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

Filing 41

MOTION to Compel Discovery by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Text of Proposed Order Granting Defendant's Motion to Compel Discovery (Exhibit A), #2 Declaration of Kathleen Lu in Support of Defendant's Motion to Compel (Exhibit B), #3 Exhibit 1 to Decl of Kathleen Lu, #4 Exhibit 2 to Decl of Kathleen Lu, #5 Exhibit 3 to Decl of Kathleen Lu, #6 Exhibit 4 to Decl of Kathleen Lu, #7 Exhibit 5 to Decl of Kathleen Lu, #8 Exhibit 6 to Decl of Kathleen Lu, #9 Exhibit 7 to Decl of Kathleen Lu, #10 Exhibit 8 to Decl of Kathleen Lu, #11 Exhibit 9 to Decl of Kathleen Lu, #12 Exhibit 10 to Decl of Kathleen Lu, #13 Exhibit 11 to Decl of Kathleen Lu, #14 Exhibit 12 to Decl of Kathleen Lu, #15 Exhibit 13 to Decl of Kathleen Lu, #16 Exhibit 14 to Decl of Kathleen Lu, #17 Exhibit 15 to Decl of Kathleen Lu)(Bridges, Andrew)

EXHIBIT 12

MUNGER, TOLLES & OLSON LLP
RONALD L. OLSON †
ROBERT E. DENHAM
JEFFREY I. WEINBERGER
CARY B. LERMAN
GREGORY P. STONE
BRAD D. BRIAN
BRADLEY S. PHILLIPS
GEORGE M. GARVEY
WILLIAM D. TEMKO
STEPHEN M. KRISTOVICH
JOHN W. SPIEGEL
TERRY E. SANCHEZ
STEVEN M. PERRY
MARK B. HELM
JOSEPH D. LEE
MICHAEL R. DOYEN
MICHAEL E. SOLOFF
GREGORY D. PHILLIPS
KATHLEEN M. M C DOWELL
GLENN D. POMERANTZ
THOMAS B. WALPER
PATRICK J. CAFFERTY, JR.
JAY M. FUJITANI
O'MALLEY M. MILLER
SANDRA A. SEVILLE-JONES
MARK H. EPSTEIN
HENRY WEISSMANN
KEVIN S. ALLRED
BART H. WILLIAMS
JEFFREY A. HEINTZ
JUDITH T. KITANO
KRISTIN LINSLEY MYLES
MARC T.G. DWORSKY
JEROME C. ROTH
STEPHEN D. ROSE
JEFFREY L BLEICH
GARTH T. VINCENT
TED DANE
STUART N. SENATOR
MARTIN D. BERN
DANIEL P. COLLINS
ROBERT L. DELL ANGELO
BRUCE A. ABBOTT
JONATHAN E. ALTMAN
MARY ANN TODD
MICHAEL J. O'SULLIVAN
KELLY M. KLAUS
DAVID B. GOLDMAN
KEVIN S. MASUDA
HOJOON HWANG
†

A PROFESSIONAL CORPORATION

PETER A. DETRE
DAVID H. FRY
LISA J. DEMSKY
MALCOLM A. HEINICKE
GREGORY J. WEINGART
TAMERLIN J. GODLEY
JAMES C. RUTTEN
RICHARD ST. JOHN
ROHIT K. SINGLA
LUIS LI
CAROLYN HOECKER LUEDTKE
C. DAVID LEE
MARK H. KIM
BRETT J. RODDA
SEAN ESKOVITZ
FRED A. ROWLEY, JR.
KATHERINE M. FORSTER
BLANCA FROMM YOUNG
RANDALL G. SOMMER
MARIA SEFERIAN
MANUEL F. CACHÁN
ROSEMARIE T. RING
TODD J. ROSEN
TRUC T. DO
MELINDA EADES LeMOINE
SETH GOLDMAN
GRANT A. DAVIS-DENNY
JONATHAN H. BLAVIN
DANIEL B. LEVIN
MIRIAM KIM
MISTY M. SANFORD
KATHERINE KU
HAILYN J. CHEN
BETHANY W. KRISTOVICH
SUSAN R. SZABO
KIMBERLY A. CHI
JACOB S. KREILKAMP
ERIC P. TUTTLE
HEATHER E. TAKAHASHI
KEITH R.D. HAMILTON, II
SORAYA C. KELLY
JEFFREY Y. WU
ALISSA BRANHAM
ADAM R. LAWTON
JENNY H. HONG
AARON SEIJI LOWENSTEIN
LAURA D. SMOLOWE
MATTHEW A. MACDONALD
MARGARET G. MARASCHINO

560 MISSION STREET
TWENTY-SEVENTH FLOOR
SAN FRANCISCO, CALIFORNIA 94105-2907
TELEPHONE [phone]
FACSIMILE [phone]

355 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90071-1560
TELEPHONE [phone]
FACSIMILE [phone]

