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

Filing 213

RESPONSE re 202 MOTION for Summary Judgment filed by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC.. (Attachments: # 1 Plaintiffs' Third Supplemental Statement of Material Facts, # 2 Declaration of Thomas O'Brien, # 3 Declaration of Jane W. Wise, # 4 Exhibit 174, # 5 Exhibit 175, # 6 Exhibit 176, # 7 Exhibit 177 (Part 1), # 8 Exhibit 177 (Part 2), # 9 Exhibit 177 (Part 3), # 10 Exhibit 178, # 11 Exhibit 179, # 12 Exhibit 180, # 13 Exhibit 181, # 14 Exhibit 182, # 15 Exhibit 183, # 16 Exhibit 184, # 17 Exhibit 185, # 18 Exhibit 186, # 19 Plaintiffs' Response to Defendant's Statement of Disputed Facts (Redacted), # 20 Plaintiffs' Statement of Disputed Facts and Objections, # 21 Plaintiffs' Response to Defendant's Evidentiary Objections, # 22 Plaintiffs' Opposition to Defendant's Request for Judicial Notice)(Fee, J.)

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,

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

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
PLAINTIFFS’ THIRD SUPPLEMENTAL STATEMENT OF MATERIAL FACTS IN
SUPPORT OF THEIR SECOND MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Rule 7(h), Plaintiffs American Society for Testing and Materials
(“ASTM”), National Fire Protection Association, Inc. (“NFPA”) and American Society of
Heating, Refrigerating, and Air Conditioning Engineers (“ASHRAE”) (collectively, “Plaintiffs”)
hereby submit, in support of their Second Motion for Summary Judgment, this Third Supplemental
Statement of Material Facts1 as to which there is no genuine issue to be tried.

Plaintiffs filed an original Statement of Material Facts (Dkt. 118-2) (“SMF”), Supplemental
Statement of Material Facts (Dkt. 155-1), and a Second Supplemental Statement of Material Facts
(Dkt. 201). The facts contained in this Third Supplemental Statement of Material Facts are
additional to the already-developed record. Plaintiffs also have relied on and cited to their prior
statements of material facts in support of their Second Motion for Summary Judgment.

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1.

PRO stated that Exhibits 89 to 91 to the Supplemental Declaration of Matthew

Becker “show[] the citation and text of at least one federal incorporation into the C.F.R. of each
complete standard.” Opp. 8; see also Supplemental Declaration of Matthew Becker, previously
filed at Dkt. 204-5 (“Supp. Becker Decl.”). As explained below, this is not accurate:
2.

Exhibit 89 to the Supplemental Becker Declaration is titled “ASHRAE Editions

Incorporated by Reference” and includes a chart listing each of the ASHRAE standards at issue,
with a column for, inter alia, “C.F.R. Reference. Supp. Becker Decl. ¶ 57, Ex. 89. Though PRO
posted ASHRAE’s standards in 2012, for three of the four identified works on Exhibit 89, PRO
lists a C.F.R. reference from 2013 or later. See id.
3.

Additionally, PRO’s chart does not actually demonstrate that the cited C.F.R.

reference has any relation to large parts of the referenced works. Plaintiffs have prepared a chart
that demonstrates this. See Wise Decl. II ¶ 14, Ex. 186. In short, the C.F.R. references that PRO
provides in its chart relate to use of government funds to build new structures within the United
States, yet the ASHRAE standards contain numerous non-prescriptive elements, including entire
appendices of information related to how best to comply with the standards in foreign territories.
Id. Plainly, those appendices (and other non-prescriptive elements in the ASHRAE standards) do
not relate to the C.F.R. sections cited by PRO. Additionally, one of the ASHRAE works in
question is a handbook that contains guidance related to compliance with ASHRAE standards,
which was IBR’d to aid in compliance with other ASHRAE standards referenced in the same
portions of the C.F.R. That handbook contains text pertaining to multiple ASHRAE standards,
including those not IBR’d in that portion of the C.F.R., thus large portions of the handbook do not
relate to the cited C.F.R. cite PRO provides. Id.

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4.

Exhibit 90 to the Supplemental Becker Declaration is titled “ASTM Editions

Incorporated by Reference” and includes a chart listing each of the ASTM standards at issue, with
columns for, inter alia, “C.F.R. Reference.” Supp. Becker Decl. ¶ 57, Ex. 90. For more than 20%
of the ASTM Works (41 standards), Exhibit 90 identifies a citation to a provision of the C.F.R.
that was not promulgated until after PRO posted the standards in 2012. Wise Decl. II ¶ 4, Ex. 176.
5.

