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

Filing 31

MOTION for Order of Protection by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC. (Attachments: #1 Exhibit A - Proposed Order, #2 Exhibit B - Declaration of Jordana Rubel, #3 Exhibit B - Declaration Exh. 1, #4 Exhibit B - Declaration Exh. 2, #5 Exhibit B - Declaration Exh. 3, #6 Exhibit B - Declaration Exh. 4, #7 Exhibit B - Declaration Exh. 5, #8 Exhibit B - Declaration Exh. 6, #9 Exhibit B - Declaration Exh. 7, #10 Exhibit B - Declaration Exh. 8, #11 Exhibit B - Declaration Exh. 9, #12 Exhibit B - Declaration Exh. 10, #13 Exhibit B - Declaration Exh. 11, #14 Exhibit B - Declaration Exh. 12, #15 Exhibit B - Declaration Exh. 13, #16 Exhibit B - Declaration Exh. 14, #17 Exhibit B - Declaration Exh. 15, #18 Exhibit B - Declaration Exh. 16, #19 Exhibit B - Declaration Exh. 17, #20 Exhibit B - Declaration Exh. 18, #21 Exhibit B - Declaration Exh. 19, #22 Exhibit B - Declaration Exh. 20, #23 Exhibit B - Declaration Exh. 21, #24 Exhibit B - Declaration Exh. 22, #25 Exhibit B - Declaration Exh. 23, #26 Exhibit B - Declaration Exh. 24, #27 Exhibit C)(Fee, J.)

Exhibit 5

May 2, 2014

ANDREW P. BRIDGES

EMAIL [e-mail]
Direct Dial [phone]

VIA E-MAIL
Kelly M. Klaus
Jonathan H. Blavin
Michael J. Mongan
MUNGER, TOLLES & OLSON LLP
560 Mission St., 27th Floor
San Francisco, CA 94104

Kenneth L. Steinthal
Joseph R. Wetzel
KING & SPALDING LLP
101 2nd Street, Suite 2300
San Francisco, CA 94105

Anjan Choudhury
MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071

Jeffery S. Bucholtz
KING & SPALDING LLP
1700 Pennsylvania Avenue NW, Suite 200
Washington, D.C. 20006

Re:

ASTM et al. v. Public.Resource.Org Discovery Responses

Counsel,
Public.Resource.Org (Public Resource) states its positions on various discovery disputes
below, with the objective of reaching an amicable solution allowing the parties to proceed.
Public Resource reserves all rights and all objections in its responses to Plaintiffs’ Request for
Production, Request for Admission, and Interrogatories.
1.

Plaintiffs’ Responses to Public Resource’s Requests for Production

Throughout ASHRAE’s discovery responses, it repeatedly asserts that it will provide
only documents pertaining to the 2010 edition of Standard 90.1. Because ASHRAE appears to
be suing Public Resource over three separate editions of Standard 90.1—2004, 2007, and 2010—
it needs to provide documents for all three editions, not simply the most recent edition.
Similarly, ASHRAE lists its 1993 Handbook in Exhibit C to the Complaint. If ASHRAE intends
to include the 1993 Handbook in its suit against Public Resource, it must produce documents
pertaining to this handbook.
All three Plaintiffs object to Public Resource’s definition of “contribution” as used in
Public Resource’s RFP Nos. 4 and 12-15, but fail to provide a sufficient definition of their own.
ASTM offers a definition that does not include financial contributions, while the other Plaintiffs
do not provide any definition. In order to facilitate agreement on this matter, Public Resource
suggests that the parties agree on the following definition: “contribution” means any assistance,