August 22, 2014

ESTHER H. SUNG
BENJAMIN J. MARO
MICHAEL J. MONGAN
KYLE A. CASAZZA
ERIN J. COX
CLAIRE YAN
ALLISON S. WOODS
JESLYN A. MILLER
MARK R. SAYSON
CHRISTIAN K. WREDE
PETER E. GRATZINGER
ANJAN CHOUDHURY
JEREMY A. LAWRENCE
BENJAMIN E. FRIEDMAN
CHRISTOPHER M. LYNCH
RAY S. SEILIE
NICHOLAS C. SOLTMAN
ADAM I. KAPLAN
AMELIA L.B. SARGENT
KENNETH M. TRUJILLO-JAMISON
BRYAN H. HECKENLIVELY
LAURA WIRTH
JASMINE M. ROBERTS
JENNIFER A. JONES
LAURA K. LIN
KYLE W. MACH
JEFFREY M. OSOFSKY
GREGORY M. SERGI
ACHYUT J. PHADKE
DAVID A. TAYLOR
TINA W. ARROYO
MARI OVERBECK
JESSE MAX CREED
JOHN M. GILDERSLEEVE
ERIC K. CHIU
SARAH L. GRAHAM
JESSICA BARCLAY-STROBEL
ZACHARY M. BRIERS
JENNIFER M. BRODER
CHRISTINA P. MONIODIS
JOHN P. MITTELBACH
SARAH GARBER
SAMUEL T. GREENBERG
CAROLINE M. M C KAY
EMILY B. VIGLIETTA
WILLIAM J. EDELMAN
KEVIN L. BRADY
EMILY R.D. MURPHY
ELLEN MEDLIN RICHMOND

NICOLE S. PHILLIS
JORDAN D. SEGALL
DANIEL J. HARRIS
VICTORIA A. DEGTYAREVA
WESLEY T.L. BURRELL
CHRISTA L. CULVER
ANYA J. GOLDSTEIN
KAREN A. LORANG
KURUVILLA J. OLASA
KEVIN H. SCOTT
JUSTIN P. RAPHAEL
HANNAH E. SHEARER
ELIA HERRERA
ROBERT W. GRAY, JR.
THOMAS P. CLANCY
JOSHUA PATASHNIK
ERIC C. TUNG
GUHA KRISHNAMURTHI
JOSHUA S. MELTZER
SARA E. CROLL
ANDREW G. PROUT
THANE REHN
ADAM B. WEISS
ROSE LEDA EHLER
AMY L. GREYWITT
ANDREW Z. WOLSTAN
NASSIM NAZEMI
––-–––––
OF COUNSEL
†

RICHARD D. ESBENSHADE
†
ROBERT K. JOHNSON
†
ALAN V. FRIEDMAN
RONALD K. MEYER
ALLISON B. STEIN
SUSAN E. NASH
WILLIANA CHANG
MIRANDA KANE
BRAD SCHNEIDER
–––––––-

E. LEROY TOLLES
(1922-2008)

WRITER'S DIRECT CONTACT

[phone]
[phone] FAX
[e-mail]

Andrew P. Bridges, Esq.
Fenwick & West LLP
555 California Street, 12th Floor
San Francisco, California 94104
[e-mail]
Via E-mail
Re:

ASTM, et al. v. Public.Resource.Org

Dear Mr. Bridges:
This letter relates to discovery in the above-captioned matter. We write this letter to
address: (i) NFPA’s continued document collection and production efforts; and (ii) Public
Resource’s discovery responses and document productions.
NFPA’s Continued Document Collection and Production
Public Resource served its First Set of Requests for Production of Documents on NFPA
on February 13, 2014. NFPA served its responses and objections on March 20, 2014. During
our telephonic meet-and-confer sessions, on April 21 and May 7, we expressed our desire that
the parties would work in good faith to produce documents quickly with respect to discovery
requests as to which there was no dispute. We also expressed our hope that the parties would
arrive at reasonable accommodations as to those requests that were in dispute. In this spirit, we
produced documents in response to Public Resource’s discovery requests on May 19 and June
20. Those productions total over 20,000 pages.

24360372.1

MUNGER, TOLLES & OLSON LLP
August 22, 2014
Page 2
We also carefully considered the concerns that you raised regarding NFPA’s discovery
responses in your May 2 letter and during our May 7 telephone conference. We responded to
those concerns by letter on May 23 (attached hereto as Exhibit A), and proposed reasonable
accommodations with respect to many of the concerns that you had raised. Our letter noted that
we looked forward to receiving your responses to our proposals. It has now been several
months, and we have not received any such response. We cannot complete our document
collection and production efforts until the issues addressed in our May 23 letter are resolved. If
we have not received a response from you by September 5, 2014, we will take that to mean that
you agree to the following proposals reflected in our May 23 letter:
•

Reports on Proposals and Reports on Comments: We agreed to produce, and have now
produced, the Report on Proposals (“ROPs”) and Report on Comments (“ROCs”)
corresponding to every NFPA standard at issue in this litigation. Indeed, we expedited this
production at your insistence. You told us during our May 7 telephone conference that you
would review the documents and then follow up with us if you believed our production was
deficient. We take your silence to mean that you are satisfied with NFPA’s production with
respect to the requests for production for which we committed to produce the ROPs and
ROCs.

•

Responses to RFP No. 5: In the spirit of accommodation, NFPA proposed that it was willing
to produce the current version of an NFPA database that tracks certain instances of
incorporation by reference. We take your silence to mean that this production will satisfy
NFPA’s obligations with respect to RFP No. 5.

•

Response to RFP No. 11: Subject to the entry of a protective order, NFPA agreed to produce
the most recent monthly unaudited financial statement, which contains revenue projections,
including revenue from publications, in addition to the other financial documents it has
already agreed to produce. We take your silence to mean that this production will satisfy
NFPA’s obligations with respect to RFP No. 11.

