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;
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/
Counter-Plaintiff.

PLAINTIFFS’ OPPOSITION TO PUBLIC.RESOURCE.ORG’S
REQUEST FOR JUDICIAL NOTICE (ECF No. 204-3)
Public.Resource.Org’s (“PRO”) request for judicial notice should be denied. The 2002
National Electrical Safety Code cited in Bellwether is not at issue in this litigation, nor is it relevant
to any issue in this case. See Mot. 1 (citing Bellwether Properties, LLC v. Duke Energy Indiana,
Inc., 87 N.E.3d 462, 469 (Ind. 2017)). And PRO seeks not just judicial notice, but admission of
facts from Bellwether for their truth, including the availability of the standard, whether PRO posted
it to the Internet Archive, and whether the standard is still in effect. This court should reject PRO’s
efforts to short circuit the rules against hearsay.
While a district court may take judicial notice in ruling on a motion for summary judgment,
“the matters to be noticed must be relevant.” Whiting v. AARP, 637 F.3d 355, 364 (D.C. Cir.
2011). The standard at issue in Bellwether is not. Bellwether considered issues involving “the
2002 edition of the National Electrical Safety Code,” which the Indiana Utility Regulatory

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Commission adopted that same year. Bellwether, 87 N.E.3d at 465. That standard “is published
by the Institute of Electrical and Electronic Engineers, Inc.” Id.
Neither that professional organization nor that specific standard is relevant to this suit. This
suit concerns standards promulgated by the American Society for Testing and Materials, the
National Fire Protection Association, and the American Society of Heating, Refrigerating, and Air
Conditioning Engineers — not the Institute of Electrical and Electronic Engineers.

The

availability of the Institute of Electric and Electronic Engineers’ 2002 edition of the National
Electrical Safety Code is irrelevant because each standards body has its own policies for making
standards available to the public, which means the analysis is unique to each standards
organization. And, as the D.C. Circuit emphasized when remanding this case, the individual ways
in which each standard is incorporated into law matter and vary widely. Thus, taking notice of the
issue in Bellwether would tell us nothing of the facts at issue in this suit and would not have “any
tendency to make a fact more or less probable than it would be without the evidence.” Fed. R.
Evid. 401.
Because the standard at issue in Bellwether is not relevant to this case, this court should
not take notice of whether the Indiana Supreme Court cited the Internet Archive, nor whether the
Institute of Electrical and Electronics Engineers describes the standard as “[s]uperseded.” Whiting,
637 F.3d at 364; see also Larson v. Dep’t of State, 565 F.3d 857, 870 (D.C. Cir. 2009) (denying a
request for judicial notice when the requested notice was “irrelevant to our inquiry; taking notice
of them would not affect our opinion”).
Even if the standard had some potential relevance to this case, the request for judicial
should still be denied because taking notice is prohibited by the rules against hearsay. PRO seeks
to take notice of Bellwether not to show that the opinion exists, but to admit facts discussed in the

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opinion for their truth: the availability of the standard, whether Public Resource posted it to the
Internet Archive, and whether the standard is still in effect. But court records are admissible as
evidence when offered to prove the truth of facts stated only if subject to some hearsay exception,
and PRO does not argue that a hearsay exception applies here. See 21B Fed. Prac. & Proc. Evid.
§ 5106.4 (2d ed.). Nor should this court consider any belated hearsay arguments raised on reply,
as “arguments raised for the first time in reply briefs are forfeited.” Coal River Energy, LLC v.
Jewell, 751 F.3d 659, 663 n.3 (D.C. 2014). The request for judicial notice should be denied.

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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
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.

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/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]
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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