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

Filing 82

REPLY to opposition to motion re #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 [PUBLIC REDACTED VERSION] filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 PUBLIC REDACTED VERSION of Reply Declaration of Andrew P. Bridges In Support of Defendant-Counterclaimant Public.Resource.Org, Inc.s Reply In Support of Motion for Extension of Discovery Period, Corresponding Modification of Scheduling Order, and Leave to Take More Than 10 Depositions, #2 Exhibit A to Bridges Reply Declaration In Support, #3 Exhibit B to Bridges Reply Declaration In Support, #4 Exhibit C to Bridges Reply Declaration In Support, #5 Exhibit D to Bridges Reply Declaration In Support, #6 Exhibit E to Bridges Reply Declaration In Support, #7 Exhibit F to Bridges Reply Declaration In Support)(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

REPLY DECLARATION OF ANDREW
P. BRIDGES 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

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.

REDACTED PUBLIC VERSION

I, ANDREW P. BRIDGES, declare pursuant to 28 U.S.C. § 1746 as follows:
1.

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

with the law firm of Fenwick & West LLP, counsel of record for Defendant/Counterclaimant
Plaintiff Public.Resource.Org, Inc.
2.

Defendant has consistently been willing to schedule depositions in a convenient

manner for all. In a December 19, 2014 email to Plaintiffs’ counsel regarding the scheduling of
depositions, I notified Plaintiffs’ counsel that I, as lead counsel for Public Resource in this
action, would be unavailable to defend Carl Malamud in a deposition by Plaintiffs during the last
two weeks of January. I also notified Plaintiffs that a deposition of Mr. Malamud would need to
be completed by January 12, 2015, or that a request for an extension of the discovery schedule
would otherwise be necessary. On January 27, 2015, I confirmed that Mr. Malamud would be
unavailable for depositions on January 29 and January 30.
3.

Between December 31, 2014 and January 16, 2015, Plaintiff ASTM produced

over 42,000 documents consisting of over 95,000 pages. Plaintiff NFPA produced over 2,500
documents consisting of over 17,700 pages through two productions occurring on December 30,
2014 and January 6, 2015. Plaintiff ASHRAE produced 349 documents consisting of over 2,400
pages between December 23, 2014 and January 9, 2014. On January 30, 2015, the day of the
close of fact discovery, Plaintiff NFPA produced an additional 390 documents consisting 59,376
pages and Plaintiff ASTM produced an additional 27 documents consisting of 186 pages. On
February 17, 2015, two weeks after the close of fact discovery, Public Resource received an
additional 405 documents from a third party vendor that NFPA had turned over to on January 26,
2015 for processing and delivery, consisting of 25,183 pages. A chart reflecting the document
productions follows:

1

Date Sent

Date of
Receipt

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

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

01/30/15 02/02/15

27

ASTM

ASTM102866

ASTM103052

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

01/30/15 02/02/15

18

NFPA

NFPA‐PR0038494 NFPA‐PR0038555

01/30/15 02/02/15

372

NFPA

NFPA‐PR0038556 NFPA‐PR0097870

2

Date Sent

Date of
Receipt

01/26/15
(to
02/17/15
vendor)

No. of Docs

Party

405

NFPA

Beg Bates

End Bates

25,183 Unnumbered Pages

Accordingly, Plaintiff ASTM has produced 98% of its total production to date by document
count since December 31, 2014, and Plaintiff NFPA has produced 96% of its total production by
document count during or after the last month of discovery. In terms of page counts, Plaintiffs
produced more than 86% of their production during, or after, the last month of discovery.
Approximately 69% of NFPA’s total document production by page count was produced since
January 30, 2015—the date of the close of discovery.
4.

On December 16, 2014, counsel for Plaintiff NFPA notified Public Resource that

physical documents relating to NFPA’s assignment forms would be made available to Public
Resource for physical inspection and copying at NFPA’s headquarters in Quincy, Massachusetts.
5.

On December 22, 2014, Plaintiff ASTM served Amended Initial Disclosures

pursuant to Federal Rule of Civil Procedure 26(a) on Public Resource, in which it disclosed
Steve Cramer, a professor at the University of Wisconsin-Madison, Jeff Grove, ASTM’s Vice
President of Global Policy and Industry Affairs, for the first time. On January 14, 2015, Plaintiff
ASTM again served Amended Initial Disclosures pursuant to Federal Rule of Civil Procedure
26(a) on Public Resource, in which it disclosed Nicole Baldini, an ASTM Business Analyst, for
the first time. On January 30, 2015, Plaintiff ASHRAE served its Amended Initial Disclosures
pursuant to Federal Rule of Civil Procedure 26(a) on Public Resource, in which it disclosed
Stephanie Reiniche, ASHRAE’s Manager of Standards, for the first time. Attached as Exhibit
A are true and correct copies of Plaintiffs’ Amended Initial Disclosures.

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6.

On December 23, 2014, I conducted a teleconference with counsel for NFPA to

discuss outstanding discovery issues, including Public Resource’s inspection of assignment
documents at NFPA’s headquarters. During the December 23, 2014 teleconference, I asked to
review NFPA’s documents on December 26 or 29, 2014. Counsel for NFPA would not advise
me as to whether NFPA’s documents would be ready for inspection on December 29, 2014.
Exhibit B is a copy of my December 26, 2014 correspondence to Kelly Klaus, Jonathan H.
Blavin and Nathan M. Rehn, counsel for NFPA, memorializing the matters we discussed during
the December 23, 2014 call.
7.