May 2, 2014
Page 2
advice, financial support, labor, effort, or expenditure of time that is provided toward a project or
goal regarding a specific standard at issue.
Public Resource is concerned by the number of responses to Public Resource’s RFPs in
which the NFPA indicated that it would provide only the “Report on Proposals” (ROP) and
“Report on Comments” (ROC) for each standard at issue. Although Public Resource recognizes
that it has not yet received these reports and evaluated their contents, NFPA’s citation of them as
the sole documents that respond to a broad series of requests suggests that these documents will
be insufficient.
For all responses in which Plaintiffs have agreed to produce responsive agreements or
licenses, including Plaintiffs’ responses to Public Resource’s RFP Nos. 2, 4, 6, and 18, the
agreements or licenses that are produced must be signed. Blank (unsigned) form agreements and
licenses may be responsive, but they will not satisfy these requests by themselves. Public
Resource must also receive agreements and licenses with evidence of assent of the parties to the
agreement.
Regarding responses to Public Resource’s RFP No. 3 (requesting documents sufficient to
identify all persons who participated in the standards process of each work at issue), lists or
rosters of individuals who participated in the standard development process for each Work at
Issue should include the names of the individuals as well as their employers or affiliations where
the information exists, as the employer or affiliation is necessary for proper identification.
Additionally, ASHRAE’s response to Public Resource’s RFP No. 3 is insufficient in that it offers
documents pertaining to only the 2010 edition of Standard 90.1, and it does not mention the other
works that it purportedly asserts in this litigation.
Regarding responses to Public Resource’s RFP No. 5, Public Resource has requested
documents sufficient to identify every legal authority that incorporates by reference each work at
issue. Although there may be overlap in any documents that Public Resource possesses that
evidence incorporation by reference of the works at issue, Plaintiffs are likely to possess some
records regarding incorporation by reference that Public Resource does not. To the extent that
Plaintiffs have any documents pertaining to incorporation by reference of the standards at issue,
Plaintiffs must produce these documents.
ASHRAE’s response to Public Resource’s RFP No. 7 (requesting communications with
government entities regarding incorporation of standards into law) is insufficient to the extent
that it offers only “official” written correspondence “by ASHRAE to government entities”
regarding incorporation of only the 2010 edition of Standard 90.1. As noted above, ASHRAE
must produce documents pertaining to every edition and standard that it intends to assert in this
litigation. Moreover, Public Resource’s request plainly encompasses unofficial correspondence
in addition to official correspondence, as well as all correspondence from government officials to

May 2, 2014
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ASHRAE regarding incorporation by reference, not simply correspondence sent by ASHRAE.
Public Resource’s RFP Nos. 8 and 9 (requesting all documents regarding Carl Malamud
and Public Resource or its representatives) mirror Plaintiffs’ RFPs No. 28 (requesting all
documents regarding Plaintiffs). In its response to Plaintiffs’ RFP No. 28, Public Resource
offered to produce responsive, non-privileged documents that expressly refer to the name of any
Plaintiff, to the extent that such documents exist, relate to the matters specifically alleged in the
Complaint, and can be located after a reasonable search for documents in Public Resource’s
possession, custody, or control, subject to Plaintiffs’ agreement that they will produce all
documents relating to Carl Malamud or Public Resource. Plaintiffs rejected this offer. Public
Resource re-affirms this offer, but specifies that the same qualifications to Public Resource’s
production would also apply to Plaintiffs: Public Resource will produce responsive, nonprivileged documents that expressly refer to the name of any Plaintiff, to the extent that such
documents exist, relate to the matters specifically alleged in the Complaint, and can be located
after a reasonable search for documents in Public Resource’s possession, custody, or control,
subject to Plaintiffs’ agreement that they will produce responsive, non-privileged documents that
expressly refer to Public Resource, Carl Malamud, or any of Public Resource’s representatives,
to the extent that such documents exist, relate to the matters specifically alleged in the
Complaint, and can be located after a reasonable search for documents in Plaintiff’s possession,
custody, or control. Such an agreement would help ensure that production is complete, yet also
relevant and not overly burdensome to Plaintiffs or Public Resource.
ASTM and NFPA’s responses to Public Resource’s RFP No. 11 (requesting documents
concerning revenue or profit expectation for dissemination of the standards at issue) are
insufficient to the extent that they offer to produce only documents that show revenue it has
earned from the works at issue, but not prospective expectations of future revenue. NFPA’s
response is further insufficient in that it offers documents from only the past 5 years, when in
fact it appears to be asserting works at issue that date back to 1999. ASHRAE’s response to
Public Resource’s RFP No. 11 is insufficient to the extent that it offers to produce only
documents showing past and anticipated revenue for the 2010 edition of Standard 90.1, as
documents for all editions and standards that ASHRAE intends to assert in this litigation must be
produced.
ASHRAE’s response to Public Resource’s RFP No. 12 (requesting all documents
concerning any contributions from any governmental entity in connection with the standards
process for each work at issue) is insufficient in that it offers documents pertaining to only the
2010 edition of Standard 90.1. ASHRAE’s response is likely also insufficient in that it is limited
to reports from the Pacific Northwest National Laboratory, unless this is the only government
entity that contributed to any edition of the standards that ASHRAE intends to assert in this
litigation. If that is the case, ASHRAE should admit that the Pacific Northwest National
Laboratory was the only government entity that contributed to the 2004, 2007, or 2010 editions

