:54:17

12:54:23

Q Do any state governments or municipal

12:54:23

24 governments incorporate ASTM standards by reference?

12:51:38 25
Page 123

MR FEE: Objection to form

12:54:26

12:54:30

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THE WITNESS: It's my understanding that

12:54:31

2 state governments act on a parallel system of

12:54:32

3 incorporation by reference and that many states may in
4 fact reference ASTM standards in various state
5 regulations.

12:54:41

12:54:45

6 BY MR. BRIDGES:
7

12:54:37

12:54:47

Q. When a state or municipal government

9 that.

12:54:53

12:54:58

3

MR FEE: Okay Great

4

THE VIDEOGRAPHER: Going off the record at

12:55:04

12 reference that the federal government has not

12:55:06
12:55:11

14

MR. FEE: Objection to form.

15

THE WITNESS: That's a very difficult one for

(A recess was taken from 12:56 p m

7

to 1:59 p m )

8

THE VIDEOGRAPHER: We are back on the record

11

identification )

12

MR BRIDGES: Mr Grover, I'm handing you

15 E-mail exchange -- strike that

12:55:20

18 to my knowledge, it would require someone to search 50
20 service to track that. So I don't have direct

19

14:01:57

THE WITNESS: Yes

14:01:58

20 BY MR BRIDGES:
21

22 states about proposed rule-making, saying about their

12:55:40
12:55:43

23

14:01:58

22 ASTM; is that correct?

23 interest in referencing standards. So I would be more

Q And Mr Pace is head of publications for

14:01:58

14:02:02

A That's correct

14:02:02

24

(Deposition Exhibit 1042 was marked for

25

12:55:49

14:01:24

14:01:26

(The witness reviewed Exhibit 1041 )

12:55:36

12:55:46

14 01:08

14:01:19

14:01:22

17 you and John Pace; is that correct?

12:55:24 18

12:55:29

12:55:33

25 BY MR. BRIDGES:

14:01:06

Q Exhibit 1041 is an E-mail exchange between

21 knowledge. From time to time we do get letters from

24 familiar with that.

14:01:06

14 01:06

14 and Jeff Grove; is that correct? Sorry This is an

16

14:00:46

14:00:47

(Deposition Exhibit 1041 was marked for

12:55:16

19 different states and perhaps use vendors and pay for a

13:52:05

14:00:46

10

12:55:17

17 parallels the NIST database for states. It would --

12:57:20

13 Exhibit 1041 This is an E-mail exchange between you

12:55:12

16 us because, to my knowledge, there's nothing that

12:57:19

12:57:21

9 at 13:59

12:55:00

11 state or municipal government has incorporated by

12:57:17

12:57:18

6

12:54:47

Are you aware of any ASTM standards that a

13 incorporated by reference?

MR BRIDGES: Why don't we take our break

2 now

5 12:56

8 incorporates an ASTM standard by reference -- strike
10

1

identification )

14:02:33

14 02:33

Page 126
1

Q. I guess my question is are you aware of any

12:55:49

2 ASTM standards that a state or municipal government
3 has incorporated by reference that the federal

12:55:52

12:55:56

4 government has not incorporated by reference?
5
6

12:56:00

THE WITNESS: I'm not aware of any.

7 BY MR. BRIDGES:
8
9

12:56:06

A. I'm not aware of any.

10

12:56:11

12 standards to put in the reading room.

Q. I just want to go back to the topic of

14:03:27

8

MR. FEE: Objection. Calls for speculation.

14:03:35

THE WITNESS: I'd be speculating. I don't

14:03:41

12

14:03:43
14:03:43

Q. You'd have no idea?

14:03:43

MR. FEE: Same objection.

14:03:46

14

THE WITNESS: I don't.

14:03:48

15 BY MR. BRIDGES:
12:56:49

16
18

12:56:56
12:56:58
12:57:00

12:57:03

23

MR. FEE: Objection. Vague.

24

THE WITNESS: No, not that I'm aware of. Not

14:03:51

Q. Did you discuss with anybody at ASTM in

17 preparation for your -- strike that.

12:56:56

21 place in ASTM's reading room. Are there any other

25 that I can think of.

14:03:27

Q. What does "HF" refer to in Exhibit 1042?

13

20 priorities you have in determining what standards to
22 priorities that you have not discussed?

6 BY MR. BRIDGES:

12:56:41

12:56:51

A. That's fine.

14:03:26
14:03:26

11 BY MR. BRIDGES:

12:56:49

19

THE WITNESS: Yes.

10 have a guess.

Q. Okay. Give me a few more minutes, and we'll

18

(The witness reviewed Exhibit 1042.)

12:56:43

A. Before you ask the next question, I would

17 take a break for lunch.

14:02:43

4

12:56:31

12:56:39

14 like to notice you that I would like to take a break
16

14:02:33

14:02:41

3 who reported to you; is that correct?

12:56:33

Q. I want to go back and continue the thread of

15 at the appropriate point here.

This is an E-mail from you to Sarah Petre,

9

12:56:09

11 questions about priorities and determining what
13

MR. BRIDGES: I'm handing you Exhibit 1042.

2

7

12:56:09

Q. You're not aware of a single one?

1

5

12:55:58

MR. FEE: Objection to form.

Page 128

12:57:05

Did you review this E-mail in preparation for

19 your testimony today?
20

14:03:58

14:04:00

A. I don't recall, no. I don't think I

21 discussed this, no.
22

14:03:51

14:03:55

14:04:05
14:04:07

Q. I asked if you reviewed the E-mail in

23 preparation for your testimony today.

14:04:12
14:04:14

24

A. I did not. I just reviewed it now.

25

12:57:11

12:57:14

Q. Does HF, as an acronym, apply to any public

Page 127

14:04:16
14:04:19
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1 relations firms that ASTM uses?
2

6 outside for that

MR BRIDGES: Going off the record

THE VIDEOGRAPHER: Going off the record at

14:06:30

12

THE VIDEOGRAPHER: We're going back on the

14:07:47

14:07:50

MR FEE: I'm going to instruct the witness

14:11:05

Q. Mr. Grove, do you recall having seen

MR BRIDGES: It keeps No 2 unredacted?
MR FEE: Yes

22

MR BRIDGES: I do have a couple of voir dire

(The witness reviewed Exhibit 1043.)

14:11:17

THE WITNESS: This is not a document that

21

14:11:21

Q. It was produced to us by ASTM. Do you know

23 document?

14:08:17

24

14:08:18

I'm going to instruct you not to answer that

14:08:21

14:11:31

1
3

14:08:29

THE WITNESS: I don't.

THE WITNESS: Okay.

4

MR. BRIDGES: Mr. Fee, did ASTM provide in

14:08:31

4 by reference?

5 any privilege log, any records of communications with

14:08:38

5

MR. FEE: I have no idea.

8

MR. BRIDGES: If it wishes to protect

7

14:08:43
14:08:45

12

14:08:54

14:08:56
MR. FEE: Well, we'll certainly give you a

13 privilege log at least for this document.
14

14:08:57

14:13:07

14:13:09
14:13:11

A. Just about finished.

12

(The witness further reviewed Exhibit 1043.)
THE WITNESS: Great. I'm sorry. Could you

14 repeat it?

14:09:00

15 BY MR. BRIDGES:

16 suggests to me that there are relevant and responsive
17 communications in discovery in this case with

14:09:03
14:09:06

18 non-lawyers as to which I'm hearing some work product
19 claims are being asserted, and it appears to me that

14:09:25

14:09:48

24

MR. FEE: Objection.

25

I'll instruct you not to answer to the extent

14:09:50

17
19

14:09:42

14:13:14
14:13:14

14:13:19
14:13:21

Q. Does this document pertain -- strike that.
Does this document pertain to incorporation

14:13:21
14:13:24

14:13:26

MR. FEE: Objection. Vague. The document

20 speaks for itself.
21

14:09:36

Q. Mr. Grove, has ASTM ever retained the firm of

16

14:09:15 18 by reference?

14:09:19

20 those communications in which the client participated

23 Fleishman Hillard?

Q. Do you need more time to determine if this

10 relates to incorporation --

14:08:59

15 privilege log because it strikes me as though -- this

22

14:12:04

14:13:07

13

14:08:56

MR. BRIDGES: Well, I'm asking for a

21 should be on a privilege log.

14:11:49

11

10 Hillard, we would expect to see that on a privilege
11 log.

14:11:48

(The witness further reviewed Exhibit 1043.)

8 BY MR. BRIDGES:

14:08:50 9

9 information about communications regarding Fleishman

14:11:40

14:11:42

MR. FEE: Read the document to answer that

6 question.

14:08:42

7

14:11:36
14:11:40

Q. Does this document pertain to incorporations

3

6 Fleishman Hillard?

14:11:32
14:11:34
Page 132

2 BY MR. BRIDGES:

14:08:23

14:11:26

MR. FEE: Objection. Calls for speculation.

25 It's beyond the scope of his designation.

14:08:21

2 question. I instruct you not to answer.

14:11:21

22 the circumstances in which ASTM possessed this

14:08:15

Page 130
1

14:11:17

14:11:18

20 BY MR. BRIDGES:

14:08:11

14:08:13

Q Does HF -- is that a mistake for "FH"?

14:11:05
14:11:08

19 I've seen that I recall.

21

MR FEE: Objection

14:11:05

18

14:08:04

14:08:10

20

14:11:05

17

14:08:00

18 version that keeps Item No 2 of this E-mail

(Deposition Exhibit 1043 was marked for
identification.)

14:10:17
14:10:19

16 Exhibit 1043 before?

14:07:56

17 ASTM102361, and we'll replace it with a redacted

12

15

14:07:54

16 to here as "HF call," and we're going to claw back

THE WITNESS: I don't know.

14 BY MR. BRIDGES:

14:07:53

15 not to answer any questions regarding what's referred

25

14:07:49

MR. FEE: Objection. Calls for speculation.

13

to 2:06 p m )

23 questions on this

14:10:12
14:10:14

10
11

11

19 unredacted

14:10:12

Q. Do you know whether American Petroleum

9 Institute had retained Fleishman Hillard?

14:04:57
(A recess was taken from 2:04 p m

24

8

14:04:53

14:10:07

14:10:09

7 BY MR. BRIDGES:

14:04:52

10

13 record at 14:06

14:10:02

THE WITNESS: Based on that direction, I'm

6 unable to answer your question.

14 04:48

8

14

5

14:04:46

7

9 2:04

14:09:58

4 retentions, you can disclose any others.

14:04:45

MR FEE: Actually, it might We need to go

14:09:53
14:09:56

3 connection with litigation. Excluding those

14:04:43

Q No, that would not

5

2 firm that was at the direction of counsel in

14:04:42

3 attorney-client discussions
4

1 that your answer would reveal any retention of any

14:04:32

A I think that would be in the scope of

14:13:27

14:13:30

THE WITNESS: My understanding of the

22 article, it's about the relationship between building
23 codes and standards. So I don't consider that
24 incorporation by reference.

25 BY MR. BRIDGES:
14:09:51
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14:13:37
14:13:38
14:13:43

14:13:47
14:14:02
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1
3

A. I do not.

4

14:14:06

Q. Do you know what the publication is that's

5 indicated at the bottom?
6

A. I'd speculate that it's an architectural

14:14:07

9

identification.)

14:14:58

Q. Do you recognize this document?

14:17:22

MR. FEE: I'd have to see what's underneath

8 there to be able to say anything.
9

14:14:59

MR. BRIDGES: Someone on your team redacted,

10 and I'd like an answer to that at our next break,
11 please.
12

MR. FEE: That's not going to happen.

13

MR. BRIDGES: Well, then we're going to

14:15:38

14 reserve the right to recall Mr. Grove back for further

Q. What material is blacked out at the top of

14:15:39

14:15:43

17
18

To the extent that would require you to

14:15:44
14:15:46

19 disclose any privileged information, I would instruct
20 you not to answer that.

14:15:47

14:15:49

THE WITNESS: And I don't know.

14:17:32

14:15:57

Q. So I have to say I'm curious as to why

17

14:17:40

MR. FEE: It doesn't appear that way to me

18 but...

14:17:52

Q. Mr. Grove, the underlying E-mails from Emily

14:16:05
25
Page 134

24

14:18:03

MR. FEE: Objection. Calls for speculation.
THE WITNESS: Yes.

14:16:13

1 BY MR. BRIDGES

2 Wendler are not within ASTM's organization; is that

14:16:14

2

5

THE WITNESS: Correct.

9

14:16:18

14:16:22

MR. FEE: Objection. Calls for a legal

14:16:28

14:16:32
14:16:36

13 Maureen Brodoff is an attorney and acts as an attorney

14:16:42

15 BY MR. BRIDGES:
16

14:16:38

14:16:46

Q. No. I'm asking did any of those three

17 persons, Ms. Brodoff, Ms. Carli, and Mr. Wendler act
18 as a lawyer for ASTM, to your knowledge?

14:16:48
14:16:51

19

MR. FEE: Same objections.

20

THE WITNESS: Not to my knowledge.

21 BY MR. BRIDGES:
22

14:16:54

Q. On July 21, 2011, was ASTM considering filing
MR. FEE: Objection. I instruct you not to

25 answer that question.

14:18:33

14:18:38

12

THE WITNESS: And I don't recall.

13

(Deposition Exhibit 1045 was marked for

14

identification.)

14:18:40
14:19:29

14:19:29
14:19:30

16

Q. Mr. Grove, have you seen Exhibit 1045 before?

17

A. I'm familiar with parts of the E-mail that I

18 was -- sent to me.

14:18:35

14:19:30

14:19:41

14:19:44

Q. You see in the middle Mr. Thomas sent a

14:19:46

20 message saying, "Dear exec members," and the

14:19:50

21 addressees of that E-mail are above the squiggly line

14:16:57

23 a lawsuit against Public Resource or Carl Malamud?
24

9 communications, I would instruct you not to answer.

19

14:16:56

14:18:28

14:18:31

15 BY MR. BRIDGES:

14:16:46

14:18:25

10 If you have an answer otherwise, you can go ahead and
11 answer.

THE WITNESS: My understanding is that

14 for ASME -- excuse me, for NFPA.

To the extent your answer to that question

14:18:22

14:18:25

7 would require you to disclose any communications in
8 anticipation of litigation or attorney-client

14:16:27

14:18:14

MR. FEE: Objection. Calls for speculation.

6
14:16:23

14:16:26

10 conclusion. Calls for speculation. Beyond the scope
12

14:18:12

4 would require a redaction in this case? Do you know?
5

14:16:23

Q. And none of them was an attorney for ASTM; is

11 of his designation.

14:18:12

Q. What would you put in a cover E-mail to

3 persons at other organizations in July 21, 2011 that

MR. FEE: Objection. Vague. Compound.

8 that correct?

14:18:05

14:18:08
Page 136

1 correct? Maureen Brodoff, Lorraine Carli and Joseph

4

14:17:57

14:18:00

23 United States; correct?

25 between you and people at three other organizations;

7

14:17:52

21 Bremer, she's someone we discussed earlier who worked

14:15:59

6 BY MR. BRIDGES:

14:17:42

14:17:47

19 BY MR. BRIDGES:

24 something was blacked out because this is an E-mail

14:16:18

14:17:34
14:17:37

22 for the administrative conference of the

14:15:57

14:17:33

15 question because this appears to be a wrongful

20

14:15:54

22 BY MR. BRIDGES:

14:17:32

16 redaction to me at first blush.

MR. FEE: Objection. Calls for speculation.

14:17:29

14:17:31

14:15:38

THE WITNESS: I do.

14 BY MR. BRIDGES:

3 correct?

14:17:24

14:17:26

14:15:15

13

14:17:17
14:17:19

14:15:38

(The witness reviewed Exhibit 1044.)

23

MR. BRIDGES: Can I get a representation from

7

14:14:58

12

21

14:17:16

6 litigation against Public Resource?

MR. BRIDGES: I'm handing you Exhibit 1044.

16 Page 1044?

14:17:13
14:17:15

5 counsel that this document was in anticipation of

14:14:13

(Deposition Exhibit 1044 was marked for

15

4

14:14:23

8

11

THE WITNESS: That would relate to -MR. FEE: I instruct you not to answer that

3 question.

14:14:09

7 magazine based on the name.

10

14:14:02

14:14:04

1
2

Q. Do you know who the author of that document

2 is?

14:19:53

14:16:57

22 in the middle of the page. Do you see that?

14:17:04

23

A. I do.

24

Q. Seeing that, do you understand what Mr. --

14:17:10

14:17:11

25 what the reference to "exec members" meant?
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14:20:00

14:20:03
14:20:04
14:20:08
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MR. FEE: Objection. Calls for speculation.

14:20:13

2

THE WITNESS: I'd speculate that he's

14:20:16

3 referring to members of our board of directors that
4 served on the executive committee.

14:20:22

5 BY MR. BRIDGES:
6

14:20:18

2 But anything else, you could disclose
3

14:22:47

14:22:50

THE WITNESS: That would fall outside of my

14:22:53

4 scope of government relations and would be more of a

14:20:26

Q. And do you recognize the names in the "To"

1 not to disclose that portion of your -- of the answer

5 legal issue

14:20:26

6 BY MR BRIDGES:

14:23:01

7 field of that E-mail in the middle of the page as

14:20:28

7

8 members of ASTM's board of directors?

14:20:32

8 not a government relations issue in that reference?

9
10

A. At that time, yes.

14:20:38

9

Q. And was Mary McKiel at the time on the board

11 of directors of ASTM?

14:20:40

14:20:43

12

A. Yes.

13

Q. Mr. Thomas referred in his E-mail to being

14:20:50

A. I see that.

17

14:20:54

14:20:58

Q. What is DIN?

MR. FEE: Objection. Calls for speculation.

THE WITNESS: I believe that that would refer

14:21:06
14:21:10

20 to the national standards body of Germany, known as
14:21:16

22 BY MR. BRIDGES:
23

14:21:12

Q. What interest does ASTM have in being

Q. If any.

6

A. I would -- I would think that that involves a

Q. Are you saying it refers to a DIN legal

14:21:46

12

Q. It does?

14:22:04

14

THE WITNESS: I'm just not certain.

14:22:06
14:22:09

14:22:11

Q. Are you aware that DIN has filed a lawsuit

14:23:53
14:23:58
14:24:05
14:24:09

14:24:14

6

MR FEE: Objection Calls for speculation

14:24:16

To the extent you have an understanding of

14:24:17
14:24:18

9 instructing you not to disclose those If you have an

14:24:21

14:22:13

Q. In your government relations role, what

14:22:19

20 understanding do you have about discussions of ASTM

16 deposition
17

19

14:22:29 20

14:22:35

14:22:40

To the extent your understanding is based

14:24:31

21

14:22:41

23

14:22:42

14:24:34

14:24:37

MR BRIDGES: I'll show you during a break
MR FEE: Okay Well, I --

14:24:38

14:24:41

MR BRIDGES: I'm not going to take

14:24:41
14:24:42

MR FEE: I think it's beyond the scope of

24 his deposition

25
14:22:45
Page 139

14:24:34

14:24:34

MR FEE: Which topic do you think this

22 deposition time to go through it

25 upon counsel -- legal counsel, I would instruct you

14:24:31

Q Well, I'm also asking you in your role as a

18 relates to?

14:22:24

21 with DIN regarding strategy as mentioned in this

14

14:24:24
14:24:27

14:24:30

13 BY MR BRIDGES:

15 representative of ASTM for purposes of this

14:22:11

17 against Mr. Malamud's organization?

24

Q Ms McKiel, at the top of the E-mail thread

2 says, "I believe the ASTM strategy to this point has

12 answer

MR. FEE: Objection. Calls for speculation.

MR. FEE: Objection.

Page 140

11 some idea what Ms McKiel is referencing here, you can

13

23

14:23:53

8 the strategy based on legal communications, I'm

14:22:03

15 BY MR. BRIDGES:

14:23:47

14:23:51

10 independent understanding of an ASTM strategy and have

A. It could.

14:23:45

7

14:22:00

11

22 E-mail?

14:23:41

THE WITNESS: To my knowledge, no Tom works

4 strategy" in the context of this E-mail thread, to

14:21:57

19

MR FEE: Objection Calls for speculation

3 proven best " What do you understand "the ASTM

14:21:54

A. I'm not aware of that.

14:23:36
14:23:39

1

14:21:33

14:21:48

18

14:23:30

20

5 have been?

7 legal issue. It's the only -- I'm not aware of

16

Q Does Mr O'Brien work in the field of

19 government relations apart from legal issues?

14:21:24 25 BY MR BRIDGES:
Page 138

14:21:42

8 consulting with DIN on strategy.

14:23:27

14:23:30

24 issues

14:21:42

5

10 issue?

18

14:23:18

23 on legal issues, and I work on government relations

14:21:39

4 BY MR. BRIDGES:

9

THE WITNESS: Our attorney, Tom O'Brien

22

14:21:31

MR. FEE: Objection. Calls for speculation.

3 Vague. Ambiguous.

MR FEE: Objection Calls for speculation

14:21:21

25 body of Germany regarding strategy and next steps in

2

14:23:14

14:23:16

14:21:18

24 involved in discussions with the national standards

1 relation to Carl Malamud?

Q Who else would be familiar with whether it is

14 a government relations issue?

21 It's beyond the scope of his designation as well

14:21:16

14:23:09

14:23:14

17 BY MR BRIDGES:

19

14:23:06

14:23:10

16

14:21:03

14:23:03

THE WITNESS: It's not a government relations

15

14:21:02

18

21 DIN.

13

14:23:01

MR FEE: Objection Calls for speculation

12 BY MR BRIDGES:

14 involved in discussions with DIN regarding strategy
16

Q Are you saying that this is a legal issue and

11 issue that I'm familiar with

14:20:46

15 and next steps. Do you see that?

10

14:22:55

14:22:57

14:24:44

14:24:46

But you can answer to the extent you know and

14:24:47

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2

14:24:48

THE WITNESS: I mean, once again, I'm not in

14:24:52

3 this communication chain between Jim and the executive
4 committee, and it's not a government relations issue
5 I'm working on.
7

14:24:56

14:25:00
14:25:03

14:25:06

THE WITNESS: I don't.

12

(Deposition Exhibit 1046 was marked for

13

identification.)

14

14:25:08

MR. BRIDGES: I'll show you Exhibit 1046.

14:25:10
14:25:58

Q. Have you seen this document before?

16

(The witness reviewed Exhibit 1046.)

17

THE WITNESS: So the world justice project,

14:26:03
14:26:25
14:26:25

18 the origination of the E-mail, which I received, yes,

14:26:27

19 I believe I reviewed that document. But from beyond
20 that point in the E-mail chain, I do not have

23
25

14:26:30

14:26:35
14:26:38

Q. Did you review this document in preparation

14:28:58

Q. So Mr. Thomas was lying in that statement?

10

MR. FEE: Objection. Mischaracterizes his

12

14:29:07

MR. BRIDGES: I'll withdraw it.

14:29:08

Q. You didn't answer my question, Mr. Grove.
A. Okay.

14:26:41

15

Q. My question is what do you understand to have

16 been the basis of Mr. Thomas' statement in that
17 sentence?

14:26:50

14:29:17

18

MR. FEE: Objection. Calls for speculation.

19

THE WITNESS: I wouldn't be able to answer

20 that. I apologize.

MR. FEE: Objection. Vague. Calls for

4 speculation.
5

14:27:01

THE WITNESS: Well, my understanding is that

14:27:15

14:27:19

8 BY MR. BRIDGES:

14:27:26

Q. Who is the Steele, S-t-e-e-l-e, that the

10 first line refers to?

14:27:13

14:29:24

14:27:26

14:29:30

MR. FEE: Objection. Vague.

14:29:32
Page 144

MR. FEE: Objection. Calls for speculation.

12

THE WITNESS: I would speculate that it would

14:27:32

13 be Rob Steele, who's the secretary general of ISO at

16

14:27:37

14:27:50

3 BY MR BRIDGES:

14:29:48

Q What other knowledge do you have other than

5 direct knowledge?

14:27:54

18 had a measurable impact on our finances." Do you see

6

MR FEE: Same objection

7

THE WITNESS: So to date, I'm aware, based on

14:29:52
14:29:53

14:29:57

9 publications, that the act of putting our standards

14:29:59

14:27:58

14:28:04

12 which has produced some harm to ASTM
13 BY MR BRIDGES:

14:30:25

Q The vice president of sales and publications

14:30:26

A That's correct

14:30:28

17

Q Tell me everything you remember about those

A Yesterday

20

Q Did you have any conversations before

14:28:05

21 yesterday on that topic?

22

A. January 2013. I'm not aware that we did an

14:28:14

22

A Not that I recall

23

Q When is the first time you learned of a drag

14:28:26

14:30:31

14:30:37

Q. Was that your understanding at the time?

Q. What do you understand to have been the basis

14:30:28

18 conversations When did you have those conversations?

A. I do see that.

14:28:20

14:30:25

16

21

23 analysis that I would be able to comment on based at

14:30:08
14:30:14

19

14:28:04

14:30:04

11 for ASTM, which has complicated business execution,

20

25

14:29:48

14:29:51

15 is John Pace; is that correct?

14:27:50

17 the sentence, "To date, all of Carl's posting have not

24 that point of time.

14:29:39

14:29:42

14

Q. On the third line of Mr. Thomas' E-mail is

19 that?

14:27:35

14:27:42

15 BY MR. BRIDGES:

THE WITNESS: Again, I don't have direct

10 into the public domain has caused a drag on revenue

11

14 this time.

14:29:24
14:29:27

8 conversations with our vice president for sales and

14:27:30

14:29:20

Q. When did ASTM first notice a measurable

2 knowledge of such impact

4

6 this mentions litigation and copyright. I would think

9

14:26:53 1
14:26:56

14:27:04

7 it would be legal counsel, Tom O'Brien.

14:29:17

14:29:20

23 impact on its finances from the activities of
25

Q. Who at ASTM would have the most knowledge

14:29:11
14:29:14

24 Mr. Malamud and Public Resource?

2 about the content on the front page of Exhibit 1046?
3

14:29:08

14:29:10

Page 142
1

14:29:02
14:29:07

14

22

14:26:44

A. I did not.

14:28:49
14:28:53

8 directly available from ASTM.

21 BY MR. BRIDGES:

14:26:41

24 to testify today?

14:28:44

13
14:25:59

15

22 BY MR. BRIDGES:

14:28:39

7 of our licensed distributors and outside of being

11 testimony.

14:25:58

21 recollection of being involved in this.

14:28:37

4 an impact and a drag on ASTM's revenues due to

9

MR. FEE: Objection. Calls for speculation.

11

THE WITNESS: I understand that there's been

6 that some of our standards are now available outside

14:25:00

8 that's mentioned in that E-mail to be a government
9 relations strategy?

14:28:35

MR. FEE: Objection. Calls for speculation.

5 confusion in business execution issues due to the fact

Q. So you did not interpret the ASTM strategy

10

14:28:32

2

14:24:52 3

14:24:59

6 BY MR. BRIDGES:

1 of Mr. Thomas' statement in that sentence?

14:30:43

14:30:45
14:30:49
14:30:54

24 on revenue for ASTM caused by either Mr Malamud or a
25 Public Resource? Was it yesterday?
14:28:30
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14:30:58

14:31:05

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A I wouldn't be able to give you a specific

1

14:31:16

2 date, but I understand that that's been the impact to
3 date just through communications and just generally

Q. Why not?

2

14:31:18

14:33:44

MR. FEE: Same objection. Calls for expert

3 testimony.

14:31:20

14:33:47

14:33:48

4 being a member of senior staff at ASTM

14:31:25

4

5

14:31:29

5 BY MR. BRIDGES:

14:33:52

6

Q. Why is it hard to quantify?

14:33:52

7

MR. FEE: Same objection.

8

THE WITNESS: You'd be speculating based on

Q When is the first time you learned of a drag

6 on revenue for ASTM caused by either Mr Malamud or a
7 Public Resource?
8

MR FEE: Objection Asked and answered

9 Vague
10

14:31:31

14:31:37
14:31:38

14:33:50

14:33:56

9 lost sales.

14:31:41

THE WITNESS: The first time I've learned of

11 it is probably in the last year

THE WITNESS: It's hard to quantify.

14:33:58

10 BY MR. BRIDGES:

14:31:53

11

14:31:54

14:33:57

14:34:00

Q. Okay. What's the evidence of lost sales?

14:34:00

12 BY MR BRIDGES:

14:31:58

12

MR. FEE: Same objection.

13

Q How did you learn of it?

14:31:58

13

THE WITNESS: So based on my conversation

14

A Well, I was aware that there was -- some

14 with John Pace, the time that's spent in executing

14:32:03

15 number of our standards have been put into the public

16 who are confused or misled to believe that these are

14:32:12

17 that this was beginning to have an impact on ASTM, and

14:34:06
14:34:08

15 business with customers and with members of the public

14:32:06

16 domain I've heard from -- reports from John Pace

14:34:03

14:32:18

17 the official ASTM standards that are available causes

18 I just can't recall exactly when that was and in what

14:32:24
14:32:27

19 to execute the types of distribution in sales

14:34:18

18 a drag in a time on him and his staff from being able

19 setting, but it was general knowledge at that point

14:34:27

14:34:31

20

Q "General knowledge"?

14:32:30

20 agreements that allow us to fund our enterprise.

21

A My general knowledge

14:32:31

21 BY MR. BRIDGES:

22

Q Who else had that general knowledge within

23 ASTM?

22

14:32:33

14:34:37

14:34:42

Q. It sounds as though what Mr. Pace described

14:34:42

23 to you was an investment of time dealing with members

14:32:35

24

MR FEE: Objection Vague

25

24 of the public who were confused or misled. Is that

THE WITNESS: I would assume Jim Thomas

14:32:36

25 one component of the harm that ASTM has suffered?

14:32:41

1 BY MR. BRIDGES:

14:32:47

2

Q. Who else?

3

A. I would assume Tom O'Brien.

4

Q. Who else?

5

A. I'd be purely speculating beyond that.

6

Q. Whom did you consult with to prepare yourself

1

14:32:47
14:32:49
14:32:52

10

14:33:00
14:33:03

14:33:06
14:33:08

THE WITNESS: As I stated earlier, John Pace.

14:33:10

14:33:15

12

Q. Anybody else?

13

A. Tom O'Brien was there, or has been involved.

14

Q. Did he furnish you information for your

15 testimony today?

14:33:16
14:33:18

14:33:20

A. No.

17

Q. Who else?

18

A. That would be it.

19

Q. How many dollars has ASTM lost because of the

22 testimony.
23

14:35:13

6

Q Well, what sales does ASTM believe did not

14:35:16

7 occur because of the activities of defendants in this

9

14:35:21
14:35:28

14:35:32
MR FEE: Objection Calls for expert

10 testimony

14:35:33

14:35:34

THE WITNESS: It's my understanding that

14:35:35

13 of the documents that have been put in the public

14:35:48

14:35:52

16 88,500 downloads of information that's in the public

14:33:22

14:35:55

17 domain would have been captured by ASTM under our

14:33:25

18 distribution and sales possibilities

20

14:33:34

14:36:06

14:36:11

14:33:31 19 BY MR BRIDGES:

14:33:33

14:35:38

14:35:43

14 domain, and my conversations with John Pace indicate
15 that it's reasonable to assume that some of those

14:33:21

MR. FEE: Objection. Calls for expert

A That might be one Correct

12 something like 88,500 accesses have been made to some

16

21

Q I'm just asking to explore the testimony

11

14:33:15

20 activities of defendants?

