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Main Index: Trial Testimony June 9, 1997


   2    ------------------------------x

                   v.                           93 CV 6656 LBS
                                                June 9, 1997
  12                                            10:10 a.m.
                            HON. LEONARD B. SAND
                                                District Judge


  17                            APPEARANCES

             Attorneys for Plaintiffs
             ROBERT L. PLOTZ
  20         PETER E. SEIDMAN

             Attorneys for Defendants
             JEFFREY G. HUVELLE
  23         SUSAN L. BURKE




   1               THE COURT:  Good morning.  You may be seated.

   2               I think there are some preliminary matters.

   3    There is a motion to change the identification of the

   4    plaintiff.

   5               MR. LUPERT:  That is correct, your Honor.

   6               THE COURT:  Is there any objection to that

   7    motion?

   8               MR. MESERVE:  Your Honor, we had consented to --

   9    I was talking to Mr. Lupert about that and we had told him

  10    two things.  First, we would like to have a stipulation that

  11    the amendment of the names of the plaintiffs would be

  12    preclusive on the entirety of the Gordon & Breach

  13    enterprise, and he has filed a stipulation that serves that

  14    end.

  15               THE COURT:  Yes.

  16               MR. MESERVE:  We had also asked your Honor for

  17    assurances from Mr. Lupert that discovery responses in this

  18    case reflect the new entities.

  19               These apparently corporate rearrangements as best

  20    we can tell were made in 1994, and I have not yet heard from

  21    Mr. Lupert on that, on the latter point, as to whether the

  22    discovery responses we've gotten in this case have

  23    encompassed these new entities.

  24               MR. LUPERT:  It was intended to include that

  25    stipulation, as well.


   1               MR. MESERVE:  With that assurance, your Honor, we

   2    are prepared to consent to the amendment of the complaint.

   3               THE COURT:  Motion granted on consent.

   4               Anything else by way of preliminary matters?

   5               (Pause)

   6               THE COURT:  Off the record.

   7               (Discussion off the record)

   8               THE COURT:  All right.  There was a stipulation

   9    that was filed by the defendants with reference to intent to

  10    make further use of the methodology.  Is that the --

  11               MR. MESERVE:  Yes, your Honor, we had observed

  12    that a large number of the transcript designations in the

  13    exhibits that have been filed by the plaintiffs related to

  14    whether the Barschall survey would have been circulated but

  15    for the complaints that had been made by Gordon & Breach,

  16    and so there would be no doubt about that matter, we had

  17    filed a stipulation that was intended to say that, yes, but

  18    for their complaints, there would have been a distribution

  19    of the Barschall survey to interested persons, including

  20    librarians.  And we are also prepared to stipulate that one

  21    of the purposes of any such distribution could be seen to be

  22    commercial advertising and promotion.

  23               My clients had other purposes in mind, as well,

  24    but we were trying to simplify the trial and to minimize the

  25    issue and so we are prepared to stipulate that one of the


   1    purposes of that circulation would satisfy one of the issues

   2    that the plaintiffs believe they need to establish in this

   3    case.

   4               THE COURT:  Does that take the issue out of the

   5    case?

   6               MR. LUPERT:  That is a question I think that is

   7    put to Mr. Meserve.  We found the stipulation to be

   8    confusing in two respects.  Obviously we very much would

   9    like to streamline the trial, as well, Judge.  We need to

  10    prove, according to your Honor's prior rulings, secondary

  11    uses, and we also have to prove a threat of repetition in

  12    the future.  And in order to prove a threat of repetition in

  13    the future, it would be necessary for us to put in evidence

  14    of what happened in the past, because it is directly

  15    relevant to the question of conduct in the future.

  16               THE COURT:  Mr. Meserve is not saying that they

  17    would stipulate that they would intend to use it in the

  18    future.

  19               MR. LUPERT:  Would that suffice for a ruling from

  20    the court that in fact if we prove the other element in the

  21    case, which is the falsity of the methodology, that an

  22    injunction would issue?

  23               THE COURT:  It goes to one issue and it would be

  24    relevant to that one issue.  As I understand it, the issue

  25    is whether there is a need for injunctive relief because


   1    there is indeed a threat of repetition.

   2               I understood the substance of the proposed

   3    stipulation is we concede that we would repeat, and,

   4    therefore, there is no need for the plaintiff to prove a

   5    risk of repetition.  Is that accurate?

   6               MR. MESERVE:  Your Honor, so it would be

   7    completely clear, the stipulation had to do with the 1988

   8    survey and what we would have done, and we are agreeing that

   9    but for their complaints they would have been circulated to

  10    librarians.  That survey is a 1988 survey.  It served no

  11    purpose for any commercial use now.  In fact the plaintiffs

  12    are seeking an injunction to bar a hypothetical future use

  13    of a hypothetical future survey.

  14               THE COURT:  Using the same methodology?  What

  15    they are really seeking, as I understand it, is an

  16    injunction against any future commercial use embodying the

  17    methodology in the Barschall surveys.

  18               MR. MESERVE:  That is what they are seeking.

  19               THE COURT:  Is that accurate?

  20               MR. LUPERT:  That is accurate, Judge.

  21               MR. MESERVE:  And my clients have not undertaken

  22    a survey that includes any Gordon & Breach journals.  They

  23    did undertake one for their own internal purposes in the

  24    interim, since the 1988 survey, and they have no current

  25    plans to undertake a survey or to use a survey for


   1    commercial purposes.

   2               They have said, and I'm saying to the Court, that

   3    they do not want to be precluded in the future if they were

   4    to conduct a survey, to be able to use it for commercial

   5    purposes.  They believe they should have that right.  They

   6    have not made a decision as to whether they will do that.

   7               THE COURT:  I think we have to be more concrete.

   8    The plaintiffs contend that there is a significant danger of

   9    repetition of such magnitude as to meet the standards for

  10    injunctive relief.  Is that a conceded issue or a disputed

  11    issue?

  12               MR. MESERVE:  I believe, your Honor, that it is

  13    our intention here to take that issue out of the case, and

  14    so, your Honor, that is a conceded issue.

  15               MR. LUPERT:  This really will have some impact on

  16    the trial.  If you will bear with me for just a second so

  17    that the plaintiffs can make sure that they really

  18    understand what this is really all about.  It really is a

  19    very important point to us.

  20               THE COURT:  Do you want to take a few moments?

  21    Do you want a recess?

  22               MR. LUPERT:  I would like to talk to Mr. Meserve

  23    about what he is going to be doing.

  24               THE COURT:  One other matter.  And that is, I

  25    notice that there are a number of people in the courtroom.


   1    Are any of them fact witnesses and is there any request that

   2    witnesses be excluded from the trial?

   3               MR. MESERVE:  We have two expert witnesses who

   4    are present in the courtroom.  And we have Dr. Brodsky, who

   5    is a party representative, who is at the counsel table.

   6               MR. LUPERT:  We have in the courtroom, so that I

   7    can introduce them, your Honor, this is Martin Gordon, who

   8    is the principal of the plaintiff companies, and sitting

   9    immediately to his right is Roger Green, who is a senior

  10    executive of one of the companies, and immediately to

  11    Mr. Gordon's left is Gloria Korenberg, who is also an

  12    officer.  One of them is clearly going to testify.

  13    Mr. Gordon is the party representative and Mr. Green may

  14    testify on rebuttal, if it is necessary.  Frankly, I don't

  15    have any objection to witnesses being here.  It is not that

  16    kind of a case in my view.  Mr. Meserve, if you agree, I

  17    won't make an issue of it.

  18               MR. MESERVE:  If you don't mind, your Honor, we

  19    are going to be conferring in any event on the other issue,

  20    would you mind if I confer with my co-counsel on that point?

  21               THE COURT:  Let's take a recess.  Advise

  22    Mr. Kenneally when you are ready to proceed.

  23               MR. LUPERT:  Thank you, Judge.

  24               (Recess)

  25               THE COURT:  All right.  This is out of hand.


   1    We'll start the trial.  We'll leave this issue unresolved.

   2    You can discuss it at lunch, you can discuss it at 4:30, but

   3    the trial should begin.

   4               MR. LUPERT:  I had sent my colleague to get the

   5    counsel for the defendants.  We had drafted something.  I

   6    think they were just taking a look at it.

   7               (Pause)

   8               THE COURT:  The plaintiff may call its first

   9    witness.

  10               MR. LUPERT:  Is the court indicating it would

  11    like to dispense with opening statements?

  12               THE COURT:  That is what the court is indicating.

  13               MR. LUPERT:  Our first witness would be

  14    Dr. George Taylor.  My partner, Mr. Plotz, will handle that

  15    examination.

  16               MR. MESERVE:  Your Honor, there was one other

  17    issue that you had asked us to deal with while you were

  18    gone, which is whether we would invoke the rule with regard

  19    to fact witnesses, and we would like to invoke the rule.

  20               THE COURT:  Who is this that you want excluded

  21    from the courtroom?

  22               MR. MESERVE:  Mr. Gordon is a party witness and

  23    he obviously can stay.

  24               THE COURT:  Yes.

  25               MR. MESERVE:  I believe that Mr. Lupert suggested


   1    that there are two other witnesses, Ms. Korenberg and

   2    Mr. Green, who have never been designated as witnesses, who

   3    he has implied may be called on rebuttal.

   4               MR. LUPERT:  Miss Korenberg won't be called as a

   5    witness.  Mr. Green possibly may testify as a rebuttal

   6    witness.  He is the single corporate official.

   7               THE COURT:  I will permit him to remain in the

   8    courtroom.

   9               MR. LUPERT:  Thank you, judge.


  11         called as a witness by the plaintiffs,

  12         having been duly sworn, testified as follows:


  14    BY MR. PLOTZ:

  15         Q.    Dr. Taylor, what is your profession?

  16         A.    I am an electrical engineer.

  17         Q.    What is your area of expertise?

  18         A.    Ferroelectricity.

  19         Q.    What is your educational background?

  20         A.    I have a bachelor of engineering degree with

  21    first class honors.  I have a doctor of philosophy in

  22    electrical engineering.  I have a doctor of engineering.

  23    And I have an honorary doctor of science degree.

  24         Q.    Since the completion of your education, could you

  25    just very briefly describe what you have done and how you


   1    have been employed since then?

   2         A.    I worked for seven years at RCA's research

   3    laboratories in Princeton, New Jersey.  I then started a

   4    company in the area of liquid crystal displays and

   5    electronic watches.  This company was sold to Fairchild

   6    Semiconductor in the mid-'70s.  I then had a consulting

   7    company called Princeton Resources, which operated for about

   8    20 years doing all types of consulting work in high

   9    technology areas but largely focused on materials,

  10    ferroelectric and related materials, and applications of

  11    these materials, and most recently I have started a new

  12    company called Ocean Power Technologies, which is devoted to

  13    developing a new method of generating low-cost clean

  14    electricity from ocean waves using ferroelectric polymers.

  15         Q.    Are you the editor of any journals?

  16         A.    Yes.  I am the founding editor of the

  17    International Journal of Ferroelectrics, and also of the

  18    related journals, Ferroelectrics Letters and Integrated

  19    Ferroelectrics.

  20         Q.    When was the journal Ferroelectrics founded?

  21         A.    The journal Ferroelectrics was founded in 1970.

  22         Q.    Are you a member of any professional societies?

  23         A.    Yes, I am a member of the American Physical

  24    Society.  I am a member of the Institute of Electrical and

  25    Electronic Engineers.  I am a member -- I am a fellow of the


   1    British Institute of Electrical Engineers.  And I am a

   2    fellow of the Institute of Engineers of Australia.

   3         Q.    Dr. Taylor, just so we have some context here,

   4    could you, in as lay terms as possible, just briefly

   5    describe what ferroelectrics is?

   6         A.    Ferroelectrics are a class of materials which are

   7    dielectric in nature.  They are materials which have a

   8    reversible polarization.  This polarization relates to the

   9    way the electrical dipoles exist inside the material.  But

  10    perhaps to put it in perspective, a very broad class of

  11    materials are dielectric materials.  Dielectric materials,

  12    one class of materials, semiconductor materials are second

  13    class magnetic materials or third class, and there are other

  14    classes of materials.  Focusing on the dielectric materials,

  15    dielectric materials break down first into two categories,

  16    pyroelectric materials and nonpyroelectric materials.  The

  17    pyroelectric materials, in turn, breakdown into

  18    piezoelectric materials and nonpiezoelectric materials.  The

  19    piezoelectric materials then break down again into

  20    ferroelectric materials and nonferroelectric materials.  So

  21    ferroelectric materials are a small section of this very

  22    broad category of dielectric materials.  But they are a very

  23    important group because they have very outstanding

  24    properties, which make them very interesting from a physics

  25    viewpoint and make them very interesting from an


   1    applications viewpoint.

   2         Q.    I'll come to that in a moment, but I wanted to

   3    ask you first whether there is a broad branch of physics

   4    that ferroelectrics belongs to?

   5         A.    Ferroelectrics fits under -- above the dielectric

   6    category which I just explained.  Above that is solid state

   7    physics.

   8         Q.    And is another term for that is condensed matter

   9    physics?

  10         A.    Condensed matter is another term which is a

  11    little broader than solid state physics because it covers

  12    certain types of liquids and certain types of gases.

  13         Q.    Do you have an idea of roughly how many people in

  14    the world focus their work in ferroelectric materials?

  15         A.    I would think in the neighborhood of 2,000 people

  16    at the moment.  But there are certain countries like China

  17    and India where there are ever increasing numbers of people

  18    working in these materials.

  19               THE COURT:  When you say working in these

  20    materials, were you talking about researchers or lab

  21    technicians, or what does that encompass?

  22               THE WITNESS:  Yes, I am talking about

  23    professional researchers.  These would be physicists,

  24    chemists, ceramicists, electrical engineers, electronic

  25    engineers, not the supporting staff.


   1         Q.    And what are some of the practical applications

   2    that the work in ferroelectric materials has?

   3         A.    Ferroelectric materials have been utilized for

   4    approximately 50 to 70 years, and there are literally

   5    hundreds of applications.  They are used for sensors.  They

   6    are used to sense pressure and temperature.  More exotic

   7    forms of these would be, infrared cameras for night vision

   8    use ferroelectric materials.  They are used in the memory,

   9    computer memories.  The latest generation of semiconductor

  10    chips have a thin layer of ferroelectric which provides a

  11    permanent memory for the information without the need for

  12    electrical power supply.

  13               They are used for electronic displays.  The most

  14    suitable liquid crystal displays that we use in our portable

  15    television and in our computer displays are ferroelectric

  16    liquid crystals.

  17         Q.    You testified a few moments ago that you were the

  18    co-founder of the Journal of Ferroelectrics.  Who founded it

  19    with you?

  20         A.    A friend of mine, Dr. Isaiah Lefkowitz, and

  21    myself discussed the founding of the journal in 1969, one

  22    year before the first issue came out.

  23         Q.    What was the reason that the two of you decided

  24    to start this journal?

  25         A.    We both worked in the field, and we realized that


   1    the articles on ferroelectricity were spread over many, many

   2    journals in many, many countries.  There was no one journal

   3    which had any significant percentage of its articles devoted

   4    to ferroelectricity.  Because the field was very widespread

   5    over many countries, we felt that it would make sense to

   6    form a journal which would focus on this very important --

   7    that small field.

   8         Q.    What were some of the journals at that time that

   9    published articles in ferroelectrics?

  10         A.    The physics journals, the ceramics journals,

  11    certain chemical journals, certain engineering journals.

  12    These were journals, not only American journals but journals

  13    of the National Physical Society, physical societies in

  14    other parts of the world, and other disciplines, so there

  15    were many, many places where ferroelectric-related articles

  16    would appear.

  17         Q.    When you decided to start the journal, what did

  18    you do?

  19         A.    We -- Dr. Lefkowitz and myself spoke with people

  20    in the ferroelectrics community in different -- in the

  21    United States and overseas to gauge their opinion about this

  22    process.  There has always been a reluctance in my opinion

  23    in the scientific community to start a new journal unless

  24    there is a very good reason to do so, because there has been

  25    a very large number of journals and for this reason one


   1    doesn't want to start a new journal unless there is a real

   2    need for it.  But it became very clear after we discussed

   3    with probably 50 people that everybody felt that it made a

   4    lot of sense to have some focal central point for articles

   5    on ferroelectrics.

   6         Q.    Who were some of the people with whom you

   7    discussed the project?

   8         A.    I discussed it with Professor Von Hippel, who is

   9    a very eminent physicist at MIT.  Previous to that he had

  10    worked in Germany as a young physicist.  I discussed it with

  11    Professor Cochran who is the head of the physics department

  12    at Edinburgh University in Scotland.  Also I discussed with

  13    the Japanese community, and with the Russian community,

  14    Professor Smolensky at the Ioffe Institute in Petersberg,

  15    Professor Takagi Nagoya University in Japan.  These were

  16    some of the people that I discussed it with, and with

  17    Lefkowitz, of course, I jointly discussed it.

  18         Q.    As a result of these discussions --

  19         A.    As a result of these discussions, we felt it was

  20    a good idea to start a specialist journal in ferroelectrics.

  21         Q.    So what was your next step?

  22         A.    The next step was to decide on how to proceed

  23    with the publication, and Dr. Lefkowitz was friendly with

  24    several senior scientists at Brookhavens who had --

  25         Q.    Is that Brookhavens National Labs?


   1         A.    -- Brookhavens National Labs on Long Island, who

   2    had been involved with Gordon & Breach in publishing

   3    specialized journals.

   4         Q.    And is that how you came to Gordon & Breach?

   5         A.    This is correct.

   6         Q.    Had you had any prior relationship with Gordon &

   7    Breach?

   8         A.    Not.

   9         Q.    What was the way that you brought your project or

  10    your proposed project to Gordon & Breach?

  11         A.    Well, that is going back 28 years, but my memory

  12    of it is that we wrote a letter to Gordon & Breach, and this

  13    was followed up by a meeting with Mr. Martin Gordon.

  14         Q.    What happened as a result of that meeting?

  15         A.    As a result of that meeting, the eventual outcome

  16    of course was the formation of the journal.  But during the

  17    course of the meeting with Mr. Gordon, we discussed the --

  18    what the policy would be concerning the journal.  We felt --

  19    Dr. Lefkowitz and myself felt it was very important that the

  20    scientific community in the form of ourselves, as the

  21    potential editors, and our very eminent editorial board

  22    should control the policy of the journal, and Mr. Gordon

  23    agreed with that, that Gordon & Breach would not have any

  24    say in the editorial policy of the journal.

  25         Q.    What was the policy insofar as the scheduled


   1    publication?

   2         A.    Initially, it was decided that we would publish

   3    one volume per year, and one volume would be divided into

   4    four issues.

   5         Q.    Did that change?

   6         A.    I'm sorry.

   7         Q.    I'm sorry.  Did that change over time?

   8         A.    Yes.  As the journal grew, as it became clear

   9    that it was serving a good purpose and people wanted to

  10    publish their articles, each year the journal grew in the

  11    number of volumes.  And a very important point was that

  12    there was no limitation from Gordon & Breach in terms of the

  13    number of volumes that we could publish.  The only criteria

  14    which was our criteria, as the editors, was that the quality

  15    of the journal be maintained, that we have very good

  16    articles that were thoroughly refereed.

  17         Q.    Are you familiar with the term "flow system"?

  18         A.    Yes.

  19         Q.    What is that?

  20         A.    This is essentially what I just described, the

  21    policy of the Gordon & Breach journals, at least concerning

  22    ferroelectrics, and I believe the other journals, that there

  23    not be a set number of issues or volumes per year but the

  24    demand of the scientific community for publication should be

  25    satisfied by publishing as many as are required.


   1         Q.    Now, your first issue came out in 1970?

   2         A.    Yes.

   3         Q.    Who was on your board at that time?  Who are some

   4    of the people?

   5         A.    The people on the board at that point were -- we

   6    had about three people from the Soviet Union, Professor

   7    Shuvalov, Academician Smolensky, Professor Shuvalov,

   8    Professor Fritkin.

   9               We had from Japan Professor Nakamura, Professor

  10    Abe, Professor Hashino.  From the United States, we had

  11    Professor Cross, Professor Onsager, Dr. Silverman.  From

  12    India, we had professor Subbarao.  From Europe, we had

  13    Professor Cochran.  We had Professor Bertaut from France.

  14    We had Professor Muser from Germany.  We had a total of 40

  15    people, I believe --

  16               THE COURT:  Four-0.

  17               THE WITNESS:  Four-0, yes.

  18         Q.    Now, you've mentioned people from many different

  19    countries.

  20         A.    Yes.

  21         Q.    Was there a reason that your board consisted of

  22    researchers from many different countries?

  23         A.    Yes.  The research on ferroelectric materials and

  24    their applications was indeed being done in these many

  25    countries.  I think in the early editorial boards, we had


   1    people from at least ten countries.

   2         Q.    Let me just show you what has been marked as

   3    Plaintiff's Exhibit 730A.

   4         A.    Yes.

   5               I wonder if I could have some water.  Is that

   6    possible?

   7         Q.    Sure.

   8               And I ask you if you can identify that exhibit.

   9         A.    This exhibit is from the first issue, volume 1,

  10    No. 1, of ferroelectrics published in early 1970, and it

  11    lists the editors and the editorial board and the editorial

  12    policy.  It lists four forwords by Von Hippel, Cochran,

  13    Catalge and Smolensky, and it has the first pages of the

  14    articles that were published in that first issue.

  15               MR. PLOTZ:  The plaintiffs offer 730A.

  16               THE COURT:  Received.

  17               (Plaintiff's Exhibit 730A received in evidence)

  18         A.    And it also has on the back inside cover, which

  19    includes the notes for the contributors and the subscription

  20    rates.

  21               MR. LUPERT:  Excuse me, I was interrupted.  We

  22    had put together a set of exhibits for the court.  I don't

  23    know if they have actually been provided to the court as of

  24    this point.  We had intend today do that at the opening and

  25    it slipped our minds.


   1               THE COURT:  I don't have it.

   2               MR. LUPERT:  At the next break, if you would,

   3    we'll provide a full set to the Court.

