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 52

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING
AND MATERIALS d/b/a/ ASTM
INTERNATIONAL;
NATIONAL FIRE PROTECTION
ASSOCIATION, INC; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR
CONDITIONING ENGINEERS,
Plaintiffs and Counterclaim Defendants,

Case No. 1:13-cv-01215-TSC
PLAINTIFF NATIONAL FIRE
PROTECTION ASSOCIATION, INC.’S
RESPONSES AND OBJECTIONS TO
DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
INTERROGATORIES (SET THREE, NOS. 14
– 23)
Filed: August 6, 2013

v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant and Counterclaimant.

PROPOUNDING PARTY:

PUBLIC.RESOURCE.ORG, INC.

RESPONDING PARTY:

NATIONAL FIRE PROTECTION ASSOCIATION, INC.

SET NUMBER:

THREE (Nos. NFPA14 through NFPA23)

Pursuant to Federal Rules of Civil Procedure 26 and 33, Plaintiff and Counterclaim
Defendant National Fire Protection Association, Inc. (“NFPA”) responds as follows to the third
set of Interrogatories propounded by Defendant and Counterclaimant Public.Resource.Org, Inc.
(“Public Resource”).
GENERAL OBJECTIONS
The following General Objections apply to and are incorporated in each and every
response to each and every specific Interrogatory, whether or not such General Objections are
expressly incorporated by reference in such response.
1.

NFPA objects to each and every Interrogatory, definition, and instruction, to the

extent that it attempts to impose any burdens inconsistent with or in addition to the obligations
imposed by the Federal Rules of Civil Procedure, the Local Civil Rules of the United States
District Court for the District of Columbia, or any other applicable law or rule.
2.

NFPA objects to each and every Interrogatory, definition, and instruction as

overly broad, unduly burdensome, and not proportional to the needs of this case to the extent that
it is not reasonably limited in scope, or seeks information neither relevant to any issue in this
case nor reasonably calculated to lead to the discovery of admissible evidence, particularly to the
extent that compliance would force NFPA to incur a substantial expense that outweighs any
likely benefit of the discovery.
3.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it lacks any reasonable time limitation.
4.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it seeks information or documents protected by the attorney-client privilege, work
product doctrine, or any other applicable law, privilege, immunity, protection, or doctrine.
NFPA claims such privileges and protections to the extent implicated by each Interrogatory, and
excludes privileged and protected information from its responses. The production of any
privileged information or document by NFPA is unintentional, and any such inadvertent
production shall not be construed as a waiver of any applicable objection or privilege.
5.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it calls for a legal conclusion. Any response by NFPA shall not be construed as
providing a legal conclusion regarding the meaning or application of any terms or phrases used
in Public Resource’s requests for admission, definitions, or instructions.
6.

NFPA objects to each and every Interrogatory, definition, and instruction to the

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extent that it seeks information or documents already in the possession of or more readily
available to Public Resource, in the public domain, that are equally available to Public Resource
as they are to NFPA, or that could be derived or ascertained by Public Resource with
substantially the same effort that would be required of NFPA.
7.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it seeks information or documents not within NFPA’s possession, custody, or control.
8.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it is unreasonably cumulative or duplicative.
9.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it seeks any confidential, proprietary, or trade secret information, or any other
information or documents that NFPA is not permitted to disclose pursuant to confidentiality or
other legal obligations to third parties.
10.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it contains subparts or a compound, conjunctive, or disjunctive request.
11.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it calls for NFPA to form and then render an expert opinion.
12.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it is argumentative.
13.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it is speculative, lacks foundation, or improperly assumes the existence of
hypothetical facts that are incorrect or unknown to NFPA.
14.

NFPA objects to each and every Interrogatory, definition, and instruction to the

extent that it purports to require NFPA to compile information in a manner that is not maintained

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in the ordinary course of business, or to create documents, including but not limited to charts,
tables, reviews, proposals, methodologies, and/or breakdowns, that do not already exist.
15.

NFPA objects to each and every Interrogatory as overly broad, unduly

burdensome, and not proportional to the needs of this case to the extent that it requests NFPA to
identify “all” facts, or “each” fact, responsive to the particular Interrogatory. Furthermore,
discovery is ongoing, and the facts identified in NFPA’s responses are exemplary, not
exhaustive.
16.