14:35:13

5

8 case?

MR. FEE: Objection. Asked and answered.

11 BY MR. BRIDGES:

14:35:09

3 BY MR BRIDGES:
4

14:32:57

14:36:14

Q What information does ASTM have about lost

14:36:14

14:33:39

21 sales apart from the number of accesses to the

14:36:17

22 defendant's website and to the Internet archive?

14:33:37

THE WITNESS: At this time, to my knowledge,

14:35:05
Page 148

14:35:08

2 testimony Mischaracterizes his testimony

7 for testimony today about the harms to ASTM from the
9

MR FEE: Objection Calls for expert

14:34:44

14:34:58

Page 146

8 defendant's activities?

14:34:12

14:34:15

14:36:21

23

MR FEE: Objection Asked and answered

24 we're not able to quantify the loss.

14:33:40

24 Subject of expert testimony

25 BY MR. BRIDGES:

14:33:44

25

Sorry Go ahead

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14:36:26

14:36:29
14:36:32

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THE WITNESS: I don't have anything

2 additional.
3 BY MR. BRIDGES:
4

14:36:33

14:36:35
14:36:36

Q. And you're here as a corporate representative

3

14:36:36

5 of ASTM to provide the information available to ASTM
6 on that topic; correct?
7

1 failed to perform the way that they expected them to.
2 BY MR. BRIDGES:
4

Q. What other harms?

14:36:37

14:39:12

MR. FEE: Same objections.

14:36:37 5

14:39:04

14:39:12
14:39:15

THE WITNESS: Well, I would be concerned -- I

MR. FEE: Objection. He's here to provide

14:39:21

14:36:39

7 life, and safety. I would certainly be concerned if

14:36:42

8 testimony regarding all the topics we identified

8 some of these documents that contain factual and other

9 earlier today. Of course, we'll have expert testimony

14:36:42

14:39:23
14:39:30

14:36:45

10 injury or loss of life because of the sensitive,

11

You can answer.

14:36:47

11 important role that our standards play in protecting

12

THE WITNESS: Yes.

14

14:36:50

12 people in society.

14:36:55

14:39:33

13 BY MR. BRIDGES:

Q. So I need to know every other fact you're

14:36:55

15 aware of that pertains to harms that ASTM has suffered
16 from the defendants. So, please, I'll take as much

14

14:39:45
14:39:47

THE WITNESS: I can't think of additional

14:37:08

17 harms at this time.

14:37:11

18 aware of that pertains to the harm that ASTM has

14:39:45

MR. FEE: Same objections.

16

14:39:37

14:39:40

Q. What other harms to ASTM?

14:36:57 15

14:37:06

17 time as we need. Tell me every other fact that you're

18 BY MR. BRIDGES:

14:39:58

14:40:00
14:40:05

19 suffered as a consequence of the defendants.

14:37:15

19

20

14:37:18

20 "I didn't buy the standard I was planning to buy

MR. FEE: Objection to form. Objection.

21 Calls for expert testimony. Objection to the extent
22 it calls for a narrative. Objection as to vague.

14:37:19
14:37:21

23 Now, we're talking about harms as opposed to financial
24 harms? That's how I understand the question.
25

Can you read that back just to make sure I

1 don't miss anything?

14:37:34

(Record read.)

3

MR. BRIDGES: I'm sorry. Why do we need

14:38:01

14:38:02

8

(Record read.)

9

MR. FEE: Objection to form.

24

THE WITNESS: I don't have knowledge of that.

14:40:16

14:38:02

Page 152

Q. Does anybody at ASTM have knowledge of that

14:40:22

14:40:24

3

MR. FEE: Objection. Calls for speculation.

4

MR. BRIDGES: I'm asking him as a corporate

14:40:27
14:40:31

14:40:32

6

MR. FEE: Same objection.

THE WITNESS: So based on my conversations

14:40:34
14:40:35

8 with John Pace, he -- it's my understanding that there

14:40:36

9 is this confusion with certain customers and certain

14:40:43

14:38:03 10 members of the public that has caused this inability

14:40:47

14:38:02

THE WITNESS: Well, ASTM is known globally

11 for the quality and technical excellence of its

14:40:20

14:40:22

7

14:38:02

MR. FEE: I think that's it. Okay.

10

14:38:02

14:40:10
14:40:13

23

5 representative.

MR. FEE: Oh, I don't want to hear the

7 objections.

22 Public Resource or the Internet archive"?

2 type of communication?
14:38:02

14:40:05

14:40:08

21 because I could find it for free on the Internet from

1

14:37:34

4 to -- just if you got objections, go ahead and state
6

Q. Has ASTM heard from any customers that said,

14:37:34
25 BY MR. BRIDGES:
Page 150

2

5 them.

14:37:28

14:37:30

14:39:25

9 errors contributed in any way to property damage,

10 on this subject as well.

13 BY MR. BRIDGES:

14:39:19

6 know the important role our standards play in health,

14:38:05

12 documents because we have a very robust standards

14:38:08

13 development and quality control process. My

14:38:14

14 understanding, and based on my direct knowledge of

14:38:19

11 to execute sales on a timely basis.

14:40:51

12 BY MR. BRIDGES:

14:40:54

13

Q. Well, what customers?

14:40:54

14

A. I'm not able to answer that at this time.

14:40:59

15 viewing certain documents that have been put in the

14:38:21

15

Q. What members of the public?

14:41:06

16 public domain, these documents contain errors. I've

14:38:22

16

A. I'm not able to answer that at this time.

14:41:09

17

Q. Did Mr. Pace put a dollar amount on his

17 seen standards where tables have been upside down.

14:38:29

18 I've seen tables and columns and rows that don't align
19 properly.
20

14:38:34

14:38:39

So if there's a real risk to ASTM's

19 the defendants' actions?

14:38:41

21 reputation and to ASTM's standing in the global

20

14:38:44

MR. FEE: Objection to the extent that calls

14:38:48

22

23 stakeholders utilize these documents with the

14:38:52

23 no.

14:38:58

25 official ASTM documents, and products and materials

14:41:25

14:41:26

THE WITNESS: In my communications with him,

14:41:29

14:41:31

24 BY MR. BRIDGES:

14:39:00 25
Page 151

14:41:19

14:41:23

21 for expert testimony.

22 economy, if customers or the public or other
24 expectation and understanding that these were the

14:41:17

18 estimate of lost revenues to ASTM as a consequence of

14:41:33

Q. As a representative of ASTM at this

14:41:33
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1 deposition, does ASTM have any estimate of the dollar

14:41:37

3 defendants' actions?
4

14:41:42

14:41:45

MR. FEE: Objection. Calls for expert

14:41:46

5 testimony. Let me see if that's really a topic that
6 he's been designated on.

14:41:48

MR. BRIDGES: He may answer.

14:41:59

8

MR. FEE: Hold on. I'm waiting to see if

14:42:00

9 that's actually a topic he's been designated on.

14:42:01

MR. BRIDGES: Make the objections, and if

14:42:08

11 it's superfluous and he hasn't been designated on.

14:42:11

12 I'd like to go ahead and get an answer.
13

14:42:11

MR. FEE: No. If you want to take off the

14:42:12

14 prelude to your question there, then I'm happy to have

14:42:14

15 his answer without the prelude, but if you're going to
16 have -17
18

Q. Does ASTM have any estimate of the dollar

14:42:17

23

14:42:23
14:42:25

THE WITNESS: Not to my knowledge.

14:42:27
14:42:30

Q. Does ASTM have any facts in its possession

5

14:42:39

MR. FEE: Objection. Asked and answered.

7

THE WITNESS: Not that I'm aware of.

14:42:57

9 defendants' actions?

Go ahead

14:44:11

THE WITNESS: I'm not sure, no

14:44:12

7 BY MR BRIDGES:
8
9
10

14:44:13

Q Was it more than three years ago?

14:44:13

MR FEE: Same objections

14:44:16

THE WITNESS: I'm not sure

14:44:17

11 BY MR BRIDGES:
12

14:44:18

Q Was it more than two weeks ago?

13

MR FEE: Same objection

14

14:44:18

THE WITNESS: I'm not sure

14:44:21
14:44:22

15 BY MR BRIDGES:

14:44:23

Q Do you know whether ASTM had any knowledge of

17 errors in connection with defendants posting of ASTM
18 standards more than a week ago?
19

21

14:44:31

MR FEE: Same objection -- objections, I

14:44:35

14:44:36

THE WITNESS: More than a week ago, I believe

14:44:40

Q When did you first learn of any errors in

14:44:40

14:43:17

Page 156

A. I first learned of it by hearing of it in the
Q. How many standards posted by defendants

4 contain errors?
5

14:44:51
14:44:53

7

MR. FEE: Objection. Beyond the scope of his

14:45:03
14:45:10
14:45:14

10 significant errors.

14:43:22

14:45:21
14:45:28

12

Q. What are the significant ones?

14:45:28

A. To industries that rely on quality

14:45:30

13

14

14:43:26

14 information, yes, I would say so.

18

14:43:27

MR. FEE: Objection. Asked and answered.

24 BY MR. BRIDGES:
25

Q. Was it more than a year ago?

14:45:38

17 correctly, the variables, it is displaying false

14:45:42

14:43:55
14:43:57

14:43:58
14:44:00
14:44:02

14:45:34

18 information. That seems like that could be an error.
19

Q. How long ago was it, to your best estimate?

THE WITNESS: I'm not certain.

A. Well, if a table and a chart don't align

14:43:53

21
23

Q. Tell me some of the most significant ones.

16

14:43:51

20

22 Calls for speculation.

15

14:43:36

A. I'm just not able to give you a time line.

19 I'm not certain.

14:45:32

14:43:31

When did ASTM first become aware of any

16 errors in connection with the posting of ASTM
17 standards by the defendant?

14:45:08

8 would be extremely difficult to do a complete

14:43:26

15

14:45:01

THE WITNESS: My understanding is that it

13 BY MR. BRIDGES:
Q. When did you first -- sorry.

14:44:56

14:45:00

11 BY MR. BRIDGES:

14:43:19

THE WITNESS: Fortunately, not at this time.

14:44:46

2 last year. I first viewed it yesterday.
3

14:44:38

14:44:39

23 BY MR BRIDGES:

1

14:44:23

14:44:26

9 analysis, but based on quick analysis, we found

14:43:15

11 testimony and speculation.
12

14:43:05

14:43:10

MR. FEE: Objection. Calls for expert

14:44:10

5

6 designation. Calls for speculation.

14:43:05

Q. Is ASTM aware of any property damage, injury,

8 or loss of life that has occurred because of the
10

14:42:50

14:42:51

6 BY MR. BRIDGES:

4 designation as well

24

14:42:46

4 Calls for expert testimony. Vague.

14:44:08

14:42:30
25 defendants' posting of ASTM standards?
Page 154

1 that suggest to ASTM that it has lost money as a
3

14:44:08

MR FEE: It's beyond the scope his

22 so, yes

2 consequence of defendants' actions?

14:44:04

20 should say

14:42:26

24 BY MR. BRIDGES:
25

14:42:20

MR. FEE: Objection. Calls for expert

22 testimony.

THE WITNESS: I'm not sure

16

14:42:16

19 amount of lost revenues to it as a consequence of
21

14:42:16

14:42:16

MR. BRIDGES: Okay. Sure.

20 defendants' actions?

MR FEE: Same objections

2

6

14:41:52

7

10

1

3

2 amount of lost revenues to it as a consequence of the

Q. What other errors are really significant in

20 your mind?

14:45:52

21

A. I'm not certain.

22

Q. Can you think of any other significant errors

14:45:53

23 in defendants posting of standards?
24

14:45:54

14:45:56

MR. FEE: Objection. This is beyond the

25 scope of his designation.
14:44:02
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14:45:44

14:45:49

14:45:58

14:45:59
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1

But go ahead.

2

THE WITNESS: A table or chart appearing

14:46:00

1

4 reading it or displaying it, that's significant to me.
Q. That's a significant error?

7

A. Yes.

8

Q. Is that error going to lead to death or

14:46:05

14:46:14

14:48:33

11 will immediately make any changes that ASTM calls to

14:46:32

Q. And is ASTM really concerned about death or

14:46:36
14:46:41
14:46:42
14:46:56

14:46:58

Q. Are you really concerned about it?
MR. FEE: Objection. Asked and answered.
THE WITNESS: Yes.

A. Thank you.

14

Q. Is that clear to you?

15

14:48:43
14:48:44

THE WITNESS: Yes.

14:48:45
14:48:48

17 BY MR. BRIDGES:

14:48:50

Q. Do you think that Public Resource has an

14:46:59

MR. FEE: Objection.

14:48:52

22 BY MR. BRIDGES:

14:49:02

14:47:02

23

Q. Is that ASTM's view of Public Resource?

24

MR. FEE: Objection. Form. Calls for

14:47:02

14:48:57

14:49:01

14:47:02

Q. Does it frighten you?

14:48:50

19 interest in posting standards to the Internet in a way
21

14:49:02
14:49:06

25 speculation. Beyond the scope of his designation.

14:49:08
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1

MR. FEE: Objection. Asked and answered.

2

THE WITNESS: Frighten? It could.

3 BY MR. BRIDGES:
4

14:47:05
14:47:10

14:47:17

Q. Did it frighten you so much to ensure that

14:47:20

6 immediate correction to preserve life and safety of
7 property?
8

14:47:23

14:47:26

5 BY MR. BRIDGES:
6

MR. FEE: Objection. Beyond the scope of his

14:47:27
14:47:29

9
10

11

THE WITNESS: No.

14:47:38

11

12

MR. FEE: You can consider this notice now.

14:47:40

13 You guys should check all of your standards that were

14:47:42

14 reproduced and make sure they're correct because it

18

14:49:19
14:49:22

Q. And what steps do you know of that ASTM has

14:47:45

14:47:48
14:47:50

14:47:51

MR. FEE: Objection. Calls for speculation.

16

14:47:52
14:47:54

20 are important standards, you've now heard. You're now

14:48:01

23

MR. BRIDGES: You know something? We will.

24

MR. FEE: I bet you will.

25

MR. BRIDGES: And that's a really good point.

14:48:07

14:49:43
14:49:47

14:49:49
14:49:59

Q. Does ASTM ever make any errors in its

14:49:59

14:50:03

MR. FEE: Objection. Beyond the scope of his

19 designation. Calls for speculation.

14:47:56 20

14:47:59

22 should go back and make sure they're actually right.

18

14:49:41

14:49:44

THE WITNESS: It's a legal matter. So I'd

14 refer to counsel.

17 standards?

19 about that from the deposition of Mr. Malamud, these
21 on notice, if you weren't on notice before, that you

Q. Who would know the most about that at ASTM?

12 Beyond the scope of his designation.
13

14:49:32

14:49:38

15 BY MR. BRIDGES:

MR. BRIDGES: I'm sorry. Are you becoming a
MR. FEE: No. No. In case you weren't clear

A. I'm not certain.

14:49:22

14:49:26

8 Resource of errors in its transcription of standards?

14:47:32

17 witness now?

14:49:11

14:49:16

4 there's a deliberate attempt to harm the public.

10 not that actually has happened.

16

14:49:11

7 taken to protect the public by notifying Public

9 designation. Calls for speculation as to whether or

15 may be dangerous.

THE WITNESS: I'd be concerned about

2 unintended consequences of posting documents that
3 aren't technically correct. I don't believe that

14:47:17

5 somebody notified defendant that these errors needed

1

14:48:35

14:48:39

MR. FEE: Objection. Vague.

18

14:48:33

20 that will cause death and injury and loss of property?

14:46:58

23

12 its attention. Is that clear to you?

16

MR. FEE: Objection. Vague. Beyond the
THE WITNESS: I'm concerned about it.

Q. Because I commit to you that Public Resource

13
14:46:32

14:46:39

24 BY MR. BRIDGES:

14:48:32

10

14:46:21

22

25

THE WITNESS: Not to my knowledge, no.

14:46:16

18 scope of his designation. Calls for speculation.

21

14:48:27
14:48:28

14:46:18

THE WITNESS: I don't know.

20 BY MR. BRIDGES:

MR. FEE: Objection. Calls for speculation.

9 BY MR. BRIDGES:

MR. FEE: Objection. Calls for speculation.

16 posting of standards?

19

8

14:48:23

14:48:26

7 Beyond the scope of his designation.

15 injury to property resulting from the defendants
17

6

14:46:12

13 BY MR. BRIDGES:
14

4 of the errors in any place so that it can act on them
5 right away?

14:46:11

11 Beyond the scope of his designation as well.
12

14:48:20

14:46:12

9 injury to property?
10

14:48:17

3 know them as soon as possible? Has ASTM collected all

14:46:11

6

14:48:14

2 because Mr. Malamud in Public Resource would like to

14:46:03

3 upside down. If someone is flipping through and
5 BY MR. BRIDGES:

Q. Where has ASTM collected all of the errors

14:46:02

14:50:03

14:50:04

THE WITNESS: I'm aware that ASTM has a very

14:50:09

21 rigorous quality control process. I'm not aware of

14:50:11

22 any errors, but it wouldn't surprise me to hear that

14:50:15

14:48:06 23 there might be one.
24 BY MR. BRIDGES:
14:48:09
25
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14:50:18
14:50:19

Q. One? Would it surprise you if there were

14:50:20
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1 more than one error in the ASTM standards?
2
3

14:50:24

MR. FEE: Same objections.

14:50:28

THE WITNESS: I'd be speculating.

5

14:50:34

Q. Well, you have testified as to what would

7 you.

14:50:34

14:50:35

14:53:08

Q. Does ASTM ever issue corrigenda to its

5 standards?
6

MR. FEE: Same objections.

14:50:37

9

THE WITNESS: I'm aware of ASTM's rigorous

10 quality control process and the value of bringing

8
14:50:37

14:50:40

11 people together under an open, transparent process and

14:50:42

14:53:08

14:53:13

MR. FEE: Objection. Vague. Beyond the

7 scope of his designation.

8

14:53:14

14:53:15

THE WITNESS: I'm not certain.

14:53:20

9 BY MR. BRIDGES:
10

14:53:21

Q. Does ASTM ever issue a notice of errors in

11 any of its standards?

14:53:21

14:53:28

12 the important role that ASTM staff plays in helping to

14:50:47

12

MR. FEE: Same objections.

13 ensure the quality of our documents. And I would be

14:50:49

13

THE WITNESS: I'm not certain.

14 skeptical that that could be replicated if any steps
15 were bypassed. So --

14:50:59

16 BY MR. BRIDGES:
17

14:50:54

Q. Would it surprise you for an ASTM standard to

18 have three or more errors in it?
MR. FEE: Same objections.

20

THE WITNESS: Would it surprise me? Yes.

22

14:51:19

25 second to object.

14:53:37
14:53:40

14:51:23

14:53:45

20 It's beyond the scope of his designation, and
22

14:53:47

14:53:50

THE WITNESS: I'm not able to explain that

23 process.
14:51:21

14:53:42

MR. FEE: Objection. Calls for speculation.

21 compound.
14:51:16

MR. FEE: Same objections. Just give me a

14:53:34

17 and then discovers that there is a mistake in the
19

14:51:13

Q. Are you aware of any ASTM standards with

Q. What happens if ASTM publishes and

18 standard? How does ASTM notify the public?

14:51:16

23 three or more errors?
24

14:51:03

14:51:08

21 BY MR. BRIDGES:

14:53:32
14:53:34

16 distributes a standard that's widely held by persons

14:51:05

19

14:53:31

14 BY MR. BRIDGES:
15

14:51:03

14:53:06

14:53:07

3 BY MR. BRIDGES:
4

14:50:34

6 surprise you. I'd like to know what would surprise

THE WITNESS: I'm not familiar with the term

2 "errata."

14:50:31

4 BY MR. BRIDGES:

1

14:53:53

24 BY MR. BRIDGES:
25

14:53:52

14:53:55

Q. Would it harm ASTM's reputation to issue a

14:53:55
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Page 162
1

THE WITNESS: I'm not personally, no

2 BY MR BRIDGES:
3

14:51:25

2

Q Are you aware of how ASTM standards are

4 proofread?
5

14:51:27

THE WITNESS: Yes, generally

4

14:51:47

Q How?

9

A There's a rigorous process under which at

11 there's peer review of the standard and of the

8
14:51:54
14:51:58

14 steps, at the end there's an editor, an ASTM staff
15 that reviews the standard and insures that the

14:54:09

14:54:15

MR FEE: Objection Calls for expert

14:54:24

14:54:25

THE WITNESS: I'm not certain

14:54:28
14:54:29

Q Have you noticed an effect on ASTM's

14:54:29

13 reputation as a consequence of the defendants'

14:54:32

14:54:35

15

14:52:26

14:52:29

A I have not

16

Q What instances is ASTM aware of, of people

14:54:37
14:54:44

17 being confused about the relationship between ASTM and

Q And do ASTM editors catch every mistake?

19

MR FEE: Objection Calls for speculation

20

THE WITNESS: I'm not aware of errors, but it

21 wouldn't surprise me if there were some

Q How has ASTM's reputation suffered from the

14 activities?

14:52:21

18

14:52:32

18 the defendant?

14:52:36

19

14:52:44

21

14:52:49

Q Does ASTM ever issue errata to its standards?

24

MR FEE: Objection Vague I think that's

14:52:49

23 BY MR BRIDGES:

14:52:55

14:54:59

14:55 02

THE WITNESS: Based on communications with

22 our sales and publications vice president

14:55:09

Q What did those communications convey to you?

25

A That there was some level of confusion in the

Page 163

14:55:04

14:55:06

24

14:52:59

14:54:50

14:54:57

MR FEE: Objection Vague Asked and

20 answered

14:52:47

23

25 also beyond the scope of his designation

12

14:52:09

14:52:13

16 document purports to be what the committee intended it

14:54:09

11 BY MR BRIDGES:

14:52:05

13 works through the ASTM process, which involves many

22 BY MR BRIDGES:

10

14:54:01

14:54:07

9 testimony

14:52:00

12 document, and as it goes through the process, as it

THE WITNESS: I'm not certain

7 activities of the defendants?

14:51:53

10 every point in the standards development process

17 for -- for it to be

6

14:51:53

8

14:53:59

5 BY MR BRIDGES:

14:51:51

7 BY MR BRIDGES:

14:53:58

MR FEE: Objection Calls for expert

3 testimony It's beyond the scope of his designation

14:51:44

MR FEE: Objection Vague

6

1 standard with mistakes?

14:51:27

14:55:09

14:55:14

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1 marketplace which was impacting business execution.
2
3

14:55:18

Q. What was the confusion in the marketplace?

14:55:26

A. Potential customers thought they would no

14:55:32

4 longer need to access documents through ASTM if they
5 were provided at a different place.
6

MR. FEE: Objection. Asked and answered.

8

THE WITNESS: I don't know.

14:55:49
14:55:51

9 BY MR. BRIDGES:
10

14:55:59

Q. Is it -- did Mr. Pace identify them to you

11 and you've forgotten them?

14:56:02

A. I don't recall. I don't think so.

13

Q. Do you recall Mr. Pace identifying any of

14:56:10

MR. FEE: Objection. Asked and answered.

16

THE WITNESS: I don't recall.

18

14:56:19

14:56:22

Q. Did Mr. Pace tell you how many potential

19 customers had that experience?
A. No.

21

14:56:23

Q. Did Mr. Pace explain to you any

14:56:30
14:56:34

25

THE WITNESS: No.

14:58:30

8 may contain errors, or it may be a different version

14:58:35

10

14:58:40

Q. What harm -- explain to me, please, the facts

14:59:04
14:59:11
14:59:22

13 of an ASTM standard and it is posted to the Internet
15

14:59:30

14:59:37

MR. FEE: Objection. May call for expert

16 testimony. To form as well.
Go ahead.

14:59:39

14:59:41
14:59:44

18 BY MR. BRIDGES:

14:59:48

Q. And to be clear, I want to know what harm

14:59:48
14:59:49

21 older version that Public Resource has posted.

14:59:53

14:56:40

MR. FEE: Same objections.

THE WITNESS: Well, by going to a source

15:00:00

24 other than ASTM for a document such as this that

14:56:37

22
23

14:56:36

MR. FEE: Objection to form.

14:58:28

20 ASTM suffers from the presence of the logo on that

22 characteristics of the potential customers who had
24

14:58:24

7 official ASTM standard when, in fact, it may not be,

19

14:56:30

23 that experience?

A. It creates the impression that this is the

17

14:56:25

20

6

14 by Public Resource.

14:56:21

17 BY MR. BRIDGES:

14:58:24

Q. What harm does it cause?

12 logo is on an older version than the current version

14:56:17

15

14:58:22

11 of the kinds of harm that ASTM suffers if the ASTM

14:56:08

14 those potential customers?

THE WITNESS: Yes.

9 than the version that ASTM is currently maintained.

14:55:59

12

3

14:58:15

14:58:17

5

14:55:46

7

MR. FEE: Objection. Calls for expert

2 testimony. Vague.

14:55:38 4 BY MR. BRIDGES:

14:55:43

Q. Who were those "potential customers"?

1

14:59:57
15:00:01

25 contains ASTM's logo, I would be concerned that the

15:00:05
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1 BY MR BRIDGES:
2

3 of the potential customers who had that experience?
4

MR FEE: Objection to form

5

THE WITNESS: No

14:56:43

3 hazards in the marketplace or state of the artistry

10

A No

11

6

11

15 different place Apart from that, what other

17 the marketplace that impacted business execution?

THE WITNESS: I can't think of any at the

15:01:00

Q. Do you understand that it is Public

15:01:00

19

15:01:01

15:01:04

MR. FEE: Objection. Lack of foundation.

18 Calls for speculation.

14:57:40

15:01:06

15:01:08

THE WITNESS: Based on the documents I've

15:01:14

20 seen that have been posted, it's my understanding that
21 they have been incorporated by reference, yes.

14:57:52

22 BY MR. BRIDGES:

14:57:52

23

14:57:57

24 Public Resource cause any harm to ASTM from ASTM's
25 knowledge?

17

14:57:29

14:57:41

Q Does the presence of the ASTM logo and

15:00:55

15:00:59

16 incorporated by reference?

14:57:25

14:57:33

23 trademarks on documents posted to the Internet by

THE WITNESS: I don't fully understand the

15 Resource's practice to post standards only if they are

14:57:21

16 confusion are you aware of, or is ASTM aware of, in

22

14

15:00:45

15:00:48

13 BY MR. BRIDGES:

14:57:15
14:57:18

15:00:43

MR. FEE: Objection. Calls for speculation

12 strategy.

14:57:13

14 through ASTM if they were provided with it at a

21 BY MR BRIDGES:

15:00:38

10 as to Public Resource's intention.

13 that they would no longer need to access documents

19

15:00:34

9

14:57:05

MR FEE: Objection to form

Q. Do you understand that Public Resource

8 standards that have been incorporated by reference?

14:56:55

14:57:04

18

15:00:34

7 intends to post to the Internet only those ASTM

14:56:52

You mentioned potential customers thought

15:00:18

15:00:21

15:00:24

5 BY MR. BRIDGES:

14:57:00

Q Are you aware -- strike that

20 moment

4 practice that needs to be captured.

14:56:52

Q Are you aware of any documents in ASTM's

9 had that experience?

12

2 standard which may have been revised to address new

14:56:46

8 possession that identify the potential customers who

15:00:15

14:56:41

14:56:49

6 BY MR BRIDGES:
7

1 public isn't accessing the most recent version of a

14:56:41

Q Did Mr Pace give you any kind of description

14:58:06

15:01:16
15:01:18

15:01:21

Q. Is it misleading, in your view, to provide to

24 the public an older version of a standard -- of an

15:01:21
15:01:25

25 ASTM standard where that older version is incorporated

14:58:15

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15:01:43
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1 by reference?
2

3 not that older version is authentic.
4

15:01:48

15:01:51

THE WITNESS: Yeah. I'm sorry. Could you

5 just repeat that?

15:01:54

15:01:57

9 where the older version has been incorporated by

15:02:07

15:02:09

MR. FEE: Same objection as to the vagueness.

THE WITNESS: My concern would be that to get

15:02:11

7 this.
9

15:04:41

15:04:41
15:04:43

15:04:47
15:04:49

Q. Would it harm ASTM less if defendant took the

11 posts?

15:02:16 12

13 the most recent version of any document, you more than

15:02:27

15:04:58
15:04:59

15:05:01

15:02:32

Q. But if somebody is interested in, let's say,

14

MR. BRIDGES: I'd like to know what ASTM --

15

15:02:31

MR. FEE: Calls for an expert opinion,

16 perhaps, as well.

15:02:32

15:04:49

15:04:53

MR. FEE: Objection. Calls for speculation,

15:02:19 13 and a hypothetical.

14 likely need to come to ASTM or one of our licensed

17

MR. FEE: That's absolutely false. You

10 ASTM logo off the standards that it -- sorry, that it

12

16 BY MR. BRIDGES:

4 into your answer until you heard counsel's objection.

15:02:01 8 BY MR. BRIDGES:

11

15 distributors.

15:04:38

6 should read the transcript when you get done with

15:01:57

8 ASTM logo on an older version of an ASTM standard
10 reference?

15:04:38

Q. The authenticity of the standard didn't come

5

Q. Is it misleading, in your view, to have the

15:04:36

2 BY MR. BRIDGES:
3

15:01:55

6 BY MR. BRIDGES:
7

1 than the dated issue.

15:01:47

MR. FEE: Objection. Vague as to whether or

17

15:05:05

15:05:08

15:05:09

THE WITNESS: I'm not able to answer that

15:05:10

18 a 2008 standard because the 2008 standard has been

15:02:39

18 question.

19 incorporated by reference but a more recent standard

15:02:42

19 BY MR. BRIDGES:

20 has not been, what is the harm to ASTM from the

15:02:44

20

21 inclusion of the ASTM logo on that 2008 standard

15:02:49

21 problematic -- I'm just curious. Which would you find

22 posted by Public Resource?

15:02:55

23

MR. FEE: Objection. Calls for speculation.

24

THE WITNESS: Since I'm not an attorney and

1 between regulations and law, I will share my
2 observation --

15:03:01

15:03:09

Q. Please do.

5

A. -- that just because a version of a standard

15:03:18

7 to stop industry from wanting to use the most recent

15:03:26

15:03:30

Q. And is it ASTM's view that it's misleading to

11 available -- strike that.
12

15:03:39

15:03:43

Is it ASTM's view that it is misleading to

15:03:48

14 on the Internet when the standards are not the most
16

15:04:09

17 using "misleading" as a legal term, I object on that

15:04:13
15:04:15

19 because it's not clear whether or not the standards
21
23

15:04:18
15:04:21

MR. BRIDGES: That's coaching the witness,

22 Mr. Fee.

15:04:23

15:04:24
15:04:25

15:04:26

25 authenticity of the standard as much as the -- more

15:05:37
15:05:41
Page 172

15:05:56

15:06:02
15:06:03

15:06:06

MR BRIDGES: Just please state the basis for

7 your objection instead of --

15:06:08

15:06:10

MR FEE: Andrew, do you forget how your

15:06:11

9 deposition objections went? Do you remember your

15:06:12

10 deposition objections the other day? They were much

15:06:14

12

14

15:06:16

MR BRIDGES: Not so

15:06:18

MR FEE: I'm going to make my objections
To the extent you're asking for a legal

16 that basis I object because it calls for

15:06:19

15:06:21

18 BY MR BRIDGES:
19
20

Q You may answer

15:06:35
15:06:36

15:06:38

THE WITNESS: And I'm not able to answer that

23 question
24 BY MR BRIDGES:

25
15:04:31
Page 171

15:06:28
15:06:35

MR FEE: Hold on I'm not done objecting

21 yet And objection to form

15:06:22

15:06:25

17 speculation, and it's a hypothetical question

22

THE WITNESS: Well, that's exactly the point

24 I thought I was making. I don't -- it's the

6

15:05:21

15:05:49

15 conclusion with respect to "problematic," I object on

15:04:11

18 ground. I also object to the vagueness of that

5 a legal perspective --

15:03:54 13

15:04:03

MR. FEE: Objection. To the extent you're

20 you're referencing are authentic or not.