   4         Q.    Dr. Taylor, you testified a few minutes ago that

   5    since this first issue in 1970 the journal has grown.  Have

   6    other journals -- let me start again.

   7               Have you been involved in starting other related

   8    journals with Gordon & Breach?

   9         A.    Yes.  Ferroelectrics Letters was started in

  10    the -- I think 1981 or 1980, about then, and Integrated

  11    Ferroelectrics was started about 1992.

  12         Q.    What is Ferroelectric Letters?

  13         A.    Ferroelectrics Letters is a journal which is

  14    published about every six weeks.  It is designed to give

  15    very fast publication of new areas where the area may not

  16    have been researched to its fullest, but it allows the

  17    researchers to get credit for their work.  A good example

  18    might be the discovery of a new ferroelectric material.  So

  19    the -- there would be perhaps a six-page article where the

  20    inventors or the researchers would describe their new

  21    material, but would not have gone into great detail about

  22    all the properties of the material.  It would just establish

  23    that this material for the first time had been discovered to

  24    be ferroelectric.

  25         Q.    Were Ferroelectrics Letters previously included


   1    within the general journal?

   2         A.    They were for about one year, and at that point

   3    it was felt by myself -- Dr. Lefkowitz had died at that

   4    stage -- it was felt by myself and after consultation with

   5    the editorial board at Ferroelectrics that it made sense to

   6    separate these short reports from the longer articles in

   7    ferroelectrics.

   8         Q.    What was the reason for that?

   9         A.    Just to allow for faster publication.

  10         Q.    The other journal you just mentioned was

  11    Integrated Ferroelectrics.  What is that?

  12         A.    Integrated Ferroelectrics is a new application of

  13    ferroelectric materials where the ferroelectric material is

  14    formed as a thin film and is then coupled with -- mostly

  15    with semiconductor devices.  I mentioned earlier what is

  16    called a nonvolatile memory chip which, because of the

  17    ferroelectric film, you don't need to sustain the

  18    information with an external battery.

  19               And we had begun to publish articles on this

  20    topic in ferroelectrics earlier, but because of the

  21    technical importance and commercial importance of this area,

  22    there were suddenly many more articles than had appeared

  23    previously, and there were several conferences on this

  24    subject, and it seemed a good idea to, once again, to

  25    separate it into a specialized journal which would deal with


   1    Integrated Ferroelectrics.  This is the integration of

   2    ferroelectrics with other materials.

   3         Q.    Focusing again on the journal, Ferroelectrics,

   4    what types of articles does it publish?

   5         A.    It publishes theoretical articles, experimental

   6    articles, and applications.

   7         Q.    Could you just very briefly describe what you

   8    mean by "theoretical papers"?

   9         A.    Theoretical papers deal with the explanation of

  10    the ferroelectric phenomena, why do certain materials have

  11    this reversible electrical polarization, and that's a very

  12    general area, but many different ferroelectric materials

  13    behave differently from other groups, and, therefore, it's

  14    necessary to explain this theoretically.

  15         Q.    And how about experimental papers?

  16         A.    Experimentally -- experimental papers deal with

  17    the actual measurements of the material to measure its

  18    properties and to understand its properties.

  19         Q.    And finally, what about applied papers?

  20         A.    The applied papers deal with how these materials

  21    can be used in devices and systems.

  22         Q.    Does ferroelectrics normally publish review

  23    articles?

  24         A.    Occasionally.

  25         Q.    What do you mean by "occasionally"?


   1         A.    I would think no more than one or two percent of

   2    all the papers published in ferroelectrics are review

   3    papers.

   4         Q.    And just so we're clear on terminology, what is a

   5    review paper?

   6         A.    A review paper is a paper that is written by an

   7    expert, somebody who has spent a good amount of his time and

   8    has worked in a special area of, in our case,

   9    ferroelectrics.  He writes the review article identifying

  10    the most important parts of that area that he has worked in,

  11    and it is designed to be read by people working in

  12    ferroelectrics who may not have a full understanding of this

  13    particular specialty within ferroelectrics.

  14         Q.    And what about conference proceedings?  Does

  15    Ferroelectrics publish conference proceedings?

  16         A.    Yes, Ferroelectrics publishes conference

  17    proceedings.

  18         Q.    Could you just describe what's involved in

  19    publishing those proceedings?

  20         A.    Typically, the organizers of a ferroelectrics

  21    conference will write to me and ask whether we -- the

  22    journal would be interested in publishing the proceedings of

  23    their conference, and then I make a decision, possibly

  24    consulting with many of the editorial board members or other

  25    people in the ferroelectrics community as to whether such


   1    proceedings would be of interest to the ferroelectrics

   2    community.  Usually a guest editor is appointed by the

   3    organizing committee subject to my approval, and we have set

   4    up very strict rules as to how the papers must be prepared.

   5    And by this, I mean that we insist that the articles that

   6    are published in the proceedings receive the same refereeing

   7    procedures, the same review procedures, as regular papers

   8    published in the journal.

   9         Q.    Now, you mentioned review procedures.  What are

  10    you referring to?

  11         A.    In order to make sure that the articles are of

  12    the highest quality, we follow the standard scientific

  13    procedure of a peer review where we would have two referees

  14    chosen by the editor, or in the case of a guest editor,

  15    chosen by the guest editor.  The manuscripts are then -- a

  16    manuscript is then sent to each of those referees.  The

  17    referee then reports on the standard form what his opinion

  18    of the paper is and whether it should be published as is,

  19    whether it should be rejected, or whether it could be

  20    improved by revisions.

  21         Q.    Who does the refereeing for the journal?

  22         A.    A lot of people.  They include the editorial

  23    board members, but they go well beyond that.  It is a case

  24    of finding and selecting people who are experts in the

  25    subject of the paper that is to be reviewed.


   1         Q.    What is the rejection rate for the journal

   2    Ferroelectrics?

   3         A.    On the average, over this long period of time of

   4    27 years, about one third of all papers are accepted in

   5    their first form, about one third go through revisions

   6    before they are accepted, and one third are rejected, either

   7    initially or after some revisions which are still not

   8    satisfactory.

   9         Q.    Have you served as a referee for other journals?

  10         A.    Yes.

  11         Q.    What are some of those journals?

  12         A.    I serve as a referee for the Journal of Applied

  13    Physics.

  14         Q.    Who publishes that?

  15         A.    The American Physical Society.  The American

  16    Ceramic Society Journals I have refereed for.  I have

  17    refereed for many of the European Physical Society journals.

  18    I have refereed for the IEEE transactions.

  19         Q.    What is IEEE?

  20         A.    IEEE is the Institute of Electrical and

  21    Electronic Engineers.

  22         Q.    That is another society?

  23         A.    That is another society that I am a member of

  24    also.

  25         Q.    Do you know about how many subscribers there are


   1    to the journal, ferroelectrics?

   2         A.    About 400, to the best of my knowledge.

   3               THE COURT:  You said before that there were 2,000

   4    people who were professional researchers.

   5               THE WITNESS:  Yes.

   6               THE COURT:  Is that today?

   7               THE WITNESS:  Well, as I said, in India and

   8    China, the numbers are growing very fast.  But if I go back

   9    five years, I would say 2,000 is a pretty accurate number.

  10               THE COURT:  The journal is published only in

  11    English?

  12               THE WITNESS:  Yes.

  13               THE COURT:  Would you make an estimate as to the

  14    number of English-speaking professional researchers engaged

  15    in this area?

  16               THE WITNESS:  I think the -- of the 2,000,

  17    probably the large majority of those do speak English,

  18    either native-speaking English, or it is pretty much the

  19    general language of science.

  20         Q.    Doctor, are many of the authors who contribute to

  21    ferroelectrics from non-English-speaking countries?

  22         A.    Yes.

  23         Q.    That includes Russia, Japan?

  24         A.    Russia, Japan, China, India, Brazil, all the

  25    European countries.


   1         Q.    And their articles are in English?

   2         A.    Yes.  That is one of the -- probably the biggest

   3    chores that I have is dealing with articles where the

   4    English is not satisfactory and one then has to go back and

   5    forth with the authors on the English.

   6         Q.    About what percentage of the ferroelectrics

   7    articles that are published anywhere are published in your

   8    journal?

   9         A.    It was in, up to five years ago, probably as high

  10    as 35 percent of all articles on ferroelectrics were

  11    published in the journal Ferroelectrics.  It's probably gone

  12    down to somewhere between 25 and 30 percent currently.

  13         Q.    Is there a way that you know these percentages?

  14         A.    Yes.  The journal Ferroelectrics publishes

  15    approximately twice every year a bibliography of all

  16    articles on ferroelectrics that are published in all

  17    journals in the world.  So, therefore, we know on an annual

  18    basis how many articles have been published around the world

  19    and we know of course how many are published in the journal

  20    ferroelectrics.  That's the basis for the bibliography.

  21         Q.    I'm going to hand you what has been marked as

  22    Plaintiffs' Exhibit 730B, which is volume 77 of

  23    Ferroelectrics, and ask you if that contains such a

  24    bibliography.

  25         A.    Yes, it contains two bibliographies.


   1         Q.    The first one starts at about page 167, is that

   2    correct?

   3         A.    Yes.

   4         Q.    What bibliography is that?

   5         A.    This is the bibliography that's prepared

   6    approximately every six months by Professor Toyota.  It is

   7    entitled "The Bibliography of Ferroelectrics."

   8         Q.    Now, if you turn to page 235, is there another

   9    bibliography that starts there?

  10         A.    Yes.

  11         Q.    What bibliography is that?

  12         A.    This is Professor Sidney Lang's bibliography,

  13    which is entitled bibliography of piezoelectricity and

  14    pyroelectricity.

  15         Q.    And that compiles different articles from what is

  16    in the first one?

  17         A.    It overlaps.  As I mentioned earlier,

  18    ferroelectrics is a subsection of dielectrics and a

  19    subsection of piezoelectrics and pyroelectrics.  Piezo and

  20    pyrolectric materials are very closely related to

  21    ferroelectric.  So the readers of the journal appreciate the

  22    fact that there are the two bibliographies.

  23         Q.    And about what proportion of that journal that

  24    you have in front of you, how much a percentage of that does

  25    the bibliography take?


   1         A.    In it this particular issue, the -- well, I would

   2    say the two bibliographies together combine to about 50

   3    percent of this issue.

   4         Q.    What is the purpose of publishing these

   5    bibliographies?

   6         A.    As a service to researchers around the world,

   7    they have in one place all the articles that are published

   8    in their field.

   9         Q.    Do you know if those bibliographies are used?

  10         A.    Extensively.  Researchers tell me every time I go

  11    to a conference and meet people how useful they find the

  12    bibliographies.

  13         Q.    Do you know if anyone cites to it in their

  14    research?

  15         A.    Excuse me?

  16         Q.    Does anyone cite to the bibliography in their

  17    research?

  18         A.    Yes.  I have seen citations to the bibliography

  19    quite often, but of course there is also the citation to

  20    articles within the bibliography.  So I cannot tell, when

  21    articles are cited, whether the citation came about via the

  22    bibliography or not.  But in both cases it happens.  The

  23    bibliography as a whole is cited but obviously in more

  24    instances the individual articles are cited.

  25         Q.    What are some of the other journals that publish


   1    the 70 to 75 percent of ferroelectrics articles that your

   2    journal does not publish?

   3         A.    They are numerous.  Would you like me to try and

   4    list a few?

   5         Q.    Just list a few.

   6         A.    OK.  In no order, no prescribed order.

   7               Helvetica Physica, which is the Swedish -- excuse

   8    me -- the Swiss physics journal; the Krystallographica,

   9    which is a Russian journal; the Japanese Journal of Applied

  10    Physics; the Journal of the American Ceramic Society; the

  11    IEEE Transactions on Ultrasonics, Ferroelectrics and

  12    Frequency Control; the Journal of Applied Physics; various

  13    sections of the Phys. Rev.

  14         Q.    Is that the Physical Review?

  15         A.    Physical Review.

  16         Q.    Published by the American Physical Society?

  17         A.    Published by the American Physical Society.  That

  18    is just a few of the journals.

  19         Q.    Do any of these journals cover a percentage of

  20    the ferroelectrics literature similar to your journal?

  21         A.    No.  If we say that Ferroelectrics publishes

  22    around 30 percent as a round number, the other 70 percent is

  23    distributed very widely and I doubt if there is any one

  24    journal that publishes more than 2 percent on a regular

  25    basis more than 2 percent of the total.


   1         Q.    Do those other journals that you just mentioned

   2    cover areas other than ferroelectrics?

   3         A.    Yes.

   4         Q.    Now, what do you do, as editor of ferroelectrics,

   5    to attract articles?

   6         A.    In the early years, I spoke to people,

   7    researchers, to encourage people to consider publishing in

   8    ferroelectrics, but within one or two years that was no

   9    longer necessary, the journal took a life of its own and

  10    people became aware of the journal and sought to publish

  11    their articles in the journal, so there was no need for any

  12    intensive or extensive promotion on my part.

  13               THE COURT:  Are authors compensated?

  14               THE WITNESS:  No.

  15         Q.    Do you consider that the journal has had an

  16    impact in the scientific community?

  17         A.    Yes, I think it has had a very large impact

  18    because it has focused the area of ferroelectricity, where

  19    before it was a very diffuse area, and as a result of that

  20    there as been a lot of interaction between workers in

  21    different countries, researchers in different countries,

  22    being aware and being able to easily access the work of

  23    their colleagues in other places.

  24         Q.    Has your journal been involved in sponsoring

  25    ferroelectrics conferences?


   1         A.    Yes.  Gordon & Breach has, and the journal

   2    Ferroelectrics, have sponsored many, many conferences.  This

   3    sponsorship has included financial grants to the conferences

   4    and support of the publication of the proceedings.

   5         Q.    What factors do you consider important in

   6    determining whether or not the journal has an impact in the

   7    community?

   8         A.    I think there are a number of issues that are

   9    involved in determining the impact on the community.  One of

  10    them, of course, is the quality of the papers.  The papers

  11    must be of the highest quality.  And, therefore, since we

  12    know of no better way than the peer reviewing process, we

  13    insist on very strong peer refereeing.  The speed of

  14    publication is an extremely important area, particularly

  15    when you have a fast-moving field, which applies to most of

  16    the papers in ferroelectrics.

  17               If the researcher cannot get his publication

  18    quickly, then there is a lot of value lost to the researcher

  19    in terms of his reputation, but also on the other side, if

  20    the article is not published quickly, there may be a group

  21    in another part of the world that is wasting their time

  22    doing research because somebody else has already done this

  23    research and the work is not being published.  So it serves

  24    a very important -- speed is a very critical factor in terms

  25    of impact.


   1         Q.    And how speedily does your journal, in general,

   2    try to get papers out?

   3         A.    We try to get them out as quickly as possible.

   4    And typical average time is between 6 and 12 months from the

   5    time the paper has first been received.  If a paper has to

   6    go through extensive reviewing, of course it takes longer,

   7    because you have to go back and forth between the author and

   8    the referees, but six to twelve months is typical.

   9    Sometimes we're faster.  Sometimes, for different reasons,

  10    we're slower.

  11         Q.    Besides the quality of papers and the speed of

  12    publication, are there other factors that you consider

  13    important in determining the impact of the journal on the

  14    community?

  15         A.    That the research work, for example, becomes a

  16    field which may have important commercial application.

  17    Taking the example of the liquid crystal work, the

  18    ferroelectric liquid crystal work, the impact that that has

  19    as a driver of technology has been incredible, and

  20    Ferroelectrics has been the journal which has spearheaded

  21    the publication of papers in that area.  So I consider that

  22    a very important impact issue.

  23         Q.    Are you familiar with the survey that was

  24    conducted by Professor Barschall and was published in 1988?

  25         A.    Yes.


   1         Q.    Let me just hand you what has been marked as

   2    Plaintiff's Exhibit 3, which is a copy of "Physics Today" of

   3    July 1988.

   4               MR. PLOTZ:  Your Honor, I don't know if you have

   5    a copy, but I can hand up a copy.

   6               THE COURT:  Thank you.

   7         Q.    Let me ask you, Dr. Taylor, to turn, if you

   8    would, to page 58, which consists of table 1.

   9         A.    Yes.

  10         Q.    Now, there are several -- table 1 consists of a

  11    list of journals divided into different categories.  Do you

  12    see that?

  13         A.    Yes.

  14         Q.    And just leaving the first two aside and looking

  15    at the atomic physics, condensed matter physics, nuclear

  16    physics particle physics, applied physics and

  17    instrumentation --

  18         A.    Yes.

  19         Q.    Are those branches of physics that you recognize?

  20         A.    They are branches that I recognize, but these are

  21    subjective classifications.  One can come up with a dozen

  22    other ways to classify physics, to break physics up into

  23    smaller sections.

  24         Q.    Well, just taking your Journal of

  25    Ferroelectrics --


   1         A.    Yes.

   2         Q.    -- which does not appear in this particular

   3    table, what category would ferroelectrics come in among the

   4    six that are listed here?

   5         A.    Some of the major categories it would come under

   6    would be condensed matter physics, applied physics and

   7    instrumentation.  And occasionally there are papers that

   8    deal with some the other topics, too, but those three are

   9    areas under which ferroelectric articles could appear.

  10         Q.    Now, looking at the category of condensed matter

  11    physics in table 1, are you familiar with any of the

  12    journals listed there?

  13         A.    Yes.

  14         Q.    Do you know whether the journals listed here

  15    cover specialization similar to ferroelectrics or broader

  16    areas?

  17         A.    There is only one that I'm familiar with that I

  18    would classify as a specialized journal.  That's the Journal

  19    of Magnetics and Magnetic Material.

  20         Q.    And would you classify any of the journals as

  21    being broad in scope, covering more than a single specialty?

  22         A.    Yes.  Most of the other journals are very broad

  23    in scope.

  24         Q.    Do you know whether the general journals of the

  25    American Physical Society -- which I think you said were


   1    several sections of the Physical Review, is that correct?

   2         A.    Yes.

   3         Q.    Is that Physical Review A, B, C and D?

   4         A.    Yes.

   5         Q.    Do those journals cover more than one area of

   6    specialization?

   7         A.    Yes.

   8         Q.    Which one would ferroelectrics fit into?

   9         A.    It can fit into -- you could have ferroelectric

  10    articles in most of the physical review sections.  And, in

  11    fact, you find such to be the case.

  12         Q.    Have you ever become aware, during the time you

  13    have been editor, of anyone urging authors not to contribute

  14    to Ferroelectrics on account of the price of the journal?

  15         A.    Yes, I know of two occasions, one in 1990 and one

  16    in 1996.

  17         Q.    Let's focus in first on the 1990 incident.

  18               How did you become aware of that?

  19         A.    One of my editorial board members, who is also an

  20    associate editor of the journal, Professor Sidney Lang, sent

  21    me a copy of a letter that he had received from Dr. Etzold

  22    of IBM.

  23         Q.    Let me hand to you what has been marked as

  24    Plaintiff's Exhibit 550.

  25               What is Exhibit 550?


   1         A.    550 is the copy of the letter that Professor Lang

   2    sent from -- or received from Dr. Etzold and which he sent

   3    on to me.

   4         Q.    What did you understand -- who is Dr. Etzold?

   5         A.    Dr. Etzold is a -- or was a research scientist at

   6    IBM, and had recently been appointed an associate editor of

   7    the IEEE Transactions on Ultrasonics, Ferroelectricity and

   8    Frequency Control.

   9         Q.    What was Dr. Etzold -- what was he doing in this

  10    letter?

  11         A.    The purpose of the letter, as he states in the

  12    letter, is to encourage people to publish in the UFFC

  13    transactions and not to publish in Ferroelectrics.

  14         Q.    Did he have a basis for that, a stated basis?

  15         A.    His argument was that the price of Ferroelectrics

  16    was too expensive.

  17               THE COURT:  I note it says the cost is very high

  18    from 1990, $8,220.  Is that the subscription cost in 1990?

  19               THE WITNESS:  I believe so.

  20         Q.    What did you do upon receipt of this letter?

  21         A.    I met Dr. Etzold at a conference at the

  22    University of Illinois shortly afterwards, and I had a long

  23    discussion with him, where I told him that I felt that his

  24    letter was -- did not address the -- all the issues

  25    involved.  The transactions that he had become the associate


   1    editor of published a very few numbers of papers on

   2    ferroelectrics.  Ferroelectrics was solely devoted -- the

   3    journal Ferroelectrics was solely devoted to ferroelectrics.

   4    So if a subscriber to the UFFC transactions was solely

   5    interested in ferroelectrics, he would only get a very small

   6    percentage of the articles that he was purchasing which

   7    dealt with the subject that he was interested in, whereas,

   8    if he purchased the journal Ferroelectrics, he would get --

   9    all the articles would be on ferroelectrics.

  10               So I discussed with him how one might evaluate

  11    the cost effectiveness of the two journals and determine

  12    that the cost effectiveness of -- based on that criteria,

  13    that for a researcher that was interested in ferroelectrics

  14    and not interested in the other parts of that journal,

  15    ultrasonics and frequency control, it was about six or seven

  16    times more cost effective to buy the journal Ferroelectrics.

  17    And I felt that if he was going to encourage people to

  18    publish in the UFFC transactions, it was necessary to point

  19    this out.

  20               It was also necessary to point out the speed of

  21    publication.  The UFFC transactions typically takes two to

  22    three times longer to publish any article, be it on

  23    ferroelectrics or anything else.  And the third area which I

  24    pointed out to him was that the number of articles that the

  25    UFFC was allowed to publish by their own policy was strictly


   1    limited because of page limitations.  The number of pages

   2    and therefore the number of articles were limited.

   3               Plus, there were other factors involved in

   4    comparing the two journals, one being that one journal made

   5    no page charges to the authors; the other journal, the UFFC

   6    transaction, charged about $100 a page for an author to

   7    publish --

   8               THE COURT:  Charged the author?

   9               THE WITNESS:  The author or the author's

  10    institution.