NFPA objects to the defined terms “you,” “your,” and “NFPA,” and to each and

every Interrogatory containing those terms, as vague, ambiguous, overly broad, and unduly
burdensome to the extent that any of these terms include any entity other than NFPA, and
particularly to the extent that they include any predecessors, affiliates, officers, employees,
agents, or attorneys when such persons are acting outside of a capacity representing NFPA.
17.

NFPA objects to the defined terms “work-at-issue” and “works-at-issue,” and to

each and every Request containing those terms, on the ground that they are overly broad, unduly
burdensome, and not proportional to the needs of this case to the extent they include standards
that are not at issue in this litigation. NFPA will construe “work-at-issue” and “works-at-issue”
to include only those standards that are identified in Amended Exhibit B to the Complaint. (ECF
No. 74-1.)
18.

NFPA objects to the defined term “standard” and to each and every Request

containing that term, on the ground that it is overly broad, unduly burdensome, and not
proportional to the needs of this case to the extent it includes standards that are not at issue in
this litigation. NFPA will construe “standard” to include only those standards that are identified
in Amended Exhibit B to the Complaint. (ECF No. 74-1.)

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19.

NFPA objects to the defined term “enforcement” as vague, ambiguous and

overbroad and as it potentially incorporates a legal conclusion to adduce its meaning.
20.

NFPA objects to the defined terms “document” and “writings” as overly broad,

unduly burdensome, and not proportional to the needs of this case to the extent that they require
NFPA to search for and provide electronic documents or information that is not reasonably
accessible.
21.

NFPA objects to the defined term “concerning” as overly broad, unduly

burdensome and not proportional to the needs of the case to the extent it include information
with little or no relevance. To the extent that NFPA produces information in response to such
requests, they will be limited to information sufficient to show matters that are appropriately
discoverable.
22.

NFPA objects to the undefined term “identify,” and to each and every

Interrogatory containing that term, as overly broad, unduly burdensome, and not proportional to
the needs of this case, including insofar as it might purport to require NFPA: to state both the
home and business address of natural persons; to state, for business organizations, the identity of
all persons affiliated with the organization who have knowledge of the matter with respect to
which it is named in an interrogatory answer; to state the documentary or testimonial evidence
with regard to any fact or circumstance and the Persons with knowledge of the fact or
circumstance; and, when referring to advertising or promotion to provide dates; medium;
product, service, or feature being advertised or promoted; location (physical address; social
media or World Wide Web site; print periodical page number; or analogous identifier); number
of impressions, and cost. NFPA will respond to interrogatories containing the term “identify”
based on the ordinary meaning of the term.

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23.

NFPA objects to PRO’s instruction that the use of a verb in one tense includes the

use of the verb in all other tenses. NFPA will construe each verb to include only the tense used.
24.

NFPA objects to Instruction 1 as overly broad and unduly burdensome to the

extent that it purports to require NFPA to produce information that is not in the custody or
control of NFPA. NFPA further objects to Instruction 1 to the extent that it seeks information or
documents protected by the attorney-client privilege, work product doctrine, or any other
applicable law, privilege, immunity, protection or doctrine.
25.

NFPA objects to Instruction 4 to the extent that it attempts to impose any burdens

inconsistent with or in addition to the obligations imposed by the Federal Rules of Civil
Procedure, the Local Civil Rules of the United States District Court for the District of Columbia,
or any other applicable law or rule.
26.

NFPA objects to Instruction 5 to the extent that it attempts to impose any burdens

inconsistent with or in addition to the obligations imposed by the Federal Rules of Civil
Procedure, the Local Civil Rules of the United States District Court for the District of Columbia,
or any other applicable law or rule. In the event that NFPA withholds information based on a
claim of privilege or protection, NFPA will comply with the requirements of Federal Rule of
Civil Procedure 26(b)(5), and any other applicable law or rule.
27.

NFPA objects to Instruction 8 as unduly burdensome to the extent that it calls for

NFPA to prepare Public Resource’s case by analyzing or coding documents that have already
been produced in this litigation.
28.

NFPA further objects to the extent that the interrogatories are overbroad and that

their number exceeds the number that the Federal Rules of Civil Procedure authorize.
29.

