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

Filing 217

NOTICE of Plaintiffs' Objections to Certain Evidence in Public Resource's Reply to Its Second Motion for Summary Judgment by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC. re 215 Reply to opposition to Motion,,,,,, (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’ OBJECTIONS TO CERTAIN EVIDENCE IN PUBLIC RESOURCE’S
REPLY TO ITS SECOND MOTION FOR SUMMARY JUDGMENT

Pursuant to Local Civil Rule 7(h), Plaintiffs submit the following Objections to Certain
Evidence in further opposition to PRO’s Second Motion for Summary Judgment and in support of
Plaintiffs’ Motion for Summary Judgment and Permanent Injunction.
SUPPLEMENTAL REPLY
DECLARATION OF MATTHEW
BECKER

PLAINTIFFS’ RESPONSE

2. Attached as Exhibit 98 is a true and
correct copy of the Office of the Federal
Register, Document Drafting Handbook, Aug.
2018 ed. (Rev. 1.1, dated Aug. 9, 2019),
obtained
from
https://www.archives.gov/files/federalregister/write/handbook/ddh.pdf.
Further
information on the Document Drafting
Handbook and the IBR Handbook is available
from the Office of the Federal Register at OFR
Handbooks Frequently Asked Questions,
https://www.archives.gov/federalregister/write/handbook/faqs.html.

Objection. Exhibit 98 is inadmissible
hearsay to the extent it is offered to prove the
truth of the matter asserted. Additionally,
the 2018 Document Drafting Handbook is
irrelevant, especially with respect to any
regulation for which IBR approval was
sought prior to August 9, 2019 (the revision
date of the Document Drafting Handbook),
or that was promulgated before that date.

3. Attached as Exhibit 99 is a true and
correct copy of the 1972 announcement in the
Federal Register by the Office of the Federal
Register of the incorporation by reference
regulations, along with the text of that
regulation: Incorporation by Reference, 37 Fed.
Reg. 23602 (Nov. 4, 1972) (to be codified at 1
C.F.R. 51).
4. Attached as Exhibit 100 is a true and
correct copy of the Office of the Federal
Register’s announcement, “OFR Director
Charley Barth Stepping Down for New
Opportunity,” accessed Jan. 16, 2020, at
https://www.federalregister.gov/readeraids/office-of-the-federal-registerblog/2014/10/ofr-director-charley-barthstepping-down.

Plaintiffs object to PRO’s reliance on the
OFR Handbooks Frequently Asked
Questions document that was referenced but
not included as part of the exhibit. That
evidence is irrelevant hearsay. Plaintiffs also
object to the link on the basis that it has not
been authenticated. Plaintiffs reserve their
right to object to this document if/when PRO
seeks to rely upon it.

Objection. Exhibit 100 is inadmissible
hearsay to the extent it is offered to prove the
truth of the matter asserted. It is also
irrelevant.
Additionally, Plaintiffs object to PRO’s
reliance on Exhibit 100 to the extent it is
intended to show: (1) that Ms. Amy Bunk
was the acting Director of the OFR at the

SUPPLEMENTAL REPLY
DECLARATION OF MATTHEW
BECKER

PLAINTIFFS’ RESPONSE

time of PRO’s Exhibit 34 (ECF No. 204-40,
an undated email from Ms. Bunk in response
to an email dated February 29, 2016), or (2)
that her job responsibilities included
interpreting or applying IBR policies. See
ECF No. 215 at 5 n.2. PRO does not support
either proposition, and the former appears
demonstrably false. In PRO’s Exhibit 34,
Ms. Bunk’s email signature identifies that
she is “Director of Legal Affairs and Policy”
for the Office of the Federal Register—not
the acting director. And, while Exhibit 100
identifies October 31, 2014 as OFR Director
Charley Barth’s last day, the same website
on which PRO relies in Exhibit 100 indicates
that Oliver Potts was selected as the 9th
Director of the OFR, effective August 9,
2015. See Addendum A, available at
https://www.federalregister.gov/readeraids/office-of-the-federal-registerblog/2015/08/oliver-potts-selected-as-9thdirector-of-the-federal-register. Ms. Bunk
was not the acting Director of the OFR at
time the emails in Exhibit 34 were written.
PRO relies on Exhibit 100 as evidence that
Ms. Bunk’s statement in Exhibit 34
“qualifies as an exception to the hearsay
rules under F.R.E. 803(8), and also qualifies
for the residual exception under F.R.E. 807.”
ECF No. 215 at 5, n.2. However, neither
PRO’s Exhibit 100 nor Exhibit 34 identify
the OFR’s activities, any legal duty to report,
or factual findings from a legally authorized
investigation as required to qualify as an
exception to the hearsay rule under F.R.E.
803(8). Nor has PRO offered the required
foundation to demonstrate that the email
qualifies under the residual exception to the
rule against hearsay.
5. Attached as Exhibit 101 is a true and Objection. Exhibit 101 is irrelevant as 1993
correct copy of ASHRAE’s “Read-Only ASHRAE Handbook is not a work at issue in