•

Response to RFP No. 18: To address Public Resource’s concerns about NFPA’s response to
RFP No. 18, we proposed the following: To the extent that RFP No. 18 calls for form license
agreements by end-users of the NFPA standards at issue in this action, we will produce the
form versions of those agreements. To the extent that it calls for ad hoc agreements with
third parties for NFPA to license one or more of the standards at issue for reproduction or
other uses, or for copyright permission letters from NFPA to a third party, we will conduct a
reasonable and diligent search and will produce any responsive documents in NFPA’s
sharepoint database of copyright permission letters, and the current version of any license
agreements relating to the standards at issue in this action contained in NFPA’s contracts
database. Again, we take your silence to mean that this production will satisfy NFPA’s
obligations with respect to RFP No. 18.

Our May 23 letter also addressed your concerns with respect to RFP Nos. 8 and 9. In the
spirit of compromise, NFPA proposed that it would search for and produce non-privileged

24360372.1

MUNGER, TOLLES & OLSON LLP
August 22, 2014
Page 3
documents from the NFPA website and the files of a few select custodians at NFPA that
reference Mr. Malamud or Public Resource, subject to the following conditions. First, NFPA
will exclude documents related to this lawsuit or the possibility of legal action against Public
Resource or Mr. Malamud from its production. Second, we will not include Maureen Brodoff
(NFPA’s former General Counsel, who is listed in Public Resource’s initial disclosures) or Sally
Everett (NFPA’s current General Counsel) as one of the custodians. We remain amenable to this
compromise, but will need to confirm your express agreement with these two conditions before
we embark on such a production.
Finally, several of Public Resource’s requests call for sensitive and confidential
documents. We will not be able to produce those documents until a protective order is entered
by the Court. We have made every effort to arrive at a reasonable compromise with respect to a
draft protective order. As you know, the parties are at an impasse with respect to several issues.
As a result, Plaintiffs have filed a motion to resolve such issues and we will need to await
resolution by the Court before we produce such documents.
NFPA Search Terms and Custodians
In addition to the many other documents NFPA agreed to produce in response to Public
Resource’s discovery requests, NFPA agreed to run search terms against electronic documents in
response to RFP No. 7.1 We propose the following custodians for this collection:
•

Don Bliss (Vice President of Field Operations)

•

Greg Cade (Director of Government Affairs)

•

Meghan Housewright (Associate General Counsel for Government Affairs)

We will produce any email in which one of the sender or recipient email addresses ends with
“.gov”, and which contains any of the following search terms:
•

((“NFPA” or “National Fire Protection Association”) /3 (“10” or “11” or “12” or “13” or
“25” or “30” or “54” or “58” or “59” or “70” or “72” or “99” or “101” or “705)) *or*
“Uniform Fire Code” *or* “Low Medium and High Expansion Foam” *or* “Carbon
Dioxide Extinguishing Systems” *or* “Portable Fire Extinguishers” *or* “Installation of
Sprinkler Systems” *or* “Water-Based Fire Protection Systems” *or* “Flammable and
Combustible Liquids” *or* “National Fuel Gas Code” *or* “Liquified Petroleum Gas Code”
1

In particular, NFPA agreed to “produce responsive, non-privileged documents that can
be located after a reasonable and diligent search of the files of selected custodians confined to a
reasonable time period, and that constitute written or electronic communications between NFPA
and government employees or officials within the United States regarding the incorporation of
the standards listed in Exhibit B to the Complaint.”

24360372.1

MUNGER, TOLLES & OLSON LLP
August 22, 2014
Page 4
*or* “Utility LP Gas Plant Code” *or* “National Electrical Code” *or* “National Fire
Alarm Code” *or* “Health Care Facilities Code” *or* “Life Safety Code” *or* “Standard
System for the Identification of the Hazards of Materials for Emergency Response”
As discussed above, we are also willing to search the files of a few select custodians at
NFPA in response to RFP Nos. 8 and 9, if Public Resource agrees to the conditions described in
our May 23 letter. Once we have confirmation from you that you agree to those conditions, we
will send you proposed custodians and search terms with respect to those Requests.
Finally, in connection with our discussion of custodians, you have requested that we
provide you with an organizational chart of NFPA. We agree to produce an organizational chart.
Public Resource’s Collection and Production
Plaintiffs served their First Set of Requests for Production of Documents on Public
Resource on January 30, 2014. Public Resource served its responses and objections on March 6,
and committed that it “will produce documents on a rolling basis.” Now, more than five months
later, Public Resource still has not produced a single document. This despite the fact that there
are numerous Requests for which Public Resource has committed to make a production and
Plaintiffs have not raised any concerns about Public Resource’s response. Please inform us by
September 5, 2014 when Public Resource will begin to produce documents in this case.
In addition, Public Resource’s current responses are deficient with respect to a number of
Plaintiffs’ Requests for Production.2 In a letter sent to you on behalf of all of the Plaintiffs by
Kevin Fee on May 2, 2014, Plaintiffs raised specific concerns about Public Resource’s responses
to RFP Nos. 6, 8, 9, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29, and 31. We discussed
those concerns with you in our May 7 telephonic meet-and-confer session. You responded to
these concerns in a letter dated May 25, 2014. In contrast to the reasonable compromises
proposed by NFPA and described above, it appears to us that you refused to modify your
position at all with respect to most of these Requests. We want to make sure that we understand
your position so that we can assess whether it is necessary to take any of these issues to the
Court. As we read your May 25, 2014 letter, Public Resource has refused to modify its
previously stated position with respect to RFP Nos. 8, 9, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23,
24, 25, and 31. If we are not understanding your letter correctly, please let us know by
September 5, 2014.
With respect to RFP No. 6, we appreciate your willingness to “produce all documents
directly relating to the reformatting of the particular standards at issue.” Our notes from our May
7 telephone conference reflect that you also agreed that you would produce both “general and
2

This letter addresses only the Requests for Production served on Public Resource.
Deficiencies in Public Resource’s responses to Plaintiffs’ Interrogatories and Requests for
Admission will be addressed separately.

