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.
DECLARATION OF JANE W. WISE
I, Jane W. Wise, hereby declare as follows:
1.

I am over the age of 18. I am an associate with the law firm of Morgan, Lewis &

Bockius LLP, which represents Plaintiff American Society for Testing and Materials d/b/a
ASTM International (“ASTM”) in the above captioned matter. I have personal knowledge of the
facts set forth herein and, if called upon to do so, I could and would testify competently thereto.
2.

Attached as Exhibit 174 are true and correct copies of excerpts from Defendants’

responses to interrogatories served by ASTM. Defendant did not serve supplemented responses
to these interrogatories.
3.

Attached as Exhibit 175 is a table of the NFPA standards at issue in this case.

The table includes a column listing the regulations or laws that PRO’s Exhibit 91 identified as
incorporating each standard, as well as Exhibit 91’s “text of incorporation” column. In the
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column labeled “NFPA’s response,” Plaintiffs have analyzed the federal regulation (if any) that
PRO’s Exhibit 91 identifies.
4.

Attached as Exhibit 176 is a table of the ASTM standards at issue in this case

with the quoted text from PRO’s Exhibit 90 where PRO identified the text of the C.F.R. it asserts
incorporate a particular ASTM standard by reference. Where applicable, the attached table
includes the year that the identified C.F.R. provision was amended, repealed, and/or revised.
5.

Attached as Exhibit 177 is a true and correct copy of a collection of printouts of

the Internet Archive HTML versions of ASTM standards at issue, printed on December 6, 2019,
that continue to display the ASTM logo, from the following websites:
https://ia600607.us.archive.org/2/items/gov.law.astm.a572.1979/astm.a572.1979.html;
https://ia800905.us.archive.org/4/items/gov.law.astm.c518.1991/astm.c518.1991.html;
https://ia800700.us.archive.org/20/items/gov.law.astm.d86.2007/astm.d86.2007.html;
https://ia801309.us.archive.org/27/items/gov.law.astm.d129.1995/astm.d129.1995.html;
https://ia601606.us.archive.org/22/items/gov.law.astm.d975.2007/astm.d975.2007.html;
https://ia800306.us.archive.org/10/items/gov.law.astm.d1688.1995/astm.d1688.1995.html;
https://ia801307.us.archive.org/30/items/gov.law.astm.d2015.1996/astm.d2015.1996.html;
https://ia802706.us.archive.org/10/items/gov.law.astm.d2597.1994/astm.d2597.1994.html;
https://ia600608.us.archive.org/10/items/gov.law.astm.d3120.1996/astm.d3120.1996.html;
https://ia802705.us.archive.org/11/items/gov.law.astm.d4891.1989/astm.d4891.1989.html; and
https://ia600602.us.archive.org/22/items/gov.law.astm.d5257.1997/astm.d5257.1997.html.
6.

Attached as Exhibit 178 is a true and correct copy of 46 C.F.R. § 56.01-1 (1997).

7.

Attached as Exhibit 179 is a true and correct copy of excerpts from the 1978

Annual Book of ASTM Standards Part 4.

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8.

Attached as Exhibit 180 is a true and correct copy of a screenshot taken on

December 20, 2019 from the website: https://catalog.nfpa.org/NFPA-30-Flammable-andCombustible-Liquids-Code-P1164.aspx?order_src=D747&gclid=Cj0KCQiA_rfvBRCP
ARIsANlV66OZ-JtB8z9nAk1tGfWSauF2F0D1jinoH2nqQ58ZXi1YjKOIDOLbs
jkaAqZFEALw_wcB.
9.

Attached as Attached as Exhibit 181 is a true and correct copy of an email sent by

Kelly Klaus, counsel for NFPA, to Corynne McSherry and Andrew Bridges, dated August 3,
2018.
10.

Attached as Exhibit 182 is a true and correct copy of a screenshot taken on

December 19, 2019 from the website: https://law.resource.org/pub/us/cfr/manifest.us.html.
11.

Attached as Exhibit 183 is a true and correct copy of Exhibit 3 to the deposition

of Mia Marvelli.
12.

Attached as Exhibit 184 is a true and correct copy of Exhibit 7 to the deposition

of Mia Marvelli.
13.

Attached as Exhibit 185 is a true and correct copy of 40 C.F.R. § 80.47 (2017).

14.

Attached as Exhibit 186 is a table of the ASHRAE standards at issue in this case

with the quoted text from PRO’s Exhibit 89 where PRO identified the text of the C.F.R. it asserts
incorporate a particular ASHRAE standard by reference. In the column labeled “ASHRAE’s
response,” Plaintiffs have analyzed the federal regulation (if any) that PRO’s Exhibit 89
identifies.
*

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I declare under the penalty of perjury under the laws of the United States of America that
the foregoing is true and correct pursuant to 28 U.S.C. § 1746.

Dated: December 22, 2019

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