  11               THE COURT:  Is charged $100, right?  I asked you

  12    earlier whether there was compensation and you said no.

  13               THE WITNESS:  No.

  14               THE COURT:  Now you are also telling me that

  15    there is a charge to the author or the author's --

  16               THE WITNESS:  Not in the case of the journal

  17    Ferroelectrics, but in the case of this --

  18               THE COURT:  The UFFC?

  19               THE WITNESS:  The UFFC transactions, yes.

  20    BY MR. PLOTZ:

  21         Q.    Could you just describe for Judge Sand what page

  22    charges are?

  23         A.    The societies of journals, certain societies,

  24    including the American Physical Society and the IEEE, in

  25    order to reduce their publication costs, ask the author or


   1    the author's institution to support the publication by

   2    paying so much per page.

   3         Q.    And just to be clear, your journal does not do

   4    that?

   5         A.    And ferroelectrics does not do that.

   6         Q.    Do you know whether any Gordon & Breach journals

   7    do that?

   8         A.    I believe no Gordon & Breach journals do that.

   9               And the other aspect that I discussed with

  10    Dr. Etzold, which I felt that he had been unfair in not

  11    mentioning this in this letter that he had circulated, was

  12    that ferroelectrics was -- the journal Ferroelectrics was

  13    very much an international journal.  The IEEE transactions

  14    and its subscribers are largely -- excuse me -- the people

  15    who write articles for the IEEE transactions and the

  16    subscribers to the transactions are -- the majority of them

  17    are American, whereas in the case of ferroelectrics the

  18    Americans are not the majority.

  19         Q.    In your view, what is the significance of that

  20    last point?

  21         A.    That the journal Ferroelectrics is able to

  22    publish research from all over the world, and, therefore,

  23    the readers of Ferroelectrics get a much broader

  24    understanding of what is going on in the world, whereas the

  25    UFFC transactions is more limited in that respect.


   1         Q.    You testified a few moments ago that in your

   2    conversation with Dr. Etzold you pointed out that for a

   3    researcher in ferroelectrics, a subscription to your journal

   4    would be more cost effective than a subscription to the UFFC

   5    transactions.

   6         A.    Yes.

   7         Q.    What was your standard or basis for making that

   8    statement?

   9         A.    I calculated, over a three-year period, the --

  10    what it would cost to subscribe to Ferroelectrics, what it

  11    would cost to subscribe to the UFFC Transactions.  I then

  12    divided those two numbers, those three years of subscription

  13    costs, by the numbers of articles on ferroelectrics in each

  14    of the two publications.  And if my memory serves me right,

  15    the cost of the -- for the UFFC transactions was about $40

  16    per article, whereas the cost in the journal Ferroelectrics

  17    was about $6 or $7 an article.

  18         Q.    Let me show you what has been marked as

  19    Plaintiffs' Exhibit 555, and ask you what that is.

  20         A.    After I met with Dr. Etzold, I put into writing

  21    the discussion that I had had with him, the points that I

  22    had made to him, as a counter to the letter that he had

  23    circulated.

  24         Q.    And is one of the points this calculation that

  25    you just described?


   1         A.    Yes.  This is on the second page, under the

   2    subheading "Cost Effectiveness."

   3         Q.    And does this reflect that you calculated that it

   4    would have cost a ferroelectrics person $3.50 per article to

   5    subscribe to your journal and $11 for a ferroelectrics

   6    person to subscribe to UFFC transactions?

   7         A.    Yes.  That is based on an individual subscription

   8    in both -- comparing the individual subscription for both

   9    journals, yes.

  10         Q.    And above that is your calculation for library

  11    subscribers?

  12         A.    Yes.

  13         Q.    And that shows a per ferroelectrics article cost

  14    of $7 for your journal and $46 for the other journal?

  15         A.    Yes.

  16         Q.    And is that what you were referring to --

  17         A.    Yes.

  18         Q.    Now, at the time that you talked to Dr. Etzold,

  19    had you done this calculation?

  20         A.    No.  Well, let me -- this is a long time ago.  It

  21    was Dr. Etzold's letter that caused me to -- his letter to

  22    Sidney Lang and to other people that caused me to think

  23    about this, and whether I had done the calculation exactly

  24    when I met with Dr. Etzold or whether it was a few weeks

  25    later, I can't remember.


   1               THE COURT:  To whom did you send this letter?

   2               THE WITNESS:  This letter was not distributed.

   3               THE COURT:  It was not distributed?

   4               THE WITNESS:  Not.

   5               THE COURT:  I see.  You prepared this for

   6    possible distribution but did not in fact distribute it?

   7               THE WITNESS:  Exactly.

   8               THE COURT:  And this was sometime in 1990?

   9               THE WITNESS:  Yes.

  10         Q.    Did you tell anyone at Gordon & Breach about this

  11    letter from Dr. Etzold?

  12         A.    Yes.

  13         Q.    Do you remember who you told?

  14         A.    I believe I spoke to several people, which would

  15    have included Pat Bardi, who was the vice president of

  16    Gordon & Breach and in charge of editorial matters.

  17         Q.    Do you know what happened, if anything, between

  18    Gordon & Breach and Dr. Etzold after that?

  19         A.    Yes.  There were discussions which resulted in a

  20    letter of retraction by Dr. Etzold being circulated to all

  21    the people that he had written to in the first place, in

  22    which in this letter of retraction he apologized and

  23    basically said that the points that I had made were correct,

  24    that there were other factors involved.  One couldn't just

  25    simply look at the subscription price and draw the


   1    conclusion that he did.

   2         Q.    Let me hand you Plaintiff's Exhibit 551 and ask

   3    you to take a look at that.

   4               THE COURT:  Let's take a five-minute recess

   5    before we start that.

   6               (Recess)

   7               THE COURT:  Professor Taylor, you said that

   8    Dr. Etzold had sent a retraction letter?

   9               THE WITNESS:  Yes.

  10               THE COURT:  Is that in the record.

  11               MR. PLOTZ:  I just handed it up, your Honor.

  12               That is Exhibit 551, your Honor.

  13    BY MR. PLOTZ:

  14         Q.    Actually, Doctor, let me have you identify

  15    Exhibit 551.

  16         A.    Yes, 551 is a -- three letters, one of which is

  17    a -- the retraction letter, which is addressed to Professor

  18    Alex Muhler, who is on our editorial board and is also a

  19    Nobel laureate, who happens also to work for IBM, or worked

  20    for IBM in Zurich in those days.

  21               The other letters are letters addressed to

  22    Mr. Gordon, which are apologies.

  23         Q.    And one of those letters is from Dr. Etzold?

  24         A.    One of those letters is from Dr. Etzold and the

  25    other is from IBM.


   1         Q.    Now, you testified there was a later incident

   2    involving a situation where someone was urging authors not

   3    to write for your journal on the basis of its price?

   4         A.    Yes.  In August '96 --

   5         Q.    Before you get to that, I just want to go back to

   6    something and just have you clarify it.

   7               Could you look at, just briefly again, at Exhibit

   8    3, which is the Barschall article.

   9         A.    Yes.

  10         Q.    At table 1, which you were looking at --

  11         A.    Yes.

  12         Q.    One of the journals under "Condensed Matter

  13    Physics" is a journal called The Physics and Chemistry of

  14    Liquids, a Gordon & Breach journal?

  15         A.    Yes.

  16         Q.    Are you familiar with that journal?

  17         A.    No.

  18         Q.    So you don't know whether or not that is a

  19    specialized or general journal?

  20         A.    No, I don't know if it is specialized.

  21               The one that I know is specialized is the Journal

  22    of Magnetism and Magnetic Materials published by North

  23    Holland.

  24         Q.    Let's return to this second incident that we

  25    began to discuss.  Could you describe what happened on this


   1    later occasion?

   2         A.    Yes.

   3         Q.    First of all, when did this happen?

   4         A.    In August of '96, the ferroelectrics committee of

   5    the IEEE, of which I have been the secretary of this

   6    committee for 20 or more years, organizes every two or three

   7    years a conference on the applications of ferroelectrics.

   8    And the day before the conference began, our committee held

   9    a regular committee meeting and to this meeting Dr. Vig from

  10    the IEEE was invited --

  11         Q.    Who is Dr. Vig?

  12         A.    Dr. Vig is the vice president of the IEEE society

  13    entitled the Society of Ultrasonics, Ferroelectrics and

  14    Frequency Control.  This society has three component

  15    committees, of which the ferroelectrics is one of those

  16    committees.

  17         Q.    And do you know where he works?

  18         A.    He works at U.S. Army research office in Fort

  19    Monmouth, New Jersey.

  20         Q.    Continue with what happened at this meeting.

  21         A.    Dr. Vig, after we had completed our normal

  22    committee business, Dr. Vig asked to speak to the committee,

  23    and there were several topics that he spoke about, and one

  24    of these was a statement to the effect that the members of

  25    our ferroelectrics committee should publish all their


   1    ferroelectrics articles in the transactions of the

   2    ultrasonics ferroelectrics and frequency control, the UFFC

   3    transactions.  The reasons he said that this was necessary

   4    were that the ferroelectrics was too expensive and

   5    subscriptions were being canceled by certain libraries.

   6         Q.    Did he say how expensive the journal was?

   7         A.    He said about $40,000, four-zero thousand.

   8               THE COURT:  What was $40,000?

   9               THE WITNESS:  He claimed that the subscription

  10    price to ferroelectrics was $40,000, and this was too

  11    expensive.

  12         Q.    Did you say anything at this meeting?

  13         A.    Yes.  I said --

  14         Q.    What did you say?

  15         A.    -- that this number was grossly exaggerated, it

  16    was considerably less than this, and that the number of

  17    subscriptions to my knowledge, of Ferroelectrics, had not

  18    significantly decreased in recent years.

  19         Q.    What happened after this meeting?

  20         A.    I should say that before the meeting concluded,

  21    Professor Cross, who is the chairman of the ferroelectrics

  22    committee, told Dr. Vig that his comments were not

  23    appropriate, his criticism of the journal Ferroelectrics was

  24    not appropriate, and that both journals served a very useful

  25    purpose.  And, in fact, neither I nor any editorial board


   1    member of ferroelectrics over the 27 years that the journal

   2    Ferroelectrics is published has ever criticized any other

   3    scientific journal nor have we encouraged people not to

   4    publish in other scientific journals and to publish in

   5    ferroelectrics.  I personally think that this is a very bad

   6    situation where you set up a fight among scientists when

   7    both journals, and many other journals, serve very good

   8    purposes --

   9               THE COURT:  How large is that committee?

  10               THE WITNESS:  The committee is about 20 people.

  11               THE COURT:  That were present at the time?

  12               THE WITNESS:  Yes.

  13         A.    In some ways his comments and his actions

  14    reflected what Dr. Etzold had said six years previously, and

  15    what is also in my opinion very disappointing is that the

  16    journal Ferroelectrics has always had a very good

  17    relationship with the UFFC transactions, and, in fact, in

  18    the past we have co-published proceedings --

  19               THE COURT:  I was wondering about co-publication.

  20               THE WITNESS:  Yes.

  21               THE COURT:  Is the choice of the publication

  22    always mutually exclusive?

  23               (Pause)

  24               Is it ever case that the same article will appear

  25    with everyone's consent in more than one publication?


   1               THE WITNESS:  It's very rare, because an article

   2    should only be published in one place, unless there is some

   3    very extenuating circumstance.

   4               In the case of the co-publication, which took

   5    place between the two journals, of a particular proceedings,

   6    the reason why both journals decided that this was an

   7    exception that was worth doing was related to this question

   8    of internationality, that the UFFC transactions was only

   9    distributed primarily in the United States, and the feeling

  10    was that Ferroelectrics, because of its international

  11    distribution and publication, would extend the readership of

  12    the proceedings of this conference.

  13               THE COURT:  Are there, in the scientific

  14    community, the equivalent of what in the lay community might

  15    be thought of as something like a Reader's Digest?  Are

  16    there publications which are solely re-print publications?

  17               THE WITNESS:  Not that I know of.  There are

  18    copyright issues involved and, therefore, editors of all

  19    reputable scientific journals that I know will not publish

  20    an article unless the author will state that this article is

  21    not being published elsewhere.

  22               THE COURT:  All right.

  23    BY MR. PLOTZ:

  24         Q.    In fact, Dr. Taylor, had your journal,

  25    Ferroelectrics, promoted the conference at which Dr. Vig


   1    made his statements?

   2         A.    Yes.  Ferroelectrics -- excuse me, not

   3    Ferroelectrics -- Gordon & Breach had paid for a booth at

   4    the conference that followed after this committee meeting.

   5    Is this the question you -- yes.

   6         Q.    That is responsive, but let me ask you something

   7    else.

   8         A.    Yes.

   9         Q.    Let me show you Plaintiffs' Exhibit 730C, which

  10    is volume 174, numbers 1 through 2, of your journal

  11    Ferroelectrics and direct your attention near the back of

  12    the journal and ask you whether that is a call for papers

  13    for this very conference.

  14         A.    Yes.  One of the services that Ferroelectrics

  15    does for the ferroelectrics community is to advertise

  16    conferences that are being held in the area of

  17    ferroelectrics anywhere in the world, and I guess it's a

  18    measure of our openness and willingness to cooperate with

  19    the IEEE that we gladly advertise their conference, the one

  20    that occurred in August of '96.

  21         Q.    That call for papers was for papers that would

  22    ultimately be published not in your journal but in the UFFC

  23    transactions?

  24         A.    Conceivably, yes, but as it turned out the UFFC

  25    society does not publish the proceedings of the -- of their


   1    conference on applications of ferroelectrics, which makes

   2    Dr. Vig's request for people to stop publishing in

   3    Ferroelectrics rather strange, because the IEEE could easily

   4    publish, if they wanted to, many of the papers that were

   5    given at the IEEE conference on applications of

   6    ferroelectrics, but because of their budgetary

   7    considerations and because of the number of pages they are

   8    able to publish, they do not publish the articles from their

   9    ferroelectrics conferences.

  10         Q.    Between 1990, when Dr. Etzold wrote his letter,

  11    and 1996, when Dr. Vig made the comments at the meeting, had

  12    the UFFC transactions expanded its coverage of the

  13    ferroelectrics field?

  14         A.    Hardly at all.  And I imagine this is why Dr. Vig

  15    was so strongly promoting the UFFC transactions --

  16               MR. HUVELLE:  Your Honor, I think we are into the

  17    range of speculation here.

  18               THE COURT:  Sustained.  I take it you are going

  19    to be counsel in cross-examination of this witness?

  20               MR. HUVELLE:  Yes, your Honor.

  21               THE COURT:  Sustained.

  22         Q.    Let's go back to the conference.

  23               Following this meeting at which about 20 people

  24    were present that you just described, were any further

  25    comments about the journal Ferroelectrics made at that


   1    conference?

   2         A.    Yes, I made the --

   3               (Pause; Mr. Huvelle rose)

   4               THE COURT:  The fact that he rises doesn't mean

   5    that you have to be speechless.

   6               THE WITNESS:  He scares me.

   7               THE COURT:  You have to be speechless when the

   8    Court is talking or when the Court says "sustained."

   9               MR. HUVELLE:  Your Honor, I appreciate the rare

  10    instance of respect that I get occasionally.  I thought that

  11    the witness was about to go into a subsequent statement

  12    that, according to my understanding from the deposition, was

  13    not made in his presence.

  14               MR. PLOTZ:  That is true, and I am offering it to

  15    give background to what comes next.

  16               THE COURT:  It is too abstract.  Let me hear the

  17    question.  If there is an objection, then, please, give me

  18    an opportunity to rule before you respond.

  19               OK.  What is the question?

  20    BY MR. PLOTZ:

  21         Q.    The following day, Dr. Taylor, was there a

  22    general session of this conference?

  23         A.    Yes.

  24         Q.    The following day after the meeting that you have

  25    testified about?


   1         A.    After the committee meeting on the Sunday, the

   2    conference started on the Monday, the three-day conference

   3    started on the Monday.

   4         Q.    And about how many people attended that

   5    conference?

   6         A.    There were about 300 to 400 people.

   7         Q.    Did Dr. Vig speak at that conference?

   8         A.    I understand he spoke at the opening session.  I

   9    arrived -- I live in Princeton, so I did not stay at the

  10    conference, and I arrived about a half an hour after the

  11    conference had begun.  But I was told that he made some

  12    opening comments at the conference.

  13         Q.    Were you told those opening comments, in part,

  14    related to the journal Ferroelectrics?

  15         A.    I was told this, yes.

  16         Q.    What did you do, if anything, following the

  17    conference in relation to Dr. Vig's statements?

  18         A.    I spoke to the chairman of the ferroelectrics

  19    committee, Professor Cross, and voiced my dismay at this

  20    open attack on what I had considered a good relationship

  21    between the IEEE and the journal Ferroelectrics, and

  22    Professor Cross agreed with me.  I also brought it to the

  23    attention of Gordon & Breach.

  24         Q.    Do you know whether Gordon & Breach got into

  25    contact with the IEEE about this incident?


   1         A.    Yes, they did.

   2         Q.    Let me hand you what has been marked as

   3    Plaintiffs' Exhibit 552, and ask you if you can identify

   4    that?

   5         A.    This is a letter written by Gordon & Breach's

   6    attorneys to the IEEE concerning Dr. Vig's comments.

   7         Q.    Following -- well, did you review this letter

   8    before it was sent?

   9         A.    Yes, I did.

  10         Q.    Did you review it for the accuracy of its factual

  11    statements?

  12         A.    Yes.

  13         Q.    Were you satisfied --

  14         A.    I did not draft the letter in its entirety

  15    because it obviously deals with legal issues as well as the

  16    factual issues of what Dr. Vig said.

  17         Q.    But as to the factual statements in the letter,

  18    did you review the letter for its accuracy?

  19         A.    Yes.

  20         Q.    And do you know whether that letter was sent?

  21         A.    I believe it was sent.

  22         Q.    Do you know what, in general, happened following

  23    the mailing of that letter?

  24         A.    Yes.  I was told that there were discussions

  25    between the IEEE's attorneys and Gordon & Breach's attorneys


   1    about a possible way to resolve the problem.

   2         Q.    Do you know if this problem has been resolved?

   3         A.    No, to my knowledge it has not been.

   4               MR. PLOTZ:  Can I have just one moment, your

   5    Honor?

   6               THE COURT:  Yes.

   7               (Pause)

   8               MR. PLOTZ:  I have no further questions, your

   9    Honor.

  10               THE COURT:  Very well.


  12    BY MR. HUVELLE:

  13         Q.    Dr. Taylor, do you spend approximately 10 to 15

  14    hours per week on your editorial duties for Gordon & Breach?

  15         A.    Yes.

  16         Q.    You are not an employee of Gordon & Breach, are

  17    you?

  18         A.    No.

  19         Q.    Do you receive approximately $70,000 to $100,000

  20    gross per year in compensation from Gordon & Breach?

  21         A.    In recent years, because of the number of journal

  22    volumes that are published, it has reached this number, yes.

  23         Q.    Do you know what your compensation was in 1987?

  24         A.    It was much less than that, and I don't remember.

  25         Q.    Am I correct in understanding that you have


   1    exclusive responsibility for the editorial functions with

   2    respect to the journal Ferroelectrics?

   3         A.    Yes.

   4         Q.    And that Gordon & Breach does not get involved in

   5    the editorial process?

   6         A.    Yes.

   7         Q.    Do you know whether they see a proof of the

   8    articles before they are actually published?

   9         A.    The in-house editor of ferroelectrics receives

  10    copies of the page proofs of the articles.

  11         Q.    And is it true that in your 28 years -- 27 years

  12    editing the journal, that it has been your experience that

  13    Gordon & Breach does not provide you with feedback of a

  14    substantive nature with respect to those articles which you

  15    send to them in proof form?

  16         A.    I think I understand your question, but perhaps

  17    you could elaborate on it a little bit.

  18         Q.    When you send the page proofs to Gordon & Breach

  19    prior to publication --

  20         A.    I do not send them.  The printer sends them.

  21         Q.    When they are sent --

  22         A.    Yes.

  23         Q.    -- am I correct in understanding that Gordon &

  24    Breach does not send to you feedback of a substantive nature

  25    regarding the articles that are to be published?


   1         A.    That's correct.

   2         Q.    And is it true that you are the one who

   3    determines whether there are a sufficient number of pages

   4    collected to justify the publication of a new issue?

   5         A.    Yes.

   6         Q.    And am I correct in understanding that, in

   7    contrast to the editorial side of the business, where you

   8    run the show, that in terms of the business side of the

   9    journal Ferroelectrics, you know very little?

  10         A.    Correct.

  11         Q.    You have testified that, as of a couple of years

  12    ago, I believe, that you understood there were 400

  13    subscribers worldwide to the journal Ferroelectrics, is that

  14    correct?

  15         A.    That's my knowledge -- limited as it is.

  16         Q.    And am I correct that you do not know the number

  17    of subscribers to the journal Ferroelectrics in the year

  18    1987?

  19         A.    Not exactly, no.

  20         Q.    Is it true that you do not know if the number of

  21    subscribers to the journal Ferroelectrics has radically

  22    increased or decreased during the last 17 years?

  23         A.    I do not have any direct evidence as to what has

  24    happened.  I do know that the American Physical Society has

  25    published articles -- since I am a member, I read some of


   1    these journal articles that show that all journal

   2    publications, all journal subscriptions for the APS journals

   3    and therefore I think the articles suggested that throughout

   4    the scientific community their number of subscriptions has

   5    shown a decline over the last 20 or so years.  That's my

   6    only knowledge of this.

   7         Q.    But you have no idea of what year the journal

   8    Ferroelectrics had the greatest number of subscribers, do

   9    you?

  10         A.    No.

  11         Q.    And you know very little -- I'm sorry.

  12               Do you know the number of university libraries

  13    that subscribe to the journal Ferroelectrics?

  14         A.    No.

  15         Q.    Do you know the number of university libraries in

  16    the United States that subscribe to the journal

  17    Ferroelectrics?

  18         A.    No.

  19         Q.    And would your answer be the same for both of

  20    those questions as to the year 1987?