24360372.1

MUNGER, TOLLES & OLSON LLP
August 22, 2014
Page 5
specific instructions” regarding reformatting standards. We wanted to confirm that these
instructions fall within the scope of the documents you have now agreed to produce.
Finally, RFP No. 31 requested “[a]ll documents relating to any download from the Public
Resource Website of any of the Standards at Issue, or any other standards issued by any
Plaintiff.” In response, you agreed only to “produce a report specifying the numbers of times
each Standard at Issue was downloaded per month for the period from April 13, 2007 to the date
of production.” As we discussed on May 7, your proposal excludes a great deal of responsive
information that should be reflected in your server log, such as the date and time of the
downloads. Public Resource must either (i) agree to produce a report that reflects all of the
information in its possession about any downloads from the Public Resource Website of any of
the Standards at Issue; or (ii) produce its server logs with respect to such downloads. (When we
spoke on May 7, we suggested that a reasonable accommodation might be for Public Resource to
provide a report using Google Analytics or some similar software. In your May 25 letter, you
informed us that Public Resource “does not use Google Analytics or competing tools.”) Please
let us know your position on this request.
Public Resource’s Responses to Interrogatories and Requests for Admission
In your letter dated May 25, 2014, you committed that you would amend or otherwise
supplement Public Resource’s responses to Plaintiffs’ Interrogatory Nos. 4, 7-11, and 14, and
Public Resource’s responses to Plaintiffs Requests for Admission Nos. 6, 8, and 17. Please let us
know by September 5, 2014 when you will be serving those responses.

Sincerely,
/s/
Jonathan H. Blavin

cc:

24360372.1

All counsel

Exhibit A

MUNGER, TOLLES & OLSON LLP
RONALD L OLSON?
ROBERT E. DENHAM
JEFFREY I, WEINBERGER
CART B. LERMAN
GREGORY P STONE
BRAD D. BRIAN
BRADLEY S. PHILLIPS
GEORGE H. GARVEY
WILLIAM 0. TEMKO
STEPHEN M. KRISTOVICH
JOHN W. SPIEGEL
TERRY E. SANCHEZ
STEVEN M. PERRY
MARK B. HELM
JOSEPH 0, LEE
MICHAEL H. DOVEN
MICHAEL E. SOLOFF
GREGORY D. PHILLIPS
LAWRENCE C. BARTH
KATHLEEN H. MLDOWELL
GLENN 0. POMERANTZ
THOMAS B. WALPER
RONALD C. HAUSMANN
PATRICK 1. CAFFERtY, JR
JAY M. FUJITANI
ORACLES M. MILLER
SANDRA A. SEVILLE-JONES
MARK H. EPSTEIN
HENRY WEISSMANN
KEVIN S. ALLRED
BART H, WILLIAMS
JEFFREY A. HEINTZ
JUDITH T. KITANO
KRISTIN LINSLEY MYLES
MARC T.G. OWORSKY
JEROME C. ROTH
STEPHEN 0. ROSE
GARTH T. VINCENT
TED DANE
STUART N, SENATOR
MARTIN 0. BERN
DANIEL P. COLLINS
ROBERT L DELL ANGELO
BRUCE A. ABBOTT
JONATHAN E. ALTMAN

MARY ANN TODD
MICHAEL], O’SULLIVAN
KELLY H. KLAUS
DAVID B GOLDMAN
KEVIN S. MASUDA
HOJOON HWANG
PETER A. GETRE
CARL H. MOOR
DAVID H. FRY
LISA]. DEMSKY
MALCOLM A. HEINICKE
GREGORY]. WEINGART
TAMERLIN J. 000LEY
JAMES C. RUTIEN
RICHARD ST. JOHN
ROHIT K, SINGLA
LUIS LI
CAROLYN HOECKER LUEDTKE
C. DAVID LEE
MARK H. KIM
BRETT J, RODDA
SEAN ESKOVITZ
FRED A. ROWLEY, JR.
KATHERINE M. FGRSTER
BLANCA FROMM YOUNG
RANDALL 0, SOMMER
MARIA SEFERIAN
MANUEL F. CACHAN
ROSEMARIE T. RING
JOSEPH ]. YRARRA
MICHELLE T. FRIEDLAND
TODD J, ROSEN
TRUC 1, DO
MELINDA EADES LKMOINE
SETH GOLDMAN
GRANT A. DAVIS-DENNY
JONATHAN H. BLAVIN
JOHN B. OWENS
DANIEL K, LEVIN
MIRIAM KIM
MISTY U. SANFORD
KATHERINE KU
SUSAN R. SZABO
LIAR C. MIVAKE
HAILYN J. CHEN

560

MISSION

STREET

TWENTY-SEVENTH
SAN

FRANCISCO,

CALIFORNIA 94105-2907

TELEPHONE (415)
FACSIMILE (415)

