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Main Index: Trial Testimony June 10, 1997


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

                   v.                           93 CV 6656 LBS
                                                June 10, 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               (Trial resumed)

   2               THE COURT:  The witness may resume the stand.

   3     BRUCE KINGMA, Resumed.

   4               THE COURT:  I remind you, you are still under

   5    oath.

   6    CROSS-EXAMINATION (Continued)

   7    BY MR. HUVELLE:

   8         Q.    Dr. Kingma, I would like to start off by just

   9    talking briefly about the role of scientific journals.

  10               Are you familiar with the history of scientific

  11    journals?

  12         A.    Briefly familiar with the history.

  13         Q.    You are aware that they have been around for

  14    several hundred years?

  15         A.    Yes.

  16         Q.    Is it your understanding that scientific journals

  17    have been the principal means by which advances in science

  18    have been communicated within the scientific community?

  19         A.    Principally, yes.  There's obviously a number of

  20    other means of communication too, I guess.  I would say that

  21    they are an important part.

  22         Q.    But isn't it true that it is widely considered

  23    that, in science, the scientific journal has been the

  24    principal medium for the transmission of scientific

  25    knowledge?


   1         A.    Yes.

   2         Q.    Over the hundreds of years that scientific

   3    journals have been in use, there have developed traditions

   4    regarding the writing of articles for scientific journals;

   5    is that correct?

   6         A.    Yes.

   7         Q.    One of those -- one of the academic traditions

   8    relating to articles for scientific journals is that the

   9    author cite in connection with his article as references the

  10    prior works that have contributed in a significant way to

  11    his analysis in his own article; is that correct?

  12         A.    Correct.

  13         Q.    It's part of the academic tradition to treat such

  14    citations as an important part of a scientific article?

  15         A.    As an important part of it, yes.

  16         Q.    And it is true that, for most scientific

  17    journals, there is a peer review process that looks over the

  18    article and makes sure that it is of sufficient quality; is

  19    that correct?

  20         A.    Correct.

  21         Q.    In that it conforms to the standards of academic

  22    scholarship?

  23         A.    Correct.

  24         Q.    Including the citation of prior works that have

  25    contributed to the author's own analysis?


   1         A.    Correct.

   2         Q.    These academic traditions apply to the field of

   3    economics, too, your own field?

   4         A.    Correct.

   5         Q.    When you write an article, you exercise care and

   6    responsibility in citing those prior articles that have

   7    contributed in a significant way to your own analysis?

   8         A.    Correct.

   9         Q.    And other scientists and academicians with whom

  10    you are familiar have likewise exercised the same care and

  11    responsibility in citing the prior works, prior articles,

  12    that have contributed to their own analysis, correct?

  13         A.    Correct.

  14         Q.    Is it true that numerous citations to a

  15    scientific journal tell us that the scientists most engaged

  16    in advancing scientific knowledge find that articles in that

  17    journal contribute in a significant way to their own work?

  18         A.    Most citations to a journal show that that

  19    particular journal -- is that what you said -- makes a

  20    substantial contribution, that would be correct.

  21         Q.    Do you agree that the total number of citations

  22    to a journal is useful information for a librarian to have

  23    in connection with the assessment of the effectiveness of

  24    journals; is that correct?

  25         A.    I would say there is better information than


   1    citations, because you're now taking it from the world of

   2    journals down to the world of my library, my patrons, and

   3    that's where the analysis starts to crumble in that a

   4    particular journal might have a lot of citations but not be

   5    particularly useful to the patrons at my particular library.

   6         Q.    You said there are other better pieces of

   7    information, but would you agree that the total number of

   8    citations to a journal is useful information for a librarian

   9    to have in connection with the assessment of the

  10    effectiveness of that journal?

  11         A.    I would say that there is better information in

  12    terms of making collection management decisions.  Citations

  13    might provide you with -- the total citations might provide

  14    you with a piece of information about a set of journals, but

  15    those decisions still have to be made in concert with what

  16    the faculty at your library want.

  17         Q.    But do you agree that the piece of information

  18    provided by the total number of citations to a journal is

  19    useful to a librarian?

  20         A.    It may be useful to a librarian.

  21         Q.    You have written a textbook on information

  22    science?

  23         A.    I would call it economics information.  I

  24    wouldn't call it a textbook on information science.

  25         Q.    OK.  I will accept your characterization of your


   1    book readily.

   2                And this is a book for students?

   3         A.    Correct.

   4         Q.    And it goes over the basics of economics as

   5    applied to information sciences?

   6         A.    Correct.

   7         Q.    And one of the issues it addresses is the subject

   8    we mentioned yesterday, market failure?

   9         A.    Correct.

  10         Q.    The failure of the consumer to have appropriate

  11    information about the price or quality of a product?

  12         A.    Correct.

  13         Q.    In your textbook, you identified a number of

  14    examples of markets where there might be a problem with the

  15    available information, or in terms of the lack of relevant

  16    information?

  17         A.    Correct.

  18         Q.    One of the markets that you identified was the

  19    market for journal subscriptions?

  20         A.    Correct.

  21         Q.    The problem you identified was that the

  22    individual subscriber or library cannot determine the

  23    quality of a journal until after paying for it and receiving

  24    the subscription?

  25         A.    Correct.


   1         Q.    Do you recall that?

   2         A.    Correct.

   3         Q.    You suggested a market solution for that absence

   4    of information?

   5         A.    I believe it is a table that you are reading

   6    from --

   7         Q.    Right.

   8         A.    -- in which a number of market solutions are

   9    suggested.

  10         Q.    Right.  Four solutions?

  11         A.    I believe it's four.  I would like to refresh my

  12    memory.

  13               MR. HUVELLE:  I would like to show the witness

  14    Defendant's Exhibit DDD.

  15         Q.    At the bottom of the page, you identify the

  16    market for journal subscriptions?

  17         A.    Correct.

  18         Q.    One of the solutions that you propose for the

  19    problem of lack of information regarding quality of journals

  20    is the number of citations to published articles?

  21         A.    The third solution there, correct.

  22         Q.    Is it also true that, in your writings, you have

  23    referred to the problems that have arisen because of the

  24    increase in the number of scholarly journals that publish

  25    many articles never cited in later research?  Do you recall


   1    that?

   2         A.    Yes, I -- it's from one of the books that I've

   3    written, yes.

   4         Q.    You said that these articles seem to some people

   5    to exist solely for the purpose of padding the author's

   6    bibliography; do you recall that?

   7         A.    Correct, yes.

   8         Q.    Isn't it true that in writing this article and

   9    making that observation, you used the fact that some

  10    articles are never cited in later research as an indication

  11    of the low quality of the articles; is that true?