No incidental or implied admissions are intended by the responses herein. The

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fact that NFPA has answered or objected to any Interrogatory should not be taken as a
representation by NFPA to the existence or non-existence of the information requested by Public
Resource.
30.

By responding to Public Resource’s Third Set of Interrogatories, NFPA does not

waive any privilege or objection that may be applicable to: (a) the use, for any purpose, by
Public Resource of any information or documents sought by Public Resource or provided in
response to an Interrogatory; (b) the admissibility, relevance, or materiality of any of the
information or documents to any issue in this case; or (c) any demand for further responses
involving or relating to the subject matter of any of the Interrogatories.
31.

NFPA’s responses, regardless of whether they include a specific objection, do not

constitute an adoption or acceptance of the definitions and instructions that Public Resource
seeks to impose.
32.

NFPA’s responses are based on information reasonably available to NFPA as of

the date of these responses. The following responses are made to the best of NFPA’s present
knowledge, information, and belief. NFPA’s investigation is continuing and ongoing. Subject to
and without waiving any of its objections set forth herein, NFPA may supplement any of its
responses herein as necessary or appropriate if any additional information becomes available to
NFPA.
33.

Each and every General Objection shall be deemed to be incorporated in full into

each of the individual responses set forth below. From time to time a specific response may
repeat a General Objection for emphasis or other reason. The omission of any General Objection
in any specific response to any request is not intended to be and should not be construed as a
waiver or limitation of any General Objection to any Interrogatory. Likewise, the inclusion of

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any specific objection in any specific response to any Interrogatory is not intended to be and
should not be construed as a waiver or limitation of any General Objection or specific objection
made herein or that may be asserted at another date.
RESPONSES TO INTERROGATORIES
INTERROGATORY NO. 14:
For each standard-at-issue, identify each federal, state, or local law, statute, regulation, or
ordinance into which you are aware or believe that such standard-at-issue has been incorporated,
in whole or in part.
RESPONSE TO INTERROGATORY NO. 14:
NFPA incorporates the General Objections as if fully set forth herein. NFPA further
objects to this Interrogatory as unreasonably cumulative and duplicative as PRO’s previous
Interrogatory Nos. 1 and 2 overlap with this Interrogatory and NFPA previously provided
responses to those Interrogatories, the objections and responses to which are incorporated as if
fully set forth herein. NFPA further objects to this Interrogatory as overly broad, unduly
burdensome, and not proportional to the needs of this case as the requested information is not
within the scope of Defendant’s proposal to the Court for reopened discovery; and to the extent
that the Interrogatory extends to laws, statutes, regulations, or ordinances of jurisdictions outside
the United States. NFPA further objects to this Interrogatory as overly broad, unduly
burdensome, and not proportional to the needs of this case to the extent that the undefined term
“standards-at-issue” includes standards that are not at issue in this litigation; NFPA will construe
“standards-at-issue” to include only those standards that are identified in Amended Exhibit B to
the Complaint. (ECF No. 74-1.) NFPA further objects to this Interrogatory on the ground that it
seeks information that is in the public domain, is more readily available or equally available to

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Public Resource as it is to NFPA, or that could be derived or ascertained by Public Resource
with substantially the same effort that would be required of NFPA. NFPA further objects to this
Interrogatory as overly broad, unduly burdensome, and not proportional to the needs of this case
to the extent “identify” is undefined; NFPA will construe “identify” based on its ordinary
meaning.
Subject to and without waiving the foregoing objections, NFPA responds as follows:
NFPA does not regularly maintain information responsive to this Interrogatory in a reasonably
accessible form. To the best of NFPA’s knowledge and information following a search of
reasonable diligence, information responsive to this Interrogatory may be found in the National
Institute of Standards and Technology Standards Incorporated by Reference (SIBR) Database,
available at https://www.nist.gov/standardsgov/what-we-do/federal-policy-standards/sibr, and on
the NFPA CodeFinder™, available at https://codefinder.nfpa.org/. NFPA will supplement its
response to this Interrogatory if and when it becomes aware of additional responsive information.
INTERROGATORY NO. 15:
For each NFPA standard-at-issue, identify on an annual basis from 2006 to the present
the sales (in units and in dollars) of that standard for each year, listing the sales corresponding to
each standard separately.
RESPONSE TO INTERROGATORY NO. 15:
NFPA incorporates the General Objections as if fully set forth herein. NFPA further
objects to this Interrogatory as overly broad, unduly burdensome, and not proportional to the
needs of this case to the extent that it seeks information for 2013 or earlier, including because the
requested information is not within the scope of Defendant’s proposal to the Court for reopened
discovery as that proposal contemplated providing only “data updated to the present day” and