355 SOUTH
LOS ANGELES,

FLOOR

512-4000
512-4077

GRAND AVENUE

CALIFORNIA 90071-1560

TELEPHONE [phone]
FACSIMILE 1213) 687-3702

May 23, 2014

BRAS SCHNEIDER
BETHANY W KRISTOVICH
JACOB S. KREILKAMP
ERIC P. TUTTLE
HEATHER E. TAKAHASHI
KEITH RD. HAMILTON, II
SORAYA C. KELLY
JEFFREY Y, WI)
ALISSA BRANHAM
ADAM R. LAWTON
PONEET K. SANDHU
JENNY H. HONG
AKRON SEt]? LOWENSTEIN
LAURA 0. SMOLOWE
MATTHEW A. MACDONALD
MARGARET G. MARASCHINO
ESTHER H. SUNG
BENJAMIN J. MARD
RENtE DELPHIN-RODRIGUEZ
MICHAEL]. MGNGAN
KYLE A. CASAZZA
AKRON GREENE LEIDERMAN
ERIN J. CDX
CLAIRE TAN
ALLISON S. WOODS
BRAM ALDEN
JESLYN A. MILLER
MARK R SAYSON
WILLIAM B. SULLIVAN
CHRISTIAN K. WREDE
PETER E. GRATZINGER
ANJAN CHOUDHURY
JEREMY A. LAWRENCE
BENJAMIN E. FRIEDMAN
CHRISTOPHER H. LYNCH
RAY S. SEILIE
NICHOLAS C. SOLTMAN
ADAM I. KAPLAN
AMELIA LB. SARGENT
KENNETH U. TRUJILCO-JAMISON
BRYAN H. HECKENLIVELY
LAURA WIRTH
JASMINE M. ROBERTS
JENNIFER A JONES
LAURA K. SULLIVAN

KYLE W. MACH
JEFFREY M, OSOFSKY
ENRIOUE R. SCHAERER
GREGORY M. SERGI
ACHYUT J. PHADKE
DAVID A. TAYLOR
NEWMAN NAHAS
JUSTIN WEINSTEINTULL
TINA W. ARROVO
MARl OVERBECK
JESSE MAX CREED
JOHN M. SENIOR
JOHN H. GILDERSLEEVE
ERIC K, CR10
CONNOR T. GANTS
SARAH U GRAHAM
JESSICA BARCLAY-STROBEL
ZACHARY M. BRIERS
JENNIFER M. BRODER
CHRISTINA P. MONIDDIS
JOHN P. MITTELBACH
EMMANUEL S. TEDDER
SARAH GARBER
SAMUEL T. GREENBERG
CAROLINE M. McKAY
WILLIAM J. EDELMAN
KEVIN U BRADY

OF COUNSEL
RICHARD D. ESBENSHADE?
ROBERT K. JOHNSON?
ALAN V. FRIEDMAN?
RONALD K. MEYER
RICHARD E. DROOYAN
ALLISON B. STEIN
SUSAN E. NASH
WILLIANA CHANG

E, LEROY TOLLES
)I922-2ODBI

WRITERS DIRECT LINE

[phone]

[phone] FAX
michael.monganmto.com

Andrew P. Bridges, Esq.
Fenwick & West LLP
555 California Street, 12th Floor
San Francisco, California 94104
Via E-mail

Re:

ASTM, et al. v. Public.Resource.Org

Dear Mr. Bridges:
This letter responds to the points raised in your letter sent on behalf of
Public.Resource.Org (“Public Resource”) on May 2, 2014 that pertain to the National F ire
Protection Association, Inc. (“NFPA”). We discussed each of these issues during our telephone
meet-and-confer conference on May 7, 2014.
We share your objective of reaching amicable resolutions on the range of discovery
issues that will allow the parties to litigate this action without imposing unreasonable and unduly
burdensome discovery requests on one another. As we have previously noted, many of Public
Resource’s discovery requests are extremely broad, and of limited or no relevance to the issues
that will be litigated in this case. NFPA’s prior responses to these requests were reasonable and
forthcoming. Nevertheless, in the spirit of accommodation, we are willing to respond to certain
of your concerns as outlined below. Our agreement to produce any documents of a confidential
nature remains conditioned on the entry of a protective order by the Court.

Andrew P. Bridges
May 23, 2014
Page 2
Definition of “Contribution”

As NFPA explained in its discovery responses, Public Resource’s definition of the term
“Contribution” renders RfPs 4, 12, 13, 14, and 15 overly broad and unduly burdensome. There
are twenty-two different NFPA standards at issue in this action. Each was produced as the result
of a transparent and open standards development process extending over multiple years. Each
involved the participation of hundreds of individuals or more. Public Resource defines
“Contribution” to mean “assistance, advice, financial support, labor, effort, or expenditure of
time.” If applied literally to Public Resource’s RfPs, this definition would impose a crushing
burden on NfPA. With respect to Rf P No. 4, for example, this definition would require the
production of documents sufficient to identify every instance of “assistance, advice, financial
support, labor, effort, or expenditure of time” relating to any aspect of the “development,
creation, drafting, revision, editing, transmission, publication, distribution, display, or
dissemination” of the twenty-two copyrighted works. Although your May 2 letter purports to
narrow the definition of “Contribution” by adding the proviso that it must be “provided toward a
project or goal regarding a specific standard at issue,” this does not make any material difference
in the scope of Public Resource’s discovery requests.
It is incumbent upon Public Resource to frame discovery requests that are appropriately
tailored to fit the claims and defenses in this action. As currently framed, your definition of
“Contribution” renders RfPs 4, 12, 13, 14, and 15 overly broad and unduly burdensome. In the
interests of moving this litigation forward, however, NFPA is willing to make extensive
productions of documents responsive to these requests, as described in our discovery responses
and this letter.
Report on Proposals and Report on Comments