  12         A.    As a signal of this, correct.

  13         Q.    When did you receive tenure?

  14         A.    September of 1996.

  15         Q.    And you had to apply and be reviewed for that?

  16         A.    Yes.

  17         Q.    In connection with that, you had the opportunity

  18    to submit a short statement of your accomplishments; is that

  19    correct?

  20         A.    Yes.

  21         Q.    You had to specifically outline your achievements

  22    in the area of research, teaching, and university services?

  23         A.    Yes.

  24         Q.    Isn't it true as an indication of the quality of

  25    your work you included in that submission the number of


   1    times your journal articles had been cited in subsequent

   2    articles?

   3         A.    Yes.

   4         Q.    You referred yesterday to the Bensman article,

   5    Bensman being a professor at Louisiana State University, I

   6    believe?

   7         A.    He's a librarian at Louisiana State, actually.

   8         Q.    Librarian.  And you cited that article to support

   9    the proposition that faculty perceptions at Louisiana State

  10    University in the Chemistry Department do not correlate with

  11    rankings based on the impact factor?

  12         A.    Correct.

  13         Q.    Isn't it true that one of the central conclusions

  14    of Mr. Bensman was that total citations to a journal highly

  15    correlated with those faculty rankings?

  16         A.    Yes.

  17         Q.    An impact factor normalizes the size of journals;

  18    is that correct?

  19         A.    That's one of the things it does.  Obviously it

  20    differs from total citations in another way, too.

  21         Q.    If you had total citations, you might have a huge

  22    journal with many articles and thousands of citations?

  23         A.    Right.

  24         Q.    Impact factor divides the total citations by the

  25    number of articles?


   1         A.    It's -- it divides --

   2         Q.    In a two-year period.

   3         A.    In a two-year period, right.  So it's a snapshot

   4    and then divides by the number of articles, correct.

   5         Q.    Divides the total citations in a one-year period

   6    by the number of articles in the prior two-year period?

   7         A.    Correct.

   8         Q.    And so you get an average number of citations per

   9    article?

  10         A.    Correct.

  11         Q.    And so that's helpful, or it's fair to a smaller

  12    journal because you're dealing with averages on a per-

  13    article basis; is that correct?

  14         A.    I wouldn't call it fair or helpful.  I mean, what

  15    you're doing is normalizing in a way that I disagree with.

  16    But, nonetheless, you can take a smaller -- your statement,

  17    part of your statement is correct:  If you take a smaller

  18    journal and divide it by the number of articles, that might

  19    improve the impact factor for that smaller journal.

  20         Q.    You could have two journals, in each one, each

  21    and every article cited five times during a particular year?

  22         A.    Right.

  23         Q.    Every prior article is cited five times.  So the

  24    impact factor is going to be five for both journals?

  25         A.    Correct.


   1         Q.    But if one journal has a thousand articles,

   2    they're going to have 5,000 citations, and if the other

   3    journal has 20 articles, they'll have 100 citations?

   4         A.    Correct.

   5         Q.    So it's a different analysis?

   6         A.    It's a different number of citations.

   7         Q.    It's a different number?

   8         A.    Yes.

   9         Q.    It's a different number?

  10         A.    Right.

  11         Q.    Both are true numbers?

  12         A.    Right.

  13         Q.    They're both based on objective facts.  It's just

  14    different ways of looking at the data.

  15         A.    I don't know if I would agree that it's objective

  16    facts.  I mean, there are certain other issues going on with

  17    citations.  But it's -- you're right.  It's two -- the

  18    mathematics of that are that there are two different bases,

  19    two different numbers you are producing out of the impact

  20    factor.

  21         Q.    Well, the objective fact is the number of

  22    articles, the number of citations.

  23         A.    There is a number of citations, number of

  24    articles, correct.

  25         Q.    Isn't it true in Bensman's analysis, that he


   1    suggested that the reason impact factors did not correlate

   2    with faculty rankings is that the faculty gave -- ranked

   3    higher the large journals with lots of citations?

   4         A.    Correct.

   5         Q.    And so the faculty rankings tended to disfavor

   6    the small niche journals at the expense of the large society

   7    journals?

   8         A.    Correct.

   9         Q.    Your criticism of the impact factor is that it is

  10    too small of a window?

  11         A.    That's one of my criticisms of it, correct.

  12         Q.    Impact factor looks at citations in a particular

  13    year to articles in the two prior years?

  14         A.    Correct.

  15         Q.    You think it would be better to look at the total

  16    number of citations, the total number of citations in that

  17    year to all prior editions of the journal?

  18         A.    Citation -- total citations, right, is looking at

  19    the total number of citations, and that's certainly better

  20    than using a two-year/one-year window.

  21         Q.    You would look at all the citations in 1986 to

  22    articles published prior to 1986, back to 1975, 1974,

  23    where --

  24         A.    Correct.

  25         Q.    And of course that would disadvantage a new


   1    journal?

   2         A.    Correct.

   3         Q.    Now, if you look just at the two-year articles

   4    appearing in the two-year, prior year period -- the prior

   5    two-year period, you get information as to what's happening

   6    currently, don't you?

   7         A.    Looking at only a two-year snapshot gives you

   8    exactly that, a two-year snapshot.

   9         Q.    And the reason you're looking at citations or

  10    you're talking to the faculty, you're measuring use, is to

  11    make a judgment about the future; is that correct?

  12         A.    If you were -- if we're talking about librarians

  13    making collection development decisions, yes.  It's a matter

  14    of what's going to happen in the future, what's the expected

  15    value.

  16         Q.    Is the past a reliable indication of the future?

  17         A.    One would hope.  It is the only thing you can

  18    use -- the past by definition is the only thing you can use

  19    to guess at what's going to happen in the future.

  20         Q.    And certainly there are times when if you look at

  21    the 10-year past history or the 20-year past history, that's

  22    less reliable than if you look at the prior two years?

  23         A.    No, you're going to make fewer mistakes looking

  24    at a 20 or 20-year past history than only the prior two

  25    years.


   1         Q.    You don't know whether that's true in the case of

   2    scientific journals, though, do you?

   3         A.    I don't know if that's true in the case of

   4    scientific journals, but the -- when you think about how

   5    you're sampling those journals, it's clear that if you're

   6    looking at a 20-year history you're going to be better off

   7    than only looking at the past two years.  You may be

   8    ignoring pertinent information by discarding 18 years.

   9         Q.    You may be misled, as well, by a journal that had

  10    a glorious past and a troubled present?