  21         A.    The first -- the last two questions applied to

  22    currently, is that correct?

  23         Q.    Is it true throughout the history of the journal

  24    Ferroelectrics that you do not know, at any time, what the

  25    number of university libraries subscribe to Ferroelectrics?


   1         A.    That is correct.

   2         Q.    And is it true that you have never asked Gordon &

   3    Breach for subscription data?

   4         A.    I think, in the early days, I was interested from

   5    the viewpoint of making sure that all the potential

   6    subscribers or all potential institutes that would want to

   7    read the journal were covered, and in those early years I

   8    talked to Gordon & Breach about mentioning, has anybody at

   9    Gordon & Breach contacted university A to find out if they

  10    are taking a subscription or want to take a subscription.  I

  11    was interested in it from a promotional viewpoint.

  12         Q.    But since 1980, for example, you have never asked

  13    for subscription data from Gordon & Breach?

  14         A.    No.

  15         Q.    And is it your understanding that -- is it your

  16    belief that the company would be reluctant to share that

  17    data with you?

  18         A.    I would think so, because it's very sensitive

  19    data and it is data that even as an editor, as being an

  20    editor for a long time, that kind of data getting into the

  21    wrong hands represents a very significant commercial

  22    problem.

  23               THE COURT:  Giving it to you wouldn't be the

  24    wrong hands, would it?

  25               THE WITNESS:  I am not an employee of Gordon &


   1    Breach, and one could imagine the scenario where I might

   2    decide that I want to be the publisher of my own journal,

   3    and knowing the subscription list would be valuable

   4    information.

   5               THE COURT:  Isn't the composition of your

   6    subscribers relevant to editorial judgments?  For example,

   7    if 90 percent of your subscribers were commercial

   8    organizations such as IBM and 10 percent were university

   9    libraries, would that impact on the editorial judgment as to

  10    how much space to devote to commercial applications as

  11    distinguished from pure theory?

  12               THE WITNESS:  No, it would not be an issue for

  13    ferroelectrics, because our only criteria about space is

  14    that the articles be good and pass the refereeing process,

  15    be significant articles, and then we will publish them.

  16    Now, if we happen to find that we were getting the majority

  17    of our articles on applications, so be it, we would publish

  18    all those articles.  Or if in another year all the articles

  19    tended to deal with basic research papers, we would publish

  20    all those, provided they had gone through the refereeing

  21    cycle.

  22         Q.    Is it true that you have no involvement in

  23    pricing issues relating to the journal Ferroelectrics?

  24         A.    That's true.

  25         Q.    You have no idea of whether Gordon & Breach


   1    considers the journal Ferroelectrics to be profitable?

   2         A.    I have no idea.

   3         Q.    You have no idea of what the profit margin is for

   4    the company on that journal?

   5         A.    No idea.

   6         Q.    It could be 20 percent, 40 percent, you don't

   7    know?

   8         A.    It might be a loss, I don't know.

   9         Q.    And it is true, is it not, that not many

  10    scientists read the Ferroelectrics journal, is that correct?

  11         A.    I think to the contrary, a lot of people read it.

  12         Q.    Is it true that in many universities in the U.S.

  13    there would be no professor or instructor with a research

  14    interest in ferroelectrics?

  15         A.    Yes.

  16         Q.    And that ferroelectrics is, in your own words, a

  17    very small scientific area?

  18         A.    Yes.

  19         Q.    And it is quite diffuse in the sense that there

  20    might be one person at one university who is interested in

  21    it and no one at the next two universities with an interest

  22    in this subject?

  23         A.    Yes.

  24         Q.    Is it your opinion that there are no other

  25    scientific journals that compete with Ferroelectrics?


   1         A.    Yes.

   2               Though perhaps we should define the word

   3    "compete."  Perhaps I said yes too quickly here.  Perhaps

   4    you could elaborate on what you mean by "compete."

   5         Q.    Do you recall in your deposition I asked you if

   6    there were any journals that competed with Ferroelectrics?

   7         A.    And I think I elaborated in that answer to that

   8    question as to why I did not consider the other journals to

   9    be competitors.

  10         Q.    I was not asking you for the reasons why.  I was

  11    asking whether it is your opinion that no other journals

  12    compete with Ferroelectrics?

  13         A.    OK.  Let me ask a legal question.  Is the Judge

  14    and the Court aware of what I said in my deposition

  15    concerning the word "compete"?

  16         Q.    Your attorney is, and he will have the

  17    opportunity to go back to that.

  18               Let me ask you about your testimony regarding

  19    percentage of articles on the subject of ferroelectrics that

  20    appear in your journal Ferroelectrics, do you recall that

  21    testimony?

  22         A.    Yes.

  23         Q.    And I believe that you said that some years ago

  24    the percentage was 35 percent appearing in your journal,

  25    Ferroelectrics?


   1         A.    Yes.

   2         Q.    Can you give us the time period that you believe

   3    that 35 percent figure applies?

   4         A.    I think 35 percent plus or minus 5 percent,

   5    because it obviously can vary from year to year.

   6         Q.    Right.

   7         A.    I would say that that number in general was true

   8    from the time the journal began in 1970 through until maybe

   9    five years ago, where the numbers may have started -- the

  10    percentage may have started to decrease from where it had

  11    been previously.

  12         Q.    So the 35 percent figure in your mind applies to

  13    the period 1984, '85, '86, '87 that we are dealing with?

  14         A.    Yes, 30 to 35 percent, yes.

  15         Q.    Am I correct that in forming your opinion as to

  16    this percentage, that what you have done is to look at the

  17    index by Professor Toyota that appears in your own

  18    ferroelectrics journal?

  19         A.    Yes.

  20         Q.    And what you've done is to go through and count

  21    the number of articles --

  22         A.    Yes.

  23         Q.    -- cited --

  24         A.    Yes.

  25         Q.    -- in that index --


   1         A.    Yes.

   2         Q.    -- or listed in that index that come from

   3    Ferroelectrics itself?

   4         A.    Yes.

   5         Q.    As compared to the total number of articles?

   6         A.    Yeah, the numerator is the number of articles in

   7    the journal Ferroelectrics, and denominator is the annual

   8    number from Toyota's bibliography.

   9         Q.    And have you actually done that calculation?

  10         A.    I did it.  I did it at the time of Etzold's -- in

  11    1990.  I have not done it on a regular basis since then.

  12         Q.    And counsel referred you to a copy of your

  13    journal in which such an index appeared.

  14         A.    Yes.

  15         Q.    And that was an index for the second half of

  16    1985, is that correct?

  17         A.    It typically runs -- the bibliography runs a year

  18    or a year and a half behind the issue of the journal that it

  19    appears in.  Is that your question?

  20         Q.    Right.  But you have the journal right there.

  21         A.    Do I have the journal?

  22         Q.    I think you do.  It may be on your left.

  23         A.    Yes.

  24               (Pause)

  25         Q.    Does that index cover the second half of 1985?


   1         A.    Yes.

   2         Q.    And could you briefly look at volume 74, nos. 1

   3    and 2, which is Defendant's Exhibit VVVVV?

   4         A.    Yes, 1 and 2, right.

   5         Q.    And is this the index for the first half of 1985?

   6         A.    Yes.

   7         Q.    This same index by Professor Toyota?

   8         A.    Yes.

   9         Q.    And you would expect ferroelectrics to appear

  10    about 35 percent of the times in those indexes?

  11         A.    Well, I said approximately.

  12         Q.    Approximately?

  13         A.    It varies from year to year, yes.

  14         Q.    And would Phys. Rev. be likely to appear at all

  15    as a publisher of articles in Ferroelectrics?

  16         A.    Could you remind me what the full title of Phys.

  17    Rev. is?

  18         Q.    I think it is the condensed matter.

  19         A.    Yes.

  20         Q.    It would be likely to appear?

  21         A.    Yes.

  22         Q.    And I take it that in your view Professor

  23    Toyota's index is the definitive place to look in terms of

  24    classification?

  25         A.    Everybody in the ferroelectrics community has


   1    accepted that.

   2         Q.    So if he says it's ferroelectrics, it's

   3    ferroelectrics?

   4         A.    I am not sure I understand what the question --

   5         Q.    You accept his classification of an article as

   6    being in the area of ferroelectrics as a --

   7         A.    Well, if you read the subtitle to his

   8    bibliography, it says "Ferroelectrics and Related

   9    Materials."  And that is also the title of the journal

  10    itself, Ferroelectrics and Related Materials.  So --

  11         Q.    So you agree?

  12         A.    No -- well, I'm not sure.  I'm just pointing out

  13    that you are saying, any article in here must be a

  14    ferroelectrics article.  I'm saying that it's defined as a

  15    bibliography of -- in its subtitle, it is a bibliography of

  16    ferroelectrics and its related material.

  17         Q.    We are not asking you for 100 percent precision,

  18    but when you make a statement regarding the percentage of

  19    ferroelectrics articles that appear in the journal

  20    Ferroelectrics, am I correct in understanding that Professor

  21    Toyota's listing of ferroelectrics articles is an

  22    appropriate place to look?

  23         A.    Yes.

  24         Q.    Let me ask you about the ferroelectrics articles

  25    that appear in other journals.


   1         A.    Yes.

   2         Q.    And I take it that when you are asked to referee

   3    for other journals, often it is with respect to an article

   4    in the area of ferroelectrics?

   5         A.    Yes.

   6         Q.    So you've seen those articles?

   7         A.    Sure.

   8         Q.    As a referee, quite apart from your own

   9    involvement as a researcher in the area, is that correct?

  10         A.    Yes.

  11         Q.    And am I correct in understanding that in your

  12    view there are no differences in the character or nature of

  13    the ferroelectrics articles that appear in these other

  14    journals as compared to the ones that appear in your

  15    journal, Ferroelectric?

  16         A.    Could you repeat that question, please?

  17         Q.    Is it true that in your view there is no

  18    difference in the character or nature of the ferroelectric

  19    articles that appear in the other journals publishing such

  20    articles, as compared to Ferroelectrics itself?

  21         A.    Provided those other journals are what I would

  22    consider to be high-quality journals.  There are some

  23    journals in the world which may have articles that I

  24    would -- because they are in those journals, I would not

  25    consider them to be of the same quality that would go into


   1    Phys. Rev. B, for example.

   2         Q.    And there is no doubt that the journals published

   3    by APS and AIP are high-quality journals?

   4         A.    Yes, they are.

   5         Q.    And is it also true --

   6               THE COURT:  One of the things which an author

   7    does -- a good author does -- is consider the level of

   8    sophistication and knowledge of the reader.  And I take it

   9    that the thrust of the question was, or an implication in

  10    the question was, whether in the articles that appear in

  11    your journal there is an assumption of higher knowledge or

  12    sophistication or an interest in the subject matter which is

  13    different from that which the author assumes in articles

  14    which appear in more generalized publications?

  15               THE WITNESS:  I understand what you are saying.

  16    But the -- as the counsel just said, I referee articles on

  17    ferroelectrics subjects for other scientific journals, and I

  18    would say that I see no difference of the type that you are

  19    discussing.

  20               I mean, there are some popular journals, like

  21    Scientific American or Nature -- or not Nature so much, but

  22    Scientific American, in which there are articles which are

  23    written in a very broad basis so a lot of people can

  24    understand them.  But if we exclude that type of article, I

  25    would say the articles that appear in other learned journals


   1    are very similar in their quality to the articles that

   2    appear in Ferroelectrics.

   3         Q.    And am I correct that there is no difference that

   4    you see in the degree of specialization of the articles on

   5    ferroelectric subjects that appear in the other journals as

   6    compared to your journal, Ferroelectrics?

   7         A.    That's correct.

   8         Q.    And as you referee for other journals, am I

   9    correct in understanding that you see articles that you

  10    would say, gee, I wish we had that for publication in

  11    Ferroelectrics?

  12         A.    Sometimes I see that.  Sometimes I see articles

  13    which I am very glad didn't come across my desk as an editor

  14    because the quality is bad and the paper is rejected.

  15         Q.    And you might reject it?

  16         A.    Yes.

  17         Q.    And you would reject it for the other magazines?

  18         A.    Yes.

  19         Q.    For the other journals, too?

  20         A.    Absolutely.

  21         Q.    But at least there would be some that you would

  22    be proud to have in Ferroelectrics --

  23         A.    Yes.

  24         Q.    -- that appear in other journals?

  25         A.    Yes.


   1         Q.    And what percentage of ferroelectric articles do

   2    you believe appear in the APS journal, Physical Review B?

   3         A.    I don't know.  I have not calculated how many

   4    articles appear in Phys. Rev. B on ferroelectrics.

   5         Q.    And you don't have an opinion?

   6         A.    I have an opinion, which I stated earlier, that

   7    the -- I don't believe there is any other journal, including

   8    Phys. Rev. B, that publishes more than a couple of percent

   9    in any one year of ferroelectric articles.  I mean a couple

  10    of percent of the total worldwide articles on

  11    ferroelectricity.

  12         Q.    Could I ask you to look at one of the -- an

  13    additional journal, an issue of Ferroelectrics from 1987.

  14         A.    Yes.

  15         Q.    Could you look at the inside flap.  Does it state

  16    that the journal publishes four issues per volume?

  17         A.    Yes.

  18         Q.    And six volumes per year?

  19         A.    Which page is this under?  The inside front

  20    cover?

  21         Q.    Right.  I think I need to withdraw the latter

  22    question, though.

  23               Does it state that it publishes four issues per

  24    volume?

  25         A.    Yes.


   1         Q.    And do you recall that in 1987 you were

   2    publishing six volumes per year?

   3         A.    I cannot be specific, but I think that was about

   4    the right number.

   5         Q.    And does it state that the subscription price per

   6    volume for a university library is $290?

   7         A.    Yes, including postage.

   8         Q.    Does it also state that it is published -- that

   9    it is printed in the United States of America?

  10         A.    Yes.

  11         Q.    And does it at the bottom of the inside flap of

  12    the front cover state the date of publication?

  13         A.    Yes.

  14         Q.    And does it state, on the outside binder, the

  15    number of pages contained in the volume?

  16         A.    Yes.

  17         Q.    Can you tell us what an issue is?  It states

  18    "four issues per volume."

  19         A.    Yes.  The average number of pages per volume is

  20    around 350, and if the flow of the papers is such that you

  21    can divide the 350 pages into four parts, each part is

  22    nominally therefore about 90 pages.  But because of the --

  23    in order to achieve the fastest possible publication we

  24    don't necessarily wait until we have one part, one part, one

  25    part and publish.  We may combine them together and have


   1    four parts published at the same time or three parts

   2    published at the same time.  There is great flexibility in

   3    this to make sure that we get the fastest publication.

   4         Q.    So when you state that there are four issues per

   5    volume, that does not mean that you send out four separate

   6    issues per volume?

   7         A.    Sometimes -- sometimes we do, sometimes we don't.

   8         Q.    And in 1987, volume 71, it reads, nos. 1, 2, 3

   9    and 4, which I have in my hand --

  10         A.    Yes.

  11         Q.    This would be an example --

  12         A.    -- of putting the four parts into one cover.

  13         Q.    So this is one volume?

  14         A.    Correct.

  15         Q.    That costs $290?

  16         A.    That is the list price advertised on the inside

  17    front cover.  I don't know what discounts or what other

  18    factors are involved in the actual pricing of the journal.

  19         Q.    It is the price stated in the journal?

  20         A.    The listed price, yes.

  21         Q.    And the number of pages is about 302?

  22         A.    Yes.

  23         Q.    And is it true that in each and every volume of

  24    Ferroelectrics, that the number of pages include many blank

  25    pages?


   1         A.    Sometimes no blank pages, sometimes a small

   2    percentage of blank pages, the reason being that in order to

   3    arrange for authors to receive free reprints, it's more

   4    economical from the printing process to start each new

   5    article on the right-hand page, which means that the

   6    preceding article, if it doesn't have an even number of

   7    pages, will finish with a blank page.  So it is a random

   8    question -- I mean it is a random statistical issue of how

   9    many blank pages there are in a particular volume or a

  10    particular issue.

  11         Q.    Roughly, every other article should end with a

  12    blank page?

  13         A.    That's if you believe in probability, yes.

  14         Q.    You would be the expert on that.

  15         A.    No, no, I'm not.  I'm not a mathematician.

  16         Q.    Isn't it also true that in this volume, ending on

  17    page 302, the last article ends on page 296?

  18         A.    The last article finishes on 296, which is

  19    followed by an author index on page 297.

  20         Q.    But the journal states that there are 302 pages,

  21    is that correct?

  22         A.    Yes.

  23         Q.    Am I correct in understanding that the six

  24    volumes published in 1987, which I have in my hand, the

  25    total cost for the six volumes is $1,740?


   1         A.    If you multiply the list price by six, yes.

   2               THE COURT:  What year was that?

   3               MR. HUVELLE:  1987.

   4         Q.    And then in subsequent years it went up?

   5         A.    Yes.  Just like your salary and my salary went

   6    up.

   7         Q.    And it now costs more than $15,000 a year?

   8         A.    I don't know.  Which type of subscription are you

   9    discussing?  Individual?  A university library?  Or

  10    corporate?

  11         Q.    A university library.

  12         A.    I don't know.  I would have to look at the issue

  13    and read off the list price off it.  I don't remember these

  14    numbers because, as I said, I'm not involved in the

  15    commercial side of it.

  16         Q.    The price of $1,740 for these journals, that's

  17    the lower price for university libraries, is it not?

  18         A.    Yes.

  19         Q.    It is not the corporate rate?

  20         A.    There is also a lower price for individuals, even

  21    lower price than that number.

  22         Q.    And if someone subscribes to the journal back in

  23    1985/'86, you agree to pay a per volume price for the year,

  24    is that correct?

  25         A.    I don't know how the journal was marketed,


   1    whether it was marketed on a so many volumes a year or

   2    whether it was marketed on a curve, whether the invoices

   3    were sent out as a per volume or whether they were sent out

   4    as blocks -- a block of volumes.  I am not familiar with the

   5    details of the billing.

   6         Q.    Am I correct in understanding that as a result of

   7    the flow system, that you might anticipate that there would

   8    be six volumes per year, total cost $1,740, but, in fact,

   9    you might publish ten volumes?

  10         A.    In that particular year, we did not.  But what

  11    you are saying is theoretically possible.

  12         Q.    And in that case, the total cost, or total price,

  13    would then be high?

  14         A.    I think -- high is a --

  15         Q.    Higher, it would be higher by four times $290?

  16         A.    Once again, I cannot give you a definite answer

  17    on that because I don't know what the marketing discounts

  18    were that might have applied.  I know that publishers often

  19    group together journals and sell the journals at a discount

  20    if the subscriber buys other journals at the same time.  I

  21    think the APS does this themselves.

  22               Once again, I just want to repeat that I am not

  23    the person to ask about pricing issues because I'm not

  24    involved in the commercial aspects of the journal.

  25         Q.    All you know is the price of $290 as stated in


   1    the journal itself?

   2         A.    As a list price, yes, including airmail delivery,

   3    which can be quite expensive, by the way.

   4         Q.    And it was printed in the United States in 1987,

   5    according to the journal?

   6         A.    Yes -- '87 -- yes, '87, yes.

   7         Q.    And in 1987, there was no airmail service within

   8    the United States, is that correct?

   9         A.    I don't know.  I believe there was airmail.

  10         Q.    Do you know that?

  11         A.    I'm not an expert on postal rates, either.  But

  12    my memory -- I'm pretty sure there was airmail inside the

  13    United States.

  14         Q.    Let me ask you about the IEEE Transactions

  15    journal on ultrasonics.  Did I get the title right?

  16         A.    You got one third of the title.

  17         Q.    Am I accurate as to the one third I stated?

  18         A.    The first third you were right.

  19         Q.    If we may dispense with the second two thirds?

  20         A.    Certainly.

  21         Q.    Thank you.

  22               That brings us to the dispute with Dr. Etzold of

  23    IBM, is that correct?

  24         A.    Correct.

  25         Q.    And Dr. Etzold -- you got a copy of Dr. Etzold's


   1    letter --

   2         A.    Yes.

   3         Q.    -- that Dr. Lang had sent to you?

   4         A.    Yes.

   5         Q.    And Dr. Etzold had expressed outrage at the high

   6    price of the Ferroelectrics journal?

   7         A.    Yes.

   8         Q.    And you did a calculation and determined that for

   9    the three-year period prior to the date of this incident,

  10    which I believe was in 1990, that the subscription price for

  11    Ferroelectrics was $9,120?

  12         A.    I would have to look at it, but I believe that's

  13    what I said -- here it is.

  14               Yes, $9,120 for three years.

  15         Q.    And that's for --

  16         A.    Covering volumes 71 to volume 100.

  17         Q.    That is for an academic library?

  18         A.    A university library, yes.

  19         Q.    And for this same period, the subscription price

  20    for the IEEE journal was $507?

  21         A.    The subscription price -- stated subscription

  22    price to a university library for the IEEE was $507 for

  23    three years.

  24         Q.    Just for clarification, the IEEE journal is not

  25    published by APS or AFP, is it?


   1         A.    That's correct.

   2         Q.    I take it that in your view it would not have

   3    been fair simply to compare the overall price of the IEEE

   4    journal, $507, to the price of Ferroelectrics, $9,120?

   5         A.    It would not have been fair if the reader of both

   6    journals was only interested in the topic of ferroelectrics.

   7         Q.    And so you did a cost effectiveness analysis, did

   8    you not?

   9         A.    Yes.

  10         Q.    And is it your testimony that that analysis that

  11    you performed was a fair and reasonable analysis of the

  12    relative value of these two journals?

  13         A.    Yes, for somebody who is interested solely in

  14    ferroelectric articles.

  15         Q.    And you took the total number of papers appearing

  16    in the IEEE journal that were devoted to ferroelectrics?

  17         A.    I took the number that the IEEE themselves

  18    identified as being ferroelectric articles.

  19         Q.    And you then divided that into the total

  20    subscription price?