2

SUPPLEMENTAL REPLY
DECLARATION OF MATTHEW
BECKER

PLAINTIFFS’ RESPONSE

Versions of ASHRAE Standards” webpage
(accessed
Jan.
16,
2020),
at
https://www.ashrae.org/technicalresources/standards-and-guidelines/read-onlyversions-ofashrae-standards. This page shows
that the 1993 ASHRAE Handbook is not among
the standards that it makes available for readonly access, even though that standard is
incorporated by reference into law at 10 C.F.R.
§ 434.701 (2011).
6. Attached for the Court’s convenience as
Exhibit 102 is a true and correct copy of an
email from NFPA, previously submitted at Dkt.
124-5, in which NFPA advertises: “Be
confident your electrical work complies with
California law. . . . California has adopted the
2011 NEC. Order the NEC Handbook today and
receive FREE tabs!”

this motion. See ECF 198-2, Pls’ Appendix
A; ECF No. 202 Def.’s Mot. (moving for
summary judgment on the “works listed in
Appendix A to Plaintiffs’ motion (Dkt. 1982)”).

7. Attached for the Court’s convenience as
Exhibit 103 is a true and correct compilation of
the statements and contributions from the
Consumer Product Safety Commission that
were located at table 6 of “Comment on Safety
Standard for Automatic Residential Garage
Door Operators”, Public.Resource.Org, Nov.
16, 2015, at https://law.resource.org/pub/us/cfr
/regulations.gov.docket.15/cpsc.gov.20151116.
html#t6
(cataloguing
nineteen
textual
contributions to the National Electrical Code
from Consumer Product Safety Commission
staff), but which are presently unavailable due
to maintenance on the Consumer Product Safety

3

Objection. PRO mischaracterizes the
document. Plaintiffs object to Exhibit 102 to
the extent PRO relies on the document to
imply that Plaintiffs “profit” from
incorporation by reference. ECF No. 215 at
22-23. This information does not show that
NFPA “profits” from incorporation by
reference. The email was sent on June 16,
2015, at a time when the 2014 NEC and
2014 NEC Handbook had already been
published. The email served the purpose of
informing individuals who work in
California of the standard that had been
incorporated at the time. In any event,
NFPA is a non-profit whose mission is
driven by enhancing fire safety. PRO does
not cite any evidence related to ASTM or
ASHRAE to support this statement.
Objection. Exhibit 103 is irrelevant. PRO
has failed to offer any evidence that any
proposed text was prepared by a government
employee in the scope of that official’s
duties and became part of a standard at issue.
Even if it could, such evidence would still
not be relevant because PRO has offered no
support for its theories that such text would
somehow render the entire standard a
“government work,” that the omission of the
employee from the copyright registration
would affect ownership, or that the
remainder of the standard would somehow
become uncopyrightable.

SUPPLEMENTAL REPLY
DECLARATION OF MATTHEW
BECKER

PLAINTIFFS’ RESPONSE

Commission website. Automatically archived
versions of these documents are available on the
Internet Archive at the following locations:
https://web.archive.org/web/20170207161319/
https://www.cpsc.gov/PageFiles/117366/comm
ent422f.pdf
https://web.archive.org/web/20170223204422/
https://www.cpsc.gov/PageFiles/117373/comm
ent210-12.pdf
https://web.archive.org/web/20170222233233/
https://www.cpsc.gov/PageFiles/117338/2108a3.pdf
https://web.archive.org/web/20170125025404/
https://www.cpsc.gov/PageFiles/117351/21012c.pdf
https://web.archive.org/web/20170207071338/
https://www.cpsc.gov/PageFiles/117355/230xx.pdf
https://web.archive.org/web/20170212055701/
https://www.cpsc.gov/PageFiles/108276/210.1
2n.pdf
https://web.archive.org/web/20170207065403/
https://www.cpsc.gov/PageFiles/109754/210.8
A.pdf
https://web.archive.org/web/20170211071503/
https://www.cpsc.gov/PageFiles/108291/100.p
df
https://web.archive.org/web/20170224211212/
https://www.cpsc.gov/PageFiles/108285/230.x
x.pdf
https://web.archive.org/web/20170209202716/
https://www.cpsc.gov/PageFiles/109760/210.8
B.pdf
https://web.archive.org/web/20170210000456/
https://www.cpsc.gov/PageFiles/108298/210.1
2r.pdf
https://web.archive.org/web/20170131113344/
https://www.cpsc.gov/PageFiles/117282/afci.p
df