  11         A.    Hopefully you would be able to pick out that

  12    troubled present by their -- the editors of that journal,

  13    any kind of knowledge you might have about that journal in

  14    its recent history.

  15         Q.    But isn't it true whether you picked two years or

  16    10 years or 20 years, in some cases that past history may

  17    not be the best slice to look at?

  18         A.    In --

  19         Q.    For some journals.

  20         A.    For some journals, depending on the slice, yes,

  21    correct.

  22         Q.    Have you read the deposition of Ms. Hunter in

  23    this case regarding impact factors?

  24         A.    No, I have not read the deposition of Ms. Hunter.

  25         Q.    Do you know whether other publishers use impact


   1    factors or total citations when they want to know how well

   2    their journals are doing?

   3         A.    Yes.

   4               Let me finish what I was about to say, is, I have

   5    read the report from Ms. Hunter but not the deposition of

   6    Ms. Hunter.  And in the report I believe she says that

   7    Elsevier uses impact factors.

   8               Elsevier is the name of the publisher.

   9         Q.    Let me turn to the price side of the equation.

  10               Do you agree that the librarian must make

  11    decisions regarding competing journals based in part on

  12    price information?

  13         A.    Yes.

  14         Q.    And librarians must make comparisons between

  15    journals in terms of price, among other factors?

  16         A.    Yes.

  17         Q.    Do you agree that the information on price should

  18    be in a format that allows the librarian to make wise

  19    management decisions about journal acquisitions?

  20         A.    Yes.

  21         Q.    You agree that price information can be presented

  22    in a variety of ways?

  23         A.    Yes.

  24         Q.    Do you recall that Professor Barschall, in both

  25    of his articles, displayed the annual subscription price for


   1    each journal as well as the cost per thousand characters?

   2         A.    Yes.

   3         Q.    He displayed that information for two years?

   4         A.    Yes.

   5         Q.    But in addition to the annual price or

   6    subscription price, Barschall normalizes the size of the

   7    journals to provide a common measure of cost per amount of

   8    article information; is that correct?

   9         A.    Yes, that is what he did.

  10         Q.    Do you agree that it is a sound approach to

  11    normalize the cost in that manner?

  12         A.    No, I do not.

  13         Q.    I believe you discussed the reasons for that view

  14    yesterday; is that correct?

  15         A.    Yes.

  16         Q.    Were you here during the testimony of Dr. Taylor?

  17         A.    No, I was not.

  18         Q.    Did you have an opportunity to read the testimony

  19    of Dr. Taylor?

  20         A.    No, I did not.

  21         Q.    Let me --

  22         A.    Let me --

  23         Q.    -- pose this as a hypothetical to you.

  24         A.    All right.

  25         Q.    The journal editor whose journal price was


   1    $9,000, compared to $507 for another journal normalized

   2    cost, in order to calculate the cost per article, would you

   3    say that's a wrong approach?

   4         A.    Are you saying the publisher did that?

   5         Q.    Yes.

   6         A.    For the publisher to do it is actually a bit

   7    different from the librarian doing it on the purchase

   8    decision.

   9         Q.    Why is that?

  10         A.    Well, because a publisher is also in some sense

  11    selling those articles through document delivery or

  12    interlibrary loan and has to set copyright fees on a per-

  13    article basis.  So for the publisher to divide it up on a

  14    per-article basis might give that publisher information

  15    about how to set a copyright fee as articles are delivered

  16    through this alternative means.

  17         Q.    But if the editor who did this, the editor of the

  18    $9,000 journal, did it in response to complaints that his

  19    journal's price was very high, and in order to demonstrate

  20    the cost effectiveness of his journal, would you say that's

  21    the wrong approach?

  22         A.    I think it's the wrong approach for a librarian

  23    making a decision to tell a publisher what they should or

  24    shouldn't do.  But as far as librarians go, their

  25    responsibility is to purchase the entire subscription or to


   1    find an alternative access to that information through a

   2    system like interlibrary loan.

   3         Q.    I believe you conceded yesterday that normalizing

   4    price on the basis of a common unit of measurement is

   5    appropriate in a grocery store?

   6         A.    Correct.

   7         Q.    Is it --

   8               THE COURT:  We will take a five-minute recess.

   9               MR. HUVELLE:  Fine.

  10               (Recess)

  11               THE COURT:  Sorry for the interruption.  You may

  12    be seated.

  13               You know, as long as we have interrupted, you

  14    made some reference yesterday to a book you had written or a

  15    study you had done on comparing ownership to lease access;

  16    is that --

  17               THE WITNESS:  Well, to access.  It's called the

  18    access-to-ownership comparison, where ownership means buying

  19    the journal subscription and access is acquiring articles on

  20    an as-needed basis through interlibrary loan.  So the

  21    faculty member comes in, wants a certain --

  22               THE COURT:  Acquiring from, what?  From other

  23    libraries?

  24               THE WITNESS:  From other libraries, from

  25    commercial document delivery sources, other places that have


   1    the journals you're looking for, essentially.  They're

   2    photocopying an article on that journal and sending it on to

   3    you at your library.

   4               THE COURT:  Which creates copyright fees?

   5               THE WITNESS:  Well, there is a copyright fee

   6    associated with that, so --

   7               THE COURT:  I just want sure what the terminology

   8    meant.  Thank you.

   9    BY MR. HUVELLE:

  10         Q.    If I may just pursue that subject for just a

  11    moment.

  12               In connection with your study, you worked out a

  13    formula by which a library should determine if it is cheaper

  14    to borrow an article than to buy the journal?

  15         A.    Correct.

  16         Q.    And you noted that one consequence of using your

  17    formula, if libraries did, would be that the smaller

  18    journals that were used less, that were more expensive,

  19    would be canceled by some libraries?

  20         A.    I don't know if I said "smaller," but journals

  21    that were used less, more expensive, clearly both these

  22    things factor into the formula, the price of the journal and

  23    the amount to which it's used.  So, low-use, high-cost means

  24    you're more likely as a library to cancel that particular

  25    subscription.


   1         Q.    And one of the macro effects that you did not

   2    address in your cost/benefit analysis was the consequence

   3    that, as a result of canceling journals that are high-cost,

   4    low-use, the cost of those journals would actually go up, or

   5    the price of the journals would go up even further?

   6         A.    Right.

   7         Q.    Which would then lead to more libraries

   8    canceling?

   9         A.    Correct.

  10         Q.    And your position was, well, an individual

  11    library can't worry about that?

  12         A.    Correct.

  13         Q.    Back to the grocery store.

  14         A.    OK.

  15         Q.    The appropriateness of unit costs in a grocery

  16    store, in your judgment does that apply to all products in

  17    the grocery store?  We focused a little bit on pasta, but I

  18    want to know if it has more general application.