MR FEE: Objection To the extent that

11 more talkative than this

13 display the ASTM logo on standards currently available
15 recent versions?

1 ASTM standards it posts with the ASTM logo or for

8

15:03:35

10 have the ASTM logo on anything that's currently

15:05:18

15:05:27

What would ASTM, in your view, find to be

4 you're asking for what would be more problematic from

15:03:15

6 that's in the law might be outdated, that doesn't seem

9

24

3

15:03:14

8 version of the standard.

23 to public -- strike that.

2 Public Resource to publish them without the ASTM logo?

15:03:14

4

15:05:14

15:03:04
25 more of a problem, for Public Resource to post the
Page 170

15:03:12

3 BY MR. BRIDGES:

15:05:14

Q. Would ASTM -- well, would you find it

22 to be more of a problem to ASTM, for Public Resource

15:02:58

25 I'm not familiar with the regulatory -- the connection

15:05:12

15:06:49

15:06:50
15:06:53

Q In your position at ASTM, does it make a

15:06:53

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1 difference to you whether the ASTM logo is or is not

15:06:58

1 the presence of the ASTM logo and trademarks on the

2 on the standards, the ASTM standards that defendant

15:07:04

2 ASTM standards that defendant has posted to the

3 has posted to the Internet?
4

15:07:10

3 Internet harms ASTM?

MR. FEE: Are you asking him personally now

5 for his opinion?

15:07:13

15:07:14

6

MR. FEE: Then it's beyond the scope of his

15:07:15
15:07:18

8 designation. I object on that basis. All the other
9 objections as last time, as well.
10

15:07:19

15:07:22

And to the extent that your position is based

15:07:26

12 anything based on legal counsel. If you have an

15:07:29

13 answer still, you can go ahead and answer.

16

15:07:33

THE WITNESS: My position would be based on

15 legal counsel.

MR. BRIDGES: There's a misunderstanding. I

15:07:41

15:07:47
15:07:47

20 difference to you whether the ASTM logo is or is not

15:07:49

21 on the ASTM standards the defendant has posted to the
23

15:09:42

8 on business execution

I'd also like to notice we've been going for

15:09:53

10 over an hour So at an appropriate time
11

15:09:56

MR BRIDGES: We can take a break if you

12 want We can do it now
13

15:10:02

15:10:02

THE WITNESS: All right

15:10:06

THE VIDEOGRAPHER: We're going off the record

(A recess was taken from 3:09 p m

17

to 3:26 p m )

THE VIDEOGRAPHER: Back on the record at

19 3:26 p m

15:26:01
15:26 01

15:07:57

20 BY MR BRIDGES:

15:26:07

Q Mr Grove, let me direct your attention back

15:07:59

25 difference to you is based upon your understanding

15:26:15

15:08:03
25 around the time of that document or before the
Page 174
15:08:05

15:26:07
15:26:10

23 redacted band across the top Does this document

24 and to the extent whether or not something makes a

1 from legal counsel, I would instruct you not to

15:26:02

15:26:05

22 to Exhibit 1044 for a minute It's one with the

MR. FEE: I'll make all the same objections,

15:10 07

15:10:08

16

15:07:52 21

15:07:55

2 disclose at least that difference.

15:09:45

15:09:48

18

15:07:44

Q. In your position at ASTM, does it make a

22 Internet?

15:09:35

15 09:37

THE WITNESS: It creates the perception,

15 at 15:09

17 wasn't asking what your position was. I said, "in
19

MR FEE: Objection Asked and answered

7 problem that's been identified by John Pace as a drag

15:07:36 14

15:07:37

18 your position."

6

9

15:07:23

11 on legal counsel, I would instruct you not to disclose

14

15:09:30

5 Calls for expert testimony

MR. BRIDGES: In his position at ASTM.

7

4

15:09:22
15:09:26

24 refresh your recollection as to whether, roughly,

15:26:22
15:26:24

Page 176

1 document you had received a notice internally to

15:26:25

2 preserve all documents for litigation in this case?

15:08:11

3

If you have some other difference --

3

A. No, it does not.

4

THE WITNESS: I don't. This gets into an

15:08:15

4

Q. Did you ever receive such a notice to hold

5 area of legal matters that I don't have an opinion.

15:08:16

5 documents for litigation?

15:26:30

15:08:13

6 BY MR. BRIDGES:
7

6

15:08:20

Q. Well, I'm not asking for legal positions.

15:08:20

15:26:36

MR. FEE: Hold on a second. Actually, if

15:26:44

7 you'll agree that that's not a waiver of anything,

15:26:46

8 I'm not asking for legal theories. I'm asking for the

15:08:22

8 I'll let him answer that.

9 facts that are available to you. What facts are you

15:08:24

9

15:26:49

MR. BRIDGES: Correct.

10 aware of that suggests that the presence of the ASTM

15:08:28

10

11 logo and trademarks on the ASTM standards that

15:08:35

15:26:51

11 more time? I got lost.

12 defendant has posted to the Internet -13

A. Uh-huh.

14

15:08:44

Q. -- harms ASTM?

15
17

15:08:51

15:08:54

THE WITNESS: I believe I answered the

15:26:54

15:26:56
15:26:57

Q. Did you ever receive such a notice to hold

15:26:57

14 documents for this litigation?

15:08:49

MR. FEE: Objection. Asked and answered.

16 Calls for expert testimony.

THE WITNESS: Can you just restate that one

12 BY MR. BRIDGES:
13

15:08:49

15:26:37

15:26:43

15:08:58

15:26:59

15

A. Could you define "hold."

15:27:01

16

Q. To preserve documents against disposal or

15:27:03

17 destruction for the purposes of this litigation.

15:27:05

18 question to the best of my ability.

15:08:59

18

A. Yes.

19 BY MR. BRIDGES:

15:09:04

19

Q. Do you know when you received that notice?

20

A. I don't recall.

21

Q. Do you know how long ago it was?

22

A. I don't recall specifically, no.

23

Q. Do you recall what year it was?

24

A. Fall of 2013.

20

Q. I'm asking you -- I asked different questions

21 earlier. I'm asking for what the facts are that
22 you're aware of now.
23

15:09:10

MR. FEE: Hold on. Is that a new question?

24 BY MR. BRIDGES:
25

15:09:04
15:09:07
15:09:17

15:09:19

Q. What facts are you aware of that suggest that

25
15:09:19
Page 175

15:27:08
15:27:09

15:27:12
15:27:13
15:27:20
15:27:21
15:27:29

Q. Okay. Were you aware of the filing of this

15:27:32
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1 lawsuit being pushed back several months from its
2 originally intended timing?

15:27:38

3

MR. FEE: Objection.

15:27:43

4

To the extent that it would require you to

1

A. We did, in January of 2013.

2

15:27:40

Q. And what do you mean by "going live" with the

15:30:14

3 reading room?
4

MR. FEE: Objection. Lack of foundation.

5 disclose communication with counsel, I instruct you

15:27:46

5

THE WITNESS: It took a lot of work and

6 not to answer that. If you became aware otherwise,

15:27:47

6 resources to build the ASTM reading room, and the

7 you can go ahead.
8

15:27:43

15:30:17

15:30:21

15:27:50
15:27:51

9 communication with counsel.
11

15:27:52

Q. Are you aware that plaintiffs relayed that

15:30:27
15:30:34

8 the board, or whatever capacity Mary McKiel may have
9 been at that time. Jim was communicating to her that

15:27:55

10 I believe -- I'm speculating what Jim is

15:27:55

12 fact to persons outside the plaintiff group?

15:30:25

7 executive committee, or in this case the chairman of

THE WITNESS: That would involve

10 BY MR. BRIDGES:

15:30:22

15:28:01

15:30:40
15:30:44

15:30:46

11 communicating, but I believe he was saying the reading
12 room is up and running.

15:30:50

15:30:52

13

MR. FEE: Objection. Lack of foundation.

15:28:04

13 BY MR. BRIDGES:

14

THE WITNESS: I'm not aware of that.

15:28:08

14

15

MR. BRIDGES: Let me turn back to

15:28:15

15 reading room, what you meant was that ASTM's reading

16 Exhibit 1046.
17

15:28:16

16 room was available for public access; is that correct?

Mr. Fee, I think it would be uncontroversial,

15:28:17

17

MR. FEE: Objection. Vague.

15:28:20

18 does ASTM stipulate to the authenticity of
19 Exhibit 1036?

18

THE WITNESS: Yes.

15:28:24

20

MR. FEE: 1046?

21

15:28:27

22 It's a document that ASTM produced with a Bates
24

15:28:29

15:28:37

15:31:12

Q. And that happened in January 2013?

21

A. Some documents went up before January, but

15:31:13

15:28:37

25 knowing more about it, but I would imagine that both

24

15:31:27

15:28:40 25 reading room in January 2013?
Page 178

15:28:43

1

2 not all, the E-mails they produced I'd be happy to

15:28:46

3 talk about this or a broader discussion on that topic

15:28:53

3

4

15:28:53

4 about its reading room going live?

A I believe close to the full collection So

15:31:36
15:31:38

Q What announcements to the press did ASTM make

15:28:54

5

6

15:28:55

6 announcements when it went live in January I believe

8 to do that without examining the issue a little bit
9
10

MR BRIDGES: Okay

15:28:56

12 reading room"?
A I do

14

Q What do you understand that statement to

15 mean?
16

A I'd be speculating

17

Q Go ahead

15:29:10
15:29:12

15:29:26

18 BY MR BRIDGES:

15:32:21
15:32:25
15:32:27
15:32:33

15:32:36

19

Q When was that?

15:29:55

20

A I'm sorry I don't know specifically

21

Q How long after the launch of the reading room

15:30:00

15:30:06

22 did that occur?

15:30:08

15:32:36
15:32:37

A I'm sorry I don't recall It was in 2013

24

15:30:09

Q Did ASTM ever make an announcement to the

25 press about the availability of its reading room

Page 179

15:32:39

15:32:45

23

15:30:09

Q Did ASTM go live with its reading room?

15:32:19

15:29:53

21 the place on ASTM's website where we place all ASTM

25

15:32:17

17 year Mention of it was made in the magazine

20 fact that we went live with our reading room, which is

24 BY MR BRIDGES:

THE WITNESS: Yes Through our flagship

16 believe 30,000 individuals receive it six times a

THE WITNESS: I believe he's announcing the

22 standards that we're aware of that are incorporated by

MR FEE: Objection Vague

15 delivered to all of our members and stakeholders I

15:29:50

15:32:12

15:32:15

14 communication, Standardization News, which we

15:29:46

15:31:58

15:32:05

Q Did ASTM ever make announcements to the press

13

15:29:37

19

10

12

15:29:29

MR FEE: Objection Lack of foundation

15:31:55

15:32:08

11 about the availability of its reading room?

15:29:24

18

23 reference

9 it before we broadcast it too widely

15:29:14

13

15:31:54

8 and I think we wanted to get a little experience with

15:29 04

Q This document -- do you see where Mr Thomas

A I don't recall if we made a lot of

7 we were concerned about if it would function and work,

15:28:59

11 said at the top of the page, "We are now live with our

15:31:43

15:31:48

5 purposes, I needed to ask him questions about this
MR FEE: Well, you're welcome to ask him

15:31:30

15:31:32
Page 180

2 as many as 1,300 ASTM documents

7 whatever questions you want about this I don't want

15:31:20

Q. How many documents were on-line at the ASTM

1 parties would agree to the authenticity of most, if

MR BRIDGES: Okay But for present

15:31:16

22 January of 2013 was when we had set a goal working
23 with IT to try to get these documents on-line.

MR. FEE: I'm hesitant to do that without

15:30:59

15:31:03

15:31:13

20
15:28:28

15:30:55

15:31:11

19 BY MR. BRIDGES:

MR. BRIDGES: Sorry. 1046, you're right.

23 022620.

15:30:55

Q. So when you say that ASTM went live with the

15:32:53
15:32:59

15:33 03

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1 beyond the announcement in Standardization News?

15:33:08

2

MR FEE: Objection to form

15:33:13

3

THE WITNESS: I believe it was also announced

4 at the ASTM annual business meeting in 2013
5 BY MR BRIDGES:
6

15:33:16

4 that I can recall

15:33:22

9

Q What other public announcements did ASTM make

7

15:33:28
15:33:32

15:33:36

11 announcements to its own members and stakeholders?
A I also believe that there was a reference to

15:33:44
15:33:46

15:36:41
15:36:45

15:36:53
15:36:54

15:36:56

MR BRIDGES: Yes Excuse me Thank you

15:36:57

15:36:58

Q Was there any -- were there any announcements

15:37:01

15 by ASTM of the availability of the reading room to the

15:37:05

15:33:58

16 general public apart from those whom you would call

15:37:11

15:34 01

17 visiting with stakeholders that I interact with, that
18 ASTM has this reading room

17 ASTM members and stakeholders?

15:34:05

Q What else?

20

A Jim Thomas, our president, mentions it in his

18

15:34:07

21 interactions on a worldwide basis

15:34:08

MR FEE: Objection Vague

THE WITNESS: Yeah I can recall at least on

15:37:21
15:37:23

20 one occasion when -- we don't get a lot of inquiries

15:34:16

15:37:24

21 from the media on this issue, on public access issues,

15:34:12

A Jim Thomas is a popular figure in the

15:37:18

19

19

23

11 "NFPA"?

14

A I make it part of my message, when I'm

Q With whom?

15:36:16

15:36:27

MR FEE: I think you misspoke You said

13 I'm still stuck in yesterday

15:33:52

22

9 stakeholders?

12

15:33:50

16

15:36:15

Were there any announcements to the general

10

15:33:40

13 it in the ASTM annual report in 2013, which was

Q What else?

15:36:12

8 public apart from what you would call NFPA members and

10 about the availability of its reading room beyond

15

15:36:10

Q How many of those audiences did not already

6 have -- strike that

15:33:25

A Yes

14 published in 2014

A And I'm sorry I believe that concludes all

5

8

12

Q What else?

3

15:33:15

Q The "ASTM business meeting" being a meeting

15:36:09

2

15:33:22

7 of ASTM members and stakeholders?

1 Records Administration

15:37:27

22 but I do recall Jim Thomas, our CEO, mentioned it to a

15:34:19

24 standards community, a well-known expert, and he

23 reporter that was asking us about public access

15:34:22

25 speaks to many groups So I wouldn't be able to give

15:37:31

15:37:38

24 BY MR BRIDGES:
25

15:34:25

15:37:43
15:37:43

Q Which reporter was that?

Page 182
1 you specifics without reviewing his calendar.

15:34:30

Q. What else?

15:34:34

3

A. ASTM has an electronic newsletter. I believe

15:34:40

15:34:45

5

Q. To ASTM's members and stakeholders?

15:34:49

6

A. Yes. To anyone interested in subscribing.

7

Q. What else?

8

A. We previously discussed some efforts to

15:34:52
15:35:02
15:35:07

10 through an APCO public relations campaign. I believe

15:35:10

11 the reading room was part of that messaging as well in
Q. What else?

14

A. That's all I can recall at this time. It had

15:35:34

17 sorry. Were you about to mention another?
18

A. I'm sorry. We also sent a few letters to

21

15:35:43
15:35:46

22 agencies?
23

15:35:49

15:35:54

Q. By "agencies," do you mean government

4

Q Was it a reporter writing an article about

6

A Could have been
Q It was; right?

8

15:37:45
15:37:51

15:37:59
15:38:00

MR FEE: Objection Asked and answered

9 BY MR BRIDGES:
10

15:38:01

15:38:05

Q To the best of your knowledge, it was?

11

15:38:05

MR FEE: Same answer -- or same objection

15:38:07

15:38:09
THE WITNESS: Yes I think that was the

14 interest

16

15:37:53

15:37:55

15:38:09

15:38:10
15:38:11

Q So apart from that, what announcements did

15:38:11

17 ASTM make to the general public beyond its members and
18 stakeholders about the availability of its standards
19 on its reading room?

15:38:18

15:38:22

15:38:25

20

15:35:58

MR FEE: Objection Vague

21

THE WITNESS: I'm very proud of the reading

15:38:29

22 room It's something that we worked very hard to do

15:35:57

15:35:58

A. To government agencies, to the office of

A Yeah I'm sorry I don't recall

5 this litigation?

15:37:44

15 BY MR BRIDGES:

15:35:40

19 agencies informing them of the creation of the reading
20 room.

3

13

15:35:28

Q. Of all the persons who had access to --

Q Was it a reporter for the New Republic?

12 Sorry

15:35:19

15 a place on our website as well.
16

15:35:14

15:35:17

13

A I'm sorry I don't recall

7

15:34:54

9 educate policy makers and stakeholders in Washington

12 2013.

1
2

2

4 we mentioned it in the newsletter in 2013.

Page 184

15:38:27

15:38:30

23 to strike this balance I believe it's an excellent

24 management and budget, and to the office of the

15:36:01

25 federal register at NARA, the National Archives

15:36:04
25 So we speak about it freely to anyone that wants to
Page 183

24 policy, and we've received a lot of accolades for it

15:38:33
15:38:38
15:38:45

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1 hear about it.
3

1 connection with this litigation at the request of

15:38:47

2 BY MR. BRIDGES:

15:38:50

Q. And if you're very proud of it, you would

15:38:50

4 want to make sure that as many people hear about it as
5 possible; is that right?
6

15:38:52

15:38:54

MR. FEE: Objection. This is beyond the

6

15:38:57

15:38:59

9

THE WITNESS: I have no concerns with anyone

10 knowing about it.

14

15:39:06

16

15:39:18

15:42:22
15:42:23
15:42:30
15:42:33

15:39:25

THE WITNESS: I don't have our press

20 doctrine covers.
21

If you did something at the direction of

15:39:36

15:39:44

Q. How many press releases has ASTM issued, to

THE WITNESS: Right. I thought the question

15:39:52

4 matter.

15:39:57

10 awards in a variety of things. So I wouldn't be

15:40:11
15:40:17

11 surprised if it was a couple hundred.

15:40:20
15:40:23

6

10 that.
11
13

14 in doing that?

18

15:40:35

15:40:38
15:40:40
15:41:41

15:41:45

24

MR. FEE: Objection. Vague.

25

To the extent that investigation was done in

15

MR. FEE: To the extent that you are doing it

16 at the direction of counsel, you should not disclose
18

15:41:45

20

15:43:21

15:43:25
15:43:26
15:43:27

15:43:30

THE WITNESS: I'm not sure.

15:43:35

19 BY MR. BRIDGES:

15:41:41

Q. Did ASTM investigate the sources of Public

23 Resource's funding?

15:43:18
15:43:21

Q. Why may you have? What would be your purpose

17 those communications.

THE WITNESS: I don't have a number.

21 BY MR. BRIDGES:
22

15:40:34

You can answer in your personal capacity if

19 you have an answer.
20

15:40:30
15:40:33

15:43:09
15:43:13

THE WITNESS: I may have.

12 BY MR. BRIDGES:

15:40:23

17 designation.

15:43:05
15:43:07

15:43:14

15:40:27

MR. FEE: Objection. Beyond the scope of his

15:43:05

MR. FEE: Same instruction with respect to

Q. And how many press releases do you recall

16

15:43:03

8 what you knew about Public Resource's funding?
9

15:42:56

15:43:00

Q. I said have you no knowledge of communicating

14 announced to the general public the availability of
15 ASTM standards on ASTM's reading room?

15:42:55

7 to David Carmel at International Code Council about

15:40:05

9 ASTM press releases cover member recognition and

13

Page 188

3 to which I said, "No." That would have been a legal

15:39:59

12 BY MR. BRIDGES:

15:42:54

5 BY MR. BRIDGES:

THE WITNESS: I'd be speculating, but our

15:42:49
15:42:52

15:39:47

15:39:56
MR. FEE: Objection. Beyond the scope of his

15:42:48

2 was did ASTM investigate the sources of Google funding

4 the best of your knowledge, from January 1, 2013 until

8

24 that question. If you did it otherwise, you can

1

15:39:47

7 designation. Calls for speculation.

15:42:46

23 you not to disclose it in connection with answering

15:39:40
25 answer it.
Page 186

6

15:42:41

15:42:43

22 counsel in connection with this litigation, I instruct

25 So I'm not certain if we announced it through a press

5 now?

15:42:37

MR. FEE: That's not what the work product

15:39:37

3

15:42:24

16 how he may have learned about something. But if he's

19

15:39:31

2 BY MR. BRIDGES:

15:42:22

MR. BRIDGES: I'm sorry. I'm just asking

24 releases. I know we issued 350 press releases a year.

1 release.

15:42:14

14

18 see any protection here.

15:39:27

23

MR. FEE: Same instruction. If it requires

15:39:18

20 the general American public about the availability of
MR. FEE: Objection. Vague.

15:42:06

15:42:10

17 communicating something to a non-party, then I don't

Q. So did ASTM issue any broad press releases to

22

9 David Carmel at International Code Council about what

15 about a disclosure. You're introducing the concept of
15:39:15

15:39:16

21 any of its standards on its reading room?

15:42:04

13 the request of counsel, you should not answer it.

15:39:11

18 BY MR. BRIDGES:

Q. You have no knowledge of communicating with

11

15:39:10

THE WITNESS: Again, I have no concerns.

17 Yes, I would.

15:42:03

15:42:04

15:39:06 12 you to disclose something you learned through -- at

15:39:08

MR. FEE: Same objection. It's vague and

15 asked and answered.

THE WITNESS: I have no knowledge of that.

10 you knew about Public Resource's funding?

Q. And would you want as many people as possible

13 to know about it?

19

15:39:01

15:39:03

11 BY MR. BRIDGES:
12

8

15:41:56

15:41:59

7 BY MR. BRIDGES:

But you can answer.

15:41:54

4 answer it, although, also, it's beyond the scope of

15:38:55

8

15:41:50

3 you're aware of some other investigation, you can
5 your designation in this case.

7 scope of his designation, among other things.

15:41:49

2 counsel, I'd instruct you not to disclose that. If

15:43:44

Q. Has ASTM, to your knowledge, ever had a

15:43:44

21 contract or an agreement with International Code

15:43:50

22 Council regarding this litigation?
23

15:43:52

MR. FEE: Objection. Let me talk to you

15:43:54

24 about privilege issues with respect to this line of

15:41:46
25 questioning. Let's take a break.
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15:43:58

15:44:00
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THE WITNESS: Okay

2

1

THE VIDEOGRAPHER: We're now off the record

15:44:02

3 at 15:43

15:44:02

4

(A recess was taken from 3:43 p m

5

to 3:44 p m )

6

THE VIDEOGRAPHER: We're back on the record

8

MR FEE: Can you read back the question,

11

16

15:46:12

Q So a few minutes ago, right before the break,

17 I was asking you a question about what you knew about

15:46:24

18 Public Resource's funding, and my question was have

15:46:33

19 you no knowledge of communicating to David Carmel at

15:46:35

20 International Code Council about what you knew about

23

15:46:40

25

15:48:36

13 scope of his designation.

15:48:36

15:48:37

To the extent that your association is

15:48:39
15:48:41
15:48:43

17 basis for an association, you can go ahead and answer.
18

THE WITNESS: Okay. So my recollection is

15:48:53
15:48:55

20 counsel.

15:49:00

22

15:49:10

Q. What else -- well, I think we've got a

15:49:10

23 serious waiver issue because I've got a document that

15:46:45

15:49:14

24 shows him communicating information from --

15:46:48

Q Before that was "Did ASTM investigate the

25

15:46:54

15:49:16

MR. FEE: Well, show him the document.

15:49:19
Page 192

Page 190
1 sources of Public Resource's funding?"
2

A. Okay.

3

15:46:57

MR. FEE: He didn't ask you a question. Let

15:47:04

What is your question?

6

15:47:08
15:47:15

8

MR. FEE: Was something --

9

THE WITNESS: I think I said something out of

15:47:15

10 sequence here to these questions.

14

MR. FEE: It's up to him if he wants to

15:47:19

15:47:30

20 funding of Google. I'm sorry. Of wherever we're

23 instruction you had from counsel.
24

THE WITNESS: Okay.

25 BY MR. BRIDGES:

15:49:30

9

15:49:30

MR. BRIDGES: It will get to the broader

11 radical effect than just this deposition.

15:49:30

15:49:32

MR. FEE: Well, whatever document you're

15:49:41
15:49:42

14 depending on what it is. But I can't claw it back

15:49:48

15 if --

15:49:51

16

MR. BRIDGES: I'll go ahead and do it.
I'm just going to mark as Exhibit 1048 a

15:49:51
15:49:53

15:47:41

18 document for the record.

15:47:43

A. And I'm sorry. I inadvertently said -- what

MR. FEE: Remember, don't disclose any

15:49:30

8 to ask him about it, then don't ask him about it.

17

15:47:38

19 I should have said was I did not investigate the

22

15:47:22

15:47:39

21 going with this, but I was aware --

15:49:28

MR. FEE: All right. Well, if you don't want

13 referencing, if it's -- we may want to claw it back

15:47:22

16 There was an objection, and you said, "I have no
17 knowledge of that."

6 document outside of the context of this deposition.

12

15:47:21

Q. So, anyway, I had asked you about did ASTM

15:49:26

10 issues of waiver because it will require a much more

15:47:17

15 investigate the sources of Public Resource's funding.

18

15:47:15

15:49:22

15:49:24

MR. BRIDGES: I can because I can show the

7

15:47:15

13 BY MR. BRIDGES:

MR. FEE: Then you're not going to be able to

5

THE WITNESS: Is there no way I can answer

12 clarify.

3

15:49:20

15:49:21

4 show there's a waiver.

15:47:05

5

11

MR. BRIDGES: I don't need to show him the

1

2 document.

15:47:01

4 him get to his question.

7 that?

15:48:48

19 based on information -- privileged information with
21 BY MR. BRIDGES:

15:46:42

15:46:44

A Could I ask you to go one question before

24 that?

MR. FEE: Objection. Vague. It's beyond the

16 you not to disclose those. If you have some other

15:46:20

21 Public Resource's funding Do you recall my asking

15:48:34

15 because of communications with counsel, I'd instruct

15:46:20

22 that question?

THE WITNESS: Oh, sorry.

14

15:46:16

15:48:28

15:48:31

MR. FEE: Hold on.

12

THE WITNESS: To my knowledge, no, we've had

15 BY MR BRIDGES:

15:48:25

11

15:46:09

15:46:11

14 no contact No

15:48:21

9 your testimony today?

MR FEE: I think you can just go ahead and

13

6 investigated the sources of Public Resource's funding,

10

15:46:09

12 answer that question

15:48:07
15:48:12

8 causes you to associate Google with Public Resource in

15:45:52

15:45:53

(Record read )

Q. And that name is "Google." And you used it

7 and you said, "I have no knowledge of that." So what

15:45:10

15:45:51

9 please

15:48:06

5 just now. And I had asked you if ASTM had

15:45:10

10

A. Right.

4

15:45:10

15:48:00

15:48:04

3

15:44:03

7 at 15:44

Q. Well, my curiosity is twice now you've used a

2 word or a name that I've never used.

19

THE WITNESS: I'm sorry. Was there a 1047.

20

(Pause in proceedings.)

21

MR. BRIDGES: I'm going to hand the witness

15:47:46

15:47:50
15:47:52

23

15:47:56

24 Carmel?
25

Q. Is this an E-mail that you sent to David

15:50:51
15:50:55

15:51:02

15:51:04

(Deposition Exhibit 1047 was marked for

Page 191

15:50:07

15:50:51

22 Exhibit 1047, and I have a quick yes or no answer.

15:47:54
15:48:00

15:49:59

15:51:08
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1

identification.)

2

(The witness reviewed Exhibit 1047.)

15:51:08

3 BY MR. BRIDGES:

15:51:13

4

Q. What's the answer, Mr. Grove?

5

A. I am trying to understand this E-mail.
(The witness further reviewed Exhibit 1047.)

7

MR. REHN: This is Thane Rehn, counsel for

15:51:18
15:51:18

8 NFPA. For the record, will you please read the Bates
9 number.

15:51:30

15:51:30
15:51:30

11

And for the court reporter, Thane Rehn, for

13 document."

15:51:39

Q. And were you giving him information that you

18 had received from ASTM's counsel?

15:51:42

15:51:44

A. In this case, no, I am not.

20

Q. What was the source of your information on

22

15:51:47
15:51:50

14

15:51:54

15:55:15
15:55:17

THE WITNESS: I'm not aware of it, no.

15:55:19
15:55:22

Q. As you sit here today, what errors, other

15:55:22

15 than the errors you've mentioned earlier and any

15:55:24
15:55:27

17 defendants' activities with respect to ASTM standards?
18

A. I have not done that analysis. I'm not aware

20
22

15:52:05

15:52:08

24

15:55:32

15:55:39

15:55:42

MR. FEE: Objection. This is beyond the

15:55:44

15:55:45

MR. BRIDGES: I think it's within the scope

15:51:59 23 of the designation.

24 the standards, including -- that was forwarded to my

15:55:11

15:55:13

I would instruct you not to disclose that.

21 scope of his designation.

23 Carl Malamud that was picked up by other members of
25 attention.

10

19 of those errors.

15:51:53

A. It looks as if there was a Twitter posting by

15:55:09

8 was compiled at the direction of counsel in connection

16 alleged errors in this document, are you aware of in

15:51:42

19

15:55:08

13 BY MR. BRIDGES:
15:51:38

15:54:55
15:55:01

MR. FEE: Objection to the extent any list

12

15:51:33

21 that E-mail?

7

11 You could answer otherwise.

THE WITNESS: Yes. This appears to be an

15 E-mail from myself to David Carmel.
17

6 aware of?

15:51:32

16 BY MR. BRIDGES:

15:54:55

Q. Does ASTM have a more up-to-date document

15:51:30

12 the record, "Can I get a Bates number for this

15:54:50

15:54:52

5 listing the errors in defendants' work that ASTM is

9 with this litigation.

MR. BRIDGES: Yes. ASTM030712.

14

4

15:51:15

6

2 from Sarah Petre.
3 BY MR. BRIDGES:

15:51:13

10

THE WITNESS: Yes, it appears to be an E-mail

1
15:51:13

15:55:46

15:55:47

Q. Are you aware, on behalf of ASTM, of anything

25 else?

15:55:49

15:55:53

Page 194
1

Q. You were giving Mr. Carmel, at the top line

15:52:33

2 of this E-mail, the same information that you believe

15:52:36

3 was in Twitter at the bottom of this E-mail. Is that
4 your testimony?
5

15:52:42
15:52:47

15:52:53

Q. So you're unable to answer whether that

8 Twitter post said the Google foundation grant was
10

11 said.
12

15:52:56
15:53:01

A. Yeah. I don't recall what that Twitter post

15:53:03

15:53:06
15:53:07

13 post was the source of the information you gave to

15:53:09

15:53:11

A. I don't recall.

16

Q. So do you know what the source of information

15:53:15

17 was, as you sit here, of that statement -- of your
19

15:53:18

(Deposition Exhibit 1048 was marked for

21

identification.)