For approximately 30% of the ASTM Works (56 standards), Exhibit 90 identifies

a citation to a provision of the C.F.R. that had been amended to eliminate reference to the ASTM
Work at issue or to incorporate a different ASTM standard prior to the time PRO posted ASTM’s
Works in 2012. Id.
6.

Exhibit 91 to the Supplemental Becker Declaration is titled “NFPA Editions

Incorporated by Reference” and includes a chart listing each of the NFPA standards at issue, with
columns for, inter alia, “C.F.R. Reference.” Supp. Becker Decl. ¶ 58, Ex. 91. Plaintiffs have
provided a chart that responds to each of the C.F.R. references that PRO identifies. See Wise Decl.
II ¶ 3, Ex. 175.
7.

As shown in Plaintiffs’ chart, Exhibit 91 does not contain any citation to a federal

regulation that incorporates by reference four of the NFPA standards at issue. See id. (NFPA 1
(2003), NFPA 1 (2006), NFPA 54 (2006), NFPA 70 (2008)).
8.

For the remaining 19 NFPA standards at issue, the federal regulations PRO

identifies have no relevance to many portions of the standards. See id. For example, PRO’s
Exhibit 91 identifies a regulation providing that “fixed extinguishing systems” must comply with
NFPA 11 (2005), but that standard includes provisions related to fixed, semifixed, and portable
systems—the standard’s provisions related to semifixed and portable systems are not necessary to
complying with the regulation PRO identifies.

2

Id. at 2; see also generally Supplemental

Declaration of James Pauley, previously filed at Dkt. 198-50, (“Supp. Pauley Decl.”) Ex. D (Dkt.
199, sealed). Similarly, Exhibit 91 identifies a regulation that requires veterans’ cemeteries to
meet the architectural and structural requirements of NFPA 101 (2003); that regulation does not
require compliance with the standard’s provisions related to one- and two-family dwellings, not to
mention day-care occupancies, educational occupancies, industrial occupancies (or numerous
others). Wise Decl. II ¶ 3, Ex. 175 at 19; see also generally Supp. Pauley Decl. Ex. T (Dkt. 199,
sealed).
9.

164 of the 191 ASTM standards at issue are available for free read-only access on

ASTM’s website; with respect to the remaining 27 ASTM standards at issue, ASTM is not aware
of any regulation that has incorporated those standards by reference and PRO has not identified
any. Declaration of Thomas O’Brien, previously filed at Dkt. 118-7, ¶ 60; Declaration of Jane
Wise, previously filed at Dkt. 198-5, ¶ 157, Ex. 156. Each of the 23 NFPA standards at issue in
this litigation is available for free read-only access on NFPA’s website. Supp. Pauley Decl. ¶¶ 4041. Each of the 3 ASHRAE standards at issue in this litigation is available for free read-only
access on ASHRAE’s website. Declaration of Stephanie Reiniche, previously filed at Dkt. 11810, ¶ 19.
10.

In at least eleven instances, PRO’s Internet Archive postings continue to display

the ASTM Logo. Wise Decl. II ¶ 5, Ex. 177.

Dated: December 23, 2019

Respectfully submitted,
/s/ J. Kevin Fee
J. Kevin Fee (D.C. Bar: 494016)
Jane W. Wise (D.C. Bar: 1027769)
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Ave., N.W.
Washington, D.C. 20004
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Tel: [phone]
Email: [e-mail]
[e-mail]
Counsel for American Society For Testing And
Materials d/b/a ASTM International
/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]
Counsel for National Fire Protection Association, Inc.

/s/ J. Blake Cunningham
Jeffrey S. Bucholtz (D.C. Bar: 452385)
David Mattern
King & Spalding LLP
1700 Pennsylvania Avenue, NW, Ste. 200
Washington, DC 20006-4707
Tel: [phone]
Email: [e-mail]

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J. Blake Cunningham
King & Spalding LLP
101 Second Street, Ste. 2300
San Francisco, CA 94105
Tel: [phone]
Email: [e-mail]
Counsel for American Society of Heating,
Refrigerating, and Air Conditioning Engineers

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