  19         A.    In each product, there is going to be a container

  20    of a certain size, but also quality differences.  Now,

  21    clearly unit pricing on pasta doesn't allow me to compare it

  22    to -- and there's unit pricing down a few aisles on beans,

  23    but I'm not really making a comparison between pasta and

  24    beans.  There are quality differences.  There are, you know,

  25    significant differences between those products; that the


   1    unit pricing is for a different reason than comparing the

   2    cost per ounce for beans to the cost per ounce of pasta.

   3         Q.    But do you agree with the appropriateness of

   4    displaying unit cost data for beans and fruit juice and ice

   5    cream, different products?

   6         A.    Many of the different products in the grocery

   7    store, yes.  I mean, there are clearly examples in the

   8    grocery store where you don't have unit pricing, you don't

   9    have a price per ounce of a broom, because we're not

  10    interested in the price per ounce of a broom.  You just want

  11    to know how much you're going to pay for the broom.

  12         Q.    As I understood it, the reason you gave why a

  13    common unit price is not appropriate for scientific journals

  14    is that scientific journals are more like a car than they

  15    are like pasta?

  16         A.    Yes, it's tough to draw that comparison, but,

  17    yes, I would agree with that.  They're more like a car in

  18    that there's information, there's something else embedded

  19    within the product than they are like pasta.  Yes, I would

  20    agree with that, although it's -- it's tough to think about

  21    it.

  22         Q.    You don't agree with my statement.  I'm simply

  23    reciting yours.

  24         A.    OK.

  25         Q.    What is the difference between a car and pasta


   1    that is pertinent to the distinction you're making?

   2         A.    A car you're purchasing as a single unit, and

   3    within that there are many quality characteristics of a car

   4    that are influencing your decision to buy, depending on how

   5    many people you want to fit in the car, how fast you want

   6    the car to go, what color it is, etc.  There are many

   7    characteristics to the car, and you purchase it as a car.

   8               Whereas with pasta you're looking at it and

   9    within the grocery store setting making the comparison

  10    perhaps between two different sized boxes of pasta.  Within

  11    each box is relatively the same quality good -- relatively

  12    the same quality good for the decision you're making, but

  13    you want to know the price per ounce of those two boxes,

  14    which might be of different size.

  15         Q.    So are you telling us that the operative

  16    distinction is whether there is variation in quality among

  17    the products?

  18         A.    It's variation in quality, yes, along with the

  19    amount you're purchasing.

  20         Q.    Do you say it's inappropriate as to cars because

  21    when you buy a car you consider quality?

  22         A.    When you buy a car you consider quality, and

  23    you're also, you know, purchasing a car as one solid good.

  24    You could, even in theory, if you had two cars of the exact

  25    same quality, I still don't think you would want to


   1    normalize it on a price per pound basis.

   2         Q.    The cost basis -- a cost comparison is a cost

   3    efficiency analysis?

   4         A.    Right, correct.

   5         Q.    Which compares cost, correct?

   6         A.    Correct.

   7         Q.    It has nothing to do with quality?

   8         A.    Correct.  Doing a cost efficiency analysis makes

   9    the assumption that the quality is very similar, not

  10    identical.

  11         Q.    Is it your testimony that there are no

  12    differences in the quality of pasta or other goods you see

  13    in a grocery store?

  14         A.    There are certainly differences in the quality of

  15    pasta.

  16         Q.    Isn't the whole point of unit pricing in a

  17    grocery store that you see the brand name, the Proctor &

  18    Gamble Tide, and then you see the Safeway detergent X, and

  19    you go in with some assumption as to the differences in

  20    quality, and then the price data on a unit basis allows you

  21    to see whether for one you are paying $1.50 per ounce and

  22    the other you're paying 5 cents an ounce.  It just gives you

  23    the cost comparison, and then you use that in making a

  24    decision; is that correct?

  25         A.    Correct.  And that's actually a very good


   1    example, because as you're using detergent, you're obviously

   2    using it by the ounce, not by the unit you're purchasing.

   3         Q.    So that's a factor in whether or not the unit

   4    cost is appropriate?

   5         A.    In the sense that you're using it by the scoop,

   6    by the ounce.

   7         Q.    If I have these journals and I know the annual

   8    subscription price of these journals, I know the annual

   9    subscription price of these journals, and I know the annual

  10    subscription price of the green journals, and those are all

  11    one year of that journal, and then the orange and white is

  12    another journal, one year.  The librarian knew the price of

  13    all four journals.  Is there any cost price information

  14    about these journals that in your judgment would be helpful

  15    in making acquisition decisions?

  16         A.    Well, just the subscription price, simply that.

  17         Q.    That's the only information?

  18         A.    Well, the only information about price, cost.

  19    You want to know --

  20         Q.    What about --

  21               MR. PLOTZ:  Please let him answer.

  22               MR. HUVELLE:  I'm sorry.

  23         A.    You want to know to what degree these journals

  24    are going to be used by your patrons.  That's the other side

  25    of the coin.


   1         Q.    Let's focus on price.

   2         A.    OK.

   3         Q.    What about telling the librarian what the cost

   4    price per page is of the journals?

   5         A.    I don't think that's useful information.

   6         Q.    Isn't it true that if a librarian knew the price

   7    of this journal and he knew the price of this journal and he

   8    knew the price of those journals, that he wouldn't think

   9    about that, or that what he would do is, he would take into

  10    account the differences in the amount of information he's

  11    getting; isn't that right?  He would normalize in his own

  12    mind?

  13         A.    One would hope that he or she would not do that,

  14    that they would look at the usefulness of what they're

  15    purchasing rather than simply the size of it.  The example I

  16    gave in my deposition earlier is this, you know, these

  17    places that sell books by the foot, for aesthetic reasons.

  18    The cheapest way to fill your library shelves is to purchase

  19    books by the foot, but that doesn't mean that your patrons

  20    are going to be using those materials, and it would be a

  21    poor collection management decision to simply buy books by

  22    the foot which are sold for aesthetic reasons of filling up

  23    people's shelves in houses.

  24         Q.    Suppose we had four journals, they're all good

  25    enough to get in the ISI database.  In each case there's one


   1    faculty member who says, I'm on the board of that particular

   2    journal so I'd like to have it.  It's embarrassing me for me

   3    to go to board meetings and not have it.

   4               So we know something about the quality.  But the

   5    librarian needs to justify to his boss, we're using the

   6    money wisely, we're getting a good bang for the buck.