23
25

15:53:46
15:53:48

15:53:49

15:53:51

15:56:10
15:56:10

10

MR. FEE: Objection.
Q. -- in 1048 --

15:56:25
15:56:26
15:56:26

My question was interrupted. So I'll restate

12 it.
13

15:56:16

15:56:22

9 BY MR. BRIDGES:

15:56:37

15:56:40
On behalf of ASTM, are you aware of any

15:56:41
15:56:46
15:56:50

16 Exhibit 1048 and the activities of defendants in

15:56:55

17 connection with defendants' posting of ASTM standards

15:57:15

20 Calls for speculation, and beyond the scope of his
22

You can answer.

23

24 BY MR. BRIDGES:

15:57:17

15:57:20

THE WITNESS: No, I'm not.

15:54:50
25
Page 195

15:57:07

15:57:14

MR. FEE: Objection to form. Objection.

21 designation.

MR. BRIDGES: I've handed you Exhibit 1048.

(The witness reviewed Exhibit 1048.)

8

15:56:02

15:56:04

Q. Are you aware, on behalf of ASTM, of any

7 today, alleged errors --

19

15:53:46

Q. Is this an E-mail that you received from

24 Sarah Petre?

5

18 to the Internet?

15:53:25

20
22

3 repeat the question, please.

15 earlier today and alleged errors mentioned in
15:53:16

15:53:21

A. No. I would be speculating.

15:55:54

14 errors, other than the errors you've testified to

15

18 statement to Mr. Carmel?

THE WITNESS: Aware of errors? Could you

11

Q. So do you now recall whether that Twitter

14 Mr. Carmel?

MR. FEE: Same objection.

2

6 errors other than the errors you mentioned earlier
15:52:54

9 expired and not extended or renewed?

1

4 BY MR. BRIDGES:

A. Without seeing the Twitter post, I'm unable

6 to answer that.
7

15:52:39

Page 196

15:57:22
15:57:23
15:57:29

Q. On behalf of ASTM, are you aware of any

15:57:29
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15:57:36

2 Mr. Malamud or Public Resource of any errors in the
3 documents that they posted to the Internet?
4

15:57:40

15:57:45

MR. FEE: Objection to form. Beyond the

15:57:49

1 ASTM027093 to -097 Do you recognize that document?
2

(The witness reviewed Exhibit 1050 )

3

THE WITNESS: I recognize the document, yes

16:02:03

16:02:20

4 BY MR BRIDGES:

16:02:21

16:02:22

5 scope of his designation. Calls for speculation.

15:57:53

5

Q And you received the E-mail on the exhibit?

16:02:22

6

15:57:57

6

A Attached -- based on the E-mail saying it was

16:02:29

To the extent that you were involved in any

7 discussions amongst counsel regarding that subject,

15:57:59

8 you shouldn't disclose those, but if there are other

15:58:02

9 deliberations as the questioner asked, you can

15:58:05

10 identify those.
11

15:58:08

THE WITNESS: I'm reviewing the document. I

13 be a legal issue, and I was not involved in any

15:58:11

16

15:58:12
15:58:16

15:58:20

15 BY MR. BRIDGES:

16:02:32

Q And this was part of the joint effort that

16:02:35

9 ASTM engaged in with NFPA and -- with the NFPA;

11
12

15

15:58:36
15:58:37

A Hold on

16:03:01

(Pause in proceedings )

16:03:20
16:03:21

Q Is that correct?

16:03:21

MR FEE: Hold on I'm reviewing this

16:03:22

16 document to figure out if I need to instruct him

16:03:23

17

(The witness further reviewed Exhibit 1050 )

16 03:30

MR FEE: I need to talk to the witness about

16:03:30

18

A. Yeah, it may involve attorney-client work.

15:58:37

18

19

Q. So there's other information that you would

15:58:38

19 this document, about privilege issues

20 furnish in response to that question except that

15:58:41

20

16:03:31

MR BRIDGES: We have numerous instances of

21 you're omitting it because you believe it falls within

15:58:43

21 it in the production

22 attorney-client privilege or attorney work product?

15:58:47

22

23

MR. FEE: Objection. I instruct you not to

24 answer that question.
25

15:58:49

15:58:50

1 that instruction has an effect on his answer.
2

15:58:54
25
Page 198

15:58:55

MR. FEE: Answering that question would

15:58:58

3 disclose the substance of communications that he's
4 aware of that are privileged.

15:59:00

15:59:02

5 BY MR. BRIDGES:

Q. Are you taking your lawyer's instruction?

7

A. I am.

15:59:08

identification.)

11

15:59:54

15:59:54

10 BY MR. BRIDGES:

6

16:09:01

16:09:02

MR FEE: Would you read back the question,

16:09:05

16:09:07

MR BRIDGES: I will start a new question

16:09:12

Q Mr Grove, I've shown you Exhibit 1050, and I

16:09:14

15:59:54
16:00:10

16:00:17

MR. FEE: Objection. Vague.

15

THE WITNESS: Yes.

16

(Deposition Exhibit 1050 was marked for

17

identification.)

18

MR. BRIDGES: We'll need a clip or staple,

16:09:22

11

16:01:20

16
17

16:01:20

20

MR. FEE: Which one are you putting first?

21

MR. BRIDGES: The E-mail. The cover E-mail.

22

MR. FEE: Okay.

23

MR. BRIDGES: Exhibit 1050 is an E-mail from

16:01:22

16:01:36
16:01:40

16:01:46

16:09:43

19

16:01:49

16:09:49
16:09:51

16:09:52

THE WITNESS: This was a separate RFP for

21 BY MR BRIDGES:

16:09:57

16:09:59
16:10:02

Q What work was it continuing?

16:10:02

MR FEE: Objection Beyond the scope of his

16:01:51 24 designation

25
16:01:55
Page 199

16:09:49

MR FEE: Objection Vague Beyond the

20 some continuing work

23

16:09:44

Q What does this correspond to?

18 scope of his designation

22

24 Lorraine Carli of NFPA to you, among others, attaching

THE WITNESS: No The time line of this

15 BY MR BRIDGES:

16:01:20

19 but the next two documents together are Exhibit 1050.

16:09:39

16:09:40

14 doesn't correspond with our selection of APCO

16:00:32

16:09:29

16:09:36

MR FEE: Objection Beyond the scope of his

12 designation
13

16:00:26

25 a draft request for proposals. This is produced as

8 Carli of NFPA to you and others This pertains to

10 APCO; is that correct?

15:59:54

12 including an E-mail that you sent to James Thomas in
14

16:09:18

9 soliciting work that ended up being work performed by

Q. Mr. Grove, do you recognize Exhibit 1049 as

13 the middle?

THE VIDEOGRAPHER: We are back on the record

7 think you identified this as an E-mail from Lorraine

(Deposition Exhibit 1049 was marked for

9

3

16:09:01
16:09 01

Page 200

2 at 16:08

5

15:59:11

8

to 4:08 p m )

16:03:38

16:03:40

(A recess was taken from 4:02 p m

4 please

15:59:08

6

1

16:03:35

16:03:36

THE VIDEOGRAPHER: We're off the record at

23 16:02
24

MR. BRIDGES: I'm entitled to know whether

16:02:40

16:02:49

13 BY MR BRIDGES:
14

15:58:35

Q. Is your response to that question limited by

17 the instruction or objection by counsel?

8

10 correct? Regarding APCO; is that correct?

12 see that it was being referred to Tom. So that would
14 further discussion.

7 attached, I believe I did, yes

16:10:06

16:10:08

THE WITNESS: We were anticipating a lot of

16:10:09

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1 public interest in the interest of public access.

16:10:11

2 BY MR. BRIDGES:
3

Q. Are you reading from the document?

4

A. Oh, no. I just have it in front of me. We

16:10:17

5

7 whether it was necessary to retain a firm to help us.

16:10:28

Q. Did ASTM or any of these companies that

16:10:34

9 you're aware of retain a firm to help in that effort?

16:10:38

MR. FEE: Objection. Calls for speculation.

16:10:41

11 It's beyond the scope of his designation.
12

16:10:42

THE WITNESS: Yes.

16:17:10

4 BY MR. BRIDGES:

16:10:24

16:17:04

16:17:07

THE WITNESS: To my knowledge, no.

16:10:22

6 issue of public access. So we were again discussing

10

3

16:10:19

5 were anticipating a lot of public interest in the

8

Actually, you can answer that question yes or

1

2 no if you're aware.

16:10:17

16:17:11

Q. Okay. What did you understand to be a reason

16:17:11

6 for Underwriters Laboratories being included in your

16:17:22

7 E-mail -- strike that.
8

16:17:27

What was your reason for including someone

16:17:29

9 from Underwriters Laboratories in your E-mail?

16:17:31

10

MR. FEE: Objection.

16:17:34

11

I'm going to instruct you not to answer that

16:17:34

16:10:47

12 question. We have a common interest agreement with

13 BY MR. BRIDGES:

16:10:49

13 Underwriters Laboratory, and this is a privileged

14

Q. What firm did you retain?

16:10:49

14 communication.

15

A. I don't believe this was the final RFP, but

16:10:55

17

Q. Do you know who prepared the draft request

18 for proposals in Exhibit 1050?
19

16:11:04

16:11:06

MR. FEE: Objection. Beyond the scope of his

20 designation. Calls for speculation.
21

16

22 prepared it.

Q. You received it from Lorraine Carli --

25

A. Correct.

16:17:57

19

MR. FEE: You can answer yes or no.
THE WITNESS: I didn't personally. So I

16:17:58

22 Could you restate that?

16:11:25

24

16:17:53

16:18:03

16:11:23 21 don't have knowledge if this was sent. I'm sorry.

16:11:25

23 BY MR. BRIDGES:

16:17:49

17 the addressees indicated in the header; is that

20

16:11:11

THE WITNESS: I don't know with certainty who

16:17:49

Q. You did send this E-mail, Exhibit 1052, to

18 correct?

16:11:10

16:17:39

16:17:41

15 BY MR. BRIDGES:

16:10:58

16 we ultimately retained Fleishman Hillard.

16:11:30

24

16:18:06

16:18:11

23 BY MR. BRIDGES:

16:11:25

16:18:12

Q. You did send this E-mail, Exhibit 1052, to

16:18:13

25 the addressees indicated in the header; is that

16:18:16
Page 204

Page 202
1

(Deposition Exhibit 1051 was marked for

2

identification.)

3 BY MR. BRIDGES:
4

16:12:31

16:12:31

1 correct?
2

16:12:32

Q. Exhibit 1051 is an E-mail that you sent to

3

16:12:32

5 James Thomas at ASTM; correct?

16:12:34

16:18:18

A I'm sorry Yes, I did Correct

16:18:18

MR BRIDGES: We need to take a short break

6 we've been taking a lot of breaks If we can go off

16:12:49

16:18:32
16:18:34

A. Yes, it appears to be.
Q. Did you draft the text of the E-mail?

16:12:50

7 the record briefly, I would appreciate it

8

A. To the best of my recollection, I did.

16:13:00

8

16:16:21

10

identification.)

11

16:16:21

MR. BRIDGES: Mr. Grove, I've handed you

12 Exhibit 1052.
13

16:18:37

THE VIDEOGRAPHER: We're going off the record

9 at 16:17

16:16:25

(A recess was taken from 4:17 p m

11

to 4:18 p m )

12

16:16:21

16:19:34

THE VIDEOGRAPHER: We're back on the record

16:19:34

16:16:26

13 at 16:18

16:16:29

14 document back. It expressly references legal

14

(Deposition Exhibit 1053 was marked for

16:20:33

16:16:32

15

identification )

16 instruct the witness not to answer any questions, at

16:16:34

16

MR BRIDGES: Mr Grove, I've handed you --

17

MR FEE: Can I get a copy of the exhibit,

18 BY MR. BRIDGES:
19

20 strike that.
21

16:16:42

Q. Has Underwriters Laboratories ever been -16:16:49

16:16:50

22 agreement with Underwriters Laboratories to keep
23 communications about potential litigation
25

MR. FEE: Objection.

19

16:16:52
16:16:57

21

16:20:33

16:20:38

16:17:00

23

A Yes, I believe I have

16:21:01

Q And this is an E-mail from Mr Thomas, the

25 president of ASTM, to Roger Stoller; is that correct?

Page 203

16:20:43

16:20:45

24

16:16:59

16:20:40

16:20:42

Q I'd like to know if you've seen this document

22 before

16:20:34

16:20:36

MR BRIDGES: Mr Grove, I've handed you a

20 copy of Exhibit 1053

To your knowledge, has ASTM ever had an

24 confidential?

18 please

16:16:42

16:19:35

16:19:37

15 communications in the first sentence. I'm going to

16:16:36

16:18:38

16:18:38

10

MR. FEE: Objection. I'm going to claw this

17 least about the top portion of this E-mail.

16:18:28

5 out of battery, but I need it to be very short because

7

(Deposition Exhibit 1052 was marked for

16:18:26

4 because, for some reason, my real time is about to run

6

9

16:17:36

16:21:07
16:21:10

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1

A. Yes.

2

Q. Who is Mr. Stoller?

16:21:15

3

A. At the time of this E-mail, I believe Roger

1

16:21:20
16:21:25

4 Stoller was the incoming chairman of our board of
5 directors.
6
7
9
10

16:21:33

He was at Oakridge National Laboratory; is

16:21:39

16:21:43

A. Yes.

16:21:44
16:21:46
16:21:46

17

16:21:50

THE WITNESS: I'm not certain of that.

16:21:52
16:21:53

Q. Did you understand him to be a government

18 employee?
MR. FEE: Same objections.

20

THE WITNESS: Yes.

21

16:21:53

identification.)

23
24

16:23:28

16:23:28

3

6

Q And the pages I've just added were the

8

11

16:24:06
16:24:08

15 exhibit that's incomplete
16 BY MR BRIDGES:
17

16:29:39

A. From Phil to Jeff, yes.

Q. What's Mr. Lively's role within ASTM?

16:30:03

A. Phil is the vice president of information

21 technology.

16:30:04
16:30:08

16:30:10

Q. And does this exchange of E-mails refer to

4

9

MR. FEE: Objection. The document speaks for

11

13

16:30:53

Q That E-mail follows on E-mails that you sent

16:31:09

16:31:29

MR FEE: Objection The document speaks for

16:31:36
16:31:42

Q At the bottom of the page with Bates

16:31:42
16:31:45
16:31:52

16 line, carrying over to the next page, "Moreover, ASTM
17 explained that only a small percentage of its

16:25:17

18 standards are truly profitable and many lose money or

16:25:23

19 simply break even " Do you see that?

MR FEE: Same objection

16:25:29

20

A I do

THE WITNESS: Yes

16:25:30

21

Q Was that an accurate representation of ASTM's

16:25:34

22 statement?

A Maureen Houck is the executive assistant to

25 our president, Jim Thomas

23

16:25:38

16:32:16

MR FEE: Objection Lack of foundation

25 designation

Page 207

16:32:16

16:32:19

24 Calls for speculation It's beyond the scope of his

16:25:40

16:32:04

16:32:11

21

16:25:34

16:31:58

16:32:01

20

24

16:31:31

16:31:33

THE WITNESS: Yes

16:25:15

Q Who is Maureen Houck?

16:31:20
16:31:23

15 ACUS report There's a sentence starting the final

16:25:14

23

16:31:12

14 No -101185, there's a reference to a quotation in the

16:25:08

19 records of ASTM to OMB regarding Circular A-119?

22 BY MR BRIDGES:

16:30:41
Page 208

16:31:09

12 BY MR BRIDGES:

16:25:05

16:30:32

16:30:42

THE WITNESS: Yes

10 itself Vague
16:24:54

16:24:58

18 E-mail with one of its attachments being the draft

16:30:31
16:30:37

8 E-mails in this thread; is that correct?

16:24:56

Q Do you recognize Exhibit 1054 as a cover

16:29:37

17 E-mail from Phil Lively to you; correct?

7 the United States as ascribed in the two underlying

16:24:37

MR FEE: Okay We object to the use of an

16:29:37

Q. At the bottom of the second page there's an

6 recommendations by the administrative conference of

16:24:34

13 MALAMUDOMB_GOV_201404111 PDF
14

15 BY MR. BRIDGES:

5 to some members of ASTM senior management regarding

16:24:33

MR BRIDGES: No I'm omitting an attachment

16:29:08
16:29:08

3 BY MR BRIDGES:

16:24:26

12 written by Carl Malamud that was

THE WITNESS: Yes.

2

9 were two attachments to this E-mail Are you saying
10 this is all the attachments?

(The witness reviewed Exhibit 1055.)

1 itself Form

16:24:24

MR FEE: Objection It looks like there

13

16:28:21

24 for public access to ASTM standards?

16:24:17

7 attachment to the E-mail on Exhibit 1054; right?

MR. FEE: Excuse me for one second.

23 steps that ASTM took towards creating a reading room

16:23:46

4 pages to this, Exhibit ASTM103025 to -103032 Let's

16:28:15

16:28:18

12

16:23:38
25
Page 206

MR BRIDGES: I'm going to add, as additional

16:28:09

16:23:28

16:24:05

5 make that a continuation exhibit, please

Q. Exhibit 1055 is a series of E-mails between

16:23:35

Q. That is an E-mail from Maureen Houck to a

A Yes, that's correct

16:28:09

10 you and a number of persons, including Katherine

22

MR. BRIDGES: Please look at Exhibit 1054.

16:26:06

16:28:08

20

16:21:58

25 number of persons, and you are included in the

2

identification.)

19

16:21:56

1 addressee list; is that correct?

(Deposition Exhibit 1055 was marked for

7

18

(Deposition Exhibit 1054 was marked for

22

6

16

16:21:55

19

16:25:59

14

16:21:48

16:25:52
16:25:57

THE WITNESS: Yes.

11 Morgan; is that correct?

MR. FEE: Objection. Calls for a legal

16 BY MR. BRIDGES:

4 It's beyond the scope of his designation.

9
16:21:44

13 conclusion and speculation. It's beyond the scope of
15

MR. FEE: Objection. Calls for speculation.

8 BY MR. BRIDGES:

Q. And was a government employee; is that

14 his designation.

3

16:25:47

16:25:49

5

Q. What government agency -- strike that.

11 correct?
12

16:21:29

16:21:32

8 that correct?

Q. And you understand it went from her to all

2 the persons identified in this E-mail?

16:32:21
16:32:25

16:32:27

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1

THE WITNESS: It's a little out of context.

2 BY MR. BRIDGES:
3

16:32:42

16:32:45

Q. What would be necessary to add to that

16:32:45

4 statement in order to supply the context?

16:32:50

5

MR. FEE: Same objections.

6

THE WITNESS: Looking at standards on an

16:32:55

12

A. Customers in the public benefit from getting

16:33:52

MR. FEE: Objection. Lack of foundation.

identification.)

17

16:37:55

18 personal opinion in this question?
19

16:37:59

MR. FEE: It's beyond the scope of his

16:38:04

16:38:06

23

16:34:40

16:38:02

16:38:03

22 designation.
16:34:40

16:37:56

MR. BRIDGES: I'm asking him what his state

21

16:34:14

16:37:48
16:37:53

MR. FEE: Objection. Are you asking him his

16:33:59

(Deposition Exhibit 1056 was marked for

25

16:37:45

20 of mind was at the time.

16:34:01

16:37:40

15 opposed to the standards themselves in the reading

16:33:56

21 Calls for speculation. It's beyond the scope of his

16:37:20

16:37:21

Q. Did you have in mind providing summaries as

16 room?

16:33:48
16:33:54

THE WITNESS: No.

16:37:10

A. Obviously, John was thinking I was suggesting

13 how difficult this task would be.

16:33:32 14

16:33:39

18 sorry. Anything else necessary to supply an

24

16:37:08

12 I was explaining I'm not the IT guy. So I didn't know

16:33:42

23

10

16:36:57

Q. Was that in addition to doing a reading room

16:33:27

Q. Is there anything else about the context --

16:36:47

16:36:53

16:33:25

15 rather than looking at them as individual standards

22 designation.

8

11 it as an addition, and I'm not sure if I was or not.

14 point, which allows them to access numerous standards

20

16:36:42

9 or instead of doing a reading room?

16:33:19

19 appropriate context for that statement?

4 consider beefing up -- excuse me -- making our

7 be converted to something that's more of a summary.

16:33:17

13 a collection of standards at a very affordable price

17

16:36:41

6 standards, considering whether those abstracts could

16:33:17

16 purchased separately.

A. I see that I was recommending that we

16:33:14

Q. What is the real value that ASTM standards

11 have as a collection?

3

16:36:38

16:36:40

5 summaries, which the abstracts which we provide to our

16:33:14

9 BY MR. BRIDGES:
10

Q. What were you suggesting in addition to a

16:33:12

7 individual basis devalues the real value that ASTM
8 standards have as a collection of a whole.

1

2 reading room?

But you can answer.

24

THE WITNESS: In our efforts to strike the

16:38:07
16:38:08

25 right balance between providing the public with public

16:38:10
Page 212

Page 210
1 BY MR. BRIDGES:
2

16:34:41

Q. Exhibit 1056 consists of a series of E-mails

3 in which you and John Pace were either authors or
4 recipients; correct?

16:34:54

16:35:04

5

(The witness reviewed Exhibit 1056.)

6

THE WITNESS: Yes, that's correct.

16:35:28

6

16:35:29
16:35:34
16:35:39

16:35:43

12

A. I'd be speculating.

13

Q. Well, you were a recipient -- the sole

Q. Was it the idea of providing summaries as

16:38:26
16:38:29

8

MR. FEE: Same objection.

9

16:38:33

THE WITNESS: I don't recall.

16:38:36

10 BY MR. BRIDGES:
11

16:35:48

16:38:41

Q. Does someone -- are you familiar with the

16:35:52
16:35:56

16:35:58

MR. FEE: Objection. Lack of foundation.

13

A. Yes.

14

Q. Does one have to register to gain access to

15 the reading room?

16:38:47

16:38:50

16

A. Yes.

16:36:07

17

Q. What does one have to do to register to get

THE WITNESS: I'd infer from this that John

16:36:10

19

16:38:51

18 access to the reading room?

16:36:12

19 Pace was raising concerns that we had already
20 committed to building a reading room and committed
21 extensive resources of his employees' time to help in

16:36:15 20
16:36:21

22 compiling the reading room, and now I was suggesting
23 that, in addition to the reading room, we might want

16:38:44

16:38:47

16:35:59

17 Beyond the scope of his designation as well.

16:38:41

12 operation of the reading room for ASTM today?

14 recipient of that E-mail. So please tell me what your

18

16:38:22

16:38:26

7 opposed to the text of the standards themselves?

16:35:29

9 the first sentence about "sticking to our guns and

16

16:38:18

5 BY MR. BRIDGES:

10 doing the reading room exactly as how we have all

15 understanding was.

16:38:14

3 enterprise, I was recommending that we review a lot of
4 options. One of which was this summaries idea.

Q. What did you understand Mr. Pace to mean in

11 agreed to date"?

16:38:12

2 maintaining our viability of our standards development

16:35:28

7 BY MR. BRIDGES:
8

1 access to standards incorporated by reference and

16:34:41

21

A. Enter a name and E-mail address.
Q. What's the purpose of that?

16:38:52

16:38:55
16:38:56
16:39:00

A. Well, to ensure that it wasn't -- again, I'm

16:39:02

16:36:26 22 not an IT person, but I believe there's some concerns
16:36:28

23 that bots and other types of automatic -- that perhaps

16:39:08
16:39:10

24 to consider other things as well.

16:36:32

24 machines could access our system and pull information

16:39:19

25 BY MR. BRIDGES:

16:36:38

25 in ways that perhaps we weren't intending by providing

16:39:22
Page 213

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1 this information to the public.
2

3 and E-mail address?
4

1 BY MR. BRIDGES:

16:39:25

Q. Is that the only reason for requiring a name

16:39:29

16:39:31

A. At one point we discussed -- my goal was to

2

16:41:49

Q. Do you recall requiring that people agree to

16:41:49

3 acknowledge ASTM's copyrights from the standards in

16:41:52

16:39:31

4 order to get access?

5 provide access to U.S. citizens, and we discussed

16:39:35

5

A. That sounds familiar, yes.

6 whether or not it should be available to the others in

16:39:43

6

Q. And so somebody had an argument that for some

7 addition to the U.S. So providing an E-mail address

16:39:48

8 just might have given us some additional information

16:39:52

9 about who was coming to our website for what purpose.
10

Q. Is that so that you could keep certain

16:39:54

16:40:00

11 persons out of the reading room if they were not from
12 the U.S.?
13

16:40:02

7 reason these standards were not subject to copyright,

A. Actually, I'm aware that we have some

16:40:06

15 that makes it -- we have to take reasonable steps to
16 prevent technical information from going to whatever

16:40:17

17 countries are designated by the U.S. Department of

16:40:20

16:40:23

Q. What about apart from those restrictions.

11

20 Was there an interest in keeping persons from other

16:40:28

16:42:13

16:42:17

MR. FEE: Objection. Calls for a legal

16:42:19
16:42:20

13 designated for any legal opinions.

16:42:22

THE WITNESS: I'm not an attorney, but I

16:42:26

15 believe that it's clear that -- what's intended.

16:42:27

16 Someone could access the information and read the

16:42:34

17 information but is made aware of the fact that ASTM

16:42:36

18 owns the copyright.
16:40:25

16:42:10

9 up that view in order to get access to the documents

16:40:09 14

16:40:12

16:42:00

16:42:03

8 would that person have to, in your understanding, give

12 conclusion. To the extent it does, he's not

14 restrictions due to the U.S. Treasury Departments OFAC

19

16:41:58

10 in the reading room?

16:40:05

18 Treasury as such.

16:41:56

16:42:42

19 BY MR. BRIDGES:
20

16:42:44

Q. It's not only made aware of it. They're

16:42:44

21 countries out of the reading room?

16:40:32

21 forced to agree that ASTM owns a copyright. Is that

22

MR. FEE: Objection. Vague.

16:40:35

22 not the case?

23

THE WITNESS: I don't recall.

16:40:37

23

MR. FEE: Same objections.

24

THE WITNESS: It could be, yes.

24 BY MR. BRIDGES:
25

16:40:39

Q. What else does one have to do to register for

2 E-mail address?
3

16:40:42

16:40:44

MR. FEE: My recollection is you have to

6

16:40:47
16:40:49

16:40:55

Q. Does that require entering into an

16:42:54

1

16:42:55
Page 216

Q. And do you see the third bullet in Mr. Pace's

16:42:55

2 message to you at the top of Exhibit 1056. It says,

4 agree to our policies on the use of the information.
5 BY MR. BRIDGES:

16:42:53

16:40:39
25 BY MR. BRIDGES:
Page 214

1 access to the reading room apart from furnishing an

4 you see that?
5

16:40:55

16:43:01

3 "Reading pane is 5-by-7. So you have to scroll." Do
A. I see that in the E-mail.

16:43:15

6

Q. Does 5-by-7 mean 5-by-7 inches?

16:40:57

7

A. I don't have knowledge what exactly he's

8

16:41:00

8 referring to.

9 conclusion. Beyond the scope of his designation. To
10 the extent it calls for a legal conclusion, you can
11 answer if you know.
12

16:41:07

THE WITNESS: I'm not an attorney, but I

16

16:41:11

16:41:14

15 BY MR. BRIDGES:

18

A. To my knowledge, yes.

19

17

23

Q. Do you recall seeing something like that?

16:41:27

MR. FEE: Objection. Asked and answered.
THE WITNESS: No.

16:41:43

16:41:45

16:43:53

16:43:57

MR. FEE: Objection. Vague. Calls for

16:43:59
16:44:01

THE WITNESS: That may certainly be possible.

20 BY MR. BRIDGES:

16:44:08

16:44:21

23

MR. FEE: Objection. Vague.

24

16:44:25

THE WITNESS: Again, the purpose of the

25 reading room is to provide the public with access to
Page 215

16:44:04

16:44:08

Q. Do you know why that would be a feature of a

22 reading room design?

16:41:40

25

19
21

16:41:38

24

16:43:46
16:43:50

18 speculation. May call for expert testimony as well.

16:41:29

A. I'm not certain of that provision.

Q. It means that one would have to scroll down

16:41:19

16:41:33

22

16:43:38

16:43:41

15 of the standard, one couldn't read a full page and one

16:41:26

20 location of any lawsuit that would be filed for
21 violation of terms of service?

A. Again, I'd speculate that that means you have

16 go without scrolling; correct?

Q. And does somebody have to agree about the

16:43:31

16:43:33

12 to navigate your monitor to see it.
13

16:43:28

16:43:30

Q. Do you understand what it means that one has

16:41:16

17 service in order to get access to the reading room?

16:43:17

14 to get a full page of a standard. To read a full page

16:41:16

Q. Does somebody have to agree to terms of

9

10 to "scroll"?
11

16:41:09

13 believe it makes very clear that copyright policy on
14 the documents.

16:41:01

16:41:04

16:43:06

16:43:13

7 enforceable contract with ASTM?
MR. FEE: Objection. Calls for a legal

16:42:46

16:42:51

16:44:31
16:44:32
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1 read the documents. So we're -- I'm pleased that our

16:44:34

2 reading room gives them the ability to do that.
3 BY MR. BRIDGES:
4

16:44:39
16:44:41

Q. Were you proud of having a design that would

6 you pleased about that?
7

16:44:44

16:44:48

A. We received a lot of accolades for it, and so

16:44:53

9 So I haven't heard complaints beyond what's been
10 discussed here today.
11

16:44:56

16:44:59

Q. Does that feature appear to you to be a user

16:48:31

Q. Does ASTM have any actual facts causing it to

4 believe that putting more standards in its reading

16:48:31

16:48:36

5 room would affect its viability as a standards

16:48:42

6 developer, or is this conclusion based on speculation?

16:44:48

8 to that -- to the fact that the reading room exists.

16:48:28

2 BY MR. BRIDGES:
3

16:44:41

5 require people to scroll to read an entire page? Were

1 have today.

7

16:48:50

8 call for expert testimony. Beyond the scope of his

16:48:54

9 designation, and speculation.
10

16:45:00

16:48:46

MR. FEE: Objection to form. Vague. May

16:48:59

THE WITNESS: I'm just aware that for 115

16:49:05

11 years this is the way our model has operated, and it's

16:49:07
16:49:11

12 friendly feature to design into the reading room?

16:45:04

12 served society well with very little complaints from

13

16:45:07

13 our stakeholders. In fact, this is the first case

MR. FEE: Objection. Vague. May call for

14 expert testimony.
15

16:45:09

16:49:14

14 where this has become an issue. So that's my answer.

THE WITNESS: And I'm not an expert, but I've

16:45:12

15

(Deposition Exhibit 1057 was marked for

16 used the reading room and I've read standards through

16:45:14

16

identification.)

17 it without any problem.

16:45:16

18 BY MR. BRIDGES:
19

16:49:50

17 BY MR. BRIDGES:

16:45:24

18

16:49:51

Q. Exhibit 1057 is an E-mail from John Pace to

Q. The second paragraph of Mr. Pace's E-mail

16:45:24

19 you with earlier E-mails in which you both

20 says, "I haven't chatted with Jim yet." Does "Jim"

16:45:29

20 participate; is that correct?