  21         A.    Yes.

  22         Q.    And you got a cost per ferroelectrics article?

  23         A.    Yes.

  24         Q.    And you did the same as to the ferroelectrics

  25    journal?


   1         A.    Yes.

   2         Q.    But you included all the articles, because they

   3    all deal with ferroelectrics?

   4         A.    Well, we are comparing subscribing to

   5    ferroelectrics as opposed to subscribing to the UFFC

   6    transactions, yes.

   7         Q.    But the number you divided into the subscription

   8    price was the total number of articles?

   9         A.    Yes.

  10         Q.    And you did it this way because you were looking

  11    at it from the point of view of an individual who was only

  12    interested in ferroelectrics articles?

  13         A.    Yes.

  14         Q.    And I take it if someone was interested in all of

  15    the articles in the IEEE journal, then you would take the

  16    total number of articles in the IEEE journal and divide that

  17    into the price to get a per article cost?

  18         A.    There would be no purpose to doing that, because

  19    the people who work in frequency control, which is the last

  20    third of the title of that transaction, generally are not

  21    people who are interested in ferroelectrics.

  22         Q.    And you calculated a price per ferroelectrics

  23    article for your ferroelectrics journal?

  24         A.    Yes.

  25         Q.    And you did the same for IEEE, a price per


   1    article?

   2         A.    For the ferroelectrics articles.

   3         Q.    For the ferroelectrics articles?

   4         A.    Yes.

   5         Q.    Would I be correct in understanding that you

   6    would get essentially the same result in terms of comparison

   7    between the two articles if instead of calculating the

   8    dollar cost per article you had looked at the dollar cost

   9    per page of the articles devoted to ferroelectrics?

  10         A.    No, I don't think so.  I think you would have to

  11    -- if you want to do it on a per-page basis, you have to

  12    measure the number of pages of ferroelectrics articles in

  13    both journals.

  14         Q.    Right.  Would you also have to take into account

  15    whether the pages were approximately the same size?

  16         A.    If that is your measure of -- if you want to

  17    count the number of printed characters, for example, which I

  18    don't think is a particularly comprehensive way of judging

  19    the value, which is what we are talking about -- cost

  20    effectiveness -- one could do that.

  21         Q.    It's a cumbersome process, isn't it, to count the

  22    characters?

  23         A.    Well, not that cumbersome.  You simply take an

  24    average page and you count the number of characters on that

  25    page and then you multiply by the number of pages, that is


   1    correct.

   2         Q.    If the ferroelectrics articles in the journal

   3    Ferroelectrics and the ferroelectrics articles in the IEEE

   4    journal had the same number of characters, you would get the

   5    same result as what you got?

   6         A.    Yes.  Yes.

   7         Q.    So it's just a different way of doing the

   8    analysis?

   9         A.    Yes.  But it's like -- it's almost like counting

  10    the -- when you start to get into that kind of detail, it's

  11    like counting the number of angels on a pinhead.  The real

  12    issue is not the length of the article, it's the question of

  13    the quality of the article.  And ferroelectrics has made a

  14    point of deciding what length of the article is not in order

  15    to fill out pages or, on the other hand, to restrict the

  16    cost of publication by having less pages but simply to

  17    determine by the referees, for the referees to determine if

  18    a paper is too long or too short.  In other words, there is

  19    no point in publishing articles that are too long.  It is

  20    wasting the reader's time.

  21               Authors are requested to make their arguments

  22    concise, and, therefore, I don't think your concept of

  23    measuring the numbers of characters in an article as a way

  24    of determining its worth is the end-all of judging the value

  25    and the worth of an article.


   1         Q.    But it is a possible way?

   2         A.    It's a possible way, yes.

   3         Q.    And you have no reason to think that the length

   4    of the ferroelectrics articles that appear in your journal

   5    Ferroelectrics differs from the length of ferroelectric

   6    articles that appear in the other reputable journals?

   7         A.    I don't know.  The reason is that I have never

   8    looked at the articles in that way.  I've never used that

   9    criteria.  So I can't answer that.

  10               I do know that the -- that some of the other

  11    journals, including the IEEE, do put a very strict page

  12    length irrespective of the quality of the paper.  It may be

  13    a very good paper but the author is restricted in the length

  14    of his article and also there is a financial penalty for

  15    having a long article because the -- his institution then

  16    has to pay more page charges.

  17               So, for example, I know that people from Eastern

  18    Europe, where hard currency is very critical, are forced to

  19    reduce the size of their articles below what they would like

  20    them to be, because they just don't have the money to pay

  21    page charges.

  22         Q.    Isn't it true in science, as it is in law, that

  23    sometimes a restriction on how much you can write actually

  24    increases the quality of the article?

  25         A.    Sometimes yes, sometimes no.  If you have a very


   1    complicated topic in law, I'm sure you can't do it in one

   2    page; I'm sure it takes a lot of pages to make the points.

   3         Q.    In your opinion, Dr. Taylor, do the articles that

   4    appear in Ferroelectrics contribute to subsequent research

   5    by practitioners in the field?

   6         A.    Yes.

   7         Q.    And is it your expectation that those subsequent

   8    researchers would rely on material that they learn from your

   9    ferroelectrics journal, would cite the journal in their own

  10    articles?

  11         A.    Sometimes yes, sometimes no.

  12         Q.    Would this same answer apply to other journals

  13    that these authors would rely on?

  14         A.    I don't know.

  15         Q.    Are you familiar with the ISI --

  16         A.    Yes.

  17         Q.    -- organization?  That's the organization that

  18    compiles and makes available data on citations and

  19    scientific journals, is that correct?

  20         A.    Yes.

  21         Q.    And the journal Ferroelectrics has been accepted

  22    by ISI as one of the journals that's worthy of inclusion in

  23    their analyses, is that correct?

  24         A.    I believe so.

  25         Q.    And that's not true of all scientific journals,


   1    is it?

   2         A.    That's correct.

   3         Q.    You have to meet a certain threshold in terms of

   4    quality and reliability?

   5         A.    Yes.

   6         Q.    But during the 1987 period, the ferroelectrics

   7    journal did appear in ISI, is that correct?

   8         A.    Yes.

   9         Q.    And then in 1993, about, it was dropped by ISI,

  10    wasn't it?

  11         A.    It was dropped for one year, and I forget which

  12    year it was.  I think it was later than '93.

  13         Q.    And that was over a concern regarding the

  14    regularity of publication by the ferroelectrics journal?

  15         A.    I don't believe so.  I think there was some

  16    confusion as to why it was dropped.  One statement was made

  17    that it was a question of regularity.  But if you look at

  18    the regularity numbers, the journal has been extremely

  19    regular and publishes monthly.

  20         Q.    But one of the people who made the statement that

  21    it was over regularity, that that was the issue, was you in

  22    your deposition?

  23         A.    Somebody told me that.  But when I went back to

  24    look at the regularity, the regularity was as good them as

  25    it is now and as it was in 1990.  So for some other reason,


   1    I can only assume, or some misunderstanding by the person at

   2    ISI, it was stated to me that it was a question of

   3    regularity.  But when I looked at the -- after I heard this

   4    and went back and looked at the regularity, the regularity

   5    was quite good.

   6         Q.    Have you also seen correspondence suggesting that

   7    the reason for it being dropped was its declining impact

   8    factor numbers?

   9         A.    No, and it is now -- it was reinstated after one

  10    year, so I think if that was the reason, whatever changes in

  11    impact factor occurred would not have been dramatically up

  12    or down in the course of twelve months.

  13         Q.    And you were very pleased when it was reinstated?

  14         A.    I was pleased, yes.

  15               THE COURT:  Approximately how much longer do you

  16    have?

  17               MR. HUVELLE:  I don't have very much, but I do

  18    have to look for one document.  So if we were going to take

  19    a lunch break --

  20               THE COURT:  How long is your redirect?

  21               MR. PLOTZ:  Very short, your Honor.

  22               THE COURT:  We will take the luncheon recess.

  23               We will resume at 2 o'clock.

  24               (Luncheon recess)



   1                 A F T E R N O O N   S E S S I O N

   2                             2:15 p.m.

   3               THE COURT:  Good afternoon.  I'm sorry for the

   4    delay.


   6               Resumed, and testified further as follows:

   7               THE COURT:  Mr. Taylor, I have been wondering

   8    about, over lunch, hasn't the Internet and the Web and these

   9    other devices, hasn't that impacted significantly on what we

  10    have been talking about?

  11               THE WITNESS:  Not yet.

  12               THE COURT:  Not yet?

  13               THE WITNESS:  Not yet.  I think it's a -- my

  14    opinion is that it's -- this is for scientific journal

  15    publication generally you mean?

  16               THE COURT:  Yes.

  17               THE WITNESS:  Yes.  I think the jury is not in as

  18    to what's going to happen with that.  Because peer review is

  19    a very important part of scientific publication, and if

  20    people can put their articles up on the Web without them

  21    having been refereed or reviewed, then there are some

  22    questions as to how good the article might be.

  23               THE COURT:  But if an organization wishes to

  24    disseminate information to an audience as small as 400

  25    subscribers, is not some type of electronic communication


   1    the more efficient and expeditious manner of doing this?

   2               THE WITNESS:  I think it may well be.  The exact

   3    way it will work is probably still to be sorted out.  In

   4    fact, we have just established a Web site for

   5    ferroelectrics, at least at some level of communication, and

   6    we are about to begin what we call our first virtual

   7    conference on ferroelectrics, where we will try to

   8    experiment with some of the procedures that might ultimately

   9    be the way to go.  Yes.

  10               MR. HUVELLE:  Thank you, your Honor.  I will just

  11    have about five minutes, I believe.

  12    CROSS-EXAMINATION (Resumed)

  13    BY MR. HUVELLE:

  14         Q.    Dr. Taylor, you spoke before about the desire on

  15    your part to ensure that articles are published rapidly --

  16         A.    Yes.

  17         Q.    -- in the journal Ferroelectrics.

  18               Am I correct in understanding that underneath the

  19    title of each article is listed the date on which the

  20    article was received by the editor?

  21         A.    Yes.

  22         Q.    One can compare that date to the publication date

  23    on the bottom left-hand corner of the inside of the front

  24    cover?

  25         A.    Yes.  There is also a variation on that, and that


   1    is, if the article has had to be revised, there may be under

   2    the title of the article also the date that the article was

   3    received in final form, at which point it then went to the

   4    printers to be typeset.

   5         Q.    If we could just quickly look at a couple of

   6    examples.  In Volume 73 --

   7         A.    73?  74.

   8         Q.    74, No. 3.

   9         A.    75, No. 3.

  10         Q.    That's what I meant.

  11         A.    I understood.

  12         Q.    Could you look at page 345.

  13         A.    345.  Yes.

  14         Q.    What is the date on which that article was

  15    received by the editor?

  16         A.    The date that the article was received by, the

  17    guest editor in this case, Dr. Betz, was December 10, 1985.

  18         Q.    And that was an article that was, or a paper,

  19    that was presented at a conference held in 1984?

  20         A.    Correct.

  21         Q.    And then that edition of Ferroelectrics

  22    containing articles from that 1984 conference was published

  23    in, what?  October 1987?

  24         A.    Correct.

  25         Q.    Can you look at the other issue that I gave you,


   1    which I think is Volume 74 --

   2         A.    Yes.

   3         Q.    -- nos. 1 and 2.

   4         A.    Yes.

   5         Q.    Can you look at page 3.

   6         A.    Yes.

   7         Q.    What is the date on which that article was

   8    received?

   9         A.    It was initially received on the 24th of June

  10    '85, and in final form 30th -- 20th of July, 1986.

  11         Q.    When was it published?

  12         A.    And it was published in July of '87.

  13         Q.    In that case, was it received by you as editor?

  14         A.    This one was received by me, yes.

  15         Q.    Could you look at page 69.

  16         A.    69.  69 is in the middle of an article.

  17         Q.    Sorry, 61.

  18         A.    61.

  19         Q.    When was that article received?

  20         A.    29th of March, 1986.

  21         Q.    Let me ask you about your compensation.

  22         A.    Yes.

  23         Q.    Are you paid on a royalty basis?

  24         A.    I am paid on -- for so -- for every volume that

  25    is published.


   1         Q.    Previously, were you paid on a percentage basis?

   2         A.    Yes.

   3         Q.    Was that 10-percent of the subscription income?

   4         A.    Yes.

   5         Q.    And so in 1987, for example --

   6         A.    Right.

   7         Q.    -- that would be -- one would need to calculate

   8    the number of subscriptions at an individual price, which

   9    was $145, the number of subscriptions at a university price,

  10    which is $290, and then the number of subscriptions at a

  11    corporate price, which was $475, I believe?

  12         A.    Yes.

  13         Q.    Is that correct?

  14         A.    Yes.

  15         Q.    And you do the multiplication and the addition?

  16         A.    Right.

  17         Q.    And then take 10-percent of that?

  18         A.    Right.

  19         Q.    And for what period of time were you calculated

  20    on such -- were you compensated on such a royalty basis?

  21         A.    Well, that -- if that's what you mean by

  22    "royalty," this is the way the compensation is -- has always

  23    been, on this basis, from the beginning.

  24         Q.    Are you given information that allows you to

  25    determine whether you have been compensated properly?


   1         A.    I have the right, if I want to exercise it, to go

   2    and see the books of Gordon & Breach.

   3         Q.    Including the number of subscriptions in each of

   4    those categories?

   5         A.    I presume so.  I have never done this.  So I

   6    don't know.

   7         Q.    You just accept the check --

   8         A.    But in the contract -- in my contract, I'm

   9    entitled, if I disagreed with the compensation, to look at

  10    the books of Gordon & Breach.

  11         Q.    But you have never done that?

  12         A.    I have never done it.

  13               THE COURT:  You had three subscriptions, right?

  14    Do you get a breakdown or do you just get a check?

  15               THE WITNESS:  I get a -- I get a check, with the

  16    total -- with the total amounts involved.  There are three

  17    different journals, so --

  18               THE COURT:  So you don't know when you get a

  19    royalty check what the number of subscribers is in each

  20    category?

  21               THE WITNESS:  I get a -- I get the amount of

  22    money in each category, not the number of subscribers.

  23               THE COURT:  Then it's simple division, then,

  24    isn't it?  You get the amount of money in each category and

  25    you know what the subscription rate for that category is,


   1    and it's just simple division --

   2               THE WITNESS:  Less whatever discounts are

   3    involved.  It's -- yes.  Yes.

   4         Q.    And you have never done the division?

   5         A.    Never bothered to do it in detail.  I mean, I've

   6    looked at it in general but never bothered to calculate it.

   7               MR. HUVELLE:  Your Honor, with respect to the

   8    exhibits relating to Dr. Vig, we also have an exhibit that

   9    includes two additional letters that were part of the back

  10    and forth.  That is Defendants' Exhibit TTTTT, five T's, and

  11    I think there was an objection to two of those letters.

  12               THE COURT:  Well, you are offering it?

  13               MR. HUVELLE:  I would like to offer it.

  14               THE COURT:  But not through this witness?

  15               MR. HUVELLE:  Well, yes, I --

  16               THE COURT:  Does this witness have any knowledge

  17    of this?  Does he know?

  18               MR. HUVELLE:  I can -- this includes the

  19    correspondence that he has identified.

  20               THE COURT:  Yes.  So it includes two additional

  21    documents?

  22               MR. HUVELLE:  Right.  Which are the response --

  23    there is an exchange of letters.  They put in one side of

  24    the letter, and I just want to put in the response letter or

  25    the letter to which it responded.


   1               THE COURT:  The response from?

   2               MR. PLOTZ:  It's from the lawyer for the IEEE,

   3    and we do object to that.

   4               MR. HUVELLE:  Well, they put in the letter from

   5    Mr. Lupert to IEEE, and then they object to the response to

   6    Mr. Lupert's letter.

   7               MR. PLOTZ:  Well, Mr. Lupert's letter was a

   8    letter that this witness reviewed and -- was able to

   9    identify and reviewed for accuracy.  The letter from the

  10    lawyer for IEEE is double hearsay.  It provides an account

  11    of events told to that lawyer by someone else who has not

  12    been deposed and is not a witness in this case.  And we

  13    object on the grounds of hearsay.

  14               MR. HUVELLE:  Well, your Honor, we are offering

  15    it as part of the sequence.

  16               THE COURT:  I don't know what rule of evidence

  17    that is.  Did you ever see that?  Show Mr. Taylor that

  18    letter.

  19               MR. HUVELLE:  Yes.

  20    BY MR. HUVELLE:

  21         Q.    Can you look at the exhibit that I have placed in

  22    front of you, which is TTTTT?

  23         A.    Yes.

  24         Q.    The first letter is a letter dated September 24,

  25    1996 from Mr. Lupert; is that correct?


   1         A.    Yes.

   2         Q.    Attached to that is a proposed IEEE statement; do

   3    you see that?

   4         A.    Yes.

   5         Q.    Is it correct that Mr. Lupert drafted that

   6    statement?

   7         A.    Well, I don't know whether Mr. Lupert drafted it.

   8         Q.    You did not?

   9         A.    No.

  10         Q.    Did you review Mr. Lupert's letter?  Have you

  11    seen it before?

  12         A.    I think I've seen it before, yes.

  13         Q.    And the next document is a letter dated October

  14    16, 1996, again from Mr. Lupert to Sandra Edelman?

  15         A.    Yes.

  16         Q.    Do you see that?

  17         A.    Yes.

  18         Q.    Have you seen that letter before?

  19         A.    I can't remember whether I have seen that letter.

  20         Q.    Can you look at the third one, the October 21,

  21    1996 --

  22         A.    Yes.

  23         Q.    -- letter to Mr. Lupert?  Is this the letter that

  24    responds to the substance of the September 24 letter?

  25         A.    Well, that's what it says in the first two lines,


   1    that it's in response to the September 24th.

   2         Q.    Have you had a chance to look at it?

   3         A.    No, and I don't know whether I have looked at it

   4    before, so shall I read it and --

   5         Q.    If you could quickly look at it.

   6         A.    Yes.

   7         Q.    And then tell us whether, at the time shortly

   8    after it was written, were you given an opportunity to

   9    review it?

  10               (Pause)

  11         A.    I can't be sure whether I have seen it.  I may

  12    have seen it, because many of the points are repetitive of

  13    what was said earlier.

  14         Q.    Many of the points respond to --

  15         A.    Responding to the -- I saw the September 24

  16    letter, so -- I can't be categorical either way whether I

  17    saw it or whether I didn't.

  18         Q.    You may have seen it?

  19         A.    I may have seen it, I may not.

  20         Q.    And it takes issue with some of the assertions in

  21    Mr. Lupert's letter?

  22               MR. PLOTZ:  Your Honor, at this point I am going

  23    to renew my objection.  Whether or not Dr. Taylor saw this

  24    at the time, this is a letter from a lawyer for an

  25    organization and a person who is not here.  It is double


   1    hearsay.  This is one of the so-called unclean hands

   2    incidents on which the defendants have the burden of proof.

   3               And it seems to me that if they wanted to prove

   4    what happened there, they needed to -- or the other side's

   5    version of what happened there, they need to call a witness

   6    who can testify not on a hearsay basis.  This is double

   7    hearsay.  This isn't even the person who was present at the

   8    meeting who is writing this letter.  This is that person's

   9    lawyer.  There are ways that they could have tried to prove

  10    this, but they haven't done it.

  11               MR. HUVELLE:  We will pursue some of those other

  12    ways at a later time and not waste any more time on that,

  13    your Honor.

  14    BY MR. HUVELLE:

  15         Q.    With respect to the exchange with Dr. Etzold, do

  16    you recall seeing any letters from Gordon & Breach or its

  17    attorneys to Dr. Etzold or IBM attorneys?  I don't mean this

  18    morning.  I mean ever.

  19         A.    No.  I did not.  Or I don't recollect having

  20    received any.

  21         Q.    Let me ask you now about the exhibit, Plaintiffs'

  22    Exhibit 555, which is the draft letter that you wrote --

  23         A.    Yes.

  24         Q.    -- but apparently did not distribute --

  25         A.    Right.


   1         Q.    -- and which reflects the points that you made in

   2    your conversation with Dr. Etzold.

   3         A.    Yes.

   4         Q.    In particular, I want to draw your attention once

   5    again to the analysis of cost effectiveness that you

   6    generated in connection with that letter.

   7         A.    Yes.

   8         Q.    Is it true that in your view, your cost

   9    effectiveness analysis demonstrated unequivocally that

  10    Ferroelectrics was a better bargain than IEEE Transactions?

  11         A.    "Unequivocal" is a very strong word, and there is

  12    a certain level of statistics involved in taking any

  13    particular time period and making calculations of this kind.

  14    What I was doing in this letter, in this draft letter and in

  15    my conversations, was pointing out that there were many

  16    factors involved in comparing a journal, and this was one of

  17    the factors that I considered.  I also considered other

  18    factors in my conversations with Dr. Etzold and which are

  19    reflected in this letter.

  20               So I think "unequivocal" is a strong word,

  21    because that means that, in every year and in every volume,

  22    I'm going to come up with the same answers.  And that is

  23    obviously not the case.  Each year, each volume is going to

  24    be a little different.

  25         Q.    Could I ask you to look at your deposition


   1    transcript.

   2               MR. HUVELLE:  Your Honor, I have a so-called

   3    scrunch version.

   4         Q.    Could you turn to page 82.

   5         A.    Yes.

   6         Q.    Line 14.

   7         A.    Right.

   8         Q.    Let me ask you if this was your testimony:

   9               "Q.    But did you agree with the" -- we're

  10    referring to Dr. Etzold's letter in which he described

  11    Ferroelectrics price as being high.

  12               "Q.    But did you agree with the

  13    characterization of this subscription price as being high?

  14               "A.    No, I don't believe the price was high if

  15    one takes into effect the value of the journal.  I mean,

  16    there are two related issues.  You cannot deal with a number

  17    and say it's high or low.  It's a question of what it is

  18    worth.  Is it valuable?"

  19               Was that your testimony?

  20         A.    Yes.

  21         Q.    And then can you look at the next question:

  22               "Q.    When you consider its value in connection

  23    with its price --

  24               "A.    Yes.

