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. 1:13-cv-01215-EGS

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
DECLARATION OF DENNIS J. BERRY
IN SUPPORT OF PLAINTIFF NATIONAL FIRE PROTECTION ASSOCIATION
I, Dennis J. Berry, declare as follows:
1.

I am Secretary of the Corporation and Director of Licensing for Plaintiff National

Fire Protection Association (“NFPA”). My duties include negotiating and overseeing the
NFPA’s licenses for its codes and standards. 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 asked for licensing agreements for the

NFPA standards at issue in this case. I also understand that Public Resource has asked the Court
to compel production of these documents.
3.

The NFPA maintains a list of current licenses for the current versions of its

standards. Collecting and producing these license agreements is reasonably feasible.

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4.

It would impose an extremely difficult and onerous burden on the NFPA to locate

and collect license agreements for older standards, particularly out of date standards from the
early 2000 – 2006 time frame. I have taken some initial steps to assess the burden of producing
these documents, and discovered that such a production would require hours of work attempting
to locate, arrange and review out-of-date and in many cases terminated agreements to assess
whether they were licenses for the works at issue in this case. Overall completion of this project
including identification, retrieval, assessment, review, compilation and reporting would take
approximately one to two hours per standard, where there had been a license issued. Standards
that had not been subject to a license would take longer in order to eliminate licensing sources.
Agreements for older standards are not all preserved in a central physical or electronic location,
and may need to be retrieved from a number of electronic or physical locations.
5.

In addition to license agreements, I handle copyright permissions for the NFPA

standards. These copyright permissions are generally granted on a one-time basis by means of a
letter from the NFPA. I handle approximately 300 to 400 copyright permissions per year.
6.

The NFPA has copyright permissions for approximately the last year stored in its

SharePoint system. SharePoint is an automated Microsoft program designed to include large
amounts of data. This has been used over the last year to track, process, respond to and archive
copyright permission requests. These can be retrieved and produced. Because copyright
permissions involve one-time limited approval for a particular use of a portion of an NFPA
standard, older permissions would involve uses that have long since expired.
7.

Attempting to collect older copyright permission letters that are not stored on the

SharePoint system, but are stored chronologically and not by standard, particularly for the
standards designated in this action, would be extremely burdensome. These letters are likely to

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be contained in boxes of paper correspondence, alongside correspondence on unrelated issues.
Identifying, collecting, and reviewing these documents would take many hours of time for
myself and my staff. Because of the chronological storage of the letters and the age of some of
the standards at issue in this action it would be difficult to estimate the time required, which
could be as much as 3 – 4 hours per year to review, identify, track and organize a response, for
each of the years 2000 – 2013, the approximate dates needed to cover the standards at issue.

I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.

Executed on September 28__, 2014
Dennis J. Berry

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