21 refer to James Thomas, the president of ASTM?

16:45:34

22

A. In this context, I believe it does.

23

Q. And a couple of paragraphs down, it says, "On

16:49:51
16:49:54

16:50:02

21

(The witness reviewed Exhibit 1057.)

22

16:45:44

16:49:16

16:49:50

THE WITNESS: Yes.

16:50:15
16:50:15

16:45:47

23 BY MR. BRIDGES:

24 the four bullet points above, I know Phil might think

16:45:50

24

25 I'm overdoing it a bit." Whom did you understand

16:45:54
25 "We're getting big bucks annually from DHS." Do you
Page 218

16:50:22

Q. At the end of that top E-mail Mr. Pace says,

16:50:22

1 "Phil" to refer to? Is that Phil Lively?

16:46:00

1 see that?

16:50:30

2

A. I believe it would be Phil Lively.

16:46:02

2

A I do

16:50:31

3

Q. Who's Bob Dreyfus?

3

Q What did you understand that to refer to?

16:50:32

4

A. My understanding is Bob Dreyfus is a

4

A I have great respect for John Pace and his

16:50:26
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16:50:39

16:46:06
16:46:10

5 consultant that works on various IT projects for ASTM.
6

Q. What other IT projects does he work on?

7

A. I'm afraid I don't have knowledge of that.

8 It's outside of my area.
9

16:46:12

16:46:16
16:46:20

16:46:22
16:47:21

10 for public access any of its thousands of standards

16:47:25

11 that have not been incorporated by reference?

16:47:30

A. To the best of my knowledge, no.

13

Q. Why not?

14

16:47:38
16:47:42

9
10

MR. FEE: Objection. Calls for speculation.

Q I'm asking what --

Answer your question

14

15 going to answer it

16:47:53 16

16:47:55

18 developing high quality, market relevant standards
19 that are open, balanced, transparent process, and

16:47:59
16:48:01

20 putting more documents up in the reading room beyond

16:50:47
16:50:47
16:50:47

Q -- does "We're getting big bucks annually

16:47:48

17 role we've played in society for 115 years in

16:50:46

11 BY MR BRIDGES:
12

MR FEE: Answer your question as you were

16:50:50

16:50:51

THE WITNESS: I was going to just describe

16:50:52

17 John Pace as a colorful character that's involved in
18 sales, and he's describing the fact that he's very

16:50:54
16:50:58

19 pleased with the relationship that we have with the

16:51:02

16:48:11 21 ASTM standards to the public where they can access

22 consequences on our ability to maintain our viability

16:48:15

22 print standards, particularly for first responders, at

23 as a standards developer and ensure that the proper

16:48:18

23 a reasonable price point

25 standards process under the expectations that they

16:50:47

16:50:47

16:48:05 20 Department of Homeland Security where we provide 31

21 what's incorporated by reference could have unintended

24 stakeholders have access to participating in the ASTM

16:50:42

16:50:43

MR FEE: Don't cut him off

16:47:45

THE WITNESS: ASTM, we're very proud of the

16:50:41

MR BRIDGES: I move to strike That's not

7 my question

13 from DHS" refer to?

15 That's also beyond the scope of his designation.
16

6

8

Q. Does ASTM make available on its reading room

12

5 experience in --

16:48:21

24 BY MR BRIDGES:

25
16:48:25
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16:51:05
16:51:09

16:51:12

16:51:21
16:51:24

Q And what you just said was, in fact, in your

16:51:24

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1 E-mail to him in the middle; right?
2

16:51:26

MR. FEE: You want him to compare his

3 testimony verbatim to this E-mail?

16:51:33

4 BY MR. BRIDGES:
5

1 money for?

16:51:32

4 speculation

16:51:36

6 E-mail to him. I was asking him about his E-mail to

16:51:37

7 you and specifically what you understood him to mean

16:51:40

8 by the statement "We're getting big bucks annually

16:51:43

9 from DHS." What did you understand that to mean?

16:51:46

10

MR. FEE: Objection. Asked and answered.

11

16:51:50

THE WITNESS: You know, I'm happy to answer

13 that we have a contract with the Department of

5

16:53:57

16:54:03
16:54:04

6 standards were viewed as playing an important role in
7 helping first responders carry out their important

16:54:06

16:54:09

8 mission, and DHS came to ASTM and we figured out a

16:54:12

9 very flexible and reasonable agreement to allow that

16:54:19

10 to happen, which we've done for 115 years of our

13

16:54:21

16:54:25

16:51:54 12 BY MR BRIDGES:

16:51:57

16:53:59

THE WITNESS: I would speculate that these

16:51:53 11 existence

12 what I know about what this could mean. It could mean

16:53:57

MR FEE: Objection Lack of foundation

3 Beyond the scope of his designation Calls for

16:51:36

Q. What you just said, that comes from your

2

16:54:26

Q Were these standards that had been

16:54:26

14 Homeland Security, or we did at this time, in which

16:52:00

14 incorporated by reference?

15 ASTM received, I believe, $25,000 in funding in

16:52:03

15

A I'm afraid I don't know the answer to that

16 exchange for putting 31 standards up for unlimited

16:52:08

16

Q Do you know whether ASTM had different

17 print and use. This was a deep, discounted price that

16:52:11

17 licensing practices or prices according to whether

16:54:38

16:52:14

18 standards were incorporated by reference or not?

16:54:41

18 John was very -- this was a deep, discounted price,
19 and this went to the fact that we wanted to get our

16:52:23

20 standards in the hands of Homeland Security -- I'm
21 sorry -- of first responders in a way that still

16:52:26

16:52:28

22 allowed us to recoup some of the cost and expense that
24 BY MR. BRIDGES:
25

16:52:41

4

16:52:44

THE WITNESS: I'm not certain as to exactly

16:52:47

6 but at this time in 2012 my understanding was, yes.

16:52:51

7 Because of the relationship we had with DHS, we were

16:52:57

8 allowing the public to come to this website -- come to

16:53:00

9 this portal and access and print, save, and E-mail our
10 standards. I'm not sure if that was the exact

16:53:03

16:53:11

11 functionality that was provided, but that was my

16:53:13

16:53:15
16:53:16
16:53:19

16 print and use. By "unlimited," did you mean unlimited
MR. FEE: Objection. Vague.

16:53:33
16:53:34

20 particulars of the contractual relationship or the

16:53:35

21 subscription that was negotiated between our sales
23 BY MR. BRIDGES:
24

16:54:54
16:54:55

Q Are you aware of any other terms of licenses

16:54:55

16:53:37

16:53:39

4

16:55:00

Page 224

16:55:04

MR FEE: Objection Vague To the extent

16:55:06

16:55:08

THE WITNESS: And I'm sorry You're asking

16:55:13

5 me if under a purchasing agreement with ASTM for a
6 standard? What's the context of the question?
7 BY MR BRIDGES
8

16:55:14

16:55:19
16:55:21

Q Well, I assume that ASTM makes money off of

9 standards in a variety of ways; correct?

16:55:21

16:55:24

10

MR FEE: Objection Vague

11

THE WITNESS: 90 percent of ASTM's revenue

16:55:26

14 from the sale of standards

16:55:31

15 BY MR BRIDGES:
16

Q. What interest did you understand DHS to have

16:55:43

Q My question was I assume that ASTM makes

16:55:43
16:55:46

18

MR FEE: Asked and answered

19

THE WITNESS: Yeah I'm not agreeing with

16:55:52

20 that because 90 percent of the revenue we get from
21 standards is due to the sale of standards

16:55:53
16:55:55

16:55:59
16:56:02

23

16:53:51

16:55:33

16:55:38

16:55:41

22 BY MR BRIDGES:

16:53:51

25 for public access to the standards that it paid the

1 was incorporated by reference or not?

17 money off standards in a variety of ways; correct?

THE WITNESS: And I don't know the

22 staff and DHS.

16:53:23

16:53:27

19

22 incorporated by reference or not

13 the sale of publications of which 90 percent comes

16:53:16

15 exchange for putting 31 standards up for unlimited

18

16:54:48
16:54:50

12 comes from -- 80 percent of ASTM's revenue comes from

Q. And you said it was $25,000 in funding in

17 into the future?

16:54:45

3 that calls for a legal conclusion

16:52:46

5 what the portal that may have existed at this site,

14

THE WITNESS: I am not aware of any pricing

2

MR. FEE: Objection. Vague.

13 BY MR. BRIDGES:

20

24

16:52:43

3

12 understanding.

MR FEE: Objection to form

16:52:38
25 that differed according to whether an ASTM standard
Page 222

1 standards up for unlimited print and use by the
2 public?

16:54:34

19

16:52:35 23 BY MR BRIDGES:

16:52:38

Q. Is it your testimony that ASTM put 31

16:54:31

21 differential, whether or not an ASTM standard is

16:52:31

23 ASTM incurs on the development, delivery of standards.

16:54:28

Q What did you mean by "the sale of standards"?

24

A It's what it sounds -- it's our sales staff

16:56:02

16:56:09

25 The public coming to our website Our sales staff
16:53:53
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1 working with customers, and it's our distributors, our

16:56:15

1 2:58

2 licensed distributors working with customers on a

16:56:17

2

(A recess was taken from 4:58 p m

3

to 5:07 p m )

4

THE VIDEOGRAPHER: We're now back on the

3 worldwide basis to negotiate payment for the access to
4 our standards.
5

16:56:24

Q. I'm afraid I don't think you answered my

16:56:29

6 question. I said what did you mean by "the sale of
7 standards"?
8

16:56:31

MR. FEE: Objection. Asked and answered.

16:56:36

16:56:41

Q. And you say, "our sales staff, the public

12 to my question. What do you mean by "sales of

16:56:46

MR. FEE: Objection. Asked and answered.

15

16:56:51

THE WITNESS: I'm trying to meet you here. I

16:56:57

16 believe it's providing a document in exchange for
17 remuneration.

16:56:57

16:57:06

18 BY MR. BRIDGES:

(Deposition Exhibit 1058 was marked for
identification )

16:57:07

Q Mr Grove, Exhibit 1058 is a series of

17:09:04

10 E-mails that you are -- appear to be part of -11 intermittently; is that correct?
12

17:09:11
17:09:24

MR FEE: Objection Vague

17:09:26

THE WITNESS: Yes

17:09:30

14 BY MR BRIDGES:
15

17:09:36

Q Did ASTM put the wrong version of one of its

18

16:57:07

19

A I mean there's --

20 designation

21

16:57:19

21

16:57:25

17:09:41

17:09:46
17:09:51

MR FEE: Objection Beyond the scope of his

16:57:13

A. Well, someone may come to our website, search

17 09:36

16 standards up that PHMSA wanted to reference? PHMSA

20 provides documents in exchange for remuneration?
22 for a standard, find it in a variety of different

17:09:04

17 being spelled P-H-M-S-A

Q. What are the different ways in which ASTM

17:09:04

17 09:04

8 BY MR BRIDGES:

13

16:56:50

14

19

16:56:44

17:08:50

17:08:51

6

9

16:56:41

11 coming to our website." Those don't seem like answers
13 standards"?

5 record at 17:07

17:08:49
17:08:49

7

16:56:35

9 BY MR. BRIDGES:
10

16:56:20

16:59:13

17:09:53

17:09:55

THE WITNESS: That's not what most of these

17:10:12

22 E-mails refer to I'm not sure what the context is of

17:10:13

23 formats, and indicate that they'd like to purchase it

16:57:30

23 that E-mail from Phil to me

17:10:15

24 in one of those formats at the agreed upon price

16:57:35

24 BY MR BRIDGES:

17:10:22

25 point.

16:57:37

25

Q Well, there's context in your response to

17:10:22

Page 226
1

Q. Now, previously you said that you were

16:57:40

2 unaware of any price differential according to whether
3 a standard was incorporated by reference or not;
4 correct?

16:57:43
16:57:47

16:57:51

A. Correct.

6

16:57:52

Q. ASTM engages in some licensing agreements,

16:57:53
16:57:56

16:58:01

A. That's correct.

Q. I'm just talking as a commercial matter --

11

A. Right.

12

Q. -- are you aware of any significant

16:58:06

16:58:08
16:58:08
16:58:10
16:58:18

15 reference and the language of the licenses that ASTM
16 orders for the license of standards that are not

16:58:24

16:58:30
16:58:33

MR. FEE: Objection. Vague. To the extent

19 it calls for a legal conclusion.

17:10:26

Q -- saying, "Yes That is the version that

A Right

7

Q What was the context of your response?

10

17:10:32

17:10:38

16:58:37

17:10:40

12 possibly we put the wrong version up when, in fact,

(Deposition Exhibit 1059 was marked for

16

identification )

18

17:11:47

17:11:47
17:11:47

Q Exhibit 1059 consists of two E-mails from

16:58:39

20 Commission; is that correct?

16:59:05

21

22

THE WITNESS: It's been -- yeah. I've been

16:59:07

A Yes

16:59:09

17:11:55

22

(Deposition Exhibit 1060 was marked for

23

identification )

MR BRIDGES: I'll show you Exhibit 1060, a

16:59:12 25 two-page exhibit
Page 227

17:11:52

17:12:25

24

16:59:11
THE VIDEOGRAPHER: Now off the record at

17:11:47

19 Sarah Petre at ASTM to someone at the Federal Trade

MR. FEE: Do you want to take a break soon?

17:10:47

17:10:50

15

THE WITNESS: No, I'm not aware of that.

23 looking at my watch. I think now would be a good

17:10:43

13 NITSA -- excuse me, FIMSA wanted us to reference the

17 BY MR BRIDGES:

16:58:34

17:10:34

17:10:37

THE WITNESS: It could be that I'd be

21

25

17:10:33

MR FEE: Objection Again, beyond the scope

14 '06 version

17:10:26

17:10:31

6

20

24 time.

17:10:26

11 speculating, but it could be that you're right, that

14 offers for the license of standards incorporated by

18

3

9 of his designation

13 differences in the language of the licenses that ASTM

17 incorporated by reference?

A Right

8

16:58:05

10

17:10:23

2

5 hit us for that too "

7 does it not, with other parties regarding the license
9

1 Phil at the top --

4 PHMSA wants to reference I suppose that Malamud will

5

8 of access to the standards; correct?

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17:15:20

17:15:20
17:15:20

17:15:23

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1

Q. This is the agreement that a member of the

17:15:26

2 public must agree to in order to gain access to ASTM

17:15:28

3 incorporated by reference standards in the reading
4 room; correct?

17:15:36

17:15:40

A. It appears to be, yes.

6

Q. And the only standards available through this

17:15:49

7 reading room are standards that have been incorporated

17:15:51

8 by reference, I believe you said; correct?

17:15:53

9

17:15:57

A. To the best of my knowledge, yes.
(Deposition Exhibit 1061 was marked for
identification.)

17:16:32

Q. Mr. Grove, what is Exhibit 1061?

identification.)

6 BY MR. BRIDGES:
7

17:20:35

17:20:35
17:20:36

Q. Mr. Grove, Exhibit 1062 is an exchange of

17:20:36

8 E-mails between you and Mary McKiel with earlier
9 E-mails in the thread; is that correct?

17:20:51

17:20:59

10

A. Yes, it is.

17:21:29

Q. Does this discussion in the middle of the

17:21:31

12 first page of Exhibit 1062 refer to some EPA

17:21:35

17:16:32

14

(The witness reviewed Exhibit 1061.)

15

13 incorporations by reference of certain ASTM standards?

17:17:09

14

THE WITNESS: It appears to be a licensing

16 agreement.

(Deposition Exhibit 1062 was marked for

11

17:16:32

12 BY MR. BRIDGES:
13

17:16:32

17:19:03
17:19:04

17:19:06

5

17:15:48

11

3 incorporated by reference.
4

5

10

1 have separate policies for standards incorporated by
2 reference versus purchasing standards that are not

17:17:09

17:17:11

17 BY MR. BRIDGES:

MR. FEE: Objection. Vague. The document

15 speaks for itself.
16

17:21:58

17:17:12

THE WITNESS: Yeah. This was a project I was

17:21:59

17 excited to be part of. We worked with the EPA and the

17:17:12

17:22:00

18

Q. For what?

19

A. For ASTM's copyright protected information.

17:17:13

19 remove mercury from thermometers that are used in the

20

Q. In what circumstances must somebody enter

17:17:22

20 United States because of a threat that they posed to

21 into this license agreement with ASTM?

18 National Institute of Standards and Technology to

17:17:24

22

MR. FEE: Objection. Vague.

23

THE WITNESS: It's my understanding that a

17:17:28

5

17:17:48

17:17:57

Q. Does this apply to all purchases of ASTM

6 standards?

17:18:01

8

THE WITNESS: Well, it looks pretty basic to

9 me. So within my knowledge, I'd say yes.
11

17:18:04
17:18:11
17:18:13

10 BY MR. BRIDGES:

(Deposition Exhibit 1063 was marked for
identification.)

17:18:21

Q. Does this apply also to the purchase of paper

8

Q. And you were commenting upon the information

9 relayed to you from Mr. Miller, and before that, from
11

MR. FEE: Same objection.

17:18:27

14

THE WITNESS: I'm not sure what distinctions

THE WITNESS: Right. I don't think that --

17:24:01

14

MR. BRIDGES: Can we stipulate that the

17:24:01

17:18:31

15 document speaks for itself?
16

17:18:38

Q. Does this license agreement apply to both the

17:18:43
17:18:47

(Pause in proceedings.)

23

MR. FEE: Same objection.

24

You can answer.

25

THE WITNESS: Yeah. I'm not aware that we

17:18:51
17:19:00

18

17:24:04
17:24:06

MR. BRIDGES: Well, then I need to ask the

19 witness some questions.

17:24:10

17:24:11

20

MR. FEE: You're welcome to ask him.

21

THE WITNESS: I would actually like to answer

22 that because I believe I'm replying to David Miller's

17:19:00
17:19:01

17:24:03

MR. FEE: The document says what it says.

17 What do you need my stipulation for?

17:18:38

19 purchase of standards incorporated by reference and

22

17:23:58

17:23:59

13

17:18:36

MR. FEE: Hold on a second.

17:23:53

17:18:29

15 are made between our policy for paper versus other

21

17:23:44
17:23:48

MR. FEE: Objection. The document speaks for

13

20 other standards not incorporated by reference?

17:23:28
17:23:41

10 Scott Cooper; is that correct?

17:18:21

17:23:25

A. Yes. Correct.

12 itself.

18

17:23:25

7

17:18:25

17 BY MR. BRIDGES:

17:23:23

17:23:23

Q. Exhibit 1063 is an E-mail from you to your

12 copies of ASTM standards?

16 formats.

17:22:26

2

5

17:22:17
17:22:20

17:22:24
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6 colleague, Anthony Quinn; correct?

MR. FEE: Objection. Calls for speculation.

17:22:13

1 incorporated by reference in the U.S. code.

4 BY MR. BRIDGES:

17:17:57

7

17:22:10

23 standards was mandated by reference. Excuse me. The

3

17:17:50

4 BY MR. BRIDGES:

21 children if they were broken or to those in the lab

17:17:35 24 use of these types of measurement devices containing

17:17:44

2 identifies a number of ways that the information

17:22:05

17:22:08

17:17:40
25 mercury were referenced in standards that were
Page 230

1 ways in which the information may be used and
3 should not be used.

17:22:03

22 environment. The difficulty was the use of these

17:17:33

24 user purchaser of ASTM standards would need to agree
25 to a license agreement which authorizes the specific

17:21:49

17:21:53

23 interpretation that this means that language in our
24 standards that implies some things are "shoulds" and

17:19:02 25 "shalls." This particular agency was going to say
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17:24:16
17:24:17
17:24:22
17:24:24
17:24:28
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1 that they must be -- they have to be referred to as

1 stakeholders because the government is a very

17:24:32

2 "musts," and this would have the voluntary consensus
3 standards process This isn't the intention when

2 important member.

17:24:35

17:29:07

17:29:09

3 BY MR. BRIDGES:

17:24:39

17:29:11

4 people come together to work in a voluntary consensus

17:24:43

4

5 standard environment They want the words to mean

17:24:47

5

MR. FEE: Objection.

6

You can answer it however you'd like.

17:29:14

7

MR. BRIDGES: He already has.

17:29:17

6 what they carefully craft them to mean in the process,

17:24:49

7 and when -- so I believe that's what I was referring
8 to in this

8

17:24:55

9 BY MR BRIDGES:
10

17:24:52

11 government was changing the standard The government
12 was proposing to change the law; correct?
13

15

14

17:25:29

MR FEE: Same objections And vague

21

THE WITNESS: Yeah That the government was

17:25:41

25 with them

17:29:26

THE WITNESS: I don't believe ASTM would have

17:29:28

17:29:35

Q. You don't think that ASTM has a view as to

21 standards by reference?

17:29:35

24

17:29:44

17:29:46

THE WITNESS: It's never been a performance

25 metric for me. So no.

17:25:57

17:29:39

17:29:43

MR. FEE: Objection. Vague and asked and

23 answered.

17:25:50

17:29:49

17:29:50

Page 234
1 BY MR BRIDGES:
2

2

17:27:38

3 governments to incorporate its standards by reference?
4

MR FEE: Objection Vague

5

Page 236
1 BY MR. BRIDGES:

17:27:38

Q Mr Grove, does ASTM encourage any

THE WITNESS: As a matter of policy, we make

4

17:27:49
17:27:54

17:29:58

Q. Does ASTM have views about things that are

3 not performance metrics?

17:27:46

17:27:58

6

7 standards and point out and connect with agency

17:28:04

10 standards are incorporated or not
11 BY MR BRIDGES:
12

17:28:12

11
17:28:13

MR FEE: Objection Vague

15

THE WITNESS: So I think it speaks to the

20 that it signifies that the government -- it couldn't

17:30:23
17:30:24

17 reference -- strike that.

21

17:30:36

23

17:28:57

17:30:46
17:30:48

17:30:50

MR. FEE: Objection. Beyond the scope of his

17:30:51

17:30:55

THE WITNESS: I believe over the years I

17:30:56

24 might have pointed out to my superiors that a standard

17:29:00

25 has become incorporated as something significant.

17:29:04

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17:30:39

17:30:44

Do your performance reviews ever mention the

22 designation.

17:30:27

17:30:36

Q. Is your -- do your performance reviews ever

20 reference?

17:28:52
17:28:54

25 fact that ASTM standards are relied upon by all of our

THE WITNESS: Generally, my performance is

19 degree of incorporation of ASTM standards by

17:28:46

22 they're looking to a voluntary consensus standards

17:30:16

17:30:20

16 mention the degree of adoption of ASTM standards by
18

17:28:37
17:28:42

21 do what we've done with the same effectiveness So

So in some ways I might take pride in the

17:28:29
17:28:34

19 respected for their technical excellence I believe

17:30:14

MR. FEE: Objection. Beyond the scope of his

12 based on the job I've done in removing worldwide

15

17:28:28

16 significance of ASTM and to the breadth of ASTM when

18 reference because it does signify that they are widely

Q. What performance metrics do you have?

14 BY MR. BRIDGES:

17:28:22

17 you see ASTM standards become incorporated by

17:30:11
17:30:14

13 barriers to the acceptance and use of ASTM standards.

17:28:20

14

THE WITNESS: It could.

10 designation.

17:28:13

13 incorporate its standards by reference?

24

9

17:28:09

Q Is ASTM generally pleased when governments

23 group in utilizing those standards

8

17:28:07

17:30:05

17:30:06

7 BY MR. BRIDGES:

9 should be the ones that determine whether or not our

17:29:58

17:30:01

MR. FEE: Objection. Beyond the scope of his

5 designation. Vague.

6 organizations -- sorry -- governments aware of our

8 missions But in the end, we respect that agencies

17:29:29

17:29:31

18 BY MR. BRIDGES:

22

17:25:46

24 to without coming back to the organization and working

17:29:26

Q. What about speaking for ASTM?

20 whether it is pleased when governments incorporate its

17:25:43

23 consensus standard group didn't necessarily intend it

17:29:23

MR. FEE: Objection. Asked and answered.

19

17:25:36

22 interpreting a standard in a way that the voluntary

THE WITNESS: Speaking for Jeff Grove, yes.

17 an official position.

17:25:31

20

17:29:21

17:29:22

16

17:25:24

Q That the government would be changing the law

17:29:20

MR. FEE: Same objection. Asked and

15

17:25:22

17:25:29

19 as the law interprets the standard?

17:29:18

13 BY MR. BRIDGES:

17:25:11

THE WITNESS: I guess I would be speculating,

17 BY MR BRIDGES:

Q. I'm now asking him is the answer to my

11 answered.
12

17:25:13

16 but that was my interpretation of what this means

18

17:25:02

17:25:07

MR FEE: Objection The document speaks for

14 itself Calls for speculation

10

17:25:00

17:29:11
17:29:13

9 question "yes."

17:25:00

Q Well, Mr Miller was not saying that the

Q. So is the answer to my question "yes"?

17:30:57
17:31:00
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1 BY MR BRIDGES:
2
3

1
17:31:05

MR FEE: Same objection Whatever document

4 that you're referencing will speak for itself as well
THE WITNESS: It could

6

(Deposition Exhibit 1064 was marked for

7

identification )

8

MR BRIDGES: I'll hand you an exhibit marked

(The witness reviewed Exhibit 1064 )

11

MR BRIDGES: And, actually, I'm going to add

A Just the cover sheet and this (indicating)

A Okay

22

THE WITNESS: Yes.

17:37:30
17:37:43
17:37:44

Q. What was redacted from the first page and a
MR. FEE: Objection. Calls for speculation.

THE WITNESS: Yeah. I don't have knowledge

18 what was redacted.
20

17:34:21

17:38:05

Q. Has ASMA -- has ASME, to your knowledge,

22 potential litigation?

17:34:21

MR. FEE: Hold on one second.

24

(Pause in proceedings.)

25

17:34:31

17:38:18

MR. FEE: You can answer that yes or no.

17:38:30
17:38:31
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Page 238
1

MR. FEE: Is this 1065, did you say?

2

MR. BRIDGES: 1064.

17:34:37

3

MR. FEE: Okay. Sorry.

4

MR. BRIDGES: -- an E-mail to you by Lorraine

17:34:40

3

17:34:43

5 Carli of NFPA, including two attachments. One's

17:34:47

6 called an "SDO Proposal," and the other is called "SDO

17:34:49

7 Power Point Presentation."

17:34:53

8

17:34:56

9 attachment is one of these phantom attachments.
MR. FEE: Okay.

11

12 sorry.
14

17:35:15
17:35:17

A. Yes, I do.

17

MR FEE: Objection To the extent your

17:38:42

17:38:46

6 awareness would be as a result of any communications

17:38:49

17:38:51
17:38:53

9

THE WITNESS: I don't recall

17:39:05

11

17:39:07

Q Do you recall what discussions you had with

13

A I'd be speculating, but I believe it's -- I

17:39 07
17:39:11

17:39:26

17:35:17

Q. Does this pertain to the retention of APCO,

14 see that Scott Cooper -- she asked Scott Cooper from
15 ANSI if she would introduce -- "I'd very much

17:35:23

17:39:32
17:39:36

16 appreciate it if you would introduce some of the SDO

17:35:24

18 which we referred to -- which you referred to earlier

17:35:26

17:35:29

20

MR. FEE: Objection. Vague. Form.

21

17 folks He introduced me " And that's the extent of
18 the E-mail I see in front of me
19

THE WITNESS: Yeah, it appears as if it did.

17:35:30
17:35:36

17:35:41

Q. Does this relate to the engagement that ASTM

24 and NFPA had with APCO for government relations
25 outreach?

5

17:35:18

16

23

17:38:40

12 personnel at NFTA or ASME about Emily Bremer?

15 attachments from Lorraine Carli at NFPA?

22 BY MR. BRIDGES:

Q At this time are you aware of whether ASTM

4 was contemplating litigation against Public Resource?

10 BY MR BRIDGES:

17:35:14

Q. Do you recall receiving this E-mail and the

19 in testimony?

17:38:38
17:38:40

8 have an awareness otherwise, you can answer

17:35:09

13 BY MR. BRIDGES:

THE WITNESS: I don't know

7 from counsel, I'd instruct you not to answer If you

17:35:01

THE WITNESS: Is there a question? I'm

1

2 BY MR BRIDGES:

17:34:42

10

17:38:05
17:38:10

17:38:15

23

17:34:23
17:34:27

I'll represent to Mr. Fee that the last

17:37:52

21 entered into any agreement with ASTM regarding

17:34:21

24 Exhibit 1064 consists of an E-mail to you from

17:37:50

17:37:55

19 BY MR. BRIDGES:

23 were produced by ASTM I just want to verify that

17:37:44

17:37:48

17

17:33:56

Q I just want to verify, Mr Grove, that these

25 Lorraine Carli at NFPA --

(The witness reviewed Exhibit 1065.)

16

17:33:51
17:33:53

(The witness reviewed Exhibit 1064 )

17:37:17

17:37:20

15 half of Exhibit 1065?

17:34 03

21 BY MR BRIDGES:

MR. BRIDGES: I've handed you Exhibit 1065.
Q. Do you recognize this exhibit?

12
14

Q How many pieces of paper did I give you?

Q Okay Here's the rest of the exhibit

9

17:37:17

17:37:17

13 BY MR. BRIDGES:

17:33:51

19

identification.)

11

17:33:04

17:33:51

18

(Deposition Exhibit 1065 was marked for

10

17:33:34

17

20

17:32:22

17:33:03

12 more to the document It's going to be ASTM099269 to

16

17:36:09

17:36:13

8

17:32:20

17:33:02

15 BY MR BRIDGES:

A. Yes.

7

17:32:20

(Pause in proceedings )

17:36:09

Q. I just mentioned ASTM and NFPA.

6

17:32:20

17:36:07

17:36:09

5

9 1064 It consists of Pages ASTM099269 to ASTM099335

14

17:35:58

4 BY MR. BRIDGES:

17:31:26

10

13 -099360

THE WITNESS: Who are the organizations you

3 mentioned?

17:31 07

17:31:13

5

MR. FEE: Objection. Vague.

2

17:31:05

Q As something pertaining to your performance?

17:39:56

20 asking you apart from that document What discussions

17:39:59

21 did ASTM have with personnel at NFPA and ASME about

23

25

17:40:12

17:40:14

THE WITNESS: Yeah I may have let other

Page 239

17:40:02

17:40:11

MR FEE: Objection Beyond the scope of his

17:35:50 24 designation and calls for speculation

17:35:55

17:39:53

Q What's the extent of your knowledge? I'm

22 Emily Bremer?

17:35:41

17:39:41
17:39:43

17:40:16

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1 SDOs, including NFPA and ASME, know that I had the
2 opportunity to speak with Ms Bremer
3 BY MR BRIDGES:
4

12

5

THE WITNESS: Not that I recall

8

11 designation.

17:40:44

13 BY MR BRIDGES:

12

Q -- about your interactions with Ms Bremer?

15

MR FEE: Same objection, plus potentially

16 calls for a legal conclusion
THE WITNESS: Not that I recall

18

identification )

20

16

MR BRIDGES: Mr Grove, I've shown you

22

A Yes

25

17:45:00

Q. You think that setting standards for you

17:45:00
17:45:03

MR. FEE: Same objection.

19

THE WITNESS: I believe the best way to spur

17:45:07

3

17:45:28

25 consensus decision. That's where I believe the

17:41:53

(Deposition Exhibit 1067 was marked for

4

identification.)