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NFPA has already provided financial information from 2013 and earlier. NFPA further objects
to this Interrogatory as overly broad, unduly burdensome, and not proportional to the needs of
this case to the extent “identify” is undefined; NFPA will construe “identify” based on its
ordinary meaning. NFPA further objects to this Interrogatory on the ground that it is overly
broad, unduly burdensome, and not proportional to the needs of this case to the extent that the
undefined term “standard-at-issue” includes standards that are not at issue in this litigation;
NFPA will construe “standard-at-issue” to include only those standards that are identified in
Amended Exhibit B to the Complaint. (ECF No. 74-1.)
Subject to and without waiving the foregoing objections, NFPA responds as follows:
NFPA identifies the following document that it has produced in this action: NFPA-PR0098029.
INTERROGATORY NO. 16:
For each NFPA standard-at-issue, identify on an annual basis from 2006 to the present
the number of individuals licensed to access each standard, listing the number of licensed
individuals corresponding to each standard separately, but excluding NFPA Free Access
licenses.
RESPONSE TO INTERROGATORY NO. 16:
NFPA incorporates the General Objections as if fully set forth herein. NFPA further
objects to this Interrogatory as overly broad, unduly burdensome, not proportional to the needs of
this case, and not relevant to any party’s claims or defenses as the requested information does not
bear on either issue—fair use and ownership—on which the Court reopened discovery, nor is it
within the scope of Defendant’s proposal to the Court for reopened discovery. NFPA further
objects to this Interrogatory as overly broad, unduly burdensome, and not proportional to the
needs of this case to the extent that it seeks information prior to the filing of the Complaint on

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August 6, 2013. NFPA further objects to this Interrogatory as overly broad, unduly burdensome,
and not proportional to the needs of this case to the extent “identify” is undefined; NFPA will
construe “identify” based on its ordinary meaning. NFPA further objects to this Interrogatory on
the ground that it is overly broad, unduly burdensome, and not proportional to the needs of this
case to the extent that the undefined term “standard-at-issue” includes standards that are not at
issue in this litigation; NFPA will construe “standard-at-issue” to include only those standards
that are identified in Amended Exhibit B to the Complaint. (ECF No. 74-1.)
Subject to and without waiving the foregoing objections, NFPA responds as follows:
NFPA offers authorized access to standards, both through physical copies and licenses to access
digital and other formats, both to entities and individuals. NFPA also licenses certain third
parties to provide access to its standards. NFPA does not regularly maintain information
responsive to this Interrogatory in a reasonably accessible form. To the best of NFPA’s
knowledge and information following a search of reasonable diligence, information responsive to
this Interrogatory may be found in documents showing the number of sales and the number of
visitations to NFPA Free Access (NFPA-PR0098028-PR0098029, NFPAPR0098019-PR0098021), both of which provide information regarding the number of
individuals licensed to use NFPA standards. NFPA will supplement its response to this
Interrogatory if and when it becomes aware of additional responsive information.
INTERROGATORY NO. 17:
For each NFPA standard-at-issue, identify on an annual basis from 2006 to the present
the number of times that standard was viewed or accessed on NFPA Free Access, listing the
views or accesses corresponding to each standard separately.