4

SUPPLEMENTAL REPLY
DECLARATION OF MATTHEW
BECKER

PLAINTIFFS’ RESPONSE

https://web.archive.org/web/20170212083913/
https://www.cpsc.gov/PageFiles/117286/bedro
oms.pdf
https://web.archive.org/web/20170223052803/
https://www.cpsc.gov/PageFiles/117292/editor
ial.pdf
https://web.archive.org/web/20170201050551/
https://www.cpsc.gov/PageFiles/117296/smok
ealarm.pdf
https://web.archive.org/web/20170212112237/
https://www.cpsc.gov/PageFiles/117301/boath
oists.pdf
https://web.archive.org/web/20170201050551/
https://www.cpsc.gov/PageFiles/117296/smok
ealarm.pdf
https://web.archive.org/web/20170131074532/
https://www.cpsc.gov/PageFiles/117275/NFP
A70_550_13b.pdf
https://web.archive.org/web/20170212163343/
https://www.cpsc.gov/PageFiles/107512/NFP
A70_550_25.pdf
https://web.archive.org/web/20170131074532/
https://www.cpsc.gov/PageFiles/117275/NFP
A70_550_13b.pdf
Dated: January 31, 2020

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

5

/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]
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

6

Addendum A

1/27/2020

Federal Register :: Reader Aids :: Office of the Federal Register Blog

LEGAL STATUS

This site displays a prototype of a “Web 2.0” version of the daily Federal Register. It is not an official legal edition of the Federal
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The documents posted on this site are XML renditions of published Federal Register documents. Each document posted on the site
includes a link to the corresponding official PDF file on govinfo.gov. This prototype edition of the daily Federal Register on
FederalRegister.gov will remain an unofficial informational resource until the Administrative Committee of the Federal Register
(ACFR) issues a regulation granting it official legal status. For complete information about, and access to, our official publications
and services, go to About the Federal Register on NARA's archives.gov.
The OFR/GPO partnership is committed to presenting accurate and reliable regulatory information on FederalRegister.gov with the
objective of establishing the XML-based Federal Register as an ACFR-sanctioned publication in the future. While every effort has
been made to ensure that the material on FederalRegister.gov is accurately displayed, consistent with the official SGML-based
PDF version on govinfo.gov, those relying on it for legal research should verify their results against an official edition of the Federal
Register. Until the ACFR grants it official status, the XML rendition of the daily Federal Register on FederalRegister.gov does not
provide legal notice to the public or judicial notice to the courts.
LEGAL STATUS

READER AIDS

Oliver Potts Selected as 9th Director of the Federal
Register
[Cross-posted from National Archives internal blog, Declarations]
The National Archives and Records Administration and the Office of the Federal Register are
pleased to announce the selection of Oliver Potts as the 9th Director of the Federal Register,
effective August 9, 2015.
As Director, Potts will lead the Office of the Federal Register, which publishes the official text
of Federal laws, Presidential documents, and administrative regulations and notices. The
Office of the Federal Register also prepares descriptions of Federal organizations, programs
and activities, coordinates the functions of the Electoral College, and administers the
constitutional amendment process. As Director, Potts will lead continued change, including
greater integration with NARA’s other open government, research, and information sharing
programs and information systems.
Potts has served in the Federal government for more than 15 years, most recently as Deputy
Executive Secretary at the Department of Health and Human Services (HHS), where he was
responsible for oversight and coordination of HHS’s regulatory agenda. He also managed the
Secretary’s regulatory policy review system and correspondence and records management
operations.
Prior to his current position, Potts served as Director of the Civil Remedies Division, an
administrative law tribunal at HHS. There he oversaw development of processes for
publishing administrative law decisions on the internet, as well as the process for publishing
procedural documents and standard litigation forms for customers. Potts also led the
development and implementation of an internal tracking and reporting system and an
electronic filing system to make filing appeals paperless.
Originally from New York City, Potts received a BA in Government and Politics from George
Mason University and a JD from the University of Connecticut School of Law. He lives in
Arlington, VA with his wife and their three children.

READER AID NAVIGATION

All Reader Aids Content
(/reader-aids)
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Register Blog (/readeraids/office-of-thefederal-register-blog)
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FederalRegister.Gov
(/reader-aids/usingfederalregister-gov)
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Federal Register
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(/reader-aids/recentupdates)
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(/reader-aids/videostutorials)
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(/readeraids/government-policyand-ofr-procedures)
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(/readeraids/congressionalreview)
READER AID NAVIGATION

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