Your letter expressed concern that NFPA would be producing the Report on Proposals
(“ROP”) and Report on Comments (“ROC”) for each of the twenty-two NfPA standards
currently at issue in this litigation. As your colleague Mr. Becker acknowledged, you have not
yet reviewed any of these documents, which are freely available on the NFPA website, because
you did not want to agree to the website’s terms of use. You asked us to make an expedited
production of these documents so that you could review them. We have now done so. As you
will see when you review these documents, which total more than 13,000 pages, they contain
detailed information about each of the NFPA standards at issue, including the name and
affiliation of technical committee members, alternates, and nonvoting members, the name of the
NFPA staff liaison, the name and affiliation of individuals who submitted comments and
proposals, the substance of each of those comments and proposals, the specific committee action
taken on those comments and proposals, and the vote tally. You told us during our call on May 7
that you intended to revisit this issue with us once you had reviewed these documents. We
believe these forty-four reports are directly and sufficiently responsive to the RFPs for which we
have offered to produce them. We would be happy to consider any remaining concerns you have
after you have reviewed them closely.

Andrew P. Bridges
May 23, 2014
Page 3
RFP No. 3

Your letter asks us to produce “lists or rosters of individuals who participated in the
standard development process for each Work at Issue,” including “the names of the individuals
[and] their employers or affiliations where the information exists.” The ROPs and ROCs that we
have already produced contain rosters of the individuals who serve on the relevant NfPA
technical committees and their affiliations, as well as the names and affiliations of individuals
who submit proposals or comments.
RFP No. 5

RFP No. 5 requests “[d]ocuments sufficient to identify every Legal Authority that
incorporates each Work-At-Issue, either expressly or by reference.” We continue to believe that
this request is objectionable. It pertains entirely to information that is in the public domain, and
that is equally available to Public Resource as it is to NFPA. Your client already closely tracks
the incorporation of NFPA’s standards by reference in federal and state regulations. What is
more, there is no dispute between the parties that the twenty-two NFPA standards at issue have
been incorporated by reference by one or more government entities in the United States, in whole
or in part. See NFPA Response to Public Resource’s Interrogatory No. 2. In the spirit of
accommodation, however, NFPA is willing to produce the current version of an NFPA database
that tracks certain instances of incorporation by reference. We note that this document is not
necessarily comprehensive or up to date, may contain errors or omissions, and does not
constitute an admission or representation with respect to any of the matters contained therein.
RFP 6

RFP 6 calls for “[a]l1 documents constituting, comprising, referring to, or evidencing
agreements between [NFPAJ and any Person who participated in the Standards Process of each
Work-At-Issue.” NFPA has agreed to produce documents responsive to this request. For
example, NFPA requires every person who submits a comment or a proposal to complete a form
click-through agreement irrevocably granting and assigning to NfPA all and full copyright in the
comment or proposal. NFPA has agreed to produce a copy of that form agreement, which is
obligatory for all comments and proposals considered in the NFPA standards development
process. In conjunction with other document productions that list the names of all individuals
who submit comments and proposals, these documents will allow Public Resource to identify the
individuals who have entered copyright assignments with NF PA governing comments and
proposals and to review the terms of those assignments. Similarly, all individuals who serve on
an NFPA standards development committee must sign a form agreement assigning to NFPA any
and all rights in the copyright to material that they author in connection with the committee.
NFPA also has agreed to produce a copy of that form agreement, as well as documents listing the
names of all individuals who serve on NFPA technical committees. As noted, as part of its
production of the ROPs and ROCs, NFPA will be providing you with the names of all persons
who submitted proposals or comments during the standard development process.

Andrew P. Bridges
May 23, 2014
Page 4
To the extent you insist on NFPA producing documents evidencing each of the thousands
of different times that these form agreements were executed by such individuals, we continue to
believe that this request is overly broad and unduly burdensome, and duplicative and redundant.
Frankly, we cannot imagine that you have any intent to review or make use of those individual
documents in this litigation. NFPA therefore stands by its response to RFP 6 (as well as RFPs 2
and 4, to the extent they call for the same agreements).
RFP Nos. 8 and 9

We appreciate the clarification of your client’s position regarding RfP Nos. 8 and 9 in
your May 2 letter. NFPA continues to believe that, especially in light of the large size of our
organization, your requests for “[a] 11 documents regarding Carl Malamud” and “[a]ll documents
regarding Public Resource or its representatives
including its legal representatives,” without
any limitations, are overly broad and unduly burdensome. Collecting, reviewing, and producing
such documents would be intensely burdensome, because many of the documents are likely to be
protected by the attorney-client privilege or the attorney work product doctrine. What is more,
the requests are likely to be of marginal relevance, if that. For example, in explaining the
relevance of these requests during our call, my notes reflect that you said “there may be
interesting debates about the utility and effect and value of [Mr.1 Malamud’s work.” With
respect, we do not think this justifies the severe burden that these requests would impose. (By
contrast, the request that Public Resource produce documents regarding NFPA is likely to
produce evidence bearing directly on instances of copyright and trademark infringement, the
core issues in this case.)
.

.

.