   7    Right?

   8               Isn't that what unit pricing is about?  Bang for

   9    the buck?  What you're getting for your money?

  10         A.    I don't know if I'd call it "bang for the buck."

  11    I just strongly disagree with normalizing pricing for

  12    journals on a per-page or per-character basis.

  13         Q.    You're saying that if this journal is a little

  14    bit less expensive than most journals, that the librarian

  15    ought to, in making the decision, just consider this as less

  16    expensive without regard to the fact that that journal

  17    provides, or those journals provide perhaps ten times as

  18    many articles?

  19         A.    I think your question is putting the librarian in

  20    a vacuum without any information about use or possible use

  21    of those journals.  If you only have price and you have

  22    nothing else, boy, that -- I mean, that would be an

  23    impossible decision to make.

  24         Q.    I'm not --

  25         A.    OK.


   1         Q.    The librarian has lots of other information.  Is

   2    it appropriate for the librarian, in addition, in addition

   3    to knowing the annual subscription price, and in addition to

   4    knowing things about quality, to know what the cost per

   5    character is, or the cost per page, or the cost per article,

   6    or some other common measurement that allows a comparison on

   7    a common basis?

   8         A.    No.  The normalization that should occur is the

   9    cost per subscription, how much I'm paying for a

  10    subscription.  That's really the only normalization that

  11    should occur under these circumstances.

  12         Q.    Isn't it true that in the case of the green

  13    journals over there, it's not like a car in either you get

  14    the whole thing or not, that contains several thousand

  15    articles; is that correct?

  16         A.    Correct.

  17         Q.    No one is going to read all the articles?

  18         A.    I don't know if there's anybody that would read

  19    all the articles.  The editor would read all the articles.

  20         Q.    Well, we can even wonder about that.

  21               In the pasta example, it's divisible into meals,

  22    correct?

  23         A.    Correct.

  24         Q.    The university cafeteria can buy pasta on a

  25    per-unit basis and then students come in and they take a


   1    large portion or a small portion, but they do that, right?

   2         A.    Correct.

   3         Q.    And in the case of the journal, the 2,000, 3,000

   4    articles, the librarian buys it, and different students come

   5    in, read one article, two articles.  They treat it not as an

   6    entity but as a divisible product; is that correct?

   7         A.    The students treat it as a divisible product.

   8         Q.    True.

   9         A.    Divisible in the sense that it's their use,

  10    right?  It's a student coming into the library and using

  11    that journal.  You could have 50 students all using the same

  12    article from that journal.

  13         Q.    So in your view, the only -- the only -- price

  14    information is the annual subscription price?

  15         A.    The annual subscription price, yes.  There is

  16    the -- these fixed costs associated with buying a journal,

  17    too, that involve shelving and cataloging, etc., so --

  18         Q.    You mentioned yesterday that Dr. Barschall did

  19    not take that into account?

  20         A.    Correct.

  21         Q.    Should he have?

  22         A.    It's relatively the same for all these journals.

  23         Q.    So there's no reason to?

  24         A.    There's really no reason to, under these

  25    circumstances.  Those costs are about $60 to $70 per journal


   1    subscription, so when you're talking about prices and in the

   2    early '80's when you did this, they were probably less than

   3    $60 or $70.

   4         Q.    But it washes out?

   5         A.    It probably washes out as a small percentage of

   6    the whole.

   7         Q.    If you were a librarian and you looked at this

   8    set of journals, this set of journals and those two sets,

   9    would you make any assumptions about what the subscription

  10    price would be?

  11         A.    I am not a librarian, but, no, I wouldn't make

  12    any assumptions.

  13         Q.    You have no way of telling which one would be

  14    more expensive?

  15         A.    No.  Hopefully you would be able to find that

  16    price information.

  17         Q.    So it would not be surprising to you if this

  18    journal cost more than both of those journals combined?

  19         A.    It wouldn't be particularly surprising, no.

  20         Q.    And it would not be surprising to you if the

  21    price per page of this journal was 67 cents and the price

  22    per page of those journals was 5 cents?

  23         A.    I wouldn't be --

  24         Q.    The same with this?  It wouldn't surprise you?

  25         A.    No.


   1         Q.    But that's not something a librarian ought to

   2    think about in deciding whether or not to subscribe to this

   3    journal or that journal?

   4         A.    They should not think about the price per page,

   5    no.

   6         Q.    But it certainly allows us to say this journal is

   7    much more expensive?

   8         A.    The subscription price might allow us to say that

   9    that journal is much more expensive, yes.

  10         Q.    And this one, which has the same per-page price

  11    as this one, can we say that this journal is more expensive

  12    than those two when the total price is less than those?

  13         A.    I'm sorry.  I'm getting a little confused.  The

  14    per-page price --

  15         Q.    The per-page price is the same?

  16         A.    Same.

  17         Q.    Total price is less of this than this and less

  18    than those?

  19         A.    How can the per page price be the same and the

  20    total price when that's a smaller stack?  I don't

  21    understand.

  22         Q.    The per-page price is the same.

  23         A.    Right.

  24         Q.    The total price of the smaller stack is therefore

  25    less.


   1         A.    Oh, is less, OK.  Yes.

   2         Q.    Would you agree that this journal also is more

   3    expensive than those journals?

   4         A.    I don't know that -- you're asking me to make a

   5    mathematical calculation of multiplying the number of pages,

   6    so --

   7         Q.    If the total subscription price of this journal

   8    is less than those journals --

   9               THE COURT:  You know, I think if somebody reads

  10    this record, it might be helpful to know that what you are

  11    referring to are stacks of blue-covered --

  12               MR. HUVELLE:  Your Honor, that's an excellent

  13    point, and I can try to clarify it, although it would have

  14    been helpful, I guess, if I would tried earlier, but I will

  15    do my best now.

  16               THE COURT:  Sometimes you read a record and --

  17               MR. HUVELLE:  I can imagine.

  18               THE COURT:  It hurts me here, Doctor.

  19         Q.    The journals with the 67-cent-per-page price that

  20    I have been referring to, one is an orange journal; is that

  21    correct?

  22         A.    Correct.

  23         Q.    And that bears the title Ferroelectrics?

  24         A.    Correct.

  25         Q.    And then the other journal that's small in number


   1    but high in price is a white-and-black journal called

   2    Physics and Chemistry of Liquids?

   3         A.    Correct.

   4         Q.    And let me represent that the two larger stacks

   5    are a green stack, which is Physical Review B, and a black-

   6    and-orange stack, which is Journal of Applied Physics.