May 2, 2014
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of Standard 90.1 or to the 1993 ASHRAE Handbook. Moreover, with regard to all Plaintiffs,
Public Resource repeats its suggestion that “contribution” should be defined as any assistance,
advice, financial support, labor, effort, or expenditure of time that is provided toward a project or
goal.
Plaintiffs object to Public Resource’s RFP No. 13 (requesting all documents concerning
any contributions from any not-for-profit entity in connection with the standards process for each
work at issue) on the grounds that the question of whether a contributor to the development of
one of the works at issue qualifies as a not-for-profit entity is a legal question. However, there is
no disputed legal issue. Plaintiffs may rely on a contributor’s own characterization of itself as a
not-for-profit entity in order to respond to this request.
Plaintiffs’ responses to Public Resource’s RFPs Nos. 14 and 15 are insufficient in various
respects. Repeating Public Resource’s earlier contention, “contribution” should be defined as
any assistance, advice, financial support, labor, effort, or expenditure of time that is provided
toward a project or goal. ASTM’s answer to Public Resource’s RFP No. 15 fails to state whether
it will produce documents, and if so, which documents it will produce in compliance with this
request. NFPA says that it will provide the same ROC and ROP, which is likely insufficient
given the fact that this request asks for communications from individuals or entities to Plaintiffs,
not simply general reports that may or may not comment on such communications. ASHRAE
once again fails to offer documents other than those related to the 2010 edition of Standard 90.1.
Plaintiffs fail to provide a response as to whether they will produce documents in
response to Public Resource’s RFP No. 16 (requesting all communications criticizing Plaintiffs’
position in this litigation), providing only very general objections. This request is plainly likely
to lead to the discovery of admissible evidence because, among other reasons, members of
Plaintiffs’ organizations who have participated in the standard creation process or participated in
lobbying activities are likely to be aware of factors related to their participation that would be
relevant to this case, and may also have raised those issues in their communications criticizing
Plaintiffs.
Plaintiffs’ responses to Public Resource’s RFP No. 17 (requesting all communications by
Plaintiffs regarding this litigation) are insufficient because they provide only a few statements on
Plaintiffs’ websites. However, this request encompasses not only press releases, but
communications to individuals and organizations as well. For instance, any communications to
the American National Standards Institute (ANSI) would be covered by this request. Similarly,
communications in response to questions by the public or by the press would also be included in
this request.
Plaintiff’s responses to Public Resource’s RFP No. 18 (requesting all documents
concerning licenses with respect to any work at issue) are incomplete because they offer only a

May 2, 2014
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representative sample of such licenses, where the request encompasses all such licenses.
Moreover, blank (unsigned) form agreements will not satisfy this request. Public Resource must
receive licenses with evidence of assent of the parties, in addition to relevant unsigned licenses.
2.

Plaintiffs’ Responses to Public Resource’s Interrogatories

ASTM’s response to Public Resource’s Interrogatory No. 1 is somewhat inconsistent
with the listing of standards in Exhibit A to the Complaint. Specifically, the response omits 19
standards or editions of standards that were listed in Exhibit A, and provides a different edition
for two other standards listed in Exhibit A. Public Resource requests an explanation for these
incongruities.
ASTM’s and ASHRAE’s responses to Public Resource’s Interrogatory No. 2 are largely
deficient in that they do not list the particular legal authorities that have incorporated the
standards at issue. Plaintiffs must know which legal authorities have incorporated the standards
at issue so as to respond to Public Resource’s Interrogatory No. 1, and therefore their failure to
provide this information in response to Public Resource’s Interrogatory No. 2 does not appear to
be in good faith.
NFPA and ASHRAE’s responses to Public Resource’s Interrogatory No. 3 (requesting
identification of any person who participated in the standards process) are deficient. NFPA
simply provides general categories of persons, which is insufficient to identify individuals who
participated in these processes, and Public Resource therefore requests either a supplement or a
33(d) response. ASHRAE says that it will provide the membership roster for the project
committee for the 2010 edition of Standard 90.1, but once again fails to offer similar documents
for the other editions or standards that it purports to assert in this litigation, and must therefore
provide more complete responses.
ASTM’s response to Public Resource’s Interrogatory No. 4 (requesting identification of
any communications in which Plaintiffs or someone acting on Plaintiffs’ behalf promotes the
incorporation of standards by reference) is deficient, at least to the extent that other organizations
such as ANSI promote the incorporation by reference of ASTM’s standards into law, and to the
extent that ASTM’s Washington D.C. office works with members of the government to promote
the incorporation of its standards by reference. ASHRAE’s response is deficient to the extent
that it generally admits that it promotes the incorporation by reference of its standards into law,
but fails to identify such communications or state that it will provide documents identifying these
communications.
NFPA and ASHRAE’s responses to Public Resource’s Interrogatory No. 5 (requesting
identification of all contributions that any person made to the standards process of their
standards) is deficient, because they provide only generalities, and fail to actually identify any
specific contributions or individuals. NFPA and ASHRAE should either provide more

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comprehensive responses, or provide 33(d) responses as ASTM has offered to do.
3.