  25               "Q.    -- what would you look at?


   1               "A.    I think it's very good value, and I

   2    believe my letter, if I can remember what I argued and

   3    possibly put into writing to Etzold, was I showed very

   4    unequivocally that, in terms of the price per

   5    Ferroelectrics' paper, it was much better value than the

   6    journal he was promoting, the IEEE Transactions on

   7    Ferroelectrics, Ferroelectrics and Frequency Control."

   8               Was that your testimony, sir?

   9         A.    Yes.

  10         Q.    Thank you.

  11               MR. PLOTZ:  Dr. Taylor, let me just ask you if

  12    you were then asked:


  14    BY MR. PLOTZ:

  15         Q.    (Reading)

  16               "Q.    Is that why you thought his statements

  17    were inappropriate?

  18               "A.    I thought they were inappropriate in the

  19    sense they were unbalanced.  He did not give both sides to

  20    the question.  He did not discuss both sides of the issue.

  21    He discussed one side only.

  22               "Q.    And both sides, the other side being?

  23               "A.    The other side being that on one hand you

  24    had a ferroelectrics journal that was devoted to

  25    ferroelectrics, did not make any page charges, allowed for


   1    very fast publication, gave free reprints, free color

   2    plates, other issues, and if you worked out the price per

   3    article on ferroelectrics or per page of ferroelectrics

   4    articles, it turned out to be many times less than if you

   5    took the price of UFFC Transactions and determined how many

   6    articles there were on ferroelectrics on that and worked out

   7    the price per ferroelectric article.  That was the type of

   8    imbalance that I objected to.

   9               "And also the other side of the coin was that one

  10    is an international journal, and the other journal, while it

  11    likes to term itself international, it's -- the people who

  12    publish in it and the people who subscribe to it are largely

  13    in the United States."

  14               Did you also testify to that at your deposition?

  15         A.    Yes.

  16         Q.    And is it fair to say, Dr. Taylor, that in your

  17    view, in judging the relative value of journals, that price

  18    is but one of many factors to consider?

  19         A.    Yes.

  20         Q.    And are some of the other factors those that were

  21    just discussed in your deposition testimony?

  22         A.    Yes.

  23               MR. HUVELLE:  Your Honor, it's leading testimony.

  24               THE COURT:  You agree it is a little bit of

  25    leading?


   1               MR. PLOTZ:  I think it was.  I think it was.  I'm

   2    sorry.

   3         A.    I think in my letter, draft letter to Etzold, all

   4    these other issues were described.  We have been focusing

   5    only on the cost effectiveness.

   6               MR. HUVELLE:  Your Honor, I don't believe there

   7    is a question for me to object to.

   8               THE COURT:  Sustained.

   9    BY MR. PLOTZ:

  10         Q.    Now, Dr. Taylor, in cross examination, one of the

  11    questions you were asked was whether it was true that many

  12    universities don't have anyone who does ferroelectrics

  13    research; do you recall that?

  14         A.    Yes.

  15         Q.    In your view, should a library of that university

  16    subscribe to ferroelectrics?

  17         A.    No.  That would be bad value for them, because

  18    very -- nobody by your definition would be interested in

  19    reading the Journal.

  20         Q.    You were also asked whether you considered there

  21    were other journals which compete with Ferroelectrics.  Do

  22    you view Ferroelectrics, the journal, as being in

  23    competition with other journals?

  24         A.    In one sense, there is no competition because

  25    there is no other specialized journal which is solely


   1    devoted to ferroelectrics.  On the other side, there are 20,

   2    30, 40 other scientific journals around the world that

   3    publish from time to time articles on ferroelectrics.  So in

   4    that sense, they are competing with Ferroelectrics.

   5         Q.    And among those are certain journals published by

   6    the APS?

   7         A.    Yes.

   8         Q.    I believe you testified that the level of

   9    specialization in the ferroelectrics articles published in

  10    those other journals is comparable to the level of

  11    specialization in your journal?

  12         A.    Yes.  In the best journals, they are comparable.

  13         Q.    But those -- the other journals which cover

  14    ferroelectrics cover other areas as well, though?

  15         A.    Yes.

  16         Q.    You were asked some questions relating to the

  17    subscription price of ferroelectrics in 1987 and, you

  18    recall, there were six volumes of $290 each?

  19         A.    Yes.

  20         Q.    How many volumes does Ferroelectrics publish now?

  21         A.    It was 15 volumes in 1996, and it will be 15 or

  22    16 volumes in '97.

  23         Q.    So Ferroelectrics is publishing more material

  24    now?

  25         A.    More material.


   1         Q.    Is there a reason for that?

   2         A.    Yes.

   3         Q.    What's the reason?

   4         A.    The reason is that the journal has fully

   5    established itself as the archival journal of record around

   6    the world, and therefore people working in the field seek to

   7    publish their articles in Ferroelectrics.

   8         Q.    In answer to one of the questions on cross, you

   9    stated that, in your view, counting characters was not the

  10    best way for determining the value of the journal.  Why not?

  11         A.    Because sometimes a very good article can be

  12    written in a few pages.  Sometimes a mediocre article can

  13    occupy ten pages.  So it's not a good way to measure the

  14    value -- the scientific value and contribution of a paper.

  15         Q.    You also testified that sometimes articles will

  16    be cited in the future and sometimes not.  Why might an

  17    article not be published -- not be cited, rather?

  18         A.    If the article, for example, is an article

  19    describing a new ferroelectric material which has great

  20    commercial significance, there may be the original article

  21    and then afterwards an industrial company may pick up on

  22    this and begin to commercialize products based on that

  23    material, and therefore at that point there may be very

  24    little further publication on that particular material

  25    because the commercial company will not want to reveal what


   1    it's doing and what its results are.

   2         Q.    You were shown a few copies of Ferroelectrics and

   3    asked to comment on the speed of publication as to two or

   4    three different articles.

   5         A.    Yes.

   6         Q.    Have you, in the recent past, reviewed issues of

   7    Ferroelectrics throughout the whole span of its existence to

   8    determine what the general speed to publish has been in the

   9    Journal?

  10         A.    Yes.

  11         Q.    What did you find?

  12         A.    The average is six to twelve months, but there is

  13    always going to be examples outside that average.  And it's

  14    in both directions.  And the volume that was presented to me

  15    was unfortunate that that -- there were long delays in that

  16    particular volume.  I explained in my deposition the reasons

  17    for that, that the guest editor, despite the fact that I

  18    repeatedly requested him to accelerate his editorial work,

  19    he was changing jobs inside the company, and he's doing this

  20    on a volunteer basis, so there's -- these delays do occur

  21    from time to time.

  22               But I think if you look carefully over extended

  23    numbers of papers over several years, this was an

  24    unfortunate exception and far from the general rule.  The

  25    general rule is six to twelve months.


   1         Q.    I have nothing further.

   2               THE COURT:  Anything further of this witness?

   3               MR. HUVELLE:  No, your Honor.

   4               THE COURT:  Thank you.  You may step down.

   5               (Witness excused)

   6               THE COURT:  Plaintiff may call its next witness.

   7               MR. PLOTZ:  Plaintiff next calls Bruce Kingma.

   8               Your Honor, as a matter of housekeeping, can we

   9    assume that the exhibits that have not been objected to are

  10    received or should we be formally offering them?  Because

  11    there are a number of exhibits with Dr. Taylor that fall

  12    into that category, and I would, if I need to offer them, I

  13    will offer them.

  14               THE COURT:  Why don't you prepare a list of all

  15    exhibits to which there is no objection and mark that list

  16    as an exhibit and then we will receive that and do it in one

  17    fell swoop.

  18               MR. HUVELLE:  Fine.  Thank you.

  19               MR. PLOTZ:  That's fine.


  21         called as a witness by the plaintiff,

  22         having been duly sworn, testified as follows:


  24    BY MR. PLOTZ:

  25         Q.    What is your field?


   1         A.    Economics of information.

   2         Q.    How are you currently employed?

   3         A.    I'm an associate professor at the State

   4    University of New York at Albany.

   5         Q.    What is your appointment there?

   6         A.    I --

   7         Q.    Where do you hold an appointment?

   8         A.    I hold a joint appointment in the Department of

   9    Economics and in the School of Information Science and

  10    Policy and in the Ph.D. program in Information Science.

  11         Q.    What is your educational background?

  12         A.    I have an undergraduate degree from the

  13    University of Chicago in economics.  I have a bachelor -- I

  14    have a -- sorry -- I have a masters and Ph.D. in economics

  15    from the University of Rochester.

  16         Q.    Have you taught since the time you got your

  17    Ph.D.?

  18         A.    Yes.

  19         Q.    Where have you taught and what have you taught?

  20         A.    I have taught economics at Texas A&M University.

  21    I have also taught economics in the economics of information

  22    at the State University of New York Albany.  I have also had

  23    a couple of visiting appointments at Case Western Reserve

  24    University and Cleveland State University.

  25         Q.    Do you have a principal area of research?


   1         A.    Yes.

   2         Q.    What is that?

   3         A.    The economics of information and the economics of

   4    non-profit management.

   5         Q.    Could you explain what you mean by the "economics

   6    of information?"

   7         A.    Yes.  The economics of information is looking at

   8    the markets, information marketing, and describing the

   9    economic problems and issues in those markets, how

  10    information affects markets, and also how information is

  11    bought and sold in markets.

  12               Within that, I concentrate on the economics of

  13    library management.

  14         Q.    What courses have you taught at SUNY Albany?

  15         A.    I teach a class in the economics of information.

  16    I also taught classes, undergraduate classes, in public

  17    finance.  And I teach a pro seminar class in the Ph.D.

  18    program on information policy.  I have also taught a class

  19    on statistics and research methods in the Library of Science

  20    Program.

  21         Q.    What types of issues are covered in your courses

  22    on information policy and management?

  23         A.    We look at all kinds of management and policy

  24    issues.  It starts by looking at the economics of

  25    information markets and how those markets behave, how


   1    information looks in those markets and the unique

   2    characteristics of the economics of information.

   3               We go on to look at library management issues

   4    such as journal collection, library user fees, access versus

   5    ownership, the economics of interlibrary loan, a number of

   6    other issues, to explain simply the economics of information

   7    and how it affects those types of markets.

   8         Q.    Are you a member of any professional societies?

   9         A.    Yes.

  10         Q.    What are they?

  11         A.    I'm a member of the American Library Association,

  12    the American Society for Information Scientists, the

  13    American Economic Association, and the Association of

  14    Researchers on Non-Profit Organizations and Voluntary

  15    Action.

  16         Q.    Have you ever served as a journal referee?

  17         A.    Yes, I have.

  18         Q.    In what area?

  19         A.    In economics, in -- for journals like Economica,

  20    Journal of Public Economics, Annals of Public and

  21    Cooperative Economics, Non-profit Management Leadership,

  22    Non-profit Voluntary Sector Quarterly.

  23         Q.    Have you written in the area of economics and

  24    information?

  25         A.    Yes.


   1         Q.    What in general have you written?  What are the

   2    areas that you have written about?

   3         A.    I have most recently written quite a bit on

   4    access versus ownership, the economics of purchasing journal

   5    subscriptions versus acquiring them through interlibrary

   6    loan.  I have also written on the impact of photocopying on

   7    journal pricing, have written -- have written two books and

   8    edited a third relating to economics of library management

   9    topics.

  10         Q.    Have you participated in conferences on this

  11    issue?

  12         A.    Yes.

  13         Q.    What are some of those conferences?

  14         A.    I most recently participated in a conference

  15    sponsored by the North American SERIALIST interest group

  16    just a week ago on access versus ownership in library

  17    consortia.  I have also participated in conferences

  18    sponsored by the Association of College and Research

  19    Libraries North Eastern Chapter, the SUNY Library

  20    Association, giving presentations on the economics of

  21    library management, specifically on access versus ownership

  22    issues.

  23         Q.    Are you familiar with the surveys done by

  24    Professor Barschall?

  25         A.    Yes.


   1         Q.    Let me hand Plaintiffs' Exhibits 2 and 3 to you

   2    and ask if you can identify them?

   3               MR. PLOTZ:  Does the Court have those exhibits?

   4               THE COURT:  I am getting it.  I don't have two.

   5               I have them now.

   6         Q.    What are Exhibits 2 and 3?

   7         A.    These are the two articles written by Professor

   8    Barschall, one appearing in Physics Today and the other

   9    appearing in the Bulletin of the American Physical Society,

  10    the second actually coauthored with Arrington, purporting to

  11    show the cost effectiveness of physics journals.

  12         Q.    Have you been asked to render an expert opinion

  13    on these surveys?

  14         A.    Yes, I have.

  15         Q.    Can you describe in general what it is that

  16    Barschall did in conducting these surveys?

  17         A.    Yes.  He developed what he calls a cost-

  18    effectiveness measure of physics journals, which is actually

  19    a cost-per-character-per-impact measure, involving looking

  20    at the journal prices from a variety of sources for each

  21    physics journal, using methodology to count characters and

  22    pages and dividing the prices by those characters, that

  23    character measure, and then dividing that by the impact

  24    measure taken from the science citation index.

  25               He takes that measure and then ranks journals


   1    according to it and subsequently takes that and also ranks

   2    publishers in Table 2 on page 59 of Physics Today.

   3         Q.    You referred to an impact number from the Science

   4    Citation Index.  What is that number?

   5         A.    The impact number -- the impact measure from the

   6    Science Citation Index for a given year, for example, 1986,

   7    which is the year that Professor Barschall used, takes the

   8    number of publications in a journal in '84 and 1985, the two

   9    previous years to that, looks at the number of citations

  10    they received in 1996, and then divides by what is called

  11    the number of source items, in other words, the number of

  12    articles that were published in that journal in 1984 and

  13    1985.

  14         Q.    Do you have an opinion as to whether Barschall's

  15    survey reliably measured the cost effectiveness of journals?

  16         A.    Yes.

  17         Q.    What is that opinion?

  18         A.    I think it's a poor measure of the cost

  19    effectiveness of journals.  It makes mistakes in comparing

  20    different journals that shouldn't be compared and has a

  21    methodology that I disagree with.

  22         Q.    What disciplines are relevant to examining the

  23    issue of cost effectiveness of journals?

  24         A.    Economics and information science.

  25         Q.    How is information science relevant?


   1         A.    Information science is the study of the

   2    production and use and dissemination and organization,

   3    cataloging and archiving of information.  As part of that,

   4    information science looks at journals -- journal use and

   5    cataloging and the decision within libraries to subscribe to

   6    journals.

   7         Q.    How is economics relevant?

   8         A.    Economics is the study of markets, the study of

   9    how markets behave, the demand/supply of markets, and

  10    clearly this is an issue in which we are looking at a

  11    particular market and management choices in that market by

  12    librarians.  Economics becomes directly relevant in order to

  13    accurately measure the costs and the benefits or

  14    effectiveness in this market.

  15         Q.    Who makes acquisition decisions at a library?

  16         A.    Within each library there is a librarian or a

  17    series of librarians that make those decisions about which

  18    journals and other materials to purchase.

  19         Q.    What factors must a librarian consider in

  20    determining what journals to subscribe to?

  21         A.    There are really just basically two factors to

  22    consider.  One is the price of that journal.  That's sort of

  23    obvious because you have a certain budget of a certain size.

  24    And the other is the use that your patrons are going to get

  25    from that journal.  How much are our patrons going to use it


   1    if I buy it.  And given the price, given the use or the

   2    expected use of that journal, those are how decisions should

   3    be made within a library for purchasing journals.

   4         Q.    What components of cost are there for a library?

   5         A.    The largest component of cost for journal

   6    subscriptions is the subscription price, for many journals.

   7    There is also the cost of shelving, binding, cataloging and

   8    storing it.  Those costs typically run about $60 to $70 per

   9    year per each journal title.  So for many science journal

  10    titles, it is a relatively small percentage of the total

  11    cost for the journal.

  12         Q.    Did  Professor Barschall examine these costs?

  13         A.    Not to my knowledge.

  14         Q.    What did he examine?  What costs did he examine?

  15         A.    He examined the subscription price, which he

  16    collected from a variety of sources.

  17         Q.    What sources did he use?

  18         A.    He used the price inside the journal cover, if it

  19    was there.  If it was not there, he either used the price

  20    printed in Ulrich's, which is a publication of journals and

  21    their prices, or used the price printed on the library

  22    invoice for that particular journal.

  23         Q.    Whichever source he used to get a particular

  24    price, what did he do with that price to put it into his

  25    formula?


   1         A.    He took that price and devised a cost per

   2    character measure or price per character.

   3         Q.    What's the purpose of doing that?

   4         A.    Well, he -- it's an attempt by him to normalize,

   5    to make comparisons between journals, by dividing it out by

   6    the number of characters in each journal.

   7         Q.    Was it appropriate for him to have done this --

   8         A.    No.

   9         Q.    -- to have normalized in this way?

  10         A.    No, I don't think that this normalization is

  11    appropriate --

  12         Q.    Why not?

  13         A.    -- for these goods.

  14               Well, the price per character assumes that what

  15    you are purchasing is the ink and paper, is a certain number

  16    of characters.  And when you are purchasing a journal,

  17    that's not a decision you're making.  You're looking at the

  18    information that's embodied within that journal, the quality

  19    of articles, what are we going to get into terms of a

  20    journal subscription, how much are our patrons going to use

  21    it.  You shouldn't really be concerned about how much ink

  22    and paper there is in making that purchasing decision.

  23               I find it analogous to normalizing the price of

  24    cars on a per-pound basis.  You could look at a number of

  25    different kinds of automobiles, like Mercedes or Volkswagen


   1    or Chevys, and they each have a certain poundage or tonnage,

   2    and dividing it out by pounds or tons, you could normalize

   3    and develop a price per pound for each car.  But it wouldn't

   4    make a whole lot of sense for consumers to be price shopping

   5    based on a cost per pound for automobiles, because there is

   6    something more embodied in the automobile than that.

   7         Q.    Well, are you familiar with unit pricing for

   8    consumers?

   9         A.    Yes.

  10         Q.    What is that?

  11         A.    Unit pricing, the most common example of that is

  12    what you see in the grocery store where on the shelf you're

  13    looking at cost per ounce or cost per pound for particular

  14    goods, like soda, pasta, a number of other goods.

  15         Q.    Is it appropriate to do unit pricing in a grocery

  16    store in that way?

  17         A.    There are times when unit pricing is appropriate,

  18    and in a grocery store it is appropriate to price out pasta

  19    on a cost per ounce.  I might have two different containers

  20    of pasta and, not knowing the exact size but seeing the

  21    different prices, being able to have a price per ounce gives

  22    you a normalization that as a consumer is useful to compare,

  23    because the two pastas are of relatively the same quality.

  24    They are both pasta.  They both feed me and I use a certain

  25    amount for a meal.


   1               Other normalizations certainly aren't

   2    appropriate, and that's obvious.  Again, I could go -- I

   3    could go back to my automobile example of a price per pound.

   4    Now, there are actually times when price per pound for

   5    automobiles is an appropriate measure for international

   6    shipping, where you're looking at how many cars I'm going to

   7    fit onto a boat to send them across the ocean.  I might only

   8    be concerned about the tonnage that is going in my ship, but

   9    for a consumer there's something else going on between the

  10    automobiles than is embodied -- than is embodied in the

  11    price per pound comparison.

  12         Q.    What is it about normalizing journals by

  13    character which you believe makes it closer to the car

  14    example than to the pasta example?

  15         A.    The reason you're purchasing a journal,

  16    similar -- analogous to the reason you're purchasing a car,

  17    has to do with the quality of that journal, what we have,

  18    what we feel we're going to get and, as a librarian, what my

  19    patrons believe is the usefulness of that journal.  That has

  20    nothing to do with how many characters are in that journal.

  21    That has to do with how much my patrons are going to use

  22    that journal regardless of the number of characters.

  23               Similarly, with an automobile, when I'm looking

  24    at an automobile, a piece of an automobile as an information

  25    good, how much quality and differences in quality are


   1    inherent in an automobile.  That couldn't come out in a

   2    price-per-pound comparison.

   3         Q.    I want to turn to use, which is the other factor

   4    you stated a librarian needs to consider.

   5               (Pause)

   6               THE COURT:  I have to take a five-minute recess.

   7               (Recess)

   8    BY MR. PLOTZ:

   9         Q.    I think when we broke, Professor Kingma, we were

  10    just turning to the question of use, which is the other

  11    factor that you said a librarian needs to consider.

  12               What do you mean by "use"?

  13         A.    "Use" is simply that, how many times the patrons

  14    are going to pull the journal off the shelf to look at an

  15    article in it.

  16         Q.    Does Barschall's formula's use of impact factor

  17    appropriately or reliably measure the benefit or

  18    effectiveness of a journal?

  19         A.    No.

  20         Q.    What are the reasons for that?

  21         A.    There are several reasons why impact factor is a

  22    poor proxy for benefit for use in this analysis.  First of

  23    all, it's -- there are apples and oranges comparisons made.

  24    Journals of different types with different bodies of

  25    readers, different levels of specializations, are compared.


   1               Secondly, the impact factor as a measure is

   2    notoriously unreliable, because it varies dramatically from

   3    year to year going up and down.

   4               Third, a librarian has to be concerned about the

   5    use within that library by his or her patrons, and an impact

   6    factor is actually a more global measure in some sense,

   7    measure of use at your particular library.

   8               And finally, there are well known errors in

   9    impact or citation analysis that are written about in the

  10    literature as to the flaws of this kind of analysis.

  11         Q.    Let's examine these reasons.

  12               Taking the first apples and oranges reason that

  13    you mentioned, do different disciplines and subdisciplines

  14    have different levels of citation?

  15         A.    Yes.  Yes.

  16         Q.    Could you explain that?

  17         A.    Well, different subdisciplines have different

  18    numbers of journals within those subdisciplines and

  19    different numbers of scholars.  The smaller subdisciplines

  20    with the smaller set of journals and a smaller number of

  21    scholars, ultimately have smaller sets of citations.  It's

  22    inappropriate to compare these different subdisciplines

  23    based on their impact or citation factor because they are

  24    within different environments.  They exist within different

  25    environments, different bodies of readers, different numbers


   1    of journals.