   7               MR. HUVELLE:  I will represent that for the

   8    record.  And thank you, your Honor, for --

   9               THE COURT:  And the relative heights of the

  10    stacks I think are part of what you can do to make your

  11    question meaningful.

  12         Q.    Would you estimate for us the size of the orange

  13    Ferroelectrics stack?

  14         A.    It looks to be about ten inches high.

  15         Q.    Or a little less?

  16         A.    That's --

  17         Q.    And the Physics and Chemistry of Liquids?

  18         A.    It looks to be two inches high.

  19         Q.    And the green Physical Review B?

  20         A.    That's those two stacks, right?

  21         Q.    The two stacks, each about a foot and a half.

  22         A.    Yes, so about three feet high together.

  23         Q.    And the Journal of Applied Physics is --

  24         A.    Is just that one stack?

  25         Q.    Yes.


   1         A.    So about a foot and a half.

   2         Q.    Do you have any of the exhibits up there from

   3    yesterday?

   4         A.    I have Physics Today, Bulletin of the Physics

   5    Society, a table from my book, and the impact numbers from

   6    the Science Citation Index for '86.

   7         Q.    I would like you to look at Plaintiff's Exhibit

   8    2.

   9               MR. HUVELLE:  Your Honor, I have an extra copy if

  10    you need one.

  11               THE COURT:  I think I have it up here.  Yes.

  12         Q.    Do you have Plaintiff's Exhibit 2?

  13         A.    Yes.

  14         Q.    Can you turn to Table 3.  Is this a ranking of

  15    journals by cost per character?

  16         A.    Yes.

  17         Q.    And it's a three-page list?

  18         A.    Yes.

  19         Q.    Now, in the first page, the journals run from

  20    39 -- .39 to 3.4 cents?

  21         A.    Yes.

  22         Q.    Now, on page 2, they run from 3.4 to 7.4 cents?

  23         A.    Yes.

  24         Q.    Is that correct?

  25               And these are ranked in order of increasing cost?


   1         A.    Yes.

   2         Q.    And the total on the three pages is about 200

   3    journals that Barschall studied?

   4         A.    Yes, about.

   5         Q.    And then on page 3, you go halfway down the page

   6    and you get to the first journal that has a cost of 10 cents

   7    per thousand characters.  Do you see that?

   8         A.    Yes.

   9         Q.    And then you go down a little further and there's

  10    a journal with a cost of 11.9 cents per thousand characters?

  11         A.    Yes.

  12         Q.    Then you jump up to 14 cents per thousand

  13    characters; is that correct?

  14         A.    Yes.

  15         Q.    One journal.

  16               Then you jump again to 16 cents per thousand

  17    characters?

  18         A.    Yes.

  19         Q.    And then we have the bottom 14 journals, the most

  20    expensive -- 14 most expensive journals on a cost per

  21    thousand character?

  22         A.    Yes.

  23         Q.    And of those 14 most expensive journals on a

  24    cost-per-thousand-character basis, 11 are Gordon & Breach

  25    journals; is that correct?


   1         A.    Yes.

   2         Q.    And so the least expensive of the Gordon & Breach

   3    journals ranks 187 out of the 200?

   4         A.    If there's 200 here, yes.

   5         Q.    Can you turn to Plaintiff's Exhibit 3.

   6         A.    Yes.

   7         Q.    Do you have that?  Can you look at Table 1.

   8         A.    Yes.

   9               THE COURT:  Bear with me just a moment.

  10               MR. HUVELLE:  I have an extra copy.

  11               THE COURT:  I will take your extra copy.  Thank

  12    you.

  13               Exhibit 3, what are you looking at?

  14               MR. HUVELLE:  We are looking at Plaintiff's

  15    Exhibit 3, Table 1.

  16         Q.    You looked at this yesterday, Dr. Kingma; is that

  17    correct?

  18         A.    Yes.

  19         Q.    And you looked at the categories listed on the

  20    left on Table 1?

  21         A.    Yes.

  22         Q.    Dr. Barschall has grouped the journals included

  23    on this page under eight categories?

  24         A.    Yes.

  25         Q.    And you have no reason to dispute that those are


   1    reasonable and appropriate categories?

   2         A.    I have no reason to dispute these categories.

   3    I'm not a physicist, so --

   4         Q.    Do you agree that the top-ranked journal in the

   5    Letters Journals category is an AIP journal?

   6         A.    Ranked by ratio of cost to impact?  Yes.

   7         Q.    The top two are AIP and APS; is that correct?

   8    Under Letters Journals?

   9         A.    Correct.

  10         Q.    And under Review Journals, the top-ranked journal

  11    is an APS journal?

  12         A.    These are actually ranked by cost per thousand

  13    characters.  Yes, correct.

  14         Q.    The top-ranked -- but it's true as to cost, ratio

  15    of cost to impact factor as well, is it not?

  16         A.    Correct.

  17         Q.    And in the Atomics Physics category, the

  18    top-ranked journal by ratio of cost to impact is an APS

  19    journal?

  20         A.    Correct.

  21         Q.    The same is true in the Condensed Matter Physics

  22    category?

  23         A.    Correct.

  24         Q.    The same is true in the Nuclear Physics category?

  25         A.    Correct.


   1         Q.    The same is true in the Particle Physics

   2    category?

   3         A.    Correct.

   4         Q.    The same is -- well, in the case of Applied

   5    Physics, it's an AIP journal that is the top ranked?

   6         A.    Correct.

   7         Q.    And in the Instrumentation category, it's an

   8    AIP-APS journal that is top-ranked?

   9         A.    Correct.

  10         Q.    And the number two and number three journals in

  11    that category are also AIP journals; is that correct?

  12         A.    In instrumentation?

  13         Q.    Yes.

  14         A.    It says IOP.

  15         Q.    Well, if you look at the ratio of cost to

  16    impact --

  17         A.    Oh.

  18         Q.    Is it --

  19         A.    Yes, correct.

  20         Q.    The top three are all AIP journals in that

  21    category?

  22         A.    By cost to impact ranking.

  23         Q.    Right.  Dr. Kingma, if you will indulge me in a

  24    hypothetical or an assumption, the assumption is that the

  25    ratio of cost to impact is an appropriate measure of cost


   1    effectiveness.  Can we proceed with that assumption?

   2               Let me ask you, if we accept that assumption, is

   3    it true that the data on Table 1 would therefore support the

   4    conclusion that the journals of APS and AIP are the best

   5    bargain?

   6         A.    Obviously I don't agree with the assumption.

   7         Q.    I appreciate that.

   8         A.    If you assume that that's the ranking, then

   9    that's what the numbers say.