17:41:56

17:43:26

17:45:31
Page 244

17:43:27

8 correspondence between James Thomas and you?
10

13 I hope this is level of enthusiasm he generates." Did
15
17

Q. Where were you at the time that he said to

17:44:04
17:44:07

A. Well, I believe -- I said, "I'll be coaching

22 Little League this weekend."
23
25

17:44:10

17:44:15

And he replied, "Wear sunscreen and have

24 fun."

17:44:01

17:44:04

20 you, "Wear sunscreen and have fun"?
21

17:43:55
17:43:56

THE WITNESS: I don't know what he meant.

18 BY MR. BRIDGES:
19

17:43:50

MR. FEE: Objection. Calls for speculation.

16 It's beyond the scope of his designation.

7

17:44:16

17:45:55

8 something like if the standard was available -- more

17:45:57

9 widely available, that would allow others that aren't

17:46:01
17:46:07

17:46:14

17:46:17

13

Q. And you think that would be a bad idea?

17:46:18

14

MR. FEE: Objection. This is beyond the

17:46:21

15 scope of his designation again.

17:46:22

16

But you can answer.

17

17:46:23

THE WITNESS: I do. I believe the best place

17:46:25

18 to do that is an environment based on consensus, not
19 one person acting independently.
20 BY MR. BRIDGES:
21

17:46:26

17:46:30
17:46:31

Q. Well, what about other people making comments

22 based on their awareness of standards that they had
23 not previously been aware of?
24

17:44:18

Q. What is it about the argument about setting

17:45:52

A. I don't recall the specifics, but I believe

17:43:42 12 standards development.

17:43:45

14 you understand what he meant by "not much here"?

17:45:41
17:45:48

11 existing standard outside of the normal process of

17:43:42

Q. Mr. Thomas wrote down below, "Not much here.

17:45:41

Q. Was it your understanding that Carl Malamud

10 members of committees to comment and reiterate on the

17:43:37

11 BY MR. BRIDGES:
12

17:43:31
17:43:37

THE WITNESS: Yes, it is.

17:45:34
17:45:37

3 BY MR. BRIDGES:

6 standards?

17:43:26

(The witness reviewed Exhibit 1067.)

2 innovation process comes into play.

5 criticized the consensus process of developing the

17:43:26

Is Exhibit 1067 an exchange of E-mail

1 innovation and the creativity that's involved in the

4

17:43:26

5 BY MR. BRIDGES:

9

17:45:25

24 all different stakeholder communities to reach a

17:41:51

Q. Do you -- strike that.

17:45:20

23 due process where you can work with your peers from

17:41:45
17:41:49

A. Len Morrissey is a staff manager that works

7

17:45:16

22 transparent, with a lot of openness, transparency, and

2 with our consumer products safety related committees.

6

17:45:11

21 voluntary consensus standards environment, open,
17:41:40

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1

17:45:09

20 innovation is to -- using standards, is to work in the

17:41:37

17:41:38

Q Who is Len Morrissey?

17:44:47

17:44:57

18

17:41:36

17:41:36

Q And I ask is this an E-mail that you received

24

17:44:45

17 would not spur investment and innovation?

17:41:05

23 from Len Morrissey?

17:44:41

17:44:43

15 BY MR. BRIDGES:

17:40:51

(Deposition Exhibit 1066 was marked for

19

17:44:41

THE WITNESS: I believe it's based on a

14 standards.

17:40:45

17:40:52

17

17:44:38

13 misperception about the -- what's contained in the

17:40:45

14

17:44:38

MR. FEE: Objection. Beyond the scope of his

17:40:41

MR FEE: Same objections

21 Exhibit 1066

10

17:44:32

17:44:34

Q. What's the factual basis for your

9 disagreement?

17:40:39
17:40:41

Q Is there anything confidential --

17:44:30

7 BY MR. BRIDGES:

17:40:34

17:44:28

THE WITNESS: I would fundamentally disagree

6 with that statement.

17:40:37

10 BY MR BRIDGES:
11

4 designation.

MR FEE: Objection Vague Beyond the

17:44:22

17:44:27

MR. FEE: Objection. Beyond the scope of his

17:40:31

17:40:33

8 scope of his designation
9

3

17:40:30

Q Was there something secret about your

6 Ms Bremer?

1 standards free, will spur investment and integration
2 that really grated on you?

17:40:30

5 conversations with those organizations about

7

17:40:18

17:40:25

17:46:38

MR. FEE: Objection. Again, beyond the scope

25 of his designation.
17:44:20
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17:46:32

17:46:34
17:46:40

17:46:42
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You can answer.

2

1 ASTM's standards that have been incorporated by

THE WITNESS: We would welcome them to

17:46:44
17:46:47

3 participate in the standards development process and
4 share their ideas freely with their colleagues to

17:46:51

17:46:53

5 contribute to the development of an appropriate
6 standard.

17:46:59

7 BY MR. BRIDGES:
8
9

17:46:57

17:49:41

2 reference by the federal government would be harmful
3 to ASTM?
4

MR. FEE: Objection. Asked and answered.

5 Form. Vague.

17:49:54

17:49:59

6

Q. But not as a member of the public?

17:47:02

MR. FEE: Objection. Vague. It's also, I

17:47:04

Go ahead.

7

17:47:02

THE WITNESS: I think that the reading room

17:50:07

8 that we've crafted represented a lot of internal

17:50:07

17:50:08

9 debate and represented the position that the ASTM

10 think, beyond the scope of his designation.

17:47:08

11

To the extent you understand the question.

17:47:11

11 solution to providing the public with access to the

12

THE WITNESS: So I believe members of the

17:50:12

10 board of directors felt comfortable with as our

17:50:16

12 standards incorporated by reference while retaining

17:47:14

14 standards and share information with technical

13 our ability to protect the viability of ASTM as a

17:47:17
17:47:20

17:50:26

15 commitments to our stakeholders.

16 them to work with voluntary consensus standards

17:47:25

16 BY MR. BRIDGES:

17:47:29

18 BY MR. BRIDGES:
19

17

17:47:31

Q. So I didn't hear any of your answers just now

18

17:47:31

20 referring to the fact that Mr. Malamud had thought

17:47:32

21 that the public should have access to the published

17:47:35

22 standards for free when those standards have been

17:47:37

23 incorporated by reference. Do you believe that

17:47:41

24 Mr. Malamud's belief that the public should have free

17:47:46

25 and unfettered access to ASTM standards that have been

1 incorporated by reference by the federal government is
2 harmful?
3

MR. FEE: Objection. Mischaracterizes his

17:47:56

17:50:40

Q. Well, you're making a speech. I'm asking you

22 to answer my question, please.

17:48:06

4 speculation. Beyond the scope of his designation. I
5 object also to the factual statements before the

17:48:08
17:48:16

17:48:19

MR. FEE: Objection. Asked and answered.

But you can answer.

17:48:20

8

THE WITNESS: Obviously, I find that it would

17:50:46
Page 248

Q. My question is is it ASTM's view that free

17:48:22
17:48:27

10 in providing the public with some access so they can

5

8

17:48:35

11 BY MR. BRIDGES:
12

13 get the reading room up and running. So I don't

17:48:40

13

14 disagree on that aspect of what you just put in front

17:48:45

20 federal government -A. Is harmful.

22

Q. No. The transcription here didn't make

24

17:49:02

17:49:21

23 sense. So I need to start again.

MR. FEE: No. Answer how you feel is

17:51:30

17:51:32

THE WITNESS: Free and unfettered access at

17:51:33

17:51:35

17 consequences -- unintended consequences might be on
19 enterprise. So I would be concerned.
20 BY MR. BRIDGES:

17:49:28
17:49:30

17:51:37

17:51:42
17:51:47
17:51:50

21
17:49:23

Is it your view -- sorry. Is it ASTM's view

25 that free and unfettered access by the public to

17:51:29

17:48:57 18 our ability to fund our standards development

17:49:05

21

Q. Yes or no?

16 this time, we don't understand what the

17:48:51

19 that have been incorporated by reference by the

17:51:28
17:51:29

14 appropriate.

Q. You don't disagree with the statement of free

17:51:15

17:51:18

Asked and answered, and form.

17:48:37

18 and unfettered access by the public to ASTM standards

17:51:12

MR. FEE: No. You will get whatever answer

9 he wants.

15

17:51:04

17:51:12

Q. And I'd like a "yes" or "no" to that, please.

12 that's why I've worked on this project for years, to

17:48:51

17:50:56
17:50:58

MR. FEE: Objection. Vague and ambiguous.

10

17:48:47

17:50:50

4 the federal government would be harmful to ASTM?

17:48:32

11 read standards that are incorporated by reference, and

17

17:50:46

3 standards that have been incorporated by reference by

7

9 be in the best interests of ASTM to strike a balance

16 BY MR. BRIDGES:

17:50:44

17:50:44

6 BY MR. BRIDGES:

7

15 of me.

17:50:40

17:50:42

24 He's done that.

1

17:50:37

17:50:38

20 BY MR. BRIDGES:

23

17:50:35

2 and unfettered access by the public to ASTM's

MR. FEE: Objection. Vague. Calls for

6 question.

17:50:35

Q. So your answer to my question is "yes"?

19 testimony.
21

17:50:30

17:50:33

17:47:50 25 BY MR. BRIDGES:
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17:48:04

17:50:23

14 standards development enterprise, to meet our future

15 committees. So there's already avenues available to
17 bodies.

17:50:20

17:47:13

13 public do, from time to time, comment on ASTM

17:49:44

17:49:51

Q. As Tim would be concerned.

22

MR. FEE: Same objection.

17:51:53

23

THE WITNESS: Yes.

17:51:54

24 BY MR. BRIDGES:

17:49:37
25
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Q. ASTM is afraid?

17:51:50

17:51:55
17:51:55
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MR FEE: Objection Vague This is beyond

You can answer if you know how ASTM feels

4

THE WITNESS: ASTM would be concerned

6

17:54:55

Q. You can't recall any?

17:54:55

6

MR. FEE: Same objection.

17:54:56

7

17:52:22

THE WITNESS: No.

17:54:58

8 BY MR. BRIDGES:

17:52:27

9 government would be harmful to the public?

17:54:53

5

17:52:19

8 been incorporated by reference by the federal

17:54:48

THE WITNESS: I can't recall.

4 BY MR. BRIDGES:

17:52:16

17:52:19

Q Is it ASTM's view that free and unfettered

MR. FEE: Objection. Vague.

3

17:52:09

7 access by the public to ASTM's standards that have

17:54:46

2

17:52:02

3

5 BY MR BRIDGES:

1 experts other than John Pace?

17:51:57

2 the scope of his designation Calls for speculation

9

17:52:29

17:55:01

Q. Can you recall how many conversations of that

MR FEE: Objection Vague and ambiguous I

17:52:35

10 sort you've had?

11 think it might be beyond the scope of his designations

17:52:40

11

10

12 too Well, to the extent it's beyond the scope of his
13 designation, I'll object on that and -14

15 could be if it undermined our ability to continue to

17 years, which allows participation of all key

21 that
22

17:55:35

19

MR. FEE: Objection. Vague. Calls for

17:55:43

17:55:51

17:53:11

22

17:53:17

23 consensus standards developed by the Internet

24 ASTM standards that have been incorporated by

Q. Is ASTM aware of standards -- voluntary

24 engineering task force?

17:53:24

25 reference by the federal government would cause ASTM

17:53:28

25

17:55:51
17:55:56

17:56:01

MR. FEE: Objection. This is beyond the

17:56:03
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Page 250
1 to lose the ability to continue its standards

4

17:53:43

MR. FEE: Objection. Vague and ambiguous.

17:53:48

7

17:53:49

8 it devalues the collection of standards, the volumes

17:53:57

17:53:58

9 of standards that we sell to our commercial customers

17:54:01

10 in order to fund our standards development enterprise

17:54:05

11 which helps to offset all the various costs that are

17:54:10

12 associated with standards development.
14

17:56:08

17:56:10

4

If you know individually, you can answer.

5

THE WITNESS: I've heard of the IETF, but we

17:56:11
17:56:13

6 have no interactions with them that I'm aware of. I

17:53:54

THE WITNESS: And one concern would be that

17:54:13

13 BY MR. BRIDGES:

17:56:04

2 the extent you're asking him to speak on behalf of the
3 company.

17:53:47

5 Lack of foundation. Calls for expert testimony.
6 Form.

1 scope of his designation. Calls for speculation to

17:53:35

2 development process to the extent it has done so in
3 the past?

17:55:47

17:55:49

21 BY MR. BRIDGES:

17:53:11

17:55:37

THE WITNESS: I'm not aware of case studies

20 such as you've suggested.

17:53:07

23 that free and unfettered access by the public to the

7 don't study their policies.
9

17:54:17

17:56:16

17:56:19

8 BY MR. BRIDGES:

17:56:23

Q. You're aware that IETF engages in the

17:56:23

10 development of voluntary consensus standards?
11

17:56:26

MR. FEE: Objection. Vague. Calls for

17:56:29

12 speculation. Beyond the scope of his designation.
13

17:54:17

Q. I understand your answer to relate to a

17:56:30

THE WITNESS: What I know about IETF is

14 that they're a voluntary -- I'm not aware that they

17:56:34
17:56:37

15 concern, but my question was different. My question

17:54:19

15 develop voluntary consensus standards under an ANSI

16 was what facts are available to ASTM? What's your

17:54:22

16 accredited process. I believe they might develop

17 answer?
18

19 answered.
20

17:54:29

THE WITNESS: And my facts would be based on

21 conversations with folks like John Pace and other
22 experts on the sale of standards. The impacts on

17:54:35

21

17:56:56

Q. Are you aware of any shortcomings in the

17:54:42

23 develops standards?

24 BY MR. BRIDGES:

17:54:44

24

Q. What conversations have you had with such

17:56:56

22 process by which the Internet engineering task force

23 ASTM's business model.
25

17:56:49

17:56:52

17:54:32 20 BY MR. BRIDGES:

17:54:34

17:56:45

18 wouldn't consider those to be voluntary consensus
19 standards.

17:54:31

17:56:39

17:56:42

17 consortia or other types of specifications. We

17:54:28

MR. FEE: Same objections, plus asked and

17:55:21

17:55:31

18 May call for expert testimony.

17:53:02

What facts are available to ASTM to indicate

17:55:12

17 speculation. Beyond the scope of his designation.

17:53:07

Q What facts are available to you -- strike

Q. Are you aware of any case studies where other

16

17:53:00
17:53:02

19 BY MR BRIDGES:

17:55:07

15 to the public on a free and unfettered basis?

17:52:57

18 stakeholder groups by keeping the barriers low

17:55:05

14 voluntary consensus standards have been made available

17:52:56

16 develop standards under the model we have for 118

20

13

17:52:52

THE WITNESS: Okay And I would answer it

A. I can't recall a number, but it's a frequent

12 topic of discussion with John Pace and I.

17:52:45

17:55:01

17:55:02

17:56:58

17:57:03

MR. FEE: Objection. Calls for speculation.

25 It's beyond the scope of his designation.
17:54:44
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17:57:04
17:57:06
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MR. BRIDGES: Strike that.

17:57:10

1 standards empower and promote creativity?

Q. Is ASTM aware of any shortcomings in the

17:57:12

2

3 process by which engineering task force develops

17:57:15

18:01:23

3 designation Calls for speculation Vague and

4 standards?
5

17:57:19

4 ambiguous

MR. FEE: Objection. Calls for speculation.

17:57:19

6 It's beyond the scope of his designation. May call
7 for expert testimony.
8

17:57:23
17:57:26

13

17:57:28

(Pause in proceedings.)

15

Q. I believe you said that Mr. Malamud's view

17:58:27

17 misunderstanding of what's in the standards. Do you

17:58:31
17:58:34
17:58:36

THE WITNESS: Now that I hear that read back

22 to me, I had a poor choice of words.

17:58:47

23 BY MR. BRIDGES:
24

A. I was --

18:01:58

MR FEE: Objection Beyond the scope of his

18:02:01
18:02:02

18:02 06

THE WITNESS: It's possible

15

MR BRIDGES: Why don't we take a break, and

18:02:12

16 I'll sort out how much time we have left

18:02:24

18:02:26

17

THE VIDEOGRAPHER: Off the record at 18:01
(A recess was taken from 6:01 p m

19

to 6:13 p m )

20

THE VIDEOGRAPHER: Back on the record here at

21 18:13
22

17:58:50

Q. What should you have said?

25

17:58:44

18:02:29

18:14:27
18:14:27

MR BRIDGES: Mr Grove, I've shown you

18:14:38
18:14:43

24 This is an E-mail from ASTM to someone regarding

17:58:56

18:14:27

18:14:29

23 Exhibit 1068, which is a document produced by ASTM

17:58:50

18 01:45

18:01:51

10 governments to incorporate by reference?

18

17:58:33

MR. FEE: Objection. Mischaracterizes his

20 testimony. Beyond the scope of his designation.
21

18:01:42

14

17:58:18

16 that grated on your nerves was based on a

19

Q Do you think it's possible that some new

8 modes of standards development might compete with ASTM

13 ambiguous and hypothetical

17:58:18

18 recall that testimony?

18:01:39

18:01:42

12 designation Calls for speculation Vague and

17:58:18

14 BY MR. BRIDGES:

18:01:35

THE WITNESS: No, I can think of another

6 BY MR BRIDGES:

11

17:57:28

18:01:26
18:01:29

9 in the formulation of standards appropriate for

17:57:27

Q. A while back -- excuse me.

5

7

17:57:25

THE WITNESS: Not to my knowledge.

11 BY MR. BRIDGES:
12

17:57:21

To the extent you know personally, you can

9 answer.
10

MR FEE: Objection Beyond the scope of his

25 ASTM's policies in response to a request for

18:14:47
18:14:55

Page 254
1

MR. FEE: Just so we're clear, you didn't

17:59:01

4

THE WITNESS: Could I refresh my memory or
(Record read.)

17:59:06

8

18:00:15

10

identification.)

4

THE WITNESS: It appears to be.
(Deposition Exhibit 1069 was marked for
identification.)

18:00:15

8

18:15:06

18:15:06
18:15:06
18:15:25

18:15:25

7 BY MR. BRIDGES:

18:00:15

Q. What was the "misperception" that you

9 referred to in that answer?

17:59:08

17:59:10

(Deposition Exhibit 1068 was marked for

6

MR. BRIDGES: No.

7 BY MR. BRIDGES:

18:15:01

2
3

17:59:03

3

6

1 permission; is that correct?

5

2 actually read an answer back to him; right?

5 have it read back?

Page 256

18:15:25

Q. I ask you to look at Exhibit 1069. This is a

18:00:21

10 thread regarding a request for permission to use

18:00:23

A. So it would depend on the specific standard,

18:15:25

9 discussion within ASTM with an underlying E-mail

18:00:17

11 material from an ASTM standard; is that correct?

11 and I don't recall which ones or -- may have been

18:15:31
18:15:35
18:15:47

18:00:28

12

13 discussion was relating to. But the idea that -- as

18:00:30

13 Beyond the scope of his designation.

14 we discussed earlier, the idea that, outside of a

18:00:38

14 BY MR. BRIDGES:

18:15:55

15

18:15:55

12 mentioned in the business week article that this

15 standards development process, there could be

18:00:41

MR. FEE: Objection. Calls for speculation.

18:15:51
18:15:53

Q. I think it's within the scope of his

16 innovation around a standard to me raises -- is a

18:00:44

16 designation. That's why I'm asking him about it.

18:15:57

17 misperception because it will just create more

18:00:51

17

MR. FEE: We can agree to disagree on that.

18:16:01

18

THE WITNESS: I'm sorry. What was the

18 confusion in the marketplace where there will be

18:00:53

19 conflicting standards developed by somebody or some
20 group of people who didn't operate under a consensus
21 based accredited process to develop rigorous quality
22 based standards.
23

24 empower innovation and creativity.
25

18:01:00

18:01:11
18:01:14

Q. Does ASTM believe that only its process and

20 BY MR. BRIDGES:

18:16:26
18:16:30

21

Q. This is an internal ASTM E-mail; correct?

18:16:30

22

18:01:05

18:01:10

And that's where I believe ASTM standards

18:16:25

18:00:56 19 question I'm saying "yes" or "no" to?

MR. FEE: Objection. Lack of foundation.

18:16:35

23

THE WITNESS: Correct.

24 BY MR. BRIDGES:

25
18:01:19
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Q. Who is Ms. Hooper?

18:16:37
18:16:38
18:16:38
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A. Kathe Hooper is responsible for permissions

2 at ASTM.

18:16:38

3

Q. Who is Joe Koury?

18:16:49

4

A. Joe Koury is a staff manager that works with

5 technical committees.

18:16:51

(Deposition Exhibit 1070 was marked for

18:17:06

7

identification.)

8

MR. BRIDGES: I'm showing you Exhibit 1070.

9

Q. This is an E-mail from Ms. Hooper responding

18:17:06

(The witness reviewed Exhibit 1070.)
THE WITNESS: Yes.

13

(Deposition Exhibit 1071 was marked for

14

identification.)

18:18:11

18:18:11
18:18:12

(The witness reviewed Exhibit 1071.)
MR. FEE: Objection. Lack of foundation --

20 strike that. No objection.
21

18:18:26

18:18:27

THE WITNESS: So it's an E-mail between ASTM

25

A. Correct.

18:20:48

Q. You may answer.

18:20:48

9

MR. FEE: Hold on.
Lack of foundation.

18:20:49

11

Go ahead.

THE WITNESS: Yeah. So I think we think --

18:20:53
18:20:55
18:20:55

13 we want to make sure that Congress is aware of the

16 the most recent version.

18:20:59
18:21:02

18

18:21:12

Q. Ms. Petre asked you whether ASTM should

18:21:12

19 request that Congress use the language. Does ASTM

22

18:21:17
18:21:21

18:21:25

MR. FEE: Objection. Beyond the scope of his

23 designation.

18:18:48

18:21:32

18:21:36

24

You can answer.

25

18:18:51

18:21:05

18:21:08

18:18:42 21 regarding ASTM standards?
18:18:44

18:18:48

Q. And within the ASTM --

8

18:20:40

20 ever request Congress to use particular language

22 and Congressional staff and then ASTM staff, correct.
24

18:20:39

6 scope of his designation. Calls for speculation.

17 BY MR. BRIDGES:

18:18:26

23 BY MR. BRIDGES:

18:20:38

15 oftentimes it may be unintended that they're not using

18:18:12

18:18:16

19

MR. FEE: Objection to form. Beyond the

14 fact there may be a more recent version because

Q. Exhibit 1071 is an E-mail from Sarah Petre to

18

(Record read.)

12

18:17:58

17 you and others; is that correct?

4

10

18:17:59

15 BY MR. BRIDGES:
16

18:17:12

18:17:17

12

18:20:20

7 BY MR. BRIDGES:
18:17:06

18:20:11
18:20:19

5

6

11

MR. FEE: Can you read that back to me,

3 please.

18:16:53

10 to a permission request; is that correct?

1 legislation that causes an incorporation by reference?
2

18:16:47

THE WITNESS: Okay. I can think of instances

18:21:36
18:21:38
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Page 258
1

Q. And it's discussing Congressional

2 legislation; is that correct?
3

1 like this where Congress -- what's happening here is

18:21:40

2 this is incorporation by reference by Congress and not

MR. FEE: Objection. The document speaks for

4 itself.
5

18:18:51
18:18:54
18:18:56

18:18:57

3 by an agency, and the concern that's expressed at

4 times by our committee members is if Congress acts to

THE WITNESS: Legislation passed the House

18:19:10

18:21:57
18:22:02

18:19:11

6 freezes that piece of -- that reference in statute for

7 Petre recognized that there's references to ASTM

18:19:16

7 years to come and agencies -- since it's something

8 standards which are out of date, and she wanted to

18:19:18

8 that Congress said, agencies will simply say, "Hey,

9 contact the staffer to make him aware of that fact.
11

18:19:22

18:19:26

Q. Was this a discussion about incorporation by

12 reference?

18:19:26

13

MR. FEE: Same objection.

14

18:19:29

18

18:19:41

22

THE WITNESS: It appears, yes.

23 BY MR. BRIDGES:
24

18:19:48

18:19:52

18:22:32

15 version.

18:22:36
18:22:38

Q. Mr. Grove, again, you didn't answer my

18:22:38

18 question. My question is does ASTM ever request

18:22:40

19 Congress to use particular language regarding ASTM
21

18:19:55

Q. Does ASTM have a view as to which versions of

25 its standard Congress should include in its

18:22:29

20 standards?

18:19:54
18:20:01

18:22:26

14 in making sure Congress is aware as a more current

17

18:19:41

19 incorporation by reference into a federal law of an
MR. FEE: Same objection.

18:22:21

16 BY MR. BRIDGES:

Q. Is that for Congress's use in making an

21

18:19:37

18:19:40

20 ASTM standard?

18:22:19

13 current version language. That's why we're interested

18:19:35

15 Congressional intent to use the most recent standard,
17 BY MR. BRIDGES:

So that's a concern that I'm familiar with,

11 and I can't tell if that -- I don't recall the

18:22:12

18:22:16

12 circumstances of this here, but that's the most

THE WITNESS: It's a discussion about

16 I believe.

18:22:06

9 talk to Congress, not to agencies about it."
10

18:19:28

18:21:52

5 designate a specific standard in legislation that

6 and now it's being referred to the Senate, and Sarah

10 BY MR. BRIDGES:

18:21:45
18:21:48

23

THE WITNESS: Yes.

18:20:01 24 BY MR. BRIDGES:

18:20:07
25
Page 259

18:22:46

MR. FEE: Same objections. Plus asked and

22 answered.

18:22:43
18:22:47

18:22:50
18:22:52
18:22:55

Q. To your knowledge, has ASTM ever asked

18:22:55
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2 its standards by reference?
3

18:23:00

4 designation

18:23:07

18:23:15

18:23:21

18:25:46

MR FEE: Objection Mischaracterizes his

9 testimony Vague
18:23:31

11 the federal government may incorporate its standards
12 by reference?

18:25:42

8

18:23:31

Q Has ASTM ever imposed conditions on whether

18:25:40

7 government in incorporating standards by reference?

18:23:26

9 BY MR BRIDGES:

18:25:40

Q Are you saying that there has to be a

6 consensus process in order to cooperate with a federal

18:23:24

8 reference, but I can't recall an instance

5

18:25:54

10

You can answer

18:25:58

THE WITNESS: No, that's not what I'm saying

12 BY MR BRIDGES:

MR FEE: Same objection Vague as well

14

THE WITNESS: I don't have direct knowledge

18:23:44

13

18:23:52

15 It was before my time at ASTM, but I understand at one
16 point in time there was a concern that Congress was

18:26:00

18:26:14

Q Do you know whether any federal official has

18:26:14

14 taken advantage of the reading room that ASTM provides

18:23:54
18:23:58

17 perhaps taking ASTM -- taking key content from an ASTM

18:25:52

11

18:23:37

18:23:42

13

18:25:35

18:25:38

4 BY MR BRIDGES:

6 it's possible that there's been reasons why committees

10

3 ASTM

18:23:09

THE WITNESS: To my knowledge, no I believe

7 haven't wanted to see standards incorporated by

18:25:33

2 has happened in the last 10 years since I've been at

MR FEE: Objection Beyond the scope of his

5

1 don't think it happens very often, but I believe it

18:23:04

15 the public?
16

18:24:03

MR FEE: Objection Vague

17

THE WITNESS: I don't know specifically

18:26:23
18:26:30

18 standard and placing it in a piece of legislation and

18:24:09

18 whether they have I do know I've received accolades

19 that ASTM would be concerned about that

18:24:13

19 from federal agencies, the fact that it exists So I

20 BY MR BRIDGES:
21

18:24:16

20 would presume that they have

Q Why would ASTM be concerned about that?

22

18:24:16

MR FEE: Objection Beyond the scope of his

23 designation Calls for speculation Lack of
24 foundation
25

18:24:20

18:24:22

18:26:44

Q How much money has ASTM received from the

23 federal government in each of the last five years?

18:24:24

MR FEE: Objection Vague

25

18:24:26

18:26:44

18:26:49

24

THE WITNESS: It would be taking the standard

18:26:31

18:26:34

18:26:40

21 BY MR BRIDGES:
22

18:26:17

18:26:22

18:26:58

THE WITNESS: Well, I believe we've received

18:27:00

Page 262
1 out of context from what the voluntary consensus

3 enterprises wanted to see represented in the standard
4 BY MR BRIDGES:
5

7

9

12

MR FEE: Same objection

13

THE WITNESS: I don't recall a particular

17 times it's occurred?
18

18:27:37

Q. What were the main categories of payments by

13 the federal government to ASTM over the last five

18:24:59

15

18:25:01

17

24 have to reach a consensus that they want to see an
25 ASTM standard included in a regulation And so I

18:27:47
18:27:48

Q. In other words, what were the payments for

18:27:48

18 ASTM to do?

18:25:09

19

MR. FEE: Same objection, plus form.

20

18:27:50

THE WITNESS: I can think of -- that we would

18:27:52

21 sell standards to federal agencies. That would be one

18:25:13

22 our committees would have to follow They would have
23 to -- the executive committee of a committee would

MR. FEE: Objection. Vague.

18:25:08

18:25:11

THE WITNESS: It's -- there's a process that

18:27:37
18:27:41

18:27:46

16 BY MR. BRIDGES:

18:25:01

18:25:06

19 Beyond the scope of his designation Calls for

21

12

18:27:31

18:27:32

11 BY MR. BRIDGES:

18:24:55

18:27:27

18:27:29

14 years?

MR FEE: Objection Lack of foundation

20 speculation

18:27:25

THE WITNESS: To my knowledge, none of it

10 was.

18:24:59

Q Do you have an estimate as to the number of

18:27:22

MR. FEE: Objection. Calls for speculation.

9

18:24:54

18:27:17

5 federal government in order to facilitate the

8 Vague.

18:24:57

15 BY MR BRIDGES:

18:27:17

Q. Were some of that money provided by the

7

18:27:04

18:27:11

6 standards development process?
18:24:50

18:24:55

Q Do you recall a particular -- any instance?

14 time

18:24:43

18:24:52

10 BY MR BRIDGES:

16

4

18:24:47

THE WITNESS: It's possible that we have

2 last five years from the federal government.
3 BY MR. BRIDGES:

18:24:35

18:24:43

MR FEE: Objection Beyond the scope of his

8 designation

11

18:24:31

Q Has ASTM ever asked an agency to use specific

6 language in a regulation?

1 anywhere from $650,000 to $900,000 per year over the

18:24:27

2 process encompassed in ASTM standards development

Page 264

18:25:17

22 source of revenue.

18:28:00

23 BY MR. BRIDGES:

18:25:19

18:28:01

24

18:25:28

Q. What other sources of revenue?

25

18:25:24

A. I believe that we have a number of federal

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18:27:53
18:27:56

18:28:01
18:28:03
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1 employees that participate in ASTM as full voting

18:28:06

2 members. So they would pay a $75-per-year fee to be a
3 member of ASTM.
4

18:28:14

Q. And you're counting that in the figures that

5 you gave me earlier?

18:28:16

A. Yes.

7

1 or edits to any version of ASTM standards where the

18:31:13

2 current ASTM standards have been incorporated by

18:31:25

3 reference?