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RESPONSE TO INTERROGATORY NO. 17:
NFPA incorporates the General Objections as if fully set forth herein. NFPA further
objects to this Interrogatory as overly broad, unduly burdensome, and not proportional to the
needs of this case to the extent that it seeks information prior to the filing of the Complaint on
August 6, 2013. NFPA further objects to this Interrogatory as overly broad, unduly burdensome,
and not proportional to the needs of this case to the extent “identify” is undefined; NFPA will
construe “identify” based on its ordinary meaning. NFPA further objects to this Interrogatory on
the ground that the undefined terms “viewed” and “accessed” are overly broad, unduly
burdensome, and not proportional to the needs of this case. NFPA further objects to this
Interrogatory on the ground that it is overly broad, unduly burdensome, and not proportional to
the needs of this case to the extent that the undefined term “standard-at-issue” includes standards
that are not at issue in this litigation; NFPA will construe “standard-at-issue” to include only
those standards that are identified in Amended Exhibit B to the Complaint. (ECF No. 74-1.)
Subject to and without waiving the foregoing objections, NFPA responds as follows:
NFPA identifies the following documents that it has produced in this action: NFPAPR0098019-PR0098021.
INTERROGATORY NO. 18:
Identify with specificity all instances where you are aware of an individual, entity,
business, or organization using a standard obtained from the Public.Resource.Org website or
Internet Archive website.
RESPONSE TO INTERROGATORY NO. 18:
NFPA incorporates the General Objections as if fully set forth herein. NFPA further
objects to this Interrogatory as overly broad, unduly burdensome, and not proportional to the

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needs of this case as the requested information is not within the scope of Defendant’s proposal to
the Court for reopened discovery. NFPA further objects to this Interrogatory on the ground that
it seeks information that is in the public domain, is more readily available or equally available to
Public Resource as it is to NFPA, or that could be derived or ascertained by Public Resource
with substantially the same effort that would be required of NFPA. NFPA further objects to this
Interrogatory as overly broad, unduly burdensome, and not proportional to the needs of this case
to the extent “identify” is undefined; NFPA will construe “identify” based on its ordinary
meaning. NFPA further objects to this Interrogatory on the ground that it is overly broad, unduly
burdensome, and not proportional to the needs of this case to the extent that “standard” includes
standards that are not at issue in this litigation; NFPA will construe “standard” to include only
those standards that are identified in Amended Exhibit B to the Complaint. (ECF No. 74-1.)
Subject to and without waiving the foregoing objections, NFPA responds as follows: Per
PRO’s production of data and testimony in this litigation, NFPA is aware that its standards have
been accessed or downloaded from Public.Resource.org or the Internet Archive tens of thousands
of times. Additionally, to the best of NFPA’s knowledge and information following a search of
reasonable diligence, NFPA identifies the following document that it has produced in this action:
NFPA-PR0098030-PR0098031. NFPA will supplement its response to this Interrogatory if and
when it becomes aware of additional responsive information.
INTERROGATORY NO. 19:
Identify each joint author of each of the NFPA standards-at-issue, listing each standard
separately along with its corresponding authors.

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RESPONSE TO INTERROGATORY NO. 19:
NFPA incorporates the General Objections as if fully set forth herein. NFPA further
objects to this Interrogatory as overly broad, unduly burdensome, not proportional to the needs of
this case, and not relevant to any party’s claims or defenses. NFPA further objects to this
Interrogatory to the extent that it requires a legal conclusion. NFPA further objects to this
Interrogatory as overly broad, unduly burdensome, and not proportional to the needs of this case
to the extent “identify” is undefined; NFPA will construe “identify” based on its ordinary
meaning. NFPA further objects to this Interrogatory on the ground that it is overly broad, unduly
burdensome, and not proportional to the needs of this case to the extent that the undefined term
“standards-at-issue” includes standards that are not at issue in this litigation; NFPA will construe
“standards-at-issue” to include only those standards that are identified in Amended Exhibit B to
the Complaint. (ECF No. 74-1.)
Subject to and without waiving the foregoing objections, NFPA responds as follows:
NFPA authored and owns the copyrights to each of the standards at issue. NFPA has not
identified any joint authors of the standards at issue.
INTERROGATORY NO. 20:
For each portion of each standard-at-issue that you assert is not necessary to reproduce
verbatim in order to describe fairly the standard’s legal import or instructions, describe with
specificity the bases for such assertion and all supporting evidence.
RESPONSE TO INTERROGATORY NO. 20:
NFPA incorporates the General Objections as if fully set forth herein. NFPA further
objects to this Interrogatory to the extent that it requires a legal conclusion. NFPA further
objects to this Interrogatory on the ground that it is overly broad, unduly burdensome, and not

