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

Filing 204

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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

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

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

DEFENDANT-COUNTERCLAIMANT PUBLIC RESOURCE ORG., INC.’S
CONSOLIDATED INDEX OF EXHIBITS IN OPPOSITION TO [198] PLAINTIFFS’
MOTION FOR SUMMARY JUDGMENT AND PERMANENT INJUNCTION AND IN
SUPPORT OF DEFENDANT PUBLIC RESOURCE’S SECOND MOTION FOR
SUMMARY JUDGMENT

Defendant-Counterclaimant Public.Resource.Org, Inc. (“Defendant”) submits the
following Consolidated Index of Exhibits in Opposition to [198] Plaintiffs’ Motion for Summary
Judgment and Permanent Injunction and in Support of Defendant’s Second Motion for Summary
Judgment:
Exh. No.

Document Title

1

John Markoff, “Turning the Desktop PC Into a Talk Radio Medium,” New
York Times, March 4, 1993

2

John Markoff, “Plan Opens More Data To Public,” New York Times, October
22, 1993

3

Correspondence from the Securities and Exchange Commission on August
31, 1995 , stating in part: “Looking forward to your support as we continue
down the road you’ve paved.” Service available at
https://www.sec.gov/edgar.shtml.

4

John Schwartz, “Superhighway Routed Through Capitol Hill,” Washington
Post, September 9, 1994

5

Correspondence from Senator Connie Mack on June 16, 1995, concerning the
first congressional hearing on Internet.

6

Katie Hafner, “The Man With Ideas: The Robert Moses of
Cyberspace Plans a 1996 World’s Fair,” Newsweek, July 24, 1995.

7

“Foreword by His Holiness the Dalai Lama,” A World’s Fair for the
Information Age, MIT Press (1997).

8

John Schwartz, “Ideas Whose Time for Free Access Has Come,”
Washington Post, June 29, 1998.

9

John Markoff, “U.S. to Release Patent Data On a World Wide Web Site,”
New York Times, June 25, 1998.

10

Correspondence from the Public Printer of the United States on July 27, 2006.

11

Correspondence from Hon. Nancy Pelosi, the Speaker of the House of
Representatives, on April 17, 2008, supporting “FedFlix” initiative.

12

James Fallows, “Another Win for Carl Malamud,” Atlantic Monthly, March
9, 2007.

2

Exh. No.

Document Title

13

Correspondence from Speaker Boehner and Chairman Issa on January 5,
2011.

14

Remarks of Congressman Issa titled “Commemorating the Tenth Anniversary
of Public.Resource.Org,” Congressional Record, Page E285, March 7, 2017.

15

Suzanne Perry, “IRS Plans to Begin Releasing Electronic Nonprofit Tax
Forms Next Year,” Chronicle of Philanthropy, June 30, 2015.

16

Robert Ambrogi, “1.8M Pages of Federal Case Law To Go Public,” Law
Sites, November 14, 2007.

17

Correspondence from the Hon. Lee H. Rosenthal, Chair of the Committee on
Rules of Practice and Procedure of the Judicial Conference of the United
States, on July 16, 2008

18

Correspondence from Chief Judge Royce C. Lamberth, U.S. District Court for
the District of Columbia, on January 28, 2009.

19

Correspondence from U.S. Senator Joseph I. Lieberman to Hon. Lee H.
Rosenthal, on February 27, 2009.

20

Prepared statement by Carl Malamud before the U.S. Court of Appeals for the
Ninth Circuit on June 23, 2010.

21

Submission by Carl Malamud to the Presidential Transition Effort
(“Change.Gov”), titled “Federal Register 2.0,” on January 5, 2009.

22

Correspondence from the Hon. David Ferriero, Archivist of the United States
to me, on April 2, 2019.

23

Prepared statement by Carl Malamud before the Oregon State Legislature
Legislative Counsel Committee on June 19, 2008.

24

The Editorial Board, “The Law©?,” New York Times, June 25, 2019.

25

“Notice of Incorporation,” dated March 15, 2012.

26

Carl Malamud Response to SMACNA, on January 11, 2013.

27

Response to SMACNA, on January 11, 2013.

28

ANSI website, titled “ANSI Launches Online Portal for Standards
Incorporated by Reference,” dated October 28, 2013.

3

Exh. No.

Document Title

29

Prepared remarks by Carl Malamud before the ABA House of Delegates on
August 9, 2016.

30

Lorelei Laird, “After debate, ABA House calls for publication of privately
drafted standards used in legislation,” ABA Journal, August 9, 2016.

31

Hon. David Ferriero, “Federal Register 2.0,” The White House Blog, July 26,
2010.

32

History of the Federal Register, March 14, 2006.

33

Cornell Legal Information Institute, “Worth A Thousand Words: We’re
Upping Our Game for Images,” April 4, 2019.

34

Email correspondence on March 1, 2016, with Amy Bunk, Director of Legal
Affairs and Policy at the Office of the Federal Register.

35

John Adams’ “Dissertation on the Canon and Feudal Law.”

36

Deposition of Mia D. Marvelli, dated August 19, 2019.

37

Deposition of Mary H. Saunders, dated August 15, 2019.

38

Deposition of Plaintiffs’ expert, John Jarosz, dated August 27, 2015.

39

Deposition of Public Resource’s expert, James Fruchterman, dated July 31,
2015.

40

Deposition of Daniel Smith, one of ASTM’s Rule 30(b)(6) designees, dated
July 24, 2015.

41

Deposition of Christian Dubay, one of NFPA’s Rule 30(b)(6) designees, dated
April 1, 2015

42

SEALED Deposition of Bruce Mullen, one of NFPA’s Rule 30(b)(6)
designees, dated March 31, 2015.