   2         Q.    Let me hand you Plaintiff's Exhibit 706G and ask

   3    you if you can identify that.

   4         A.    Yes.  These are pages from the Science Citation

   5    Index listing impact factors and journal titles by different

   6    subdisciplines.

   7         Q.    And is this the one for 1986?

   8         A.    Yes.

   9         Q.    Does this break journals into different

  10    disciplines as defined by ISI?

  11         A.    As defined by ISI, yes, it breaks it into their

  12    definitions of different disciplines.

  13         Q.    If you could turn to the section on physics,

  14    which begins on page 269, does this reflect that physics

  15    journals are broken into a number of different

  16    subdisciplines within physics?

  17         A.    Yes.

  18         Q.    Does this listing of impact factors and

  19    disciplines within physics show anything about the relative

  20    impact factors in different disciplines within physics?

  21         A.    Yes.  It shows that different subdisciplines can

  22    have dramatically different impact factors.  For example,

  23    applied physics, which is in the furthest right column in

  24    this table, the highest impact factor is 3.482.  They can

  25    take a different subdiscipline of physics.


   1               Further on down that column, condensed matter

   2    physics -- and the highest impact factor there is 7.0, more

   3    than double the highest impact factor for the highest

   4    journal in applied physics.  And going over to general

   5    physics, Review of Modern Physics has an impact factor of

   6    27, which is almost four times that of the condensed matter

   7    physics.

   8         Q.    Do those differing impact factors say anything

   9    about the relative value or effectiveness of the top

  10    journals within each area?

  11         A.    No, they do not.

  12               THE COURT:  You have to clarify that for me.  I'm

  13    looking at this -- now I'm looking under "Physics."  The

  14    first item under "Physics" is, what is that?  Review?

  15               THE WITNESS:  Review of Modern Physics.

  16               THE COURT:  What does the first number represent?

  17               THE WITNESS:  That's the impact factor, 27.025.

  18               THE COURT:  What does that mean?

  19               THE WITNESS:  That is -- you take the number of

  20    journal articles that were published in Review of Modern

  21    Physics in 1984 and 1985.  You look at the number of

  22    citations they received in 1986, and then you divide by the

  23    number of source items, in other words, the number of

  24    articles that were published in '84 and '85.

  25               THE COURT:  In that journal?


   1               THE WITNESS:  In that journal.  Yes.  Just in

   2    that journal, yes.

   3               THE COURT:  That is the impact?

   4               THE WITNESS:  That's the impact.

   5               THE COURT:  What's the next number?

   6               THE WITNESS:  I believe that's the half-life.

   7               THE COURT:  What does that mean?

   8               THE WITNESS:  It's the number of years -- I

   9    believe it's the number of years for half the citations,

  10    something along those lines.  In other words, it looks at

  11    the decay rate of citations in that particular journal.

  12               THE COURT:  The diminution in citation as the

  13    article agent?

  14               THE WITNESS:  Correct.  That's a good way of

  15    looking at it.

  16         Q.    Professor Kingma, what do you understand to be

  17    the -- withdrawn.

  18               We were looking at the 1986 impact factor

  19    numbers.  Do similar differences in the impact factor range

  20    of different disciplines pertain to other years as well?

  21         A.    Yes.

  22         Q.    Are there different types of journals, leaving

  23    aside the discipline of journals?

  24         A.    Yes, there are.  There are review journals,

  25    letters journals, what some people call original research


   1    journals.

   2         Q.    What are review journals?

   3         A.    Review journals are simply that.  They publish

   4    articles which review a certain line of research, a certain

   5    topic of research, and the other things that have been

   6    published, or the things that have been published on that

   7    topic.  Reviewing --

   8               THE COURT:  Surveys?

   9               THE WITNESS:  Pardon?

  10               THE COURT:  They survey the field?

  11               THE WITNESS:  Essentially, yes.  Sometimes --

  12    typically adding to that, though, more than just a survey,

  13    looking at the status of that research.

  14    BY MR. PLOTZ:

  15         Q.    What are letters journals?

  16         A.    Letters journals are journals that publish sort

  17    of excerpts from research as it is being produced.  So they

  18    are typically short articles that say, here are our

  19    findings.  Typically, after that letters article is

  20    published, there later on will be a fuller-blown article

  21    that explains the research in full-published -- in what are

  22    called original research journals.

  23         Q.    And what are original research journals?

  24         A.    Original research journals are journals that

  25    publish full articles of original research on a particular


   1    topic.

   2         Q.    Are those times referred to as archival journals?

   3         A.    Sometimes, yes.

   4         Q.    Let me ask you to take a look at Exhibit 3, which

   5    is the Barschall survey as published in the Bulletin of the

   6    American Physical Society and turn to page 1438, if you

   7    would.

   8         A.    I'm sorry.  Did you say the Bulletin?

   9         Q.    Bulletin.

  10         A.    I have that as Exhibit 2.

  11         Q.    I misspoke.  It is Exhibit 2.  I apologize.

  12         A.    And turn to what page?

  13         Q.    Page 1438.

  14         A.    Yes.

  15         Q.    In the top left in the section called

  16    "cost/impact," Barschall wrote that "The impact number tends

  17    to be highest for journals that publish review articles.  It

  18    also tends to be higher for letter journals than for regular

  19    archival journals."

  20               Is that a statement with which you agree?

  21         A.    Yes.

  22         Q.    Does the fact that different types of journals

  23    have different ranges of impact factor have an effect on the

  24    comparison that Barschall performed?

  25         A.    The different impact factors will have a


   1    different effect on those comparisons, yes.  It will have an

   2    effect on those comparisons.

   3         Q.    Does a review article, which has a higher impact

   4    factor than an archival journal, a research journal, does

   5    that fact, without knowing more, say anything about the

   6    relative value of the two journals?

   7         A.    No.

   8         Q.    It does say that the review journal is cited

   9    more, doesn't it?

  10         A.    For those two years prior to that date you're

  11    looking at, yes.

  12         Q.    Did Barschall take into account the different

  13    types of journals, that is, review letters, research, and

  14    the different subdisciplines in his analysis?

  15         A.    No.

  16               THE COURT:  But he did say that, in the last

  17    sentence of the cost impact paragraph, he acknowledged its

  18    importance?

  19               THE WITNESS:  Yes.

  20         Q.    But when he did the survey, if you look in the

  21    bulletin, which is Exhibit 2, does he break down any

  22    journals by either type or by discipline?

  23         A.    No.

  24         Q.    Now, turning to Physics Today, which is Exhibit

  25    3, did he do that in Table 1?


   1         A.    Yes.

   2         Q.    And Table 1 is a listing of some of the journals

   3    in the survey, correct?

   4         A.    Correct.

   5         Q.    But not all?

   6         A.    Correct.

   7         Q.    Turn to Table 2 in Physics Today on the next

   8    page.  What is Table 2?

   9         A.    Table 2 gives the number of journals, the average

  10    cost per thousand characters, and average ratio of cost to

  11    impact, his measure of cost effectiveness for different

  12    publishers.

  13         Q.    How did he calculate the figure for each

  14    publisher?

  15         A.    By taking the cost impact measure he had for the

  16    number of journals he had, which is not exactly the number

  17    of journals listed in Table 2, sometimes less, and simply

  18    took the average of those numbers.

  19         Q.    When you say it's sometimes less, what do you

  20    mean, the number of journals?

  21         A.    Well, the number of journals indicates the number

  22    of journals on which he may have collected price information

  23    on, but he did not collect impact information on every one

  24    of those journals.

  25         Q.    Is that true for the Gordon & Breach listing and


   1    subscription costs?

   2         A.    Yes.

   3         Q.    Table 2 reflects that 11 Gordon & Breach journals

   4    were surveyed, correct?

   5         A.    Correct.

   6         Q.    Do you know how many journals he actually used in

   7    determining the ratio of cost to impact factor for Gordon &

   8    Breach?

   9         A.    It's less than 11.  I'm not certain of the exact

  10    number.  Somewhere between 3 and 5, I -- is a guess.

  11         Q.    Now, in averaging the journals for each

  12    publisher, did Barschall lump together journals of different

  13    types within each publisher?

  14         A.    Yes.

  15         Q.    Did he lump together journals from different

  16    disciplines?

  17         A.    Yes.

  18         Q.    In your view, was it appropriate for Barschall to

  19    have taken the average cost and the average ratio of cost

  20    per impact per publisher in order to rank publishers?

  21         A.    No.

  22         Q.    Why not?

  23         A.    For exactly that reason.  You are lumping

  24    together apples and oranges and trying to make a comparison

  25    based on that.  You do have different journals of different


   1    types, different journals of different subdisciplines with

   2    different environments in which they exist.  To make

   3    averages based on that is inappropriate.

   4         Q.    Does a librarian facing the management decision

   5    of what journal to subscribe to, should that librarian make

   6    the decision based on the identity of the publisher of the

   7    journal?

   8         A.    No.

   9         Q.    I want to turn to the second reason that you gave

  10    for stating that Barschall's use of impact factor was not a

  11    reliable measure of the value or effectiveness of a journal,

  12    and that is you testified that there was a year-to-year

  13    fluctuation of the impact factor score.  What does that

  14    mean?

  15         A.    As you look at the numbers for impact factor, you

  16    see that for some journals it varies dramatically from year

  17    to year.  I can give you a couple of examples of that.

  18         Q.    Sure.

  19         A.    Ferroelectrics, which is one of the Gordon &

  20    Breach journals, from 1986 to 1987, the impact factor

  21    actually went up by, I think it's 268 percent within a

  22    single year, showing the dramatic increase there.  One of

  23    the other journals, Review of Modern Physics, in that same

  24    period their impact factor went down by 40 percent.

  25               Now, what's going on is that you're taking a very


   1    small window of citations, just a, you know, publications

   2    over two years and citations in a single year, and given the

   3    snapshot, as you march on year after year, that snapshot

   4    changes and is likely to change that number dramatically.

   5         Q.    Speaking beyond those two journals, have you

   6    looked at the impact factor changes from year to year of

   7    certain physics journals taken from the Science Citation

   8    Index?

   9         A.    Yes.  I have looked at that, yes.

  10         Q.    Can you state whether other journals' impact

  11    factors have changed by more than a couple percent a year?

  12         A.    Yes.  There are other journals that have changed

  13    significantly.

  14         Q.    Let me ask you to make an assumption.  Let's

  15    assume that you have two journals, Journal A and Journal B,

  16    each of which have the same subscription price and the same

  17    impact factor, but Journal A has more characters than

  18    Journal B.  Which journal will have the lower cost per

  19    impact factor, Journal A or Journal B?

  20         A.    The one with more characters will have a lower

  21    cost per character per impact factor based solely on the

  22    additional characters, not on the quality of those

  23    characters at all.

  24         Q.    So does the fact that the journal with more

  25    characters in this hypothetical have a better cost per


   1    impact ratio say anything about the relative value of those

   2    two journals?

   3         A.    No, it does not.

   4         Q.    Now let me ask you to assume that you have two

   5    journals with different subscription prices, with the same

   6    impact factor and the same number of characters.  Which

   7    journal in that case will have the lower cost per impact?

   8         A.    The one with the lower subscription price.

   9         Q.    Suppose the editor of the more expensive journal

  10    adds pages of characters to his journal which don't have any

  11    content to them.  Let's just say the letter X is added over

  12    many pages to the journal.  Will that have an effect on the

  13    more expensive journal's cost per impact?

  14         A.    Yes.  It will lower the cost per character per

  15    impact.

  16         Q.    Could it lower that cost per impact so that it

  17    goes below the other journal?

  18         A.    Yes, it could.

  19         Q.    Does that fact say anything about the relative

  20    value of the two journals?

  21         A.    No, it does not.

  22         Q.    Let me turn to the third point you raised, which

  23    is the need for the librarian to look at the use within the

  24    librarian's community.  Was that measured by Barschall?

  25         A.    No, it was not.


   1         Q.    Why is it important for a librarian to assess the

   2    needs of his community?

   3         A.    Well, it's fairly obvious.  A librarian is there

   4    to serve a particular community, the patrons of that

   5    particular library, and that librarian has to be concerned

   6    with what those patrons will use, not what other patrons

   7    will use elsewhere but what the patrons will use at their

   8    particular library.  Those particular patrons might have a

   9    certain specialty that they are interested in.  They might

  10    have a particular set of journals that they are very

  11    interested in, and it is important for the librarian to

  12    connect with them to make certain that the collection is

  13    reflecting their needs.

  14         Q.    Have there been any studies that you are aware of

  15    that examine the relationship of impact factor to faculty

  16    opinion?

  17         A.    Yes.  There was a study recently published by a

  18    gentleman called Bensman at LSU that -- one of the things he

  19    looked at was the correlation between faculty opinion of

  20    journals and impact factor, and he found a very low

  21    correlation between the faculty opinion, what they thought

  22    of particular journals, and the impact factor as reported by

  23    Science Citation Index.

  24               THE COURT:  Does the librarian -- you suggested

  25    the librarian is the prime decision maker with respect to


   1    subscriptions?

   2               THE WITNESS:  Subscriptions for the library, yes.

   3               THE COURT:  Doesn't the librarian consult with

   4    the faculty with respect to the needs perceived by the

   5    faculty and their quality evaluation?

   6               THE WITNESS:  One would hope that the librarian

   7    does that, yes.

   8               THE COURT:  But you say that there is a low

   9    correlation between faculty evaluations and subscriptions?

  10               THE WITNESS:  There -- yes.  The recent study by

  11    Bensman looked at chemistry journals from the LSU library,

  12    and he found a very low correlation between the faculty

  13    opinion of journals, what they thought were the best

  14    journals, versus -- and the impact factor, the number taken

  15    out of the Science Citation Index.

  16               THE COURT:  Did he in that study examine whether

  17    the librarian did or did not consult with the faculty prior

  18    to making the subscription decision?

  19               THE WITNESS:  Well, he's a librarian at LSU, and

  20    I think in recognizing this low correlation, you know, the

  21    result was, let's look at faculty opinion.  We know there's

  22    a low correlation here.  Let's make certain that we're

  23    consulting the faculty.

  24    BY MR. PLOTZ:

  25         Q.    The low correlation, Professor Kingma, that you


   1    are referring to, is between the views of the faculty and

   2    this impact factor number, correct?

   3         A.    Correct.

   4               THE COURT:  Well, the impact factor doesn't

   5    measure, does it, whether the citation is a favorable

   6    citation or a disparaging citation?

   7               THE WITNESS:  Correct.

   8               THE COURT:  So that if there is an outrageously

   9    poor article and there are a number of references to it

  10    pointing out its deficiencies, it would score well on the

  11    impact factor?

  12               THE WITNESS:  That's absolutely correct, yes.

  13         Q.    In fact, Professor Kingma, is that another one of

  14    the problems that you see with relying on impact factor in

  15    measuring the effectiveness or value of the journal?

  16         A.    Yes.  There are hosts of methodological problems

  17    with citation analysis or impact factor analysis, that being

  18    one of them, the fact that it doesn't account for positive

  19    or negative citations.  A citation is a citation, end of

  20    story.

  21         Q.    Is there an example that has been cited as a

  22    practical example of that particular phenomenon?

  23         A.    Yes.  I think an interesting or practical example

  24    of that is the -- what I call the cold fusion fiasco a few

  25    years ago, where there were researchers claiming that they


   1    had achieved cold fusion, and once it was discovered, the

   2    charade, you could see that there might be a large number of

   3    negative citations to that research, exactly as your Honor

   4    said, and all of those increased the impact factor for that

   5    particular journal.

   6         Q.    Let me ask you with respect to your fourth point

   7    about why this is not a reliable measure with methodological

   8    biases.  Was this positive versus negative citation one of

   9    the methodological biases to which you were referring?

  10         A.    Yes.

  11         Q.    Are there others?

  12         A.    Yes, there are.  The -- I think one of the other

  13    sort of severe problems are the clerical errors that occur

  14    in authors citing references.  They simply make mistakes in

  15    terms of spelling the journal title, the journal name, the

  16    article title, the author's name, etc., and these clerical

  17    errors can actually be fairly severe.  In some studies I

  18    have seen them as high as 50 percent of the citations having

  19    some error within it.

  20               There are other methodological problems too,

  21    things like people self-citing themselves in order to

  22    increase their own number of citations, perhaps citing for

  23    political reasons, citing the department chair, etc., that

  24    are also part of the methodological sort of -- part of the

  25    biases that are introduced with citation analysis.


   1         Q.    Is it that all citations are not equal?

   2         A.    Right.

   3         Q.    But does the impact factor analysis treat all

   4    citations as equal?

   5         A.    Yes, it does.

   6         Q.    I want you to please take a look at the bulletin

   7    article, which is Exhibit 2.

   8               THE COURT:  Let's take a five- minute recess.

   9               (Recess)

  10               THE COURT:  Let's resume.

  11    BY MR. PLOTZ:

  12         Q.    Professor Kingma, before the break I asked you --

  13    I was beginning to ask you to take another look at the

  14    bulletin article, which is Exhibit 2, if you would look at

  15    page 1437.  In the section called "Cost per character,"

  16    Barschall writes, "Differences in cost of 20 percent are not

  17    significant for several reasons.  Journals follow different

  18    practices covering pages and having blank or partly blank

  19    pages and the size of the print used in tables and

  20    references.  Furthermore, fluctuations in exchange rates

  21    introduce uncertainties in dollar prices."

  22               Do you agree that differences -- first of all, do

  23    you know where that 20-percent figure comes from?

  24         A.    No, I do not.

  25         Q.    Is there any discussion or anything in either the


   1    bulletin or Physics Today articles which discusses margin of

   2    error or what might contribute to a margin of error?

   3         A.    Nothing beyond what occurs in this paragraph.

   4         Q.    Do you agree that a 20-percent difference is not

   5    significant?

   6         A.    I think 20-percent is actually a fairly

   7    significant margin for error.  That's fairly large -- to say

   8    that there may be 20-percent cost differences than are being

   9    reported, in my opinion, that is a very large error.

  10         Q.    Does this stated 20-percent difference have any

  11    effect, or, rather, does it reflect any error other than a

  12    bias on the impact factor?

  13         A.    No, according to Professor Barschall, it's just a

  14    20-percent error rate for only the numerator, the cost

  15    factor, the cost per character factor, not the denominator,

  16    which is the impact factor.

  17         Q.    Does he assign any margin of error or error rate

  18    to the impact factor figure?

  19         A.    Not that I'm aware of, no.

  20         Q.    Now, in your view, did Barschall, leaving aside

  21    what you have been testifying about, the methodological

  22    problems with including impact factor in the ratio, did

  23    Barschall commit any errors in the way he collected or used

  24    his data?

  25         A.    Yes, I think he did make some errors in data


   1    collection.

   2         Q.    What are some of those errors?

   3         A.    Well, there are four errors in statistical

   4    methodology, one might say, of collecting his numbers.

   5    First, he collected -- he looked at journals based on their

   6    availability to him at the University of Wisconsin Library.

   7    It was whatever journals he had I believe in a local library

   8    at the University of Wisconsin.  There is a much larger

   9    universe of journals in physics than that, and if one wanted

  10    to collect information on that larger universe of journals

  11    and make global comparisons the way it is done here, it is

  12    simply a matter of collecting numbers for all physics

  13    journals rather than those that are just simply accessible

  14    to them.  It's not a random sampling, essentially.

  15               He also made errors in the way that he counted

  16    pages that perhaps introduces bias.  And the way that he

  17    counted characters, that perhaps introduces bias, and in the

  18    way he collected prices.  Let me start with that last one.

  19               He took prices from the inside of the journal, if

  20    they were printed there, but if they weren't there he would

  21    either go to Ulrich's, which is a publication of journal

  22    titles and prices, or take a price off the library invoice.

  23    Those are three different prices for any journal.  And there

  24    is perhaps statistical biases depending on which price you

  25    are using for which particular journal.  He counted pages by


   1    looking at the numbered pages in each journal, but not those

   2    pages that carried Roman numerals, and he included numbered

   3    pages even if they were blank.  This isn't really getting at

   4    the information that is within the journal, particularly if

   5    you are including blank pages.

   6               In some cases, he didn't have all the pages

   7    within a journal because all the journal copies hadn't been

   8    received for that particular subscription, so he would

   9    extrapolate and try and figure out how many more pages were

  10    coming based on the number of pages on the issues that were

  11    on the shelf, perhaps introducing some bias based on his

  12    guessing of how many pages were going to be in the journal.

  13               And finally, the way in which he counted

  14    characters, he looked at a line of text in a journal and

  15    counted up the number of characters in that line.  Then he

  16    looked at a page in the journal that included entirely text

  17    and counted up the number of lines.  Well, this sets up an

  18    equivalence between characters and tables or figures where

  19    you're looking -- you're assuming that a table of a certain

  20    size has the same cost structure or value of the same number

  21    of characters within that physical dimension on a page.

  22         Q.    Now, in your view, if Barschall had not made the

  23    errors that you have just described or if these errors were

  24    corrected, would that, in your view, dramatically have

  25    changed the results of Barschall's survey?


   1         A.    No.  In fact, there is an expert opinion report

   2    prepared by Professor Ribbe that corrected these errors,

   3    statistical bias errors, and there the results are

   4    essentially the same.

   5         Q.    Does that fact mean that Barschall's cost-per-

   6    impact factor formula is a reliable measure of cost

   7    effectiveness?

   8         A.    No.  I do not believe that it is a reliable

   9    measure of cost effectiveness.

  10         Q.    Why is that?

  11         A.    Again, for the reasons that I talked about

  12    earlier, part of it is a matter of comparing apples and

  13    oranges, different journals of different types, different

  14    subdisciplines, serving a --

  15               THE COURT:  Isn't that more a function of the use

  16    that the reader makes of the journal?  Barschall says, as we

  17    looked at earlier, line 1438 of Exhibit 2, he talks about

  18    the different cost impact to the different types of

  19    journals, and he says, "Hence, comparisons of the impact are

  20    most significant for journals of the same type."