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proportional to the needs of this case to the extent that the undefined term “standard-at-issue”
includes standards that are not at issue in this litigation; NFPA will construe “standard-at-issue”
to include only those standards that are identified in Amended Exhibit B to the Complaint. (ECF
No. 74-1.) This Interrogatory is overly broad, unduly burdensome, and not proportional to the
needs of this case to the extent it asks NFPA to catalog every aspect of every standard that need
not be produced verbatim—i.e., to the extent it asks NFPA to disprove what PRO bears the
burden of proving.
Subject to and without waiving the foregoing objections, NFPA responds as follows:
There are ways to paraphrase or summarize elements of each of the standards-at-issue, and none
of the standards-at-issue need to be reproduced in full, verbatim.
For example, the vast majority of the 2014 version of the National Electrical Code, NFPA
70 (“2014 NEC”), could be paraphrased, rather than reproduced verbatim. Indeed, others have
produced documents that fairly describe the 2014 NEC by paraphrasing the document, rather
than reproducing it verbatim. See, e.g., McGraw-Hill’s National Electrical Code 2014 Handbook
(Frederic P. Hartwell et al. eds., 28th ed. 2014). By way of illustrative example only, and not
intended to be exhaustive, portions of the 2014 NEC that need not be reproduced verbatim
include:
The 2014 NEC’s introduction, Article 90, provides background information about, for
example, its purpose, relation to other international standards, and general structure. This is not
necessary to an individual’s compliance with any applicable law or regulation that has
incorporated all or part of the 2014 NEC by reference. See 2014 NEC at 70-23 to 70-26. The
informational annexes at the end of the NEC (and included in Public Resource’s posting) are
expressly “for informational purposes only,” and do not dictate any “requirements” of the NEC.

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E.g., id. at 70-772. The introductory pages include, inter alia, a “Notice and Disclaimer of
Liability Concerning the Use of NFPA Documents,” a “History and Development of the
National Electrical Code®,” information regarding potential amendments or errata to the
standard, an index, and lists of NEC committee and panel membership. None of this is necessary
to an individual’s compliance with any applicable law or regulation that has incorporated all or
part of the 2014 NEC by reference.
Additionally, the 2014 NEC contains numerous “example” sections. For instance,
§ 550.4(A) provides a list of examples of mobile homes that do not serve as a dwelling unit—
“those equipped for sleeping purposes only, contractor’s on-site offices, construction job
dormitories, mobile studio dressing rooms, banks, clinics, mobile stores, or intended for the
display or demonstration of merchandise or machinery.” None of these “examples” are
necessary to an individual’s compliance with any applicable law or regulation that has
incorporated all or part of the 2014 NEC by reference.
Further, many portions of the 2014 NEC are informative, but do not dictate any
requirements. For example, there are hundreds of “Informational Notes” throughout the
document that provide context, background, cross-references, and other explanatory material—
but “are not enforceable as requirements” of the NEC. Id. § 90.5(C). Just in the first two pages
of Article 110, there are seven informational notes. Id. at 70-36-70-36. Four of these provide
cross-references to other parts of the Code, and a fifth directs readers to an outside standard that
details accepted industry standards. The remaining two provide guidance about potential ways to
determine whether equipment is suitable for installation and a cautionary note that certain
“compounds can cause severe deterioration of many plastic materials.” Id. § 110.11. None of

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these “examples” are necessary to an individual’s compliance with any applicable law or
regulation that has incorporated all or part of the 2014 NEC by reference.
Further, there is no need to reproduce verbatim the text within the NFPA’s works to fairly
convey their meaning. The particular wording and sentence structure, as well as the organization
and presentation of the material, in the 2014 NEC and the other works in issue reflect creative
choices by NFPA and need not be reproduced verbatim to accurately and completely convey the
meaning of any standard. For example, § 110.3(A)’s direction that “In judging equipment,
considerations such as the following shall be evaluated” could easily be paraphrased to
“Individuals who are examining electrical equipment must consider factors like.” Similarly,
there is no need to replicate verbatim NFPA’s organization of material to describe the NEC’s
requirements. For example, while NFPA does not present the NEC in this way, one could group
all requirements regarding residential construction or applicable to mobile homes in one place.
The same is true for the other NFPA works in issue.
Finally, the figures in the 2014 NEC illustrate a way—but not the only way—of the
matters described in the text. For example, Figure 220.1 of the 2014 NEC provides a graphical
overview of the organization of Article 220, and Figure 516.3(D)(2) depicts one way of showing
the different clearance zones described in the text. Id. at 70-66, 70-455. These Figures illustrate
concepts conveyed in the text, but do not dictate any independent requirements.
INTERROGATORY NO. 21:
Identify with specificity all evidence that Public Resource’s actions have harmed the
potential market for or value of your standards.