18:28:18

6

4

18:31:33

MR FEE: Objection It's beyond the scope

5 of his designation Compound Vague

Q. What other sources of funds from the federal

18:28:19

6

18:31:34
18:31:35

THE WITNESS: Because of the openness and

18:31:45

18:28:20

A. Right. That's all I'm aware of. That's all

7 transparency and iterative innovative process that

18:28:23

8 government have there been for ASTM?
9

18:28:09

8 ASTM encapsulates, I wouldn't know how to answer that

18:28:27

10 I'm aware of. We also have certification and training

9 question, give you a number

18:28:33

11 programs, which I don't believe the federal government
12 is too involved in, but we receive a small stipend

18:28:41

18:28:44

13 from the U.S. Department of Agriculture to assist them
14 in running a -- the U.S. bio preferred program.

18:28:49

18:28:53

18:29:00

10

18:31:49

18:31:56

MR BRIDGES: There's one more exhibit I want

11 to find

18:32:08

18:32:10

12

(Deposition Exhibit 1072 was marked for

18:32:35

13

identification )

14

MR BRIDGES: Mr Grove, I've handed you

18:32:35

15

Q. Anything else?

16

A. We run a proficiency testing program, which

18:29:06

16

Q What is this document?

17 the U.S. Department of Defense participates in. So

18:29:08

17

A It appears as if this is the ASTM form and

15 Exhibit 1072

18:32:35

18:32:37
18:32:39

18 it's not related to standards, but it's another source

18:29:14
18:29:18

19

18:32:53

18 style book for how ASTM standards are displayed

19 of revenue from the federal government.
20

Q. Does ASTM have any means of identifying who

21 the originator was of any particular language in its
22 standards?
23

18:29:33

MR. FEE: Objection. Vague. Compound. To

25 object on that basis.

21 process of ASTM standards?

18:33:07

18:29:34

18:29:43

18:29:46

18:33:15

18:33:18

22

24 the extent it calls for a legal conclusion, I'd also

18:32:57

Q Does that create standards that persons must

18:29:22 20 follow in participating in the drafting and revision

18:29:26

MR FEE: Objection Vague Compound

23

THE WITNESS: No

18:33:22

18:33:31

24 BY MR BRIDGES:
25

18:31:53

18:33:34

Q Does that provide rules that persons must

18:33:34

Page 266
1 follow in participating in the drafting and revision

1

Go ahead.

2

THE WITNESS: To the extent those are legal

18:29:47

7

18:30:02

8

18:30:06

Q. Is there any -- strike that.

18:30:06

How many individuals provide language or

18:30:11

9 edits to the ASTM standards that have been
10 incorporated by reference?

18:30:19

MR. FEE: Objection. Vague. Compound.

12

THE WITNESS: That would be very difficult to

15 reference?

18:30:37

18:30:39

14 standards that have already been incorporated by

18:30:41

Q. Yes.

18

THE VIDEOGRAPHER: 18 minutes left.
MR. BRIDGES: 18 minutes left.

8

(Deposition Exhibit 1073 was marked for

9

identification.)

A. Presumably, if those standards are being

18:34:06
18:34:10
18:34:13
18:35:00

18:35:00
18:35:00

11

Q. Mr. Grove, do you recognize Exhibit 1073?

12

A. I do.

Q. Does it represent the views of both ASTM and

14 ANSI?

17

18:30:44
18:30:47

19 revised by ASTM or re-approved for use, it will have

18:33:44

18:35:00

18:35:13

18:30:49

MR. FEE: Objection. Compound. Calls for

18:35:23
18:35:25

THE WITNESS: I believe this is an error.

18:35:30

18 No. I'm not familiar why this page would be stapled
19 to a presentation. This is a speaker that came before

20 to go through a technical committee. It has to.

18:30:55

20 me on a panel followed by -- who probably didn't

21 That's the process for re-approving or revising

18:30:58

21 provide a written presentation, which happens to be

22 standards at ASTM. So it would depend on how many
23 people are on that committee and what percentage
24 voted.
25

23 page on a presentation that I gave.

18:31:11 25
Page 267

18:35:44
18:35:47

18:35:51

24 BY MR. BRIDGES:

18:31:07

Q. How many individuals have provided language

18:35:32
18:35:36
18:35:39

18:31:01 22 stapled to a presentation which begins with the title
18:31:05

18:35:16

18:35:20

16 speculation. Beyond the scope of his designation.

18:30:44

17

MR. BRIDGES: Where are we on time?

15

18:30:43

16 BY MR. BRIDGES:

18:33:42

THE WITNESS: Generally, yes.

13

18:30:25

13 calculate. I need to ask are you referring to

MR. FEE: Objection. Vague.

4

10 BY MR. BRIDGES:

18:30:24

11

3

7

18:29:56

18:33:40

6

18:29:52

4 process. I'm not aware of a way to trace origins back
6 BY MR. BRIDGES:

18:33:38

2 process of ASTM standards?

5

18:29:51

3 terms, I'm aware of an ASTM standards development
5 to a specific individual.

Page 268

18:35:54

Q. Okay. So starting -- okay. So there's a

18:35:54
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1 general workshop That's reflected on the first page

1

18:35:56

MR. BRIDGES: I will check, but if we don't

18:41:09

2 And then there's a listing of Scott Cooper Then

18:36:00

2 have them, we expect to get them.

3 there's your name, and then what follows in the

18:36:03

3

4 exhibit is a presentation solely by you and not by

18:36:03

4 was or what you understood to be the purpose of the

5 Mr Cooper; is that correct?

18:41:10

Q. Can you please explain to me what the purpose

A That would be my recollection of events, yes

18:36:13

6

7

Q And then does that remaining portion starting

18:36:17

18:41:23

7 of the designation. Calls for speculation.

8 after your name reflect the views of ASTM at the time
9 of your presentation?

13

13

18:36:38

(The witness reviewed Exhibit 1073 )

16

THE WITNESS: Yes I believe this, to the

18 ASTM would have on this issue at the time of this

(Deposition Exhibit 1074 was marked for

21

identification )

18:42:09

MR. FEE: Objection. Beyond the scope of his

21

18:42:11

18:42:13

THE WITNESS: So some of these activities may

18:42:16

22 be underway, but we don't believe that we are actively

18:38:01

23 pursuing all of them.

18:38:01

24 E-mails among you and Katherine Morgan, Len Morrissey
25 and John Pace; is that correct?

18:42:06
18:42:08

Q. Is the project underway?

20 designation.

18:38:01

Q Mr Grove, Exhibit 1074 is a series of

MR. BRIDGES: Strike that.

19

18:38:01

22 BY MR BRIDGES:

THE WITNESS: Project been approved?

18

18:37:07

18:37:09

18:41:59

18:42:03

17

18:37:05

18:41:47

18:41:58

MR. FEE: Objection. Vague. Beyond the

16

18:37:01

17 best of my recollection, was the general views that

18:41:42

18:41:58

15 scope of his designation.

18:37:01

20

18:41:39

18:41:53

Q. Has the project been approved?

14

18:36:39

15

23

11 the items that are contained in the project.

18:36:26

12 BY MR. BRIDGES:

You should read the whole thing if he's

19 presentation

THE WITNESS: This represents a project that

9 ASTM staff is undertaking throughout the course of

18:36:29

14 asking you to verify all the use of ASTM

18:41:33
18:41:34

10 2015 and -- I'm sorry. 2014 and 2015. These would be

18:36:24

11 Beyond the scope of his designation Compound as
12 well

MR. FEE: Objection. It's beyond the scope

8

18:36:20

18:36:22

MR FEE: Objection Calls for speculation

18:41:20

5 page with the Bates number ending in -3315?

18:36:11

6

10

18:41:16

18:38:07

18:42:21

24 BY MR. BRIDGES:
25

18:38:15

18:42:18

18:42:23

Q. Which ones is ASTM not actively pursuing?

18:42:26
Page 272

Page 270
1
2

A. Yes, it is.

1

18:38:26

MR. FEE: While I'm thinking of it, I'm going

3 to reserve the right to read and sign.

18:39:08

(Deposition Exhibit 1075 was marked for

5

identification.)

6

MR. BRIDGES: I'm handing you an exhibit

18:39:29
18:39:29

7 marked 1075 that consists of pages ASTM003314 to
9

18:40:02

Q. Do you recognize this document?

12

A. I do, yes.

18:40:02

13

Q. This is an E-mail from Maureen Houck to a
A. It is correct.

A. I believe it's short for the Information

18:40:32

Q. What does ITC -- sorry. "ITMC" mean?

17

18:40:37
18:40:39
18:40:45

18 Technology Management Committee.
20

Q. And --

18:42:45

18:40:50

6 participating in ASTM technical committees and where.
7 We're trying to find out more about how federal
9
10

MR. FEE: I'm going to object. This appears

18:40:56

18:42:58

MR. FEE: Can you read the question back.

18:43:03

MR. BRIDGES: Not when he's in the middle of

18:43:10

18:43:12

MR. FEE: He's answering the wrong question.

13

MR. BRIDGES: Well, let him finish.

14

MR. FEE: Read the question back.
MR. BRIDGES: No. No.

16

MR. FEE: Yes.

17

MR. BRIDGES: You stopped your witness from

18:43:19
18:43:21
18:43:21

MR. FEE: Wait until she reads the question

18:43:28

18:43:30

18:40:58

21

(Record read.)

22

18:41:01

22

THE WITNESS: It's really hard to say because

18:41:02

23 we're very early in the process of working on this,

23 mentioned that because I don't think we got the other

18:43:22

18:43:24

21 to be just one of many attachments to Exhibit 1075.
MR. BRIDGES: You know, I'm glad you

18:43:14

18:43:16

18 speaking. That's ridiculous. That's improper.
20 back.

18:42:52

18:42:56

11 his answer, please. Afterwards, you can do that.

19

18:40:54

18:43:48

24 but I can tell you it's been scaled back. This is a

24 attachments, and I'd like to get them, please.

18:41:04

25

25 pretty ambitious activity. I believe the last two
18:41:06
Page 271

MR. FEE: I don't know if that's true or not.

18:42:50

15

18:40:29

14 number of senior staff at ASTM; is that correct?
16

18:42:40

4 full extent of government participation. So we're

12

18:40:22

15

18:42:38

8 agencies use ASTM standards.

18:40:02

11

19

18:39:31

18:39:37

(The witness reviewed Exhibit 1075.)

10 BY MR. BRIDGES:

18:42:31

5 taking an inventory of how many government reps are

18:39:29

8 ASTM003315.

THE WITNESS: Well, we're taking an

3 inventory. We don't have great information about the

18:39:12

4

MR. FEE: Same objection.

2

18:43:48
18:43:49

18:43:53
18:43:55
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1 bullet points are things that we're not going to be

18:44:04

1

MR. FEE: Objection. Beyond the scope of his

2 able to accomplish or pursue.

18:44:07

2 designation.

3 BY MR. BRIDGES:

18:44:13

3

4

Q. What standards development activities --

5 strike that.
6

18:44:13

18:44:16

What activities has ASTM had to scale back to

7 date as a consequence of the actions of the
8 defendants?
9

18:44:16

18:44:22

18:44:27

MR. FEE: Objection. Beyond the scope of the

12

18:44:29
18:44:33

18:44:38
18:44:41

13 answer what specific activities we've scaled back.
15

18:44:43

18:44:46

Q. Have any activities been scaled back by ASTM

16 as a consequence of the actions of the defendants?
17

MR. FEE: Same objections.

18:44:46
18:44:49

Q. Of the defendant, I should say.

20

A. To the best of my knowledge, no.

21

18:44:52

22 process in any way because of the activities of
18:45:18

18:46:37

Q. How many times did Ms. Petre go to the Public

18:45:19

MR. FEE: Objection. Beyond the scope of his

25 changes were made at the direction of counsel -- let

1 me think about that. Hold on one second.

18:46:43

18:45:33

16 BY MR. BRIDGES:

18:46:49

Q. Do you know how many times ASTM or its agents
18:46:59

20 BY MR. BRIDGES:

18:47:01

Q. -- for the purposes of this litigation?

18:47:01

MR. FEE: Objection. Calls for speculation.

18:47:05
18:47:07

1 that question, I instruct you not to disclose that.

18:45:33

3

THE WITNESS: I don't know.

18:45:38

5

18:47:17
18:47:20

4 BY MR. BRIDGES:

5 changed at the direction of counsel because of

18:45:40

If there is something done because of

8 defendant, not at the direction of counsel, you can
9 answer that.
10

11 BY MR. BRIDGES:
12

18:45:44

18:45:46
18:45:47

18:45:56

Q. Have you gone to the Public Resource website

13 to find ASTM standards?
14

A. I have.

15

18:46:08

18:46:16

Q. Who is that?

22

A. That would be Sarah Petre, formerly of our

18:48:04

Q. It involves meetings at a restaurant called

18:48:04
18:48:06

15

A. That's correct.

16

Q. Where is it located in relation to ASTM's

18:48:08
18:48:08

18:48:12

18

A. About two blocks.

18:48:13

Q. What is the most frequent topic of discussion

21
18:46:17

18:47:59

18:48:01

12 BY MR. BRIDGES:

20 at the Corner Bakery group meetings?

18:46:16

18:48:19

18:48:23

A. It would depend. It varies from month to

18:48:26

18:46:20

18:46:22

22 month. I wouldn't be able to give you an answer.

18:48:28

23

18:46:19

Q. How many times have you visited the Public

25 Resource website?

18:47:58

THE WITNESS: I don't know who created it. I

19

18:46:14

21

24

18:47:56

MR. FEE: Objection. Vague.

17 Washington office?

18:46:16

20 BY MR. BRIDGES:

23 staff.

18:46:11

18:46:13

THE WITNESS: I'm aware of at least one

19 person.

Q. Did you create it?

10

18:47:55

14 the Corner Bakery Cafe; correct?

MR. FEE: Objection. Beyond the scope of his

18

8

13

18:46:08

17 designation. Calls for speculation.

18:47:49
18:47:54

A. Yes, I have.

11 could have. I could have.
18:45:56

18:46:01

Q. Have other persons at ASTM?

16

Q. Have you ever participated in something

7
9

THE WITNESS: I'm not aware of changes.

18:47:49

6 called the "Corner Bakery Group"?

18:45:43

18:47:09
Page 276
18:47:13

You could otherwise answer.

18:45:34

7

18:47:03

To the extent that work was done at the

2

18:46:49

18:46:53

MR. FEE: Objection.

4 you not to answer to the extent that activities were
6 activities of the defendant.

18:46:45

18:46:46

18:45:21
25 direction or by counsel, that would be responsive to
Page 274
18:45:24

MR. FEE: I'm going to object and instruct

18:46:41

THE WITNESS: I wouldn't be able to answer

15 that. I don't know.

24

18:46:38

18:46:41

13 designation. Calls for speculation.

22

18:46:33

18:46:35

23 Beyond the scope of his designation.

MR. FEE: Objection. To the extent that

3

12

18:45:05 21

18:45:11

(Pause in proceedings.)

18:46:32

9 BY MR. BRIDGES:
10

19

18:44:59

2

THE WITNESS: I wouldn't be able to give you

18 have accessed Public Resource's website --

Q. Has ASTM changed its standards development

24

MR. FEE: Same objection.

7

17

18:44:52

19

23 defendant?

18:46:30

6

14

18:44:51

18 BY MR. BRIDGES:

18:46:30

Q. More than five times?

11 Resource website?

THE WITNESS: Yeah. I wouldn't be able to

14 BY MR. BRIDGES:

18:46:26

8 a number. I would say less than five times.

10 designation. May call for expert testimony. Vague
11 and ambiguous.

THE WITNESS: At least once.

4 BY MR. BRIDGES:
5

18:46:23

18:46:25

18:48:34

Q. What topics other than Public Resource are

24 most frequently discussed?
25

18:48:37

MR. FEE: Objection. Lack of foundation.

Page 275

18:48:38
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1 Misleading.
2

18:48:40

1

THE WITNESS: Funding for NIST, the National

18:48:42

3 Institute of Standards and Technology. I recall OFAC,

18:48:45

THE WITNESS: Well, I'm involved in a lot of

18:48:48

4 Steve -- I'm sorry Joe Tretler

5 standards with certain countries. Congress's interest

18:48:52

5 BY MR BRIDGES:

18:48:59

7 Washington representatives of standards organizations

18:49:06

8 to exchange information about what's happening in
9 Washington.

18:49:10

10 BY MR. BRIDGES:
11

18:49:08

Q. Who participates in the Corner Bakery group?

12

MR. FEE: Objection. Vague.

13

Remember to give me a second. Go ahead.

14

THE WITNESS: I rarely participate. It's

18:49:17
18:49:18
18:49:21

15 mostly lower level. Each organization usually assigns
16 the lowest person in their Washington office to
17 attend.

18:49:23

18:49:26

18:49:29

18 BY MR. BRIDGES:

18:51:21

6

Q Who is Steve Kramer? Do you know Mr Kramer?

7

A I do Steve Kramer was a member of the board

8 of directors for a period of three years from the

10

18:49:12

18:51:36

11

MR FEE: Objection

12

To the extent you had discussed litigation

16

18:51:50

19

20

A. Most often it was Sarah Petre.

18:49:34

20 Kramer?

21

Q. Who else from ASTM participated?

22

A. Well, I recall -MR. FEE: Objection. Vague.

THE WITNESS: I recall attending two or three

18:49:42
18:49:44

25 meetings in the last 15 months. And perhaps Anthony

3

18:49:52

7

A. I cannot recall any government employee

9

18:50:28

16

18:52:03

MR. FEE: Same instruction with respect to
And, again, this is beyond the scope of his
THE WITNESS: Yeah. I can't think of a

9 organization you mentioned.

18:50:34

18:52:24

A. Randy Jennings is a former member of the ASTM

18:52:24

14

MR. FEE: We're now at the seven-minute time

18:50:42
18:50:44

THE VIDEOGRAPHER: (Nods head.)
MR. FEE: Last time you said you'd give

18:50:50

19 courtesy to you.

20 His name is Mark. He's in their Washington office. I

18:50:51

20

25

18:50:55

MR. FEE: Same objection.

MR. BRIDGES: That's fine. Thank you very

21 much, Mr. Grove.

18:51:06

THE WITNESS: Thank you.

23

MR. FEE: I have no questions.
Thane, do you have any questions?

25

18:51:04

MR. REHN: No questions.

Page 279

18:52:50

18:52:52

24

18:51:02

18:52:40

18:52:43

22

18:51:02

Q. Who do you interact with most frequently at

18:52:35
18:52:38

18 ASHRAE two more questions. So I'll do the same

THE WITNESS: I'm struggling with his name.

18:52:32

18:52:34

16
17

18:50:39

18:52:27

18:52:32

15 limit; right?

18:50:36

21 don't have a lot of interaction with him at all.

18:52:17

Q. Who is Randy Jennings?

MR. FEE: Objection. Beyond the scope.

24 ANSI?

18:52:13
18:52:14
18:52:21

10 BY MR. BRIDGES:

19

23

18:52:08

18:52:11

7 specific instance, but it's possible I've prepared

18

22 BY MR. BRIDGES:

18:52:06

18:52:07

12

18:50:32

Q. Whom do you interact with most frequently at

17 ASHRAE?

Q. In what context?

13 board of directors.

A. I would say Megan Housewright in their

15 Washington office.

Page 280

11

18:50:32

14

18:52:02
18:52:03

8 materials for the board that might have referenced the
18:50:26

18:50:31

Q. Him personally.

18:51:58

5 designation.
6

18:50:21

10 designation. Are you asking him personally or as

13

1

4

18:50:25

12 BY MR. BRIDGES:

18:51:57

THE WITNESS: Yes, I might have

18:50:00

18:50:09

MR. FEE: Objection. Beyond the scope of his

11 ASTM?

24

18:51:56

3 privileged communications.

18:50:07

Q. Whom do you most frequently interact with at

8 NFPA?

This is also beyond the scope of his

18:49:58

Q. Are you aware of any government employees

6 attending.

MR FEE: Same instruction

2

18:49:58

4 ever attending a meeting of the Corner Bakery group?
5

21

23 designation

18:51:53

18:51:56

18:49:49 25 BY MR BRIDGES:
Page 278

1 Quinn from ASTM would attend some months.
2 BY MR. BRIDGES:

18:51:53

Q Have you discussed Public Resource with Steve

22

24

18:51:50

18:51:52

18 BY MR BRIDGES:

18:49:30

23

18:51:43
18:51:48

THE WITNESS: I have not discussed litigation

Q. Who attends for ASTM?

18:49:39

18:51:41

14 you not to disclose that, but you can answer

19

18:49:42

18:51:37

18:51:40

13 with him at the request of counsel, I would instruct

15 otherwise

18:51:27

18:51:30

18:51:34

Q Have you discussed this litigation with him?

17 with Steve Kramer

18:49:30

18:51:15

18:51:18

9 University of Wisconsin

18:49:12

18:51:08

3 responsible for their global policy, which would be

4 the Treasury Department's restrictions on sharing
6 in energy and dependence. It's just a way for the

18:51:07

2 activities for ASTM that -- so my -- probably someone

18:52:54
18:53:00
18:53:02
18:53:03
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1

THE VIDEOGRAPHER: This is the end of the

2 deposition of Mr. Jeffrey Grove. We are off the
3 record at 18:52.
4

(Witness excused.)

5

18:53:06
18:53:08

ACKNOWLEDGMENT OF DEPONENT

2
3

18:53:13

(Deposition concluded at 6:52 p.m.)

1

I, JEFFREY GROVE, do hereby certify that I

4 have read the foregoing pages, ________ to ________,

18:53:16
18:53:16

5 and that the same is a correct transcription of the

6

6 answers given by me to the questions therein

7

7 propounded, except for the corrections or changes in

8

8 form or substance, if any, noted in the attached
9 Errata Sheet.

9
10

10

11

11 _________________________________________________

12

12 DATE

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SIGNATURE

Page 284

CERTIFICATE
I do hereby certify that the aforesaid
testimony was taken before me, pursuant to
notice, at the time and place indicated; that
said deponent was by me duly sworn to tell
the truth, the whole truth, and nothing but
the truth; that the testimony of said
deponent was correctly recorded in machine
shorthand by me and thereafter transcribed
under my supervision with computer-aided
transcription; that the deposition is a true
and correct record of the testimony given by
the witness; and that I am neither of counsel
nor kin to any party in said action, nor
interested in the outcome thereof.

<%signature%>
19
Nancy J. Martin, RMR, CSR
20
21
22 Dated: March 18, 2015
23
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2008 83:7 170:18,18
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2009 24:20 108:14
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36:14 44:18,25
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22:5,14,15 23:1,10
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32:21 33:6,16 36:25
38:23 39:4,8,13,21
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43:13,16,19,25 44:7
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68:3,4 69:14 70:10
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77:8,9,22 84:23
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112:13,20 113:1,5,8
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116:8,17,23 117:7
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120:1,16,25 121:10
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184:15,17 185:17

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198:1 200:9 202:8
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255:23,25 256:8,23
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263:2,5,25 264:3,14
264:22 265:13,18
266:1,3,8,20 267:3
267:9,19,22 268:1,2
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270:18 271:14
272:9,25 273:6,8

274:6,15,21 275:13
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278:19,21 279:1,11
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astm's 17:7,8 18:21
19:3 57:4 60:2
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277:16
astm001788 10:6
astm001814 9:20
astm003314 11:18
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astm003315 271:8
astm003479 7:11
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astm015779 5:20
astm015828 5:22
astm015912 6:5
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astm019297 6:18
astm019650 11:7

astm022627 8:7
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astm023336 8:14
astm024218 6:10
astm0255574 8:15
astm027093 8:18
200:1
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astm030712 194:10
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238:9,12
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130:17
astm102388 7:23
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astm103025 207:4
astm95376 11:6
atm030712 8:11
attach 20:1
attached 200:6,7
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attaching 199:24
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[attachment - beginning]
attachment 207:7
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attachments 207:9
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attempt 161:4
attempted 124:24
attend 89:20 278:17
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attorney 14:22
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attorneys 13:15
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attributes 29:10
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august 8:19 11:17
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authentic 170:3
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automatic 213:23
availability 181:11
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b
b 1:4,15 2:4,15 4:13
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back 18:5 25:16
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balanced 219:19

band 176:23
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[begins - bridges]
begins 269:22
begun 105:12
behalf 13:23 96:8
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197:13,25 253:2
belgium 61:16 102:2
belief 246:24
believe 27:23 28:18
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206:4 248:10 280:7
281:8,13
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box 100:15,22 101:1
101:2
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103:1,3 136:21
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32:23 33:2,10,19
34:10 36:9,18 37:2
37:16,23 38:11,15
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[bridges - business]
40:20 41:1,12,20,23
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102:2
buckeystown
102:15
bucks 220:25
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building 7:21
133:22 211:20
built 122:12
bullet 217:1 218:24
274:1
business 34:6 35:11
144:5 145:11
148:15 166:1
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[business - characteristics]
167:17 176:8 182:4
182:6 251:23
255:12
buy 152:20,20
bypassed 162:15
c
c 283:1,1
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4:7
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274:10
called 24:16 25:2
26:16,23 41:4,5
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113:12 121:21
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33:7,17 36:4,20
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45:1 52:16 54:7,11
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63:1 65:12,24 66:13
67:3,23 68:10 70:18
70:23,24 71:7,8,23
71:24 73:2,20 74:24
76:1 78:19 79:13
80:7 93:17 94:20
97:10 98:16 99:2,15
103:4 104:23 112:2
112:5 129:8 132:10
132:24 134:17
135:9,10 136:24

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144:2,18 147:21
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150:21,22 153:3,20
154:4,21 155:4,10
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campaign 183:10
canada 48:11 51:7
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canadian 51:18,20
capabilities 29:10
capacity 23:22 62:3
62:10,13 87:10
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capitol 81:20 107:14
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caption 13:9
captured 149:17
169:4
card 93:6
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carl 4:16 13:21
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245:4
carl's 143:17
carli 32:3,4 135:1,17
199:24 201:8
202:24 238:25
239:5,15
carmel 188:9 189:7
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carry 224:7
carrying 209:16
case 1:3 2:3 13:9,11
13:12 45:22 46:22
48:1 50:20 131:17
137:4 149:8 159:18
177:2 180:7 188:5
194:19 216:22
220:13 252:13,19
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146:6 153:10
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192:8 260:1
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cement 102:16
cendrowska 100:25

ceo 184:22
certain 15:2 62:13
99:17 124:6 139:14
151:15 153:9,9
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161:9 164:8,13
165:4,10 186:25
206:15 214:10
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certainty 25:13 75:1
89:23 202:21
certification 24:10
85:15 266:10
certify 283:2 284:3
cetera 23:23
cfr 76:7 97:9
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180:7 206:4
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chambered 64:6
chance 14:13
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changes 19:7 33:5
100:12 115:7
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275:10 284:7
changing 100:22
234:11,18
chapter 50:15
character 221:17
characteristics
166:22
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[charge - concern]
charge 55:17
chart 7:10 100:5,9
157:16 158:2
chartered 24:14
chatted 218:20
check 159:13 272:1
chicago 52:20
children 232:21
choice 254:22
chris 4:18 13:4
church 23:23
cicely 103:14,14,17
103:17
circular 38:2,7
49:23 66:10 95:24
207:19
circulated 41:13
circumstances
132:22 230:20
261:12
cited 79:9
citizens 17:9 214:5
city 102:5,8
claims 131:19
clarify 87:7 191:12
claw 130:16 193:13
193:14 203:13
clean 97:16
clear 46:2 159:18
160:12,14 168:19
171:19 215:13
216:15 255:1
clearly 45:2
client 130:3 131:20
137:8 198:18,22
clip 199:18
close 35:11 181:1
closely 55:22
coaching 171:21
243:21
coalition 25:2,23,25
26:4,7,13
code 75:18,22,24
76:23 77:5,15,25
78:4 105:16 121:25

188:9 189:7,21
190:20 233:1
codes 7:21 109:1,2
133:23
coffee 70:8
collaboration 21:25
91:20,24 92:4 98:7
102:11
colleague 87:19
233:6
colleagues 246:4
collected 160:1,3
collection 181:1
210:8,11,13 251:8
colorful 221:17
columbia 1:2 2:2
13:12
columns 151:18
combined 95:23
come 21:25 28:22
38:10 49:23 50:2
78:25 88:11 89:12
105:10,25 114:9
124:9 170:14 172:3
223:8,8 226:21
234:4 261:7
comes 124:3 222:5
225:12,12,13 245:2
comfortable 248:10
coming 69:11
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commencing 2:19
comment 71:2 73:6
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commented 33:5
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commenting 233:8
comments 5:16
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commerce 24:7,13
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commercial 108:4
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commission 50:9
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commit 160:10
commitment 114:14
commitments
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committee 24:8,12
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99:8,10 100:21
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committees 60:2
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common 204:12
communicated 36:2
communicating
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communication
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communications
32:8 40:1,3 45:7,20
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131:5,9,17,20 137:7
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communities 117:20
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community 34:7
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companies 28:23
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company 253:3
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35:7
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computer 283:10
computing 22:23
concept 188:15
concern 17:6 103:21
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[concerned - core]
concerned 50:17
152:5,7 158:14,19
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249:19,21 250:4
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concerns 31:10
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concrete 102:16
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congress's 259:18
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congressional 35:17
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congressionally
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congressman 81:16
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congresswoman
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connect 235:7
connection 45:8
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consents 66:6
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conshohocken
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contemplating
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content 143:2
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contract 189:21
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cooperatively
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copied 64:19
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copy 57:4,25 83:12
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copyright 54:2,25
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copyrighted 39:8
copyrights 54:6
216:3
core 69:12,24
111:19
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[corner - decentralized]
corner 277:6,14,20
278:11 279:4
corporate 14:22
60:22 101:17
102:19 150:4 153:4
corporation 36:15
correct 22:9 27:8,12
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61:3 64:20,24 66:8
68:5,6,18 75:23
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86:7,11,12 90:23
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270:5,25 271:14,15
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correction 159:6
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correctly 157:17
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correspond 201:14
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correspondence
86:7 243:8

corrigenda 164:4
cost 111:19 113:2
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costs 251:11
council 24:23 35:7
64:9 75:4,15 188:9
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counsel 3:1 4:1,14
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48:1,6,8 53:20
54:14 59:1 76:3
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161:14 174:11,12
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241:7 274:25 275:5
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counsel's 53:19
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counted 122:19
counterclaims 1:12
2:12
counterparts 28:13
28:15
counting 266:4
countless 70:3
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country 74:12
couple 19:16 84:16
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course 36:22 37:8
43:19 49:2 78:10,10
87:18 102:20 150:9

272:9
court 1:1 2:1 13:12
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cover 137:2 187:9
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covers 188:20
craft 234:6
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172:21
current 21:17 99:12
100:13 168:12
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currently 52:18
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168:9 171:10,13
customers 148:15
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153:9,13 166:3,6,14
166:19,22 167:3,8
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226:1,2 251:9

cut 221:9
cv 1:4 2:4 13:13
d
d 1:4 2:4 5:1 13:21
d.c. 1:19 2:19 3:7
13:1,7,8 29:7 33:24
34:1,6,12 35:15
38:24 39:5,10,15,22
101:21
d56571 125:1
d6751 124:25
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dan 60:4,5 85:21
101:6
dangerous 159:15
daniel 56:9 101:3
database 121:23
122:8,12,13,24
123:1,14 126:17
date 13:5 39:2 58:23
83:6 100:11 108:12
109:6 143:17 145:7
146:2,3 196:4
211:11 259:8 274:7
284:12
dated 6:7 7:19 8:13
8:17,19 9:7 10:12
11:17 172:1 283:22
david 188:9 189:7
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day 70:3,5 89:10
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days 14:18,18 15:10
89:9
dealing 148:23
deals 113:13
dear 137:20
death 158:8,14
160:20
debate 248:9
december 14:18
decentralized 99:6