  10         Q.    Thank you.

  11               Let me go back now to where we were when we ended

  12    at the conclusion of yesterday.  You had identified five

  13    possible criteria that one might use in measuring the

  14    effectiveness of journals.  Do you recall that?

  15         A.    Yes.  I think we talked about them as proxies,

  16    numbers that could serve as proxies for use value of a

  17    journal.

  18         Q.    I would like you to focus on effectiveness.

  19         A.    OK.

  20         Q.    Isn't it true that those are five possible

  21    measures for the effectiveness of journals?

  22         A.    Some good measures, some bad measures, yes; by

  23    definition they are measures.

  24         Q.    But they are all ones that you have identified,

  25    whether good or bad?


   1         A.    Correct.

   2         Q.    And we discussed readership, one of the possible

   3    measures, yesterday.  I would like to go on to the second

   4    one, use.  OK?

   5         A.    OK.

   6         Q.    And can you tell us what you mean by "use"?

   7         A.    "Use" is the number of times somebody is going to

   8    pull it off the shelf, pull a journal, an issue of that

   9    journal off the shelf and use it.  Now, they may use it and

  10    photocopy an article from it and ultimately read that

  11    article several times, but use is simply the pulls off the

  12    shelf.

  13         Q.    And as you used the term, all uses are treated

  14    the same?

  15         A.    You can treat all uses the same.  You can weight

  16    them by who uses it, if a faculty member pulls it off the

  17    shelf versus a student pulling it off the shelf.

  18         Q.    One difficulty of use as a measure is that it is

  19    difficult to tell, or difficult to differentiate between

  20    uses; isn't that true?

  21         A.    It would be possible to construct a use survey

  22    where you are differentiating between uses.  That would

  23    clearly be a more expensive use survey than one in which you

  24    were not differentiating between uses.

  25         Q.    Typically, if a library tries to study use, it


   1    tries to determine the number of times the journal is pulled

   2    off the shelf, correct?

   3         A.    Typically -- can you repeat the question?

   4         Q.    Typically when a library does a use study, it

   5    determines how many times the journal is pulled off the

   6    shelf?

   7         A.    Correct.

   8         Q.    When you do that kind of study, you don't know

   9    whether the person glanced at the article, read two

  10    sentences, and then put it back?

  11         A.    Correct.

  12         Q.    You don't know whether the user reshelved it

  13    before it could be counted?

  14         A.    Correct.  Hopefully in designing your use study

  15    you have taken care to try and prevent users from doing

  16    that.

  17         Q.    And you don't know if, after the journal has been

  18    pulled off the shelf, it has been used by multiple people?

  19         A.    Correct.  Again, hopefully you have designed your

  20    study such that you are reshelving it as quickly as possible

  21    so that there is limited multiple use possible.

  22         Q.    And you don't know whether it is use by a

  23    first-year physics student, who reads the article, becomes

  24    discouraged by the complexity, and switches majors, or

  25    whether it's use by a Nobel laureate who finds that the


   1    article contributes importantly to his own research, do you?

   2         A.    Again, it would depend on your design of the

   3    survey.

   4         Q.    But it would be legitimate for a library to

   5    differentiate between different uses?

   6         A.    If they could, yes.

   7         Q.    It would be legitimate for a library to focus

   8    entirely on uses by the faculty?

   9         A.    I don't think it would be legitimate to focus

  10    entirely on uses by the faculty.  Clearly students use that

  11    library, and their concerns as patrons should be addressed.

  12         Q.    But might it be the case that the library would

  13    decide that, by determining the uses of the faculty, that

  14    that was a reliable basis for making decisions about what

  15    journals to acquire?

  16         A.    The library might have a use study -- again, if

  17    the library is having a use study and it's determining the

  18    use of faculty and students, separating it, differentiating

  19    it by that, then one would want to use both pieces of

  20    information, and I believe any librarian would say that you

  21    would not want to throw out the use of the students in

  22    making a determination.

  23         Q.    But you could devise a study that only gathered

  24    information as to faculty uses?

  25         A.    Possible.


   1         Q.    And if you did so, that would provide helpful

   2    information to the librarian?

   3         A.    Correct.

   4         Q.    And a third measure that you have suggested is

   5    faculty rankings?

   6         A.    Yes.

   7         Q.    And that, by nature, focuses entirely on the

   8    faculty?

   9         A.    Yes.

  10         Q.    And it focuses on their views as to the journals

  11    that contribute most significantly to their work?

  12         A.    The journals they find most useful, correct.

  13         Q.    And do you think that's an appropriate measure?

  14         A.    Yes.  Falling short of having use statistics, I

  15    think use statistics are actually better than that

  16    particular measure.

  17         Q.    But it's appropriate in the sense that it

  18    provides a reliable basis for management decisions by

  19    librarians, faculty rankings?

  20         A.    Correct.  It's not -- again, it's not the first,

  21    best choice, but it's a useful number, falling short of

  22    having use numbers.

  23         Q.    Citation data is a comprehensive faculty ranking,

  24    is it not?

  25         A.    It's a list of how many times each journal is


   1    getting cited by the entire universe of faculty, clearly not

   2    by just the faculty within your library or that are served

   3    by your library.

   4         Q.    It reflects the considered judgment of the most

   5    productive members of the faculty as to the journals and

   6    articles that contribute most significantly to their own

   7    research?

   8         A.    Well, its citations include everyone's citations;

   9    not only the most productive we are talking, but the

  10    faculty.

  11         Q.    I was using it for the faculty members who

  12    actually write articles.

  13         A.    Oh, OK.

  14         Q.    With that clarification, can you respond to the

  15    question?

  16         A.    That for all the -- the faculty that are writing

  17    articles and citing all the entire body of faculty citations

  18    show how many times they are citing things.

  19         Q.    With respect to the five possible measures of

  20    effectiveness, you have stated that different people have

  21    different views as to which of the five measures is the

  22    best, correct?

  23         A.    Correct.

  24         Q.    And indeed, you noted that Professor Barschall

  25    believed that the impact factor was the best measure of


   1    effectiveness; is that correct?

   2         A.    Correct.

   3         Q.    And are you familiar with Professor Barschall's

   4    career?

   5         A.    As a physicist?  No.

   6         Q.    As a physicist.

   7         A.    I am not.

   8         Q.    You know that he had a long and distinguished

   9    career as a physicist?

  10         A.    My understanding is that he did.

  11         Q.    Received many honors for his contributions to the

  12    field of physics?

  13         A.    That's my understanding.

  14         Q.    Would you be inclined to give some deference to

  15    his views as a physicist to what is a reasonable measure of

  16    effectiveness of journals?

