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

Filing 71

MOTION for Extension of Time to Complete Discovery Defendant-Counterclaimant Public.Resource.Org, Inc.'s Motion for Extension of Discovery Period, Corresponding Modification of Scheduling Order, and Leave to Take More Than 10 Depositions by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Declaration Declaration of Kathleen Lu in Support of Defendant-Counterclaimant Public.Resource.Org, Inc.'s Motion for Extension of Discovery Period, Corresponding Modification of Scheduling Order, and Leave to Take More Than 10 Depositions, #2 Text of Proposed Order [Proposed] Order Granting Defendant's Motion for Extension of Discovery Period, Corresponding Modification of Scheduling Order, and Leave to Take More Than 10 Depositions)(Bridges, Andrew)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a/ ASTM INTERNATIONAL;

Case No. 1:13-cv-01215-TSC/DAR

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and

DECLARATION OF KATHLEEN LU
IN SUPPORT OF DEFENDANTCOUNTERCLAIMANT
PUBLIC.RESOURCE.ORG, INC.’S
MOTION FOR EXTENSION OF
DISCOVERY PERIOD,
CORRESPONDING MODIFICATION
OF SCHEDULING ORDER, AND
LEAVE TO TAKE MORE THAN 10
DEPOSITIONS

AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR-CONDITIONING
ENGINEERS, INC.
Plaintiffs,
v.
PUBLIC.RESOURCE.ORG, INC.,

Complaint Filed: August 6, 2013
Defendant.
PUBLIC.RESOURCE.ORG, INC.,
Counterclaimant,
v.
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, INC.
Counterdefendants.

I, KATHLEEN LU, declare as follows:
1.

I am an attorney admitted to practice in the State of California and am an

associate with the law firm of Fenwick & West LLP, counsel of record for Defendant/CounterPlaintiff Public.Resource.Org, Inc. (“Public Resource”).
2.

Counsel for Public Resource have conferred with counsel for Plaintiffs on

numerous occasions throughout the month of January regarding an extension of the schedule to
allow Public Resource time to review Plaintiffs’ many and sizable productions in late December
and throughout January before Public Resource takes the depositions it had already noticed and
completes its noticing of depositions.
3.

Public Resource received nearly 42000 documents from ASTM on January 2,

2015. NFPA has stated that it has sent up to 50 banker’s boxes of paper documents and 11 rolls
of microfilm containing 4000-7000 images each to vendors for scanning. Public Resource has
not received the scans yet. Based on the rate of review of the productions thus far, counsel for
Public Resource estimates that review of the documents that have come in since Christmas will
take approximately 400 hours assuming a fairly fast rate. We will not be able to estimate
whether we can review the NFPA productions at a similar rate until we receive the productions
from the vendors, but if so, we estimate that review will also take several hundred hours. This
chart shows, to the best of my knowledge, Plaintiffs’ past and upcoming productions:
No. of
Docs

Party

Beg Bates

End Bates

08/11/14 08/12/14

19

ASHRAE

ASHRAE0000001

ASHRAE0001618

08/27/14 08/28/14

2076

ASHRAE

ASHRAE0001619

ASHRAE0022482

10/17/14 10/20/14

33

ASHRAE

ASHRAE0022483

ASHRAE0022663

10/30/14 10/31/14

144

ASHRAE

ASHRAE0022664

ASHRAE0024176

11/21/14 11/24/14

349

ASHRAE

ASHRAE0024177

ASHRAE0027441

Date Sent

Date of
Receipt

1

12/23/14 12/29/14

196

ASHRAE

ASHRAE0027442

ASHRAE0029541

01/09/15 01/09/15

153

ASHRAE

ASHRAE0029542

ASHRAE0029846

07/29/14 07/30/14

310

ASTM

ASTM000001

ASTM001830

10/17/14 10/20/14

266

ASTM

ASTM001831

ASTM007110

12/31/14 01/02/14

41839

ASTM

ASTM007111

ASTM096675

01/16/15 01/20/16

763

ASTM

ASTM096676

ASTM102865

Anticipated
unknown
01/30/15

unknown

ASTM

n/a

n/a

05/22/14 05/23/14

52

NFPA

NFPA‐PR0000001 NFPA‐PR0013031

06/20/14 06/23/14

24

NFPA

NFPA‐PR0013032 NFPA‐PR0020392

11/24/14 11/25/14

40

NFPA

NFPA‐PR0020393 NFPA‐PR0020701

12/30/14 12/31/14

1953

NFPA

NFPA‐PR0020702 NFPA‐PR0028685

01/05/15 01/06/15

586

NFPA

NFPA‐PR0028686 NFPA‐PR0038493

44,000‐
77,000
pages

NFPA

n/a

n/a

unknown

NFPA

n/a

n/a

Up to 50
banker’s
boxes

NFPA

n/a

n/a

1/26/15

unknown

Anticipated
unknown
01/30/15
Unknown

4.

unknown

From my review of our production log, Public Resource produced 8,560

documents on August 28, 2014; 823 documents on October 31, 2014; 522 documents on
November 14, 2014; and 1,968 documents on December 23, 2014.
5.

Counsel for Public Resource has communicated with Plaintiffs by telephone and

by email about an extension throughout January, including on January 5, January 7, January 8,
January 11, January 20, January 21, January 22, January 23, January 27, and January 28. On

2

Friday, January 23, 2015, Mr. Childs, counsel for ASTM proposed on behalf of all plaintiffs that
the parties have until January 30 to notice depositions that they would take “within a reasonable
amount of time outside the current discovery period.”
6.

On January 28, 2015, counsel for Public Resource had a call with counsel for all

three plaintiffs. On that call, counsel for all three plaintiffs reiterated their position that the cutoff
for taking depositions should be February 28, and that the cutoff for noticing depositions should
be January 30.
7.

Also on January 28, 2015, plaintiff NFPA served its amended Rule 26 disclosures,

which added one witnesses. On December 24, plaintiff ASTM disclosed three additional
witness, and on January 14, it disclosed one additional witness. Today, January 29, 2015,
ASHRAE stated that it may disclose one additional witness. In total, Plaintiffs have disclosed 16
witnesses (other than Mr. Malamud).
8.

Based on my review of some of the documents Plaintiffs have produced, it

appears that Plaintiffs knew of and actively discussed Public Resource’s activities in March
2012.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 29th day of January, 2015.

/s/ Kathleen Lu
Kathleen Lu

3