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[decide - develops]
decide 77:11 115:14
decided 29:8
decision 59:20
113:24 115:21
125:17 244:25
deem 119:3 120:4
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111:20
deep 222:17,18
defendant 1:11 2:11
3:11 13:20 155:17
159:5 165:18 172:9
174:2,21 175:12
176:2 274:19,23
275:6,8
defendant's 147:8
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153:19 154:3,20
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165:7,13 196:5,17
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237:16,19
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24:20,21 56:7,12,19
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266:13,17
department's 278:4

departments 100:17
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284:1
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99:23 103:10 104:2
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describe 66:1 69:22
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268:5 269:16
270:11 272:7,15,20
274:10 275:17
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251:2,10,12 253:10
255:15 256:8 263:2
265:6 267:3 274:4
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develops 111:9
253:23 254:3
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[devices - doug]
devices 232:24
dhs 220:25 221:13
222:9 223:7,22,24
224:8
dialed 17:22
differed 224:25
difference 101:12
106:4 174:1,20,25
175:2,3
differences 227:13
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41:14 62:15 72:13
77:20 79:22 80:23
88:15 96:15,16,16
98:17 106:6 122:18
126:19 166:5
167:15 168:8
175:20 224:16
226:19,22 244:24
251:15
differential 224:21
227:2
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126:15 157:8
212:13 267:12
difficulty 232:22
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din 138:14,17,21
139:8,9,16,21
dire 130:22
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100:14,20 126:20
145:1,5 151:14
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196:8 274:25 275:5
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directive 115:16
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directly 17:22 43:16
45:5 61:2,5,11

100:19 144:8
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80:17 90:8
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discusses 41:7
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discussion 29:8 69:8
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downloads 149:16
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experts 251:22
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[going - high]
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highlighting 64:11
highway 102:13
hill 80:13,15 81:5,20
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hillard 131:6,10,23
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incorporations
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[independent - introduced]
independent 15:23
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independently
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index 12:1
indicate 75:20
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item 95:5 130:18
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iterative 42:12 43:8
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joined 13:23
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l 13:21 143:9
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262:23 263:18
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115:9,20,23,25
116:9,24 117:12
118:4,16,24 120:2
120:10 259:2,5
260:1 261:5 262:18
legislative 80:16,17
115:15
len 242:23,25 243:1
270:24
letter 6:7 65:20
66:20 116:19,20
letters 66:10 116:13
126:21 183:18
level 85:21 165:25
243:13 278:15
lewis 3:4 13:22
libraries 106:16
license 9:19 10:5
227:7,14,16 230:21
230:25 231:18
licensed 144:7
170:14 226:2
licenses 224:24
227:13,15
licensing 224:17
227:6 230:15
life 152:7,10 155:8
159:6
limit 281:15
limited 78:6 198:16
line 12:4,9,14 69:19
86:15 100:14 110:5
137:21 143:10,16
155:18 180:23,24
189:24 195:1
201:13 209:16
lines 48:5

list 35:16 121:16
196:7 207:1
listed 122:3
listen 17:19
listening 13:20
listing 196:5 270:2
lit 41:4
literature 41:6,8,14
43:3
litigation 45:5,12,15
46:20 50:25 51:3,6
51:8 65:19 132:3
136:6 137:8 143:6
177:2,5,14,17 185:5
188:1,22 189:22
196:9 203:23
240:22 241:4
276:21 280:10,12
280:16
little 123:4 179:8
181:8 210:1 220:12
243:22
live 179:11,20,25
180:2,14 181:4,6
lively 85:15 100:25
208:17 219:1,2
lively's 208:19
lives 70:2,5
llp 3:4,12 4:3
lobby 26:11
lobbyist 26:8,12
located 13:7 277:16
location 122:3
215:20
log 131:5,11,13,15
131:21
logo 69:5,7,11,19
167:22 168:12,20
168:25 170:8,21
171:10,13 172:10
173:1,2 174:1,20
175:11 176:1
long 21:12 105:12
108:17 155:20
177:21 181:21
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Veritext Legal Solutions
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[longer - mckiel]
longer 114:17 166:4
167:13
look 38:9 53:7 57:6
97:14,17 113:20
114:3 115:19
121:11 124:9,17,19
206:23 257:8
looked 121:20
looking 70:6 94:9
96:1 111:2 210:6,15
227:23 235:22
looks 100:20 194:22
207:8 231:8
lorraine 32:2,4,7
135:1 199:24 201:7
202:24 238:25
239:4,15
lose 209:18 251:1
loss 147:24 152:10
155:8 160:20
lost 68:8 147:19
148:9,11 149:20
153:18 154:2,19
155:1 177:11
lot 15:7 77:6 121:7
125:4 180:5 181:5
184:20 185:24
201:25 202:5 205:6
213:3 218:7 244:22
248:8 279:21 280:1
low 40:17 110:20
250:18
lower 278:15
lowest 278:16
lunch 127:17
lying 144:9
m
m 13:21,21 90:5
228:17
machine 283:8
machinery 22:23
machines 213:24
magazine 103:18
104:1 134:7 181:17

mail 57:15,17 58:17
60:5 62:13,25 63:6
63:13,14 64:4,7,18
64:20,23 67:10 84:7
103:13,17,21
104:11 128:13,15
128:16 129:2,18,22
130:18 134:24
137:2,17,21 138:7
138:13 139:22
141:1,4 142:8,18,20
143:16 193:23
194:5,15,21 195:2,3
195:23 196:1
199:12,21,21,23
200:5,6 201:7 203:4
203:7,17 204:7,9,16
204:24 205:24
206:3,24 207:7,9,18
208:2,17 209:4
211:14 213:19
214:3,7 215:2 217:5
218:19 220:18,24
222:1,3,6,6 223:9
228:23 233:5
238:24 239:4,14
241:18 242:22
243:7 256:24 257:9
257:21 258:9,16,21
271:13
mails 58:12 84:9,16
136:20 179:2 208:9
208:22 209:4,8
211:2 220:19
228:10,22 229:18
232:8,9 270:24
main 70:4 265:12
maintain 40:16 94:7
219:22
maintained 168:9
maintaining 105:5
213:2
major 22:13
majority 21:23

makers 35:15 183:9
making 40:18 59:21
111:18 123:6 124:2
126:22 171:24
212:4 245:21
248:21 259:18
261:14
malamud 4:16
13:21 38:23 39:4,14
39:22 40:4 63:4,12
135:23 139:1
144:24 145:24
146:6 159:19 160:2
194:23 198:2
207:12 229:4 245:4
246:20
malamud's 139:17
246:24 254:15
malamudomb
207:13
management 35:21
37:9 49:22 115:12
183:24 209:5
271:18
manager 60:1 90:12
243:1 258:4
mandated 232:23
manner 74:18
manufacturers 34:9
march 1:20 2:20
13:1,5 283:22
margaret 85:17
mark 193:17 279:20
marked 5:8 6:4 7:4
8:4 9:4 10:4 11:4
12:13 53:5 56:25
57:11,21 58:8 61:20
63:16 64:15 65:16
67:7 82:9 83:8
84:13 86:3 99:23
103:10 104:2
128:10,24 132:12
134:8 137:13
142:12 193:25
195:20 199:8,16

203:1,9 205:14
206:21 208:6
210:24 220:15
228:6 229:15,22
230:10 232:4 233:2
238:6,8 240:7
242:18 243:3 257:2
257:5 258:6,13
268:12 269:8
270:20 271:4,7
market 110:22
219:18
marketing 85:25
marketplace 74:12
74:20 77:12 166:1,2
167:17 169:3
255:18
martin 1:23 2:20
14:1 17:15 53:3
90:14,17 283:19
mary 67:11 138:10
180:8 232:8
maryland 81:6
102:15
massachusetts 32:9
material 134:15
257:11
materials 1:4,16 2:4
2:16 13:10 40:11,21
40:25 43:17 151:25
281:8
matter 45:9 161:13
189:4 227:10 235:5
matters 15:3 175:5
matthew 3:14 13:19
maureen 64:20
135:1,13 206:24
207:23,24 271:13
mbecker 3:20
mcclung 58:13,18
59:25 60:1
mcclung's 60:7
mckiel 67:11 68:9
138:10 141:1,11
180:8 232:8
Page 26

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[mean - narrative]
mean 41:13,14
45:20 46:3,20 72:20
77:5 107:1,20 111:5
114:5 115:22,24
118:2 142:2 179:15
180:2 183:21 211:8
217:6 222:7,9,12,12
223:16 225:23
226:6,12 228:18
234:5,6 271:16
meaning 45:20
means 217:9,11,13
233:23 234:16
266:20
meant 114:23 115:2
115:3 121:7 137:25
180:15 243:14,17
measurable 143:18
144:22
measurement
232:24
mechanism 74:9,19
media 184:21
meet 14:13,16,20
86:21 94:10 110:18
226:15 248:14
meeting 51:7,20
68:5 117:21 182:4,6
182:6 279:4
meetings 15:7,13
24:23 36:22 88:15
89:18 277:13,20
278:25
meets 74:7
megan 28:18 30:13
279:14
member 89:11 95:2
124:16 146:4 187:9
230:1 236:2 246:8
266:3 280:7 281:12
members 21:24 22:6
53:2 55:2 80:24
89:12,14,15 137:20
137:25 138:3,8
148:15,23 153:10

153:15 181:15
182:7,11 183:5
184:8,17 185:17
194:23 209:5
245:10 246:12
261:4 266:2
membership 55:18
55:21,24 56:1,3,7
56:12,19,20
memo 6:15 7:5
84:23 85:3
memory 17:5 52:7
89:6 255:4
mention 32:10
181:17 183:17
237:16,18
mentioned 27:7
40:12 51:21 64:7
102:1 139:21 142:8
167:12 183:4
184:22 196:15
197:6,15 240:3,5
255:12 271:23
281:9
mentioning 123:23
mentions 143:6
182:20
mercury 232:19,25
message 94:12
137:20 182:16
217:2
messaging 183:11
met 14:17,21 86:20
87:4,9,21,25 109:7
109:9
metric 236:25
metrics 237:3,8
mexico 102:5,7
middle 78:9 104:17
137:19,22 138:7
199:13 222:1
232:11 273:10
miller 233:9 234:10
miller's 233:22

mind 88:6 157:20
212:14,20
ministry 74:10
minute 176:22
281:14
minutes 17:25
127:16 190:16
269:6,7
mischaracterizes
27:9 50:21 93:18
109:21 144:10
149:2 248:18
254:19 264:8
misinformed 117:24
misleading 169:23
170:7 171:9,12,17
278:1
misled 148:16,24
misperception
244:13 255:8,17
missed 65:3
mission 4:5 17:7,8
38:7 69:21,23 79:2
96:4 97:14,21 224:8
missions 235:8
misspoke 184:10
mistake 130:24
163:18 164:17
mistakes 165:1
misunderstanding
174:16 254:17
mock 118:19
model 37:1 105:7
116:17 220:11
250:16 251:23
moderated 93:4
moderator 51:15
52:5
modes 256:8
moment 35:25 90:10
167:20
money 155:1 209:18
224:1 225:8,17
264:22 265:4

monitor 13:6 217:12
month 31:9 43:24
277:21,22
months 43:22,22
178:1 278:25 279:1
morella 81:6
morgan 3:4 13:22
60:13 85:13 99:9
100:15,24 101:2
208:11 270:24
morgan's 101:16
morganlewis.com
3:9
morning 13:3 14:9
14:10
morrissey 242:23,25
243:1 270:24
morton 51:19 52:5
motivated 31:16
motivation 117:15
120:9
motivations 95:18
96:16
move 221:6
mto.com 4:9
munger 4:3
municipal 125:23
126:7,11 127:2
musts 234:2
n
n 5:1
name 13:3,13 25:11
26:3,4 34:21 52:3,4
61:19 99:9 134:7
192:2,4 213:19
214:2 270:3,8
279:19,20
named 28:17 68:23
names 138:6
nancy 1:23 2:20
14:1 283:19
nara 183:25
narrative 150:22

Page 27
Veritext Legal Solutions
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[national - objection]
national 1:5 2:5
13:4 24:17,18 34:9
34:25 48:19,20
49:20 50:1 52:2
72:12 89:3,18 91:5
91:7 95:22 107:16
107:17 121:22
138:20,24 183:25
206:7 232:18 278:2
nature 117:23
navigate 217:12
necessarily 234:23
necessary 100:12
109:13 202:7 210:3
210:18
need 17:13 29:4
33:22 101:1 110:18
119:9 130:5 133:9
150:14,17 151:3
166:4 167:13
170:14 193:1
199:18 200:16,18
205:3,5 230:24
233:17,18 247:23
267:13
needed 111:20
159:5 179:5
needs 94:25 96:15
169:4
negotiate 226:3
negotiated 50:8
223:21
neither 283:13
nerves 254:16
networking 87:14
87:16,17
never 72:9 192:2
236:24
new 38:9 52:3 69:18
69:19,19 99:18
100:15 101:1 123:7
123:9,15 124:8
169:2 175:23 185:2
201:5 256:7

news 17:4 18:10
103:19 181:14
182:1
newsletter 103:22
183:3,4
nfpa 28:14,17 32:3
64:21 66:8 105:15
108:17,20 109:5
111:7,16 112:17
135:14 184:8,11
194:8 199:24 200:9
200:9 201:8 238:25
239:5,15,24 240:5
241:21 242:1 279:8
nfpa's 108:7 111:25
nfta 241:12
nice 78:8
nist 88:12,19 93:6
122:8,12,13,24
123:1,14 126:17
278:2
nitsa 229:13
nods 281:16
non 131:18 188:17
nonprofessional
86:25
nonprofit 77:9
106:4
norm 74:7 111:22
normal 87:18
245:11
northwest 13:8 90:5
noted 284:8
notice 5:9 53:10
79:1 111:23 112:1
124:1,7 127:14
144:22 159:12,21
159:21 164:10
176:9 177:1,4,13,19
283:4
noticed 165:12
notified 159:5
notify 164:18
notifying 161:7

number 5:8 6:4 7:4
8:4 9:4 10:4 11:4
39:8 42:1 48:12
62:15 66:21 70:10
85:5 88:15 100:16
106:5 124:7 146:15
149:21 187:20
194:9,12 206:25
208:10 231:2
252:11 263:16
265:25 268:9
271:14 272:5 276:8
numbers 77:22
125:1
numerous 51:2
77:22 200:20
210:14
nw 2:18 3:6
o
o 61:19
o'brien 4:13 13:23
14:22 33:12 85:12
140:16,18 143:7
147:3,13
oakridge 206:7
obama 38:10
object 38:18 46:23
93:19 162:25
171:17,18 173:15
173:16 174:8
207:14 247:5
250:13 266:25
271:20 275:3
objecting 173:20
objection 15:20 16:7
19:8,13 20:3,8,17
20:22 21:22 22:7,16
23:6,13,21 24:3
25:6,24 26:9,20
27:9,21 28:3 29:13
29:25 30:8,14,20
31:13,24 32:6,13,20
32:25 33:7,17 34:2
36:4,13,20 37:15,20

38:14,19,25 39:6,16
40:8 41:10,17,22,25
42:4,11,20 43:4,14
44:2,10,20 45:1,16
49:10 50:12,21 51:9
52:9,16 54:7,18,23
55:10,13,19 56:4,13
56:22 59:4,14,18
61:6,12 62:7 63:1
65:12,24 66:12,17
67:3,23 68:10,21,21
69:15 70:18,23 71:7
71:13,17,23 72:5,16
73:2,20 74:15,23
75:5,13 76:1,9,25
77:17 78:3,19 79:13
79:20 80:1,7,21
81:3,13,23 82:24
87:2,8 91:12,16
92:21 93:2,17 94:20
95:8,16 97:10 98:3
98:11,16 99:2,15
103:4,15,23 104:23
106:2,24 107:5,11
107:21 108:9
109:21 112:2,22
115:4 116:1,10,25
117:13 118:7,25
120:12,21 121:18
122:4 124:14
125:11,25 126:14
127:5,23 129:8,13
130:25 131:24
132:10,24 133:19
134:17 135:4,9,24
136:24 137:5 138:1
138:18 139:2,13,23
140:9,15,20 141:6
142:10 143:3,11
144:2,10,18,25
145:6 146:8,24
147:9,21 148:2,7,12
149:1,9,23 150:7,20
150:20,21,22
152:23 153:3,6,20
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Veritext Legal Solutions
866 299-5127

[objection - opposing]
154:4,21 155:3,10
155:21 156:13,19
157:5,24 158:10,17
158:22 159:1,8
160:6,15,21,24
161:11,18 163:5,19
163:24 164:6,19
165:2,8,19 166:7,15
166:24 167:4,18
168:1,15 169:9,17
170:2,11,23 171:16
172:4,12 173:3,7,21
175:15 176:4 178:3
178:13 179:18
180:4,17 181:12
182:2 184:18 185:8
185:11,20 186:6,14
186:22 187:6,16,24
189:23 191:16
192:12 196:7,20
197:1,8,19,19 198:4
198:17,23 199:14
201:11,17,23
202:10,19 203:13
203:25 204:10
206:12 207:8,20
208:3,25 209:9,23
210:20 211:16
212:17 213:8
214:22 215:8,24
216:11 217:17,23
218:13 219:14
220:7 222:10 223:3
223:18 224:2,19
225:2,10 226:8,14
227:18 228:12,19
229:8 230:22 231:7
231:13,23 232:14
233:11 234:13
235:4,14 236:5,10
236:15,22 237:4,9
237:21 238:3
239:20 240:1,16
241:5,23 242:7,15
243:15 244:3,10,18

245:14,24 246:9
247:3 248:4,18,23
249:5,22 250:1,10
251:4 252:2,6,16,25
253:11,24 254:5,19
256:2,11 257:12,22
258:19,20 259:3,13
259:21 260:5,22
262:3,13,22 263:7
263:12,18 264:8,16
264:24 265:7,15,19
266:23 267:11
268:4,22 269:3,15
270:10 272:6,14,19
273:1 274:9,24
275:16 276:1,6,12
276:19,22 277:9,25
278:12,23 279:9,18
279:25 280:11
objections 31:2,20
37:25 39:23 40:23
77:18 96:11,22,25
113:10 135:19
151:4,7 152:4,15
154:10 156:1,9,19
162:2,8,19,24
164:12 168:22
173:9,10,13 174:9
174:23 206:19
210:5 216:23
234:20 242:12
251:18 261:21
274:17
objectives 6:17 30:2
observation 171:2
observed 92:11
obvious 104:8
obviously 212:10
247:8
occasion 30:17,25
31:3 86:20 87:22
124:21 184:20
occasionally 89:17
occasions 48:18
88:13,18

occur 149:7 181:22
occurred 17:12
155:8 263:17
october 7:19 69:18
89:9
ofac 214:14 278:3
offers 227:14
office 35:21 37:9
39:18 49:22 50:1
52:3 60:15,22 61:15
61:15 86:20 90:2,3
90:7 101:16,20,22
102:1,4,5,8 183:23
183:24 277:17
278:16 279:15,20
officers 99:8
offices 101:19,25
102:10,18
official 87:9 89:17
116:12,12 148:17
151:25 168:7
236:17 264:13
officials 35:21 39:9
102:13
offset 251:11
oftentimes 260:15
oh 65:3 89:7 151:6
192:11 202:4
okay 23:18,20 25:13
34:5 45:23 46:9,23
47:2 48:9 58:5
63:21 73:14 82:2
93:25 127:16 128:3
131:3 141:20
144:14 148:11
151:9 154:17
177:25 179:4,9
190:1 191:2,24
192:18 199:22
204:5 207:14
238:18,19 239:3,10
250:14 260:25
269:25,25
old 101:2,6

older 168:12,21
169:24,25 170:3,8,9
olson 4:3
omb 38:2,7,16,20
58:1,1 65:21 66:4
66:10,10 95:24
121:4 207:19
omb's 37:14
omitting 198:21
207:11
once 14:18 71:12
86:21,22 87:4,11
108:21 142:2 276:3
one's 239:5
ones 16:8,8 29:21
53:23 89:22 157:12
157:15 235:9
255:11 272:25
ooo 13:2
open 92:13 162:11
219:19 244:21
openness 244:22
268:6
operate 255:20
operated 102:4
121:22 220:11
operating 114:13
operation 113:15
213:12
operations 42:15
55:23 56:9 60:3,7
60:10 99:10 100:21
101:8,9,12
opinion 112:9
172:15 174:5 175:5
212:18
opinions 216:13
opportunities 88:10
88:15
opportunity 32:22
87:7 242:2
opposed 150:23
212:15 213:7
opposing 115:24
Page 29

Veritext Legal Solutions
866 299-5127

[options - people]
options 213:4
order 110:18 210:4
215:17 216:4,9
230:2 251:10 264:6
265:5
orders 227:16
organization 5:11
23:12,15 24:16 25:2
25:4,9 26:16,23
27:14 28:6,8,10
51:19 52:12 59:12
62:24 69:13 77:10
87:20 102:12 105:6
106:5 113:12 116:5
135:2 139:17
234:24 278:15
281:9
organizational 7:10
89:11 100:5,8
organizations 26:19
27:12,17 28:20 29:4
29:18,20 33:21 34:8
34:24 36:25 38:5
40:15 41:15 42:16
43:24 62:15 66:22
89:12 94:9,10 97:17
105:14 109:11
111:3,5,12 112:11
116:17 134:25
137:3 235:6 240:2
242:5 278:7
organized 27:19
original 21:15
originally 50:24
178:2
origination 142:18
originator 266:21
origins 267:4
ottawa 48:11 101:22
outcome 69:8
283:15
outdated 124:22
171:6
outlying 91:19

outreach 45:14,16
45:20 46:19,20
50:24 239:25
outside 15:13 45:2
45:21,21 46:7,21,21
47:12,21 48:1 56:5
61:4,10 62:23 130:6
140:3 144:6,7
178:12 193:6 219:8
245:11 255:14
overdoing 218:25
owns 216:18,21
p
p 3:13 228:17
p.m. 128:6,7 130:10
130:11 176:16,17
176:19 190:4,5
200:24,25 205:10
205:11 228:2,3
256:18,19 282:5
pace 18:19 21:1 86:7
104:14 128:17,21
145:15 146:16
147:10 148:14,22
149:14 153:8,17
166:10,13,18,21
167:2 176:7 211:3,8
211:19 220:18,24
221:4,17 251:21
252:1,12 270:25
pace's 217:1 218:19
pacific 24:22
page 7:9,16,18,20,23
8:8,12,14,18 9:8
10:11,13,17,19 12:4
12:9,14 83:3 101:4
101:5,8,9 134:16
137:22 138:7 143:2
179:11 208:16
209:13,16 217:14
217:14,15 218:5
229:25 232:12
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rely 123:13 157:13
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remaining 270:7
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remotely 13:16
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removing 237:12
remuneration
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renewals 56:21
renewed 195:9
repeat 53:20 63:23
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restate 30:22 177:10
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restaurant 277:13
restrictions 214:14
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result 241:6
resulted 123:24
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results 92:14
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running 180:12
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262:3,22 263:7,19
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274:9 275:16 276:1
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scott 91:7 93:5
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scroll 217:3,10,13
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scrolling 217:16
sdo 25:2 239:6,6
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sdoawareness.org
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seat 92:15
second 21:16 162:25
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soliciting 201:9
solution 248:11
solutions 2:18 111:2
somebody 29:22
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somo 4:18 13:4
son 85:23
soon 78:13 160:3
227:21
sorry 17:24 24:10
31:9 61:13 65:3
68:11 83:11 89:4
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222:21 225:4 235:6
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257:18 271:16
272:10 280:4
sort 125:8 252:10
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sources 19:3 187:22
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specific 35:22 37:6
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staff 7:6 35:17 55:1
55:2,22 60:1 67:25
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243:1 258:4,22,22
271:14 272:9
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217:14,15 224:21
224:25 225:6
226:22 227:3 234:5
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standardization
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37:11 38:5,6 39:8
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49:25 50:10,15,16
51:18 52:2 54:5
55:4,8 62:12,15
66:6 70:2,5,10,12
70:14,21 71:21 72:7
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73:15 74:1 77:8,11
86:23 87:6,12 88:1
88:5,7,12,14,20
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93:16 94:5,9,17
95:1,6,15 96:1,3,9
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98:1,5,10,13,20
99:1 101:7,10,13
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179:22 182:24
185:18 186:21
187:15 194:24
196:17 197:17
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222:16,20,23 223:1
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225:17,21,21,23
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230:3,6,7,24 231:6
231:12,19,20 232:1
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235:7,10,13,17,22
235:23,25 236:21
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244:14,16,20,21
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246:14,16,22,22,25
247:11,18 248:1,12
248:14 249:3,18
250:7,16,24 251:1,8
251:9,10,12,22

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suffers 168:11,20
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tanks 34:25 35:4
task 212:13 252:24
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tax 5:12
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team 60:23 136:9
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testimony 5:2 21:4
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thinking 63:14
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times 88:1,4,22
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141:17 145:21
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topical 88:16
topics 18:13 36:3
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53:16,17 150:8
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total 14:19
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50:8,15,16 60:17
90:9 94:10,11 111:8
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training 23:2,5
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transfer 54:5 95:23
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true 271:25 283:11
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truth 283:6,6,7

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trying 36:7 75:11
109:19 114:25
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278:24 281:18
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222:17 223:1,16
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257:10 259:15,18
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usually 278:15
utilize 114:17
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utilizing 96:2 113:4
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228:15 229:3,12,14

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visit 102:19
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ways 70:3,4 91:19
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we've 17:21 19:17
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105:17 114:19
121:21 122:22
149:22 179:21
183:15 214:9 223:8
225:25 226:11,21
275:12,25 276:11
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wednesday 1:20
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65:14 66:2,3,14,18
67:5,14,15,24 68:11
71:1,9,18 72:1,6,17
73:4,21 74:16,25
77:5,19 78:4,15,24
79:15,21 80:2,9,22
81:4,15,24 82:2,17
82:18,25 83:14,17
83:18 84:11,12,19
84:20,24 87:9 90:15
90:19 91:17 92:22
93:22,25 94:22
95:21 96:12 97:1,13
98:4,12,17 99:4,17
100:2,3 103:6,16,25
104:9,10,25 106:3
106:25 107:6,13,24
108:11 109:23
112:7,9,23 113:11
115:6 116:2,11
117:5,14 118:15
119:4,13 120:13
121:19 122:5
124:15 125:12
126:1,15 127:6,24
128:18,19 129:4,5,9
129:14 130:14
131:3 132:5,11,17
132:18 133:1,7,12
133:13,21 134:12
134:13,21 135:5,12
135:20 136:1,25
137:12 138:2,19
139:14 140:3,10,16
140:22 142:2,11,16
142:17 143:5,12
144:3,19 145:1,7
146:10,25 147:10
147:23 148:4,8,13
149:11 150:1,12
151:10 152:5,16,24
153:7,22 154:23

155:5,12,23 156:2,6
156:10,14,21 157:7
158:2,12,19,23
159:2,11,17 160:8
160:16 161:1,13,20
162:3,9,20 163:1,6
163:20 164:1,8,13
164:22 165:4,10,21
166:8,16,25 167:5
167:19 168:3,23
169:11,19 170:4,12
170:24 171:21,23
172:17 173:22
174:14 175:4,17
176:6,13 177:10
178:8,14 179:19
180:5,18 181:13
182:3 184:19
185:13,21 186:9,16
186:23 187:8,20
188:6 189:1,11,18
190:1,13 191:6,9,24
192:11,18 193:19
193:21 194:2,6,14
195:25 196:1,12
197:2,23 198:11
199:15 200:2,3,17
200:18 201:13,19
201:25 202:12,21
203:16 204:3,20
206:15,20 207:21
208:5,13,14 209:2
209:11 210:1,6,23
211:5,6,18 212:24
213:9 214:23
215:12,25 216:14
216:24 217:19,24
218:15 219:16
220:10,21,22
221:16 222:11
223:4,19 224:5,20
225:4,11,19 226:15
227:20,22 228:13
228:21 229:10
230:14,15,23 231:8
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[witness - z]
231:14,25 232:16
233:13,19,21
234:15,21 235:5,15
236:12,16,24 237:6
237:11,23 238:5,10
238:20 239:11,21
240:2,11,12,17
241:1,9,25 242:9,17
243:9,10,17 244:5
244:12,19 245:17
246:2,12 247:8
248:7 249:15,23
250:4,14 251:7,20
252:3,7,19 253:5,13
254:10,21 255:4
256:5,14 257:4,18
257:23 258:11,12
258:18,21 259:5,14
259:22 260:12,25
261:23 262:5,14,25
263:9,13,21 264:11
264:17,25 265:9,20
267:2,12 268:6,23
269:4,17 270:15,16
271:9 272:8,16,21
273:2,17,22 274:12
275:10,18 276:3,7
276:14 277:3,10
278:2,14,24 279:19
280:1,16,24 281:6
281:22 282:4
283:13
word 21:20 117:9
118:4,18 192:2
wording 118:8
words 118:5 234:5
254:22 265:17
work 16:16 17:7
22:1 24:6 25:14,21
26:15,18 29:9,18
32:16 38:4 44:7,8
54:6 55:22 69:25
81:22 86:1 90:4
92:12 97:18 102:14
109:25 114:8 124:5

125:14,14 131:18
140:18,23 180:5
181:7 188:19 196:5
198:18,22 201:9,9
201:20,22 219:6
234:4 244:20,23
246:16 276:24
worked 21:12 22:17
22:22 23:10 26:22
29:21 80:16 102:11
109:12 136:21
185:22 232:17
247:12
working 17:15
28:23 30:18 31:1,6
64:10 81:4,8 86:17
87:13 105:1,11
108:22 109:5,18
124:1 142:5 180:22
226:1,2 234:24
273:23
works 37:12 60:15
90:7 101:23 103:17
140:22 163:13
219:5 243:1 258:4
workshop 11:13
69:1,2 88:12,20
270:1
world 69:25 72:12
73:24 88:14 89:8
94:10 142:17
worldwide 64:24
182:21 226:3
237:12
worry 46:8
writing 54:5 55:8
185:4
written 40:1,3 62:14
207:12 269:21
wrong 76:16 125:1
228:15 229:12
273:12
wrongful 136:15
wrote 116:12 243:12

x
x 5:1,6 6:2 7:2 8:2
9:2 10:2 11:2
y
yeah 30:15 41:18
46:6 49:19 74:25
87:7 90:5 91:17
92:22 96:12 97:1
101:11 106:3,25
112:9 114:22
117:14 170:4
184:19 185:3
195:10 198:18
225:19 227:22
231:25 232:16
234:21 239:21
240:17 241:25
260:12 274:12
281:6
year 69:19 83:23
89:9 102:20 109:20
109:24 110:7
146:11 155:25
157:2 177:23
181:17 186:24
265:1 266:2
years 19:16,24
20:16,21 21:13 24:8
38:2,8 80:12,14
99:21 102:4 104:25
105:8 108:14
111:25 156:8
219:17 220:11
224:10 237:23
247:12 250:17
261:7 264:2,23
265:2,14 280:8
yesterday 145:19,21
145:25 157:2
184:13
york 52:3

z
z 13:10

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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 .