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RESPONSE TO INTERROGATORY NO. 21:
NFPA incorporates the General Objections as if fully set forth herein. NFPA further
objects to this Interrogatory as overly broad, unduly burdensome, and not proportional to the
needs of this case as the requested information is not within the scope of Defendant’s proposal to
the Court for reopened discovery. NFPA further objects to this Interrogatory on the ground that
it calls for an expert opinion. NFPA further objects to this Interrogatory as overly broad, unduly
burdensome, and not proportional to the needs of this case to the extent “identify” is undefined;
NFPA will construe “identify” based on its ordinary meaning. NFPA further objects to this
Interrogatory on the ground that it is overly broad, unduly burdensome, and not proportional to
the needs of this case to the extent that “standards” includes standards that are not at issue in this
litigation; NFPA will construe “standards” to include only those standards that are identified in
Amended Exhibit B to the Complaint. (ECF No. 74-1.)
Subject to and without waiving the foregoing objections, NFPA responds as follows:
Evidence of economic harms from Public Resource’s actions includes, but is not limited to,
publicly available information regarding Public Resource’s activities and posting and
information described in the Expert Report of John C. Jarosz dated June 5, 2015.
INTERROGATORY NO. 22:
Identify with specificity all errors or omissions that you are aware of in the versions of
your standards that Public Resource has posted on its website or on the Internet Archive website.
RESPONSE TO INTERROGATORY NO. 22:
NFPA incorporates the General Objections as if fully set forth herein. NFPA further
objects to this Interrogatory as overly broad, unduly burdensome, and not proportional to the
needs of this case as the requested information does not bear on either issue—fair use and

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ownership—on which the Court reopened discovery, nor is it within the scope of Defendant’s
proposal to the Court for reopened discovery. NFPA further objects to this Interrogatory as
overly broad, unduly burdensome, and not proportional to the needs of this case to the extent
“identify” is undefined; NFPA will construe “identify” based on its ordinary meaning. NFPA
further objects to this Interrogatory on the ground that it is overly broad, unduly burdensome,
and not proportional to the needs of this case to the extent that “standards” includes standards
that are not at issue in this litigation; NFPA will construe “standards” to include only those
standards that are identified in Amended Exhibit B to the Complaint. (ECF No. 74-1.)
Subject to and without waiving the foregoing objections, NFPA responds as follows:
NFPA does not regularly maintain information responsive to this Interrogatory in a reasonably
accessible form. To the best of NFPA’s knowledge and information following a search of
reasonable diligence, errors that have appeared in the standards-at-issue of which NFPA is aware
are those discussed in the following: Pauley Decl. ¶ 54; Mullen Dep. at 134:11-23, 147:14-149:7;
C. Malamud Dep. (Feb. 27, 2015) at 127:4-139:8, 147:19-148:1; Exs. 63 & 64 to C. Malamud
Dep. Additionally, evidence of the high likelihood of errors given PRO’s methods appears in the
discussion in the following: HTC Dep. at 36:12-37:19, 105:16-106:11; Fruchterman Dep. at
184:21-185:11. NFPA will supplement its response to this Interrogatory if and when it becomes
aware of additional responsive information.
INTERROGATORY NO. 23:
Identify all evidence of members of the public, including consumers of your standards,
being confused by Public Resource’s reproduction or posting of your standards.