In the spirit of compromise, however, we are willing to search for and produce nonprivileged documents from the NFPA website and the files of a few select custodians at NFPA
that reference Mr. Malamud or Public Resource, subject to the following conditions. first,
NFPA will exclude documents related to this lawsuit or the possibility of legal action against
Public Resource or Mr. Malamud from its production. Second, we will not include Maureen
Brodoff (who is listed in Public Resource’s initial disclosures) as one of the custodians. As you
know, Ms. Brodoff is currently NFPA’s General Counsel. These limitations are intended to
avoid the unnecessary and burdensome collection and review of documents that are largely if not
entirely protected by the attorney client privilege and/or the work product doctrine.
RFP No. 11

In response to RFP No. 11, NfPA agreed to produce its annual, year-end financial
statements for the past five years, and its annual reports for the past five years showing its
revenues from the sale of individual NFPA works. Your letter asks us to produce these
documents going back to 1999. Subject to the entry of a protective order, we are willing to agree
to this request, and will produce these categories of documents containing information dating
back to 1999 to the extent they can be located after a reasonable and diligent search.

Andrew P. Bridges
May 23, 2014
Page 5
Your letter also asks for information regarding prospective expectations of future
revenue. During our telephone conference, Mr. Becker clarified that you were looking for a
current document showing projections for revenue from standards going forward. Subject to the
entry of a protective order, we will agree to produce the most recent monthly unaudited financial
statement, which contains revenue projections, including revenue from publications. As I
mentioned on our call, however, NFPA does not make revenue projections for each individual
publication, so the projections contained in this document will be in the aggregate.
RFP No. 13
RFP No. 13 asks for “[a] 11 documents concerning any Contributions You have received
from any not-for-profit entity (other than a governmental entity) in connection with the
Standards Process of each Work-At-Issue.” As we explained in our responses and during our
phone conversation on May 7, while NFPA does generally track the institutional affiliations of
individuals who participate in the standard development process, it does not track whether or not
those institutions are “not-for-profit” entities. We have agreed to produce extensive documents
that identify institutions whose officers or employees are involved in the standards development
process for the NFPA standards at issue. To the extent you desire to determine which of those
institutions are non-profits, it will be necessary for you to conduct your own inquiry into that
matter. We note that the not-for-profit status of these entities is public information that is
equally available to Public Resource.
RFP Nos. 14 and 15

As we explained in our discovery responses and during our conversation on May 7, both
RFP No. 14 and RFP No. 15 are overly broad and unduly burdensome, due to the far-reaching
definitions you adopted for the terms “Contributions” and “Standards Process.” Nonetheless,
NfPA is willing to produce certain documents responsive to these requests as outlined in its
prior responses.
As described in NfPA’s response to RFP No. 14, the documents most responsive to this
request are available on the NFPA website. The pages referenced in our response are publicly
accessible. NFPA would be happy to provide Bates stamped documents for particular pages of
its website responsive to RFP No. 14 at Public Resource’s request. This is the same arrangement
that you proposed with respect to Public Resource website content.
With respect to RFP No. 15, your letter expresses concern that the forty-four ROPs and
ROCs we have produced regarding the standards development process for the Nf PA standards at
issue are insufficient because you desire “communications from individuals or entities to”
NFPA, “not simply general reports that may or may not comment on such communications.” As
you will see once you have reviewed those reports, they do reproduce the content of myriad
communications from individuals or entities to NfPA regarding the standards at issue, and they

Andrew P. Bridges
May 23, 2014
Page 6
also describe the action taken by NFPA’s standards development committees in response to such
communications.
RFP No. 16
We had a lengthy discussion of RFP No. 16, which asks for “All documents constituting,
comprising, or concerning communications criticizing Your claims, statements, arguments, or
positions in this dispute or litigation.” We find this to be a most unusual request that is
burdensome and not relevant to the claims or defenses in this action; rather, it appears to be
designed to probe for documents that might potentially be embarrassing to NFPA. With respect,
we were not persuaded by the explanations you offered for why this request is relevant. We also
note that to the extent documents exist “criticizing” NfPA’s claims, such documents are likely
from news and media sources, blog posts, etc., that are publicly available and equally accessible
to Public Resource. Nf PA stands by its objections to this request.
RFP No. 17
RFP No. 17 seeks ‘[a]ll documents consisting, comprising, or concerning
communications by You regarding this dispute or litigation.” As we discussed, to the extent this
request calls for internal or other confidential communications, it primarily seeks information or
documents protected by the attorney-client privilege or the work product doctrine, and for that
reason is uniquely burdensome. We have identified multiple non-privileged documents that are
publicly available on the Nf PA website and that are responsive to this request. NFPA would be
happy to provide Bates stamped documents for these or other particular pages of its website
responsive to Rf P No. 17 at Public Resource’s request. In addition, if Public Resource agrees to
the proposal outlined above regarding RFP Nos. $ an 9, we would also be willing to produce
communications with outside media and any other public-facing communications responsive to
this request that can be located after a reasonable search of the files of the selected custodians
identified with respect to RFP Nos. $ and 9.
RFP No. 18
RFP 18 calls for “[ajil documents constituting, comprising, or concerning licenses with
respect to any Work-At-Issue.” NFPA stand by its objections that this request is overly broad
and unduly burdensome, and we continue to believe it is not likely to lead to the discovery of
admissible evidence. But in the spirit of compromise we are willing to modify our response. To
the extent that RFP 1 $ calls for form license agreements by end-users of the NFPA standards at
issue in this action, we will produce the form versions of those agreements. To the extent that it
calls for ad hoc agreements with third parties for NFPA to license one or more of the standards at
issue for reproduction or other uses, or for copyright permission letters from NfPA to a third
party, we will conduct a reasonable and diligent search and will produce any responsive
documents in NFPA’s sharepoint database of copyright permission letters, and the current