On December 30, 2014, Nathan Rehn responded to my December 26, 2014 letter,

stating that NFPA’s assignment documents were not available for inspection and would not be
available for Public Resource’s inspection until January 5, 2015. Exhibit C is a copy of the
correspondence dated December 30, 2014 that I received from Nathan Rehn.
8.

On January 23, 2014, I conducted a teleconference with counsel for Plaintiffs to

discuss the scheduling and noticing of depositions. During the telephone call, counsel for
Plaintiffs indicated that Plaintiffs would agree to accept service of deposition notices by Public
Resource through the close of discovery on January 30, 2015. Counsel for Plaintiffs also stated
that Plaintiffs would agree to move forward with certain depositions following the close of fact
discovery.
9.

On February 9, 2015, I notified counsel for Plaintiffs that Mr. Malamud was

prepared to attend depositions noticed by Plaintiffs for February 12 and 13, 2015, on the
condition that the depositions be consolidated with the same depositions in a related action,
AERA v. Public Resource, Civil Action No. 1:14-cv-00857, United States District Court, District

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of Columbia. I notified Plaintiffs that Public Resource would otherwise file a motion for a
protective order if Plaintiffs would not agree to consolidation.
10.

Plaintiffs withdrew the notice of depositions for February 12 and 13, issuing new

notices of deposition for February 26 and 27, 2015 for the Rule 30(b)(6) and personal
depositions of Carl Malamud, respectively. Defendant tried to negotiate an agreement with
Plaintiffs over numerous scheduling issues, including an agreement to await the ruling on the
consolidation motion, but Plaintiffs would not agree. Defendant filed a motion for protective
order to defer the February 26 and 27, 2015 depositions until the Court ruled on Defendant’s
motion to consolidate the ASTM Plaintiffs’ and AERA Plaintiffs’ cases for purposes of
discovery. With no ruling in hand on the protective order motion, Defendant produced Mr.
Malamud for deposition on February 26 and 27 and withdrew the protective order and
consolidation motions as moot.
11.

Defendant has sought to schedule 10 depositions as follows:
a. NFPA 30(b)(6)
b. ASTM 30(b)(6)
c. ASHRAE 30(b)(6)
d. American National Standards Institute 30(b)(6) (non-party)
e. James Thomas (president of NFPA)
f. James Pauley (president of ASTM)
g. James Shannon (former president of NFPA)
h. James Pace (ASTM Vice President, Sales and Marketing)
i. Philip Lively (ASTM Vice President, Information Technology
Development and Application)

5

j. Mary Saunders (ASTM Director 2008-2011, board member of American
National Standards Institute, previously Director of Standards
Coordination Office and now Associate Director of Management
Resources at National Institute for Standards and Technology).
12.

ASTM and counsel have refused to discuss scheduling of e, f, h, i, and j above..

13.

NFPA has refused to negotiate mutually convenient dates for two of its three

designates under Rule 30(b)(6), namely Bruce Mullen and Chris Dubay. It has offered them on
only on dates they knew that Defendant’s counsel was unavailable and, in the case of Mr. Dubay,
at a time when Defendant will not have had an opportunity to digest the late NFPA document
production for which Mr. Dubay is the 30(b)(6) corporate designate.
14.

NFPA has refused to negotiate a mutually convenient date for James Shannon,

offering him either before NFPA completed its document production or afterward on only one
date when Defendant’s counsel was unavailable. From the first discussion, NFPA indicated that
Mr. Shannon would not be available before the close of discovery.
15.

By contrast, ASHRAE and non-party American National Standards Institute have

worked with Defendant to schedule their 30(b)(6) witnesses for deposition. The contrast
between ASHRAE’s and ANSI’s cooperation and NFPA’s and ASTM’s intransigence and
obstruction is striking. As a consequence, the following deposition schedule is now in place:


March 3: NFPA 30(b)(6) designate Donald Bliss



March 4: ASTM 30(b)(6) designate Jeff Grove



March 5: ASHRAE 30(b)(6) designate Stephen Comstock



March 12: ASHRAE 30(b)(6) designate Stephanie Reineche



March 13: ANSI 30(b)(6) designate Frances Schrotter

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16.

Those of its ten highest priority deponents whom Defendant has not been able to

schedule by agreement with NFPA and ASTM are James Thomas, Bruce Mullen (NFPA
30(b)(6)), Chris Dubay (NFPA 30(b)(6)), James Pauley, James Pace, Philip Lively, and Mary
Saunders. Defendant has asked Plaintiffs to assist in scheduling them between March 31 and
April 15, but they refuse to do so.
17.

Exhibit D [FILED UNDER SEAL] is a copy of an email produced by Plaintiff

NFPA bearing bates ranges NFPA-PRO022680–NFPA-PRO022681. Exhibit D is an October
28, 2010 email among various NFPA employees regarding

18.

Exhibit E [FILED UNDER SEAL] is a copy of a document produced by

Plaintiff NFPA bearing bates ranges NFPA-PRO024352–NFPA-PRO024357. Exhibit E is an
April 21, 2011 email from Maureen Brodoff to various NFPA employees that attaches a
document entitled “
This document appears to have been authored by

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and specifically references

19.

Exhibit F [FILED UNDER SEAL] is a copy of an email produced by Plaintiff

NFPA in this action bearing bates range NFPA-PRO022632–NFPA-PRO022648. Exhibit F is a
February 25, 2011 email from Jim Shannon, NFPA’s Former President, to

Plaintiffs waited nearly two and a
half years to file this lawsuit.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 27th day of February, 2015.
/s/ Andrew P. Bridges
Andrew P. Bridges

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