  21               He says we're dealing here with apples, oranges,

  22    and grapefruits and comparisons are significant only within

  23    those categories.  Yes?

  24               THE WITNESS:  Correct.  That's what he said.

  25               THE COURT:  Now, he does not, in this Table 1,


   1    categorize the journals based on what type of journal they

   2    are.  Right?

   3               THE WITNESS:  Correct.

   4               THE COURT:  So that is left to the reader.  This

   5    is not anything that is going to be read by an

   6    unsophisticated reader.  The nature of this article is such

   7    that it has a very specific audience.

   8               My question is, is there an overall conclusion

   9    here which you believe is inconsistent with his statement

  10    that comparisons of impact are most significant for journals

  11    of the same type?

  12               THE WITNESS:  You know, directly related to that,

  13    I think, is Table 2 from the Physics Today article.

  14               THE COURT:  Yes.  I understand that the analysis

  15    may be somewhat different in the other article.  But in this

  16    article, doesn't he recognize that the comparisons are most

  17    significant for journals of the same type and gives his

  18    findings, without more?

  19               Are we talking about Table 2 in this article or

  20    Table 2 in the other article?

  21               THE WITNESS:  No, I was talking about Table 2 in

  22    the other article, yes.

  23               THE COURT:  Does he here make a specific

  24    comparison or ask the reader to make a specific comparison

  25    of publications which are not in the same category?


   1               THE WITNESS:  Well, table 4 simply lists it on a

   2    cost per impact from highest to lowest regardless of

   3    category.

   4               THE COURT:  Table 4, I see.  What is the

   5    difference between each area's tables?

   6               THE WITNESS:  It's the way in which they are

   7    ranked.  Table 4 has cost per impact.  3 is cost per

   8    character.  So it's just the cost, not the impact.

   9               As you go back, Table 2 may be the translation

  10    journals, but I'm not certain on that point.  Yes, Table 2

  11    is the translation journals, which he states on page 1 --

  12    1438.  And then Table 1 is the journals in alphabetical

  13    order.

  14    BY MR. PLOTZ:

  15         Q.    Professor Kingma, in the bulletin article, are

  16    any of the journals broken out by the type of journal?

  17         A.    Only in the fact that translation journals are

  18    broken out in Table 2.

  19         Q.    But in terms of review or letters or research

  20    journals?

  21         A.    No, they are not.

  22         Q.    Does Barschall say anything in the bulletin

  23    article with respect to differences in citation and impact

  24    factor across different disciplines within physics?

  25         A.    On the top of page 1438, he does say, "The


   1    impact, however, tends to be highest for journals that

   2    publish a review of the articles."

   3         Q.    I'm asking you about different disciplines.

   4         A.    Oh, different disciplines.  I'm sorry, no, he

   5    does not.

   6         Q.    Does he break out in the bulletin article any

   7    articles by discipline?

   8         A.    No, he does not.

   9               THE COURT:  Let me return to my question,

  10    because, if I were a librarian and I had this before me, I

  11    suppose there are a number of questions which I would have

  12    before I subscribed.  One question would be whether there

  13    was a need at all for a journal on that subject.

  14               Mr. Taylor, for example, said if you don't have

  15    somebody whose field is ferroelectrics on the faculty, there

  16    is no point getting a specialized journal on that subject,

  17    right?

  18               THE WITNESS:  Correct.

  19               THE COURT:  So one question would be, is there a

  20    need for this at all?  And then another question, I suppose

  21    might be, what else on that subject or in that general area

  22    do we have on our shelf?  Is that a relevant inquiry?

  23               THE WITNESS:  Yes, that would seem relevant.

  24               THE COURT:  Does a choice get down to, should I

  25    subscribe to A or B?


   1               THE WITNESS:  The librarian is clearly faced with

   2    a limited budget, and so ultimately it does come down to

   3    that choice, of subscribing to A or B, or subscribing to one

   4    journal versus another.

   5               THE COURT:  So wouldn't the librarian, to the

   6    extent to which attention was paid to the survey, compare

   7    specific lines, and wouldn't that tend to be a comparison

   8    within the same type of journal?

   9               THE WITNESS:  Not if you're talking about lines

  10    in table 4, because these can be journals of different

  11    types.  One line could be a review journal.  The next could

  12    be an original research journal.

  13               THE COURT:  But would I be -- would the librarian

  14    be comparing those two?

  15               THE WITNESS:  Possibly.  Possibly.

  16               I think, you know, fundamentally there are two

  17    issues here.  One is the issue we have been talking about,

  18    of comparing journals.  OK?  And the other issue is, what do

  19    my patrons need.  And the impact number is simply not a good

  20    measure of my people at my library.

  21               THE COURT:  Yes.  I was just dealing with this

  22    question of the significance of Dr. Barschall explicitly

  23    stating comparisons are meaningful only within the same

  24    category of journal and then not subdividing in these tables

  25    based on the character of the journal.


   1               I suppose I have another question which goes back

   2    to something I asked earlier about the extent of

   3    communication between the faculty and the librarian.

   4    Frankly, I'm surprised that it's the librarian who makes

   5    these decisions rather than the department chair or some

   6    designee of the department chair.  How much sophistication

   7    does the librarian have with respect to the very

   8    considerable number of esoteric publications?

   9               THE WITNESS:  I think that's the very issue, you

  10    know, that librarians, depending on the librarian, depending

  11    on the library, you're probably going to have varying

  12    degrees of sophistication, but certainly you're not going to

  13    have a librarian who's a physicist, right, working in the

  14    library, making it incumbent on that librarian to seek the

  15    advice of somebody in the physics department.

  16               THE COURT:  I find it difficult to think that it

  17    would be done any other way.  I mean, how is a librarian,

  18    who, I take it, is, for the most part, trained in library

  19    sciences but knows nothing about physics, to determine which

  20    publication is more appropriate except by consultation with

  21    the faculty?

  22               Well, all right.

  23    BY MR. PLOTZ:

  24         Q.    Professor Kingma, in your colloquy with Judge

  25    Sand, you said that a librarian needs to be concerned about


   1    whether the journal is going to be read or used --

   2         A.    Correct.

   3         Q.    -- by the librarian's patrons, and that impact

   4    factor does not speak to that.

   5         A.    Correct.

   6         Q.    How can a librarian measure those needs, or how

   7    should a librarian measure those needs?

   8         A.    Well, in the best of all worlds, you could do a

   9    use study, seeing what journals are being used.  Journals

  10    are also -- articles are also received by faculty through

  11    interlibrary loan, where if they see an article that they

  12    want but the library doesn't subscribe to that journal, they

  13    make a request for that article, which the library then goes

  14    out and gets a copy of that article and delivers it to the

  15    faculty member.

  16               Well, based on the number of questions that are

  17    being, you know, processed through interlibrary loan for a

  18    particular journal title, you have information on potential

  19    use for any individual title, which is also information that

  20    can factor into what journals should be subscribed to.

  21               And finally, as we talked, it's a matter of

  22    soliciting the faculty for their opinion on what journals

  23    they will use, soliciting your patrons for their opinion on

  24    what journals they feel they will use.

  25         Q.    Is it possible for a journal with a higher


   1    subscription price than another journal -- let me start

   2    over.

   3               Is it possible that it would be more cost

   4    effective for a library to subscribe to a journal with a

   5    higher subscription price than another journal?

   6         A.    Yes.

   7         Q.    How is that possible?

   8         A.    Well, if that journal with a higher subscription

   9    price has more use, then it is more cost-effective based on

  10    the cost-per-use measure.  The reason I like to use the

  11    cost-per-use measure is that it is directly comparable to

  12    this system of interlibrary loan, where the library is

  13    spending a certain amount to acquire a copy of an article

  14    through interlibrary loan.

  15         Q.    Now, turning to Table 2 in the Physics Today

  16    article, Exhibit 3, which is the ranking by publishers -- by

  17    the way, in Physics Today, did Professor Barschall write, as

  18    he did in the bulletin article, anything about the relative

  19    impact factor levels for different types of journals?

  20         A.    I don't think so.  I simply don't recall.

  21         Q.    Is there anything in Table 2 which will tell a

  22    librarian anything about the needs of his patrons for any

  23    particular journal?

  24         A.    No, there is not.

  25               MR. PLOTZ:  Just one moment, please.


   1         Q.    And Professor Kingma, also on Table 2, is there

   2    any breaking out of journals by type of journal, review,

   3    letter, or research?

   4         A.    No, there is not.

   5         Q.    Is there any breaking out in Table 2 of journals

   6    by subdiscipline within physics?

   7         A.    No, there is not.

   8               MR. PLOTZ:  I have no further questions.

   9               THE COURT:  Mr. Huvelle.


  11    BY MR. HUVELLE:

  12         Q.    Dr. Kingma, do you have any expertise in physics?

  13         A.    No, I do not.

  14         Q.    Have you read any of the 200 journals that were

  15    subject to Dr. Barschall's study?

  16         A.    No, I have not.

  17         Q.    Have you ever been involved in publishing

  18    journals?

  19         A.    No, I have not.

  20         Q.    Have you ever been involved in the selection of

  21    journals for a library?

  22         A.    No, I have not.

  23         Q.    Have you ever read a Gordon & Breach journal?

  24         A.    I don't know.  I mean, I don't pay attention to

  25    the publisher, so I don't know if the journal I have read is


   1    a Gordon & Breach journal or not.

   2         Q.    You have never read a Gordon & Breach physics

   3    journal?

   4         A.    No, I have not.

   5         Q.    Did you ask for copies of Gordon & Breach

   6    journals?

   7         A.    No, I did not.

   8         Q.    Did you ask for data on prices of Gordon & Breach

   9    journals?

  10         A.    No, I did not.

  11         Q.    Did you ask for circulation data on Gordon &

  12    Breach journals?

  13         A.    No, I did not.

  14         Q.    Have you formed any conclusion as to the relative

  15    prices of Gordon & Breach and AIP or APS journals?

  16         A.    No, I have not.

  17         Q.    Am I correct in understanding that you are one of

  18    two experts who are testifying for Gordon & Breach in this

  19    case?

  20         A.    That is my understanding, but I couldn't say that

  21    there would not be more than two.

  22         Q.    You have seen the expert reports submitted by Don

  23    King?

  24         A.    Yes, I have.

  25         Q.    You know Don King?


   1         A.    Yes, I do.

   2         Q.    You have attended conferences with him?

   3         A.    Yes, I have.

   4         Q.    Do you respect him as a fellow professional?

   5         A.    Yes, I do.

   6         Q.    I believe you said you had great admiration for

   7    his work?

   8         A.    Yes, I do.

   9         Q.    Have you said about him that few in the library

  10    of information science profession are as knowledgeable on

  11    the application of economics and statistics to issues in

  12    library information science?

  13         A.    Yes.

  14         Q.    I take it that your two criticisms, two major

  15    criticisms, of Professor Barschall's study relate to the use

  16    of cents per thousand characters -- that's one -- and use of

  17    the impact factor -- that's two?

  18         A.    Those are two of the issues, yes.

  19         Q.    Are those the two major issues?

  20         A.    Yes.

  21         Q.    I take it that you differ from Dr. King in terms

  22    of your confidence in value of citation analysis?  He places

  23    more confidence in it than you?

  24         A.    I'm not certain if he places more or less

  25    confidence in it than I do.


   1         Q.    What about the cost per character, cost per word?

   2    Does he rely on that more than you do?

   3         A.    In his earlier writings, yes, he did some work on

   4    "cost per kiloword," I believe it was called.

   5               THE COURT:  "He" is Dr. King?

   6               THE WITNESS:  Dr. King, yes.

   7         Q.    Now, you are familiar with the term "market

   8    failure"?

   9         A.    Yes.

  10         Q.    Am I correct in understanding that there are

  11    either three or four, depending on how you count, causes of

  12    market failure in the views of most economists?

  13         A.    Yes.

  14         Q.    And one of those instances where there is a

  15    market failure is when the consumer does not have full

  16    information on price or quality of the product?

  17         A.    Correct.

  18         Q.    And such a market failure prevents the market

  19    from reaching the socially efficient level?

  20         A.    Correct.

  21         Q.    And you agree that, when you look at the market,

  22    price of products is obviously very important?

  23         A.    Yes.

  24         Q.    Would you also agree that, at least in theory,

  25    that a producer which is a high-cost producer does not want


   1    the consumer to have full information regarding the relative

   2    prices of products?

   3         A.    Yes.

   4         Q.    Do you agree that there are three kinds of

   5    analyses that are performed by economists relating to price

   6    or cost of goods?  I will tell you the three I have in mind.

   7         A.    OK.  Go ahead, please.

   8         Q.    One is cost efficiency, or price efficiency

   9    study.  Is that one?

  10         A.    Correct, yes.

  11         Q.    One is cost effectiveness?

  12         A.    Correct.

  13         Q.    And the third is cost benefit?

  14         A.    Correct.

  15         Q.    Those are the three basic approaches that

  16    economists take towards analyzing --

  17         A.    Correct.

  18         Q.    -- market transactions, markets.

  19               And each one of these approaches generates data

  20    that is useful to the consumer?

  21         A.    Correct.

  22         Q.    A cost efficiency study is the simplest, I guess,

  23    in that you compare prices?

  24         A.    Correct.

  25         Q.    And you don't concern yourself with the quality


   1    of the product?

   2         A.    Correct.

   3         Q.    And that could be for a variety of reasons?

   4         A.    Right.

   5         Q.    It could be that the quality is identical?

   6         A.    Correct.

   7         Q.    It could be you assume it's identical, or it

   8    could be that you simply don't care, or that it's too

   9    complicated to analyze?  There are probably other reasons

  10    too.

  11         A.    One would hope that you would make mention of the

  12    fact that it's too complicated to analyze if you're not

  13    going to be concerned about quality at all.

  14         Q.    And much of what Dr. Barschall did was the cost

  15    efficiency analysis, isn't that right?

  16         A.    Cost efficiency, his way of doing cost

  17    efficiency, which is excluding the stuff on impact factor.

  18    That would be considered cost efficiency, but his way of

  19    doing it, I don't agree that that's a correct cost

  20    efficiency analysis.

  21         Q.    Would you say it's a poor cost efficiency

  22    analysis?

  23         A.    Yes.

  24         Q.    But it's a cost efficiency analysis?

  25         A.    Yes.


   1         Q.    And correct me if I'm wrong, and I may be wrong,

   2    Table 2 on PX 2, where he, I believe there he just looks at

   3    cost per character, that would be a cost efficiency

   4    analysis?

   5               It may be Table 3.

   6         A.    This is cost efficiency, his way of doing cost

   7    efficiency, for translation journals.

   8         Q.    And Table 3 is what?

   9         A.    Table 3 is -- right, is just the cost per

  10    character.

  11         Q.    So that's the cost efficiency analysis?

  12         A.    His way of doing the cost efficiency analysis,

  13    yes.

  14         Q.    Now, let's go up a step to cost-effectiveness.

  15    That's a separate approach; is that correct?

  16         A.    It embodies the first approach because you're

  17    adding effectiveness to it.

  18         Q.    That takes the same analysis of prices and it

  19    adds some measure of effectiveness?

  20         A.    Right.

  21         Q.    And then we have cost benefit, the third type of

  22    analysis?

  23         A.    Yes.

  24         Q.    And that is considerably more complicated?

  25         A.    Yes.


   1         Q.    That requires you to analyze all of the costs and

   2    all of the benefits?

   3         A.    Yes.  It requires you to quantitatively measure

   4    the benefits in dollar terms to compare them to the cost,

   5    which is in dollar terms.

   6         Q.    And that would include the externalities, as

   7    economists might say?

   8         A.    Correct.

   9         Q.    So that if you are talking about the cost or

  10    benefit of producing an automobile, you would have to worry

  11    about pollution and calculate the effects on unemployment

  12    and all sorts of elements?

  13         A.    Correct.

  14         Q.    And the study that you did on interlibrary loans

  15    was a cost/benefit analysis?

  16         A.    The theoretical model on interlibrary loan was a

  17    cost/benefit analysis.  The comparison, I would say, of

  18    interlibrary loan to journal pricing, yes, it could fall

  19    under the rubric of cost/benefit analysis.

  20         Q.    Even though you didn't calculate all of the

  21    costs?

  22         A.    Even though I didn't calculate all of the

  23    benefits, because there was two methods of delivering the

  24    same thing.  We're talking about delivering a journal

  25    article either through a library subscription or through


   1    interlibrary loan.

   2         Q.    And you made that study at one university or a

   3    set --

   4         A.    A set of universities.

   5         Q.    Four?

   6         A.    Four universities, the State University of New

   7    York at Albany, Stonybrook, Buffalo, and Binghamton.

   8         Q.    How many years did you work on it?

   9         A.    I worked on that for a one-year period.

  10         Q.    And you wrote several articles about it?

  11         A.    Yes, and a book.

  12         Q.    And a lot of people worked on the project with

  13    you?

  14         A.    Yes.

  15         Q.    And in one of your articles you thanked 36

  16    people?

  17         A.    I'm taking your word for that, yes.

  18         Q.    And it's correct that Dr. Barschall did not

  19    purport to do the cost/benefit analysis?

  20         A.    Correct.

  21         Q.    And it was probably impossible to do, in any

  22    event?

  23         A.    I would say "difficult."  I wouldn't say

  24    "impossible."

  25         Q.    Now, to do a cost effectiveness study, am I


   1    correct in understanding that, when you add the element of

   2    effectiveness to a basic cost analysis, that what you are

   3    looking for is some measure that gives you enough

   4    information as to effectiveness to make reasonable

   5    management decisions?

   6         A.    Correct.

   7         Q.    So you can use a proxy?

   8         A.    For benefit?

   9         Q.    Right.

  10         A.    Right.  Right.

  11         Q.    And indeed, for Dr. Barschall's study, you have

  12    identified five possible measures of effectiveness, correct?

  13         A.    Could you -- where are you speaking from?

  14         Q.    Let me list them:  Readership, use, faculty

  15    ranking, total citations, and impact factor.

  16         A.    Right.  Those are five possible proxies.  It's

  17    whether -- the degree to which they are good or poor proxies

  18    for benefit or effectiveness.

  19               THE COURT:  This citation and impact factor is

  20    separate?

  21               THE WITNESS:  Yes.

  22               THE COURT:  The difference being?

  23               THE WITNESS:  Citations are the total citations

  24    that an article receives -- let me take that -- that a

  25    journal receives over its lifetime.  The impact factor is a


   1    very small window of those citations, a snapshot of the

   2    movie, you might look at it as.

   3         Q.    And it's your testimony today that, of the five,

   4    the one Dr. Barschall picked was the worst?

   5         A.    Correct.

   6         Q.    All the others would be better?

   7         A.    Correct.

   8         Q.    Including readership?

   9         A.    Yes.

  10         Q.    And by "readership," you mean as to a journal,

  11    how many times has it been read, an article?

  12         A.    Correct.  Article read.

  13         Q.    How many times has an article been read?

  14         A.    Correct.

  15         Q.    And so far as you know, no one has ever

  16    calculated that?

  17         A.    For Don King's -- a major part of Don King's work

  18    in his lifetime was analyzing readership by scientists of

  19    journal articles.  So he has done surveys to try and measure

  20    readership.

  21         Q.    Has anyone compared journals by the number of

  22    times they are read?

  23         A.    Not to my knowledge.

  24         Q.    And it would be very hard to do, wouldn't it?

  25         A.    I don't know if I agree with that.  You would


   1    have to measure readership of journal titles by faculty,

   2    figuring out how many times they read a journal, either

   3    through a survey or, you know, essentially some survey of

   4    faculty, the way that Don King has done it, and so long as

   5    you have the journal title there, then you have information

   6    on readership by journal title.

   7         Q.    Well, you might have an article assigned to a

   8    class of 20 students, correct?

   9         A.    Correct.

  10         Q.    And you might assume that all 20 read the article

  11    because it was assigned?

  12         A.    Correct.

  13         Q.    But that might not be correct?

  14         A.    You're right.  That might not be correct.

  15         Q.    And so you would then have to watch every student

  16    or interview every student to see if they actually read it,

  17    correct?

  18         A.    To see -- correct.

  19         Q.    And one of the students may have asked his

  20    roommate to read it because it was of interest?

  21         A.    Correct.

  22         Q.    So you would have to figure that out too, right?

  23         A.    There are possible errors in this kind of

  24    analysis, correct.

  25               THE COURT:  When you are ready to go to another


   1    subject, we will break for the day.

   2               MR. HUVELLE:  Whenever, your Honor.  I can keep

   3    going or I can stop.  But I'm not offended if you want to

   4    stop.

   5               THE COURT:  All right.  So we will call it a day.

   6               I take it that it is still the estimate of both

   7    parties that we will conclude comfortably this week?

   8               MR. HUVELLE:  Comfortably?  If I may speak out of

   9    turn, your Honor?

  10               THE COURT:  Yes.

  11               MR. LUPERT:  It's moving right along, frankly,

  12    but --

  13               THE COURT:  Excuse me?

  14               MR. LUPERT:  We think it's moving right along, so

  15    I think our estimate that the plaintiff's case is going to

  16    finish on Wednesday remains accurate.  So I think, if I am

  17    estimating the defendant's case properly, it's likely to end

  18    on Friday.  I think that's --

  19               THE COURT:  If at any point it becomes apparent

  20    or probable that that is not going to happen, I would like

  21    to be alerted to it for the benefit of counsel next week.

  22               MR. LUPERT:  Of course.

  23               THE COURT:  Thank you.  We are adjourned until 10

  24    a.m. tomorrow.

  25               (Adjourned to 10:00 a.m., Tuesday, June 10, 1997)


   1                        INDEX OF EXAMINATION


   3    Witness                    D      X      RD     RX

   4    GOERGE  WILLIAM TAYLOR.....9     55      99

   5    BRUCE ROBERT KINGMA......105    146


   7                         PLAINTIFF EXHIBITS

   8    Exhibit No.                                     Received

   9     730A .........................................19