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RESPONSE TO INTERROGATORY NO. 23:
NFPA incorporates the General Objections as if fully set forth herein. NFPA further
objects to this Interrogatory as overly broad, unduly burdensome, and not proportional to the
needs of this case as the requested information does not bear on either issue—fair use and
ownership—on which the Court reopened discovery, nor is it within the scope of Defendant’s
proposal to the Court for reopened discovery. NFPA further objects to this Interrogatory on the
ground that it seeks information that is in the public domain, is more readily available or equally
available to Public Resource as it is to NFPA, or that could be derived or ascertained by Public
Resource with substantially the same effort that would be required of NFPA. NFPA further
objects to this Interrogatory to the extent that it requires a legal conclusion. NFPA further
objects to this Interrogatory as overly broad, unduly burdensome, and not proportional to the
needs of this case to the extent “identify” is undefined; NFPA will construe “identify” based on
its ordinary meaning. NFPA further objects to this Interrogatory on the ground that it is overly
broad, unduly burdensome, and not proportional to the needs of this case to the extent that
“standards” includes standards that are not at issue in this litigation; NFPA will construe
“standards” to include only those standards that are identified in Amended Exhibit B to the
Complaint. (ECF No. 74-1.)
Subject to and without waiving the foregoing objections, NFPA responds as follows:
NFPA does not regularly maintain information responsive to this Interrogatory in a reasonably
accessible form. To the best of NFPA’s knowledge and information following a search of
reasonable diligence, information responsive to this Interrogatory may be found in the following
document that it has produced in this action: NFPA-PR0038552-PR0038554. NFPA will

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supplement its response to this Interrogatory if and when it becomes aware of additional
responsive information.
Dated: July 1, 2019

Respectfully submitted,
/s/ Kelly M. Klaus
Kelly M. Klaus (pro hac vice)
MUNGER, TOLLES & OLSON LLP
560 Mission St., 27th Floor
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
Rose L. Ehler (pro hac vice)
MUNGER, TOLLES & OLSON LLP
350 South Grand Ave., 50th Floor
Los Angeles, CA 90071
Tel: [phone]
Email: [e-mail]
Rachel G. Miller-Ziegler
MUNGER, TOLLES & OLSON LLP
1155 F St. NW, 7th Floor
Washington, DC 20004
Tel: [phone]
Email: [e-mail]

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PROOF OF SERVICE
American Society for Testing and Materials, et al. v. Public.Resource.Org., Inc.
U.S. District Court, District of Columbia Case No. 1:13-cv-01215-TSC
I am a citizen of the United States and employed in the City of Washington, District of
Columbia. I am over the age of 18 years and not a party to the within-entitled action. My
business address is 1155 F Street NW, 7th Floor, Washington, DC 20004.
On July 1, 2019, I served a true and correct copy of the document(s) described as:
PLAINTIFF NATIONAL FIRE PROTECTION ASSOCIATION, INC.’S RESPONSES
AND OBJECTIONS TO DEFENDANT-COUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S INTERROGATORIES (SET THREE, NOS. 14 – 23)
on the interested parties in this action BY ELECTRONIC MAIL as indicated on the attached
Service List.
I declare under penalty of perjury under the laws of the District of Columbia that the
foregoing is true and correct.
Executed at Washington, District of Columbia on July 1, 2019.
/s/ Rachel G. Miller-Ziegler
Rachel G. Miller-Ziegler

-22-

SERVICE LIST
J. Kevin Fee
Jane Wise
MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004

PLAINTIFF
AMERICAN SOCIETY FOR TESTING AND
MATERIALS
Tel:
Fax:

[e-mail]
[e-mail]

[phone]
[phone]

Jeffrey S. Bucholtz
KING & SPALDING, LLP
1700 Pennsylvania Ave., NW
Washington, DC 20006
[e-mail]

PLAINTIFF
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.

Kenneth L. Steinthal
J. Blake Cunningham
KING & SPALDING, LLP
101 2nd St., Suite 2300
San Francisco, CA 94105
[e-mail]

PLAINTIFF
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.

Tel: [phone]

Tel: [phone]
Fax: [phone]

[e-mail]
Andrew Phillip Bridges
Matthew B. Becker
FENWICK & WEST
555 California St., 12th Floor
San Francisco, CA 94104
[e-mail]
[e-mail]

DEFENDANT
PUBLIC.RESOURCE.ORG., INC.

Mitchell L. Stoltz
Corynne McSherry
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
[e-mail]
[e-mail]

DEFENDANT
PUBLIC.RESOURCE.ORG., INC.

David Elliot Halperin
1530 P Street, NW
Washington DC 20005
[e-mail]

DEFENDANT
PUBLIC.RESOURCE.ORG., INC

Tel: [phone]
Fax: [phone]

Tel: [phone]
Fax: [phone]

Tel: [phone]

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