43

Deposition of Stephanie Reiniche, one of ASHRAE’s Rule 30(b)(6)
designees, dated March 30, 2015.

44

Deposition of Steven Comstock, one of ASHRAE’s Rule 30(b)(6) designees,
dated March 5, 2015.

4

Exh. No.

Document Title

45

Deposition of Jeffrey Grove, one of ASTM’s Rule 30(b)(6) designees, dated
March 4, 2015.

46

SEALED Deposition of Donald Bliss, one of NFPA’s Rule 30(b)(6)
designees, dated March 3, 2015.

47

SEALED Deposition of Carl Malamud, dated February 27, 2015.

48

Deposition of Carl Malamud as Rule 30(b)(6) designee for Public Resource,
dated February 26, 2015.

49

Deposition of Vikas Bhutada, Rule 30(b)(6) designee for third party HTC
Global Services, dated November 5, 2014.

50

Deposition of Rebecca Malamud, Rule 30(b)(6) designee for third party Point
B Studio, dated November 13, 2014.

51

ASHRAE Interrogatories 2019

52

NFPA Interrogatories 2019

53

ASTM Second Amended Interrogatories 2019

54

ASTM Interrogatories 2014

55

SEALED ASHRAE Financials 2016-17

56

SEALED ASHRAE Financials 2017-18

57

SEALED Exhibit 5 from the deposition of Mary Saunders.

58

Exhibit 9 from the deposition of Mary Saunders.

59

SEALED Exhibit 10 from the deposition of Mary Saunders.

60

Exhibit 11 from the deposition of Mary Saunders.

61

SEALED Exhibit 13 from the deposition of Mary Saunders.

62

SEALED Exhibit 14 from the deposition of Mary Saunders.

63

SEALED Exhibit 21 from the deposition of Mary Saunders.

5

Exh. No.

Document Title

64

SEALED Exhibit 23 from the deposition of Mary Saunders

65

SEALED Exhibit 24 from the deposition of Mary Saunders.

66

SEALED Exhibit 25 from the deposition of Mary Saunders.

67

SEALED Exhibit 26 from the deposition of Mary Saunders.

68

SEALED Exhibit 28 from the deposition of Mary Saunders.

69

SEALED Exhibit 37 from the deposition of Mary Saunders.

70

SEALED Exhibit 43 from the deposition of Mary Saunders.

71

SEALED Exhibit 46 from the deposition of Mary Saunders.

72

SEALED December 31, 2015 and 2014 National Fire Protection Association
Financial Statements, produced as begin Bates reference NFPA-PR0097912.

73

SEALED December 31, 2016 and 2015 National Fire Protection Association
Financial Statements, produced as begin Bates reference NFPA-PR0097936.

74

SEALED December 31, 2017 and 2016 National Fire Protection Association
Financial Statements, produced as begin Bates reference NFPA-PR0097961.

75

SEALED December 31, 2018 and 2017 National Fire Protection Association
Financial Statements, produced as begin Bates reference NFPA-PR0097987.

76

NFPA income statement, produced as begin Bates reference NFPAPR0098016.

77

SEALED Code and Standard Units Sold, produced as begin Bates reference
NFPA-PR0098022.

78

SEALED Page view and sales information, produced as begin Bates reference
NFPA-PR0098023.

79

SEALED NFPA Publication sales 2009-2013, produced as begin Bates
reference NFPA-PR0098028.

80

SEALED NFPA Publication sales 2014-2018, produced as begin Bates
reference NFPA-PR0098029.

6

Exh. No.

Document Title

81

SEALED Email produced as begin Bates reference NFPA-PR0098030.

82

NEC adoption maps, produced as begin Bates reference NFPA-PR0098046.

83

CodeFinder Tool Disclaimer, produced as begin Bates reference NFPAPR0098059.

84

Exhibit 3 from the deposition of Mia Marvelli.

85

Exhibit 4 from the deposition of Mia Marvelli.

86

Exhibit 7 from the deposition of Mia Marvelli.

87

Exhibit 8 from the deposition of Mia Marvelli.

88

Exhibit 9 from the deposition of Mia Marvelli.

89

Table of the ASHRAE standards at issue in this case.

90

Table of the ASTM standards at issue in this case.

91

Table of the NFPA standards at issue in this case.

92

Printout from the National Archives website, titled “Incorporation by
Reference”, available at http://www.archives.gov/federal-register/cfr/ibrlocations.html.

93

Declaration in Support of Probable Cause, California v. Harris, No. 17-CR017349A (Cal. Super. Ct. June 5, 2017), available at
https://www.scribd.com/document/350446988/Ghost-Ship-fire-criminalcharges.

94

Criminal Complaint, California v. Harris, No. 17-CR-017349A (Cal. Super.
Ct. June 5, 2017), available at
https://web.archive.org/web/20170729051241/https://cbssanfran.files.wordpre
ss.com/2017/06/almena-and-harris-complaint.pdf.)

95

SEALED Exhibit 1056 to the deposition of Jeffrey Grove.

96

SEALED Exhibit 1033 to the deposition of Jeffrey Grove.

97

SEALED Exhibit 1033 to the deposition of Jeffrey Grove.

7

Dated: November 12, 2019

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Matthew B. Becker (admitted pro hac vice)
[e-mail]
Armen N. Nercessian (pending pro hac vice)
[e-mail]
Shannon E. Turner (pending pro hac vice)
[e-mail]
FENWICK & WEST LLP
801 California Street
Mountain View, CA 94041
Telephone: [phone]
Facsimile: [phone]
Corynne McSherry (admitted pro hac vice)
[e-mail]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
CSRL 2nd Floor
Washington, DC 20005
Telephone: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

8