Andrew P. Bridges
May 23, 2014
Page 7
version of any license agreements relating to the standards at issue in this action contained in
NfPA’s contracts database.
Interrogatories Nos. 3 and 5
Your letter requested that NFPA agree to “a 3 3(d) response” with respect to its responses
to Interrogatories Nos. 3 and 5. While NfPA stands by its objections concerning these
Intenogatories, and we believe that our current responses meet NFPA’s discovery obligations in
light of those objections, we would be happy to agree, in addition, to respond to these
Interrogatories pursuant to federal Rule of Civil Procedure 3 3(d). Specifically, NFPA will
produce its Reports on Proposals and Reports on Comments for each of the NFPA standards at
issue in this action, fiom which Public Resource may derive both the identities of individuals
who were involved in the development and creation of the standards, and the content of
proposals and comments submitted by those individuals.
Request for Admission

Your letter requests that NFPA “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.”
Exhibit B to the Complaint identifies the twenty-two copyrighted work to which Nf PA’s current
claims for direct and secondary copyright infringement apply. We do not presently intend to
assert claims with respect to additional works; however, because discovery has only just begun,
and Public Resource has not yet produced any documents responsive to Plaintiffs’ discovery
requests, Nf PA reserves the right to seek leave to amend to assert claims regarding additional
works.
Production of Public Resource Website Content

Your letter proposes that, in the interests of efficiency, Plaintiffs review Public
Resource’s website content and make particular requests to Public Resource for Bates-stamped
versions of particular pages of the website. NFPA is willing to agree to this proposal on the
condition that Public Resource agrees to a reciprocal arrangement—i.e., that to the extent Public
Resource’s requests to NFPA call for website pages or other information that is made publicly
available by NFPA, Public Resource will agree to review these materials and make particular
requests for NFPA to produce Bates-stamped versions of particular documents.
Privilege Logs

Your letter 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.”
As discussed above, we share your concern about the burden of logging privileged
communications, a potential burden that is most stark with respect to Public Resource’s
sweeping requests for “[a]ll documents” regarding Carl Malamud or Public Resource, and “[a]ll

Andrew P. Bridges
May 23, 2014
Page 8
documents constituting, comprising, or concerning communications by You regarding this
dispute or litigation.” RFP Nos. 8, 9, 17. We are willing to accept your proposal, on the
condition that we modify the time cut-off such that parties may refrain from logging documents
protected by the attorney-client privilege or the attorney work-product doctrine that post-date
January 1, 2013. As Mr. Fee explained during our telephone conference, it does not make sense
to set the cut-off on the date the Complaint was filed. That would impose asymmetric burdens
on the parties, because Plaintiffs necessarily have in their custody or control many protected
documents in the months leading up to the filing of the Complaint, a time period when it is
customary for plaintiffs to research their potential claims and communicate frequently with
counsel.
Custodians and Search Terms

During our telephone conversation, you asked when we would be circulating our
proposed custodians and search terms. As we explained on the call, we think it would be most
efficient for the parties to finalize their positions concerning requests for production before
circulating proposed search protocols. (For example, we cannot know whether to include search
terms designed to capture documents responsive to RFP Nos. 7 and $ until we know whether
Public Resource agrees with our proposal set forth above.) We will be able to circulate search
terms in short order once the parties have ironed out these discovery issues, and would be happy
to provide you with an organizational chart in response to your request at that time. We expect
that, when the parties exchange search terms, you will reconsider your proposed search terms to
make sure they correspond with the subject matter of Plaintiffs’ requests for production.
Protective Order

As we discussed during our telephone conversation, NFPA does not agree with your
proposed edits to the draft protective order. In particular, NFPA: (i) disagrees with your
proposal to delete the category for “Highly Confidential” documents; (ii) disagrees with your
proposal that parties must prepare a separate “statement” justifying each “Confidential”
designation; and (iii) disagrees with your proposal that the party producing a “Confidential”
document must file a motion with the Court to protect that document within 14 days from the
date any confidentiality designation is challenged by the receiving party. We think the protective
order you contemplate is far outside of the norm for this type of case, or for that matter any type
of litigation, and would create unnecessary burdens on the parties and the Court. from our
conversation, it appears that you are unwilling to change your position. We would like to seek
guidance from the Court on this issue as soon as possible.

Andrew P. Bridges
May 23, 2014
Page 9

*

*

*

To the extent you believe that this letter misstates any of Public Resource’s positions, or
mischaracterizes our conversation on May 7, 2014, please let us know in writing. We look
forward to receiving your response regarding Plaintiffs’ discovery requests to Public Resource.

Sincerely,

Michael AMongan(
MJM:jl
cc:

Corynne McSherry
Mitch Stoltz
David Halperin
Joseph Gratz
Mark Lemley
Kathleen Lu
Matthew Becker
Kelly Klaus
Jonathan Blavin
Michael Clayton
J. Kevin Fee
Jordana Rubel
Kenneth L. Steinthal
Joseph R. Wetzel
Jeffery S. Bucholtz
Andrew Zee

N