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

Filing 46

Memorandum in opposition to re #41 MOTION to Compel Discovery Plaintiff National Fire Protection Association, Inc.'s Opposition to Motion to Compel Discovery filed by NATIONAL FIRE PROTECTION ASSOCIATION, INC.. (Attachments: #1 Declaration of Christian Dubay In Support of, #2 Declaration Dennis Berry In Support of)(Klaus, Kelly)

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. I :13-cv-01215-EGS

Plaintiffs/
Counter-Defendants,
v.

PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
DECLARATION OF CHRISTIAN DUBAY
IN SUPPORT OF PLAINTIFF NATIONAL FIRE PROTECTION ASSOCIATION

I, Christian Dubay, declare as follows:
I.

I am Vice President, Codes and Standards, and Chief Engineer for Plaintiff

National Fire Protection Association ("NFPA"). My duties include managing and administering
the NFPA standards development process. I have held this position since 2007. The following
facts are based upon my own personal knowledge, and if called upon to do so, I could and would
testifY competently hereto.
2.

I understand that Public Resource has requested production of the assignments of

rights from persons who participated in the standards development processes for the standards at
issue in this case. I also understand that Public Resource has asked the Court to compel
production of these documents.

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---- ----------- '3·:- ---The NFPA does not accept comments or proposals in the standards development
process without receiving an assignment of rights from the contributor. In addition, the NFP A
requires persons who sit on committees in the standards development process to execute an
assignment of rights.
4.

The NFP A generally requires all assignments of rights to be executed on its

standard form agreement. In all my time at NFP A, I am aware of only one instance in which a
contributor to a NFPA standard did not use the standard form to assign his rights to the NFPA;
however, this individual was required to assign all rights to NFPA.
5.

Prior to 20 I 0, the signed assignment forms were submitted physically by

contributors. These documents are physically stored by the NFPA, as part of the paper and
microfilm records from the standards development process from each standard. These records
are voluminous and as a result some are stored offsite. For example, the records for one round of
the National Electrical Code standards development process typically fill over 30 file boxes.
When all the standards at issue in the case are considered, the total amount of paper records
would number in the hundreds of boxes and run to tens of thousands of pages.
6.

Producing the physical copies of the executed assignment of rights forms would

be an onerous and burdensome undertaking. This would require physically retrieving the paper
and microfilm records, and reviewing these to identify the assignments of rights forms. This
would take more than a thousand hours of staff time.
7.

For standards development since 2010, the records are stored electronically.

These records are similarly voluminous to the pre-20 I 0 records, and reviewing them to identify
assignments of rights forms would require a similar amount of effort and staff time.

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-···-·-------- 8. -· --I-understand that Public Resource has also asked for documents sufficient to
identify the contributions in support of the standards at issue in this case, as well as documents
concerning contributions and offers of contributions to the standards process for the standards at
issue in this case.
9.

The NFPA Reports on Proposals ("ROPs") and Reports on Comments ("ROCs")

provide sufficient information to answer these requests. These reports function as
comprehensive records of the standards development process, including the identities of all
contributors to the process.
10.

The ROPs and ROCs compile and reproduce every proposal and every comment

that is received or developed when the standards are being revised or developed. These
documents also identify the individuals or entities that made each proposal or comment.
11.

When multiple entities submit the identical proposal or comment, such as through

a letter-writing campaign, the ROP or ROC prints that proposal or comment along with the
identities of those who submitted it.
12.

The ROPs and ROCs also identify the members of each committee involved in

the standards development process and the votes of the committee on each proposal and
comment.
13.

While there are additional documents used in the standards development process,

such as agendas, minutes, sign in sheets, and materials distributed at the meetings, the
information in these documents is generally duplicative of the information that is ultimately
compiled in the ROPs and ROCs.
14.

For standards developments that took place prior to 2010, documents beyond the

ROPs and ROCs are physically stored, in a site separate from the NFPA headquarters, in either

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···paper ormicwfilm·cepies:-Fer-thestandards development processes since 2010, the documents
are stored electronically. These documents are extremely voluminous, as described above in
paragraph 5.
15.

Producing these records would be an extremely onerous task. Transporting the

physical documents to a site where they can be reviewed, reviewing them and copying them for
production would take a significant amount of cost and staff time. In addition, reviewing the
electronic records from the post-2010 time period would be extremely burdensome and timeconsuming, given the volume of the documents.

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed on September3V, 2014

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