  17         A.    No.  If he received those same honors in

  18    economics and information science, I would give deference;

  19    and to the same degree that I don't think he would respect

  20    my opinion on physics too much, or should he.

  21         Q.    You have never cited a physics article, have you?

  22         A.    Not that I can recall.

  23         Q.    Dr. Barschall did that many times, did he not?

  24         A.    Yes.

  25         Q.    He knew what was involved in that process?


   1         A.    In citing a physics article, yes.

   2         Q.    And do you know that he had examined the

   3    relationship -- he had examined citation data, had he not?

   4         A.    Yes.

   5         Q.    And he concluded that it was a reliable measure;

   6    is that true?

   7         A.    He concluded that, yes.

   8         Q.    Is it true that you do not know very much about

   9    impact factors?

  10         A.    No.

  11         Q.    Not true?

  12         A.    No.

  13         Q.    In what connections have you worked with impact

  14    factors?

  15         A.    In the connection, obviously, of this case, prior

  16    to this, with my work on the economics of information, that

  17    it would be simply part of the entire universe of

  18    information science that one is aware of.

  19         Q.    Have you ever used impact factors in one of your

  20    own analyses?

  21         A.    No.

  22         Q.    Have you ever had occasion to study impact

  23    factors and how the data is presented and examine it for

  24    different journals?

  25         A.    Have I looked at the impact factor numbers?


   1         Q.    Apart from in connection with this case, have you

   2    had occasion to work with impact factor data?

   3         A.    I've seen the impact factor numbers in the

   4    Science Citation Index prior to this case, but I have not

   5    worked with those numbers.

   6         Q.    What about citation data?  Have you worked with

   7    citation data?

   8         A.    Again, I have seen the citation numbers, but I

   9    have not worked with them in research.  I have also -- am

  10    familiar with research that used citation numbers and impact

  11    factors, but I have not used citation numbers myself or

  12    impact factor numbers.

  13         Q.    You mean the articles relating to citation data?

  14    Is that what you're referring to, what you are familiar

  15    with?

  16         A.    Articles relating to citation data.

  17         Q.    And you looked at those articles in connection

  18    with this case?

  19         A.    Well, I looked at some of those articles prior to

  20    this case, too.

  21         Q.    It's true that even when you collected the

  22    citation data to present to the Tenure Review Committee, you

  23    didn't gather that data yourself, did you?

  24         A.    Correct.

  25         Q.    You sent someone else to do it?


   1         A.    I had a graduate student do it.

   2         Q.    Could you look at Plaintiff's Exhibit 3 again,

   3    the Physics Today article.

   4               In the first paragraph, do you see the statement

   5    at the end of the first paragraph, after Professor Barschall

   6    refers to the cost per thousand characters and then to the

   7    impact factor?  He then states as follows:  "The ratio of

   8    these two measures is perhaps the best indicator of a

   9    journal's cost effectiveness."  Do you see that statement?

  10         A.    Yes.

  11         Q.    Do you disagree with that statement?

  12         A.    Yes.

  13         Q.    Apart from that statement -- strike that.

  14               Does a similar statement appear in the Bulletin

  15    of the American Physical Society?

  16         A.    Yes.  On the top of page 1438, under "Cost per

  17    Impact," the second sentence.

  18         Q.    And there it's just slightly different.  It

  19    reads, "This ratio is perhaps the most significant measure

  20    of the cost effectiveness of the journal"?

  21         A.    Correct.

  22         Q.    Referring again to the same ratio?

  23         A.    Yes.

  24         Q.    And you disagree with that statement?

  25         A.    Yes.


   1         Q.    Am I correct that, apart from those two

   2    statements, there are no statements in either PX 2 or PX 3,

   3    whether express or implied, that in your judgment are false?

   4         A.    I would say that the implication of these

   5    articles is that this information can be used for collection

   6    development, which I think is a false implication.

   7         Q.    Apart from that, there is no statement in either

   8    article that in your judgment is false; is that correct?

   9         A.    (Pause)  I would say that that implication,

  10    actually, was borne out in the last paragraph of the Physics

  11    Today article.

  12         Q.    I'm not sure if you're addressing my question.

  13         A.    Oh, the implication -- I said that the

  14    implication of this having influence on collection

  15    management, it's false that one should use this kind of

  16    procedure for collection development in a library, and

  17    you're saying is there any other statement --

  18         Q.    Any other statement, express or implied, in

  19    either article that in your judgment is false.

  20               MR. PLOTZ:  With respect, I think Dr. Kingma was

  21    answering the question.

  22         A.    I guess what I'm -- in trying to narrow down

  23    that, in turning to the last paragraph here, there are a

  24    couple of statements that I would disagree with Professor

  25    Barschall on.


   1         Q.    What document are we on?

   2         A.    We are in Physics Today, the last paragraph.

   3    It's really just --

   4         Q.    Can we -- you'll have an opportunity --

   5               MR. PLOTZ:  He's in the middle of an answer,

   6    Judge.

   7               MR. HUVELLE:  He's not answering my question,

   8    though.

   9               THE COURT:  Let him complete his answer.  The

  10    question was that, apart from those two statements and the

  11    implications derived from those two statements, is there

  12    anything else in these two articles that you regard as being

  13    false?

  14               THE WITNESS:  I think the implications of Table

  15    2, that one that should compare publishers on this measure,

  16    again, is a false comparison more making collection

  17    development decisions.

  18         Q.    Anything else?

  19         A.    No.  I believe that's it.

  20         Q.    Do you see -- there are no other statements,

  21    express or implied, in either article that in your judgment

  22    are false?  Correct?

  23         A.    Correct.

  24         Q.    You were deposed in this case on April 18?

  25         A.    Correct.


   1         Q.    As of that date, you had spent between 40 and 80

   2    hours working on this matter?

   3         A.    Since April 18?

   4         Q.    No.  Before that.

   5         A.    Oh, before that date.  Correct.

   6         Q.    How many hours have you spent on this matter

   7    since April 18?

   8         A.    Somewhere between 10 and 20.

   9         Q.    When did you resume work on this matter?

  10         A.    Worked briefly on it over the weekend -- it was

  11    probably a couple of days before that -- looking at some of

  12    these issues, and then obviously within trial right here.

  13         Q.    Have you done any analysis in connection with

  14    this matter since April 18?

  15         A.    Analysis of the numbers?

  16         Q.    Any further analysis that goes beyond what you

  17    had done as of April 18?

  18         A.    No.

  19         Q.    Did you review any additional articles or other

  20    written materials that you had not seen prior to April 18?

  21         A.    No.

  22         Q.    With whom have you spoken about this matter since