Plaintiffs’ Responses to Public Resource’s Request for Admission

As discussed in our meet and confer call on April 21, the parties have agreed to cooperate so as to limit the
number of times that they must repeat searches of their respective documents and records. In order to accomplish
this, Public Resource must know the scope of the claims and particular works that are being asserted in this action.
Both NFPA and ASHRAE admit that the claims that they currently assert against Public Resource are based on
those standards listed in Exhibits B and C to the Complaint. ASTM, however, makes no such admission. Public
Resource requests that ASTM clarify whether or not it presently limits its claims to the standards listed in Exhibit A
to the Complaint, and if ASTM does not presently limit its claims to those standards, list the other standards that it
presently plans to assert in this litigation. Moreover, Public Resource requests that all three Plaintiffs resolve to
make a final determination of which works they plan to assert in this action, so as to allow discovery to move
forward in an orderly manner.
4.

Production of Public Resource Website Content

The size of Public Resource’s website content is vast, and would make an exchange of
tiffed pages according to typical document production practices counterproductive for all parties.
Public Resource therefore suggests that it provide native copies of these website files, either
through FTP, or through delivery on a hard drive or some other storage medium. Alternatively,
all of Public Resource’s website content is freely available for download at its website addresses:
https://public.resource.org/, https://law.resource.org/, and https://bulk.resource.org/. Public
Resource proposes that it will provide Bates stamped documents for particular pages of its
website that Plaintiffs request.
5.

Custodians, Privilege Logs, Search Terms, and Document Production

Carl Malamud is the only custodian for Public Resource. Public Resource has no other
employees.
With regard to privilege logs, Public Resource proposes that so as to save unnecessary
labor, all parties may refrain from logging communications with counsel that post-date the filing
of the complaint in this action.
Public Resource will run searches of its documents and records (other than its public
website) to find relevant documents using the following terms:


American Society for Testing and Materials



National Fire Protection Association



American Society of Heating, Refrigerating, and Air Conditioning Engineers

May 2, 2014
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

National Electrical Code



ASTM



NFPA



ASHRAE



NEC

Public Resource maintains that it will not provide the names or identifying information of
its donors, as that information is irrelevant, and disclosure of such information would impinge on
First Amendment rights of free speech and free association, and rights of privacy. However,
Public Resource will produce non-privileged documents sufficient to identify the date and
amount of any donations that specifically mention the Standards at Issue and that were received
by Public Resource since the Standards at Issue first became available through the Public
Resource website. Otherwise, Public Resource will provide only overall revenue information
according to its statements in its responses to Plaintiffs’ discovery requests.
6.

Protective Order

Public Resource repeats its position that because this litigation concerns four public, notfor-profit entities, very little material should be designated as confidential. Public Resource also
maintains that it sees no reason to designate any material “highly confidential – attorneys eyes
only.” To the extent that Plaintiffs desire to have a protective order in place for this litigation,
Public Resource maintains that the onus to prove the confidential nature of a document or other
material must be on the party that seeks to designate the material as confidential, and as such the
designating party should be responsible for filing a motion with the court if there is a dispute
over such designation that cannot be resolved through discussion of the parties. Public Resource
includes with this letter a redline of Plaintiffs’ proposed protective order, with revisions that it
proposes. These revisions include the requirement that any designation of confidentiality be
accompanied by an explanation of what specific material is confidential, and an explanation of
why it is confidential. If a dispute over designation cannot be resolved through discussion of the
parties, the designating party must file a motion with the court. Moreover, the parties must
endeavor to avoid over-designating material as confidential by separating confidential material
from non-confidential material when possible, and filing confidential material in exhibits or
other supplemental documents rather than including confidential material in the briefs or motions
themselves (to the greatest extent possible). All references to “highly confidential – attorneys
eyes only” have been removed. Public Resource has also removed specified procedures for
filing documents under seal, instead opting to require that filing under seal simply comport with
the Court’s rules, so as to avoid unnecessary confusion or conflict.

May 2, 2014
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Sincerely,
FENWICK & WEST LLP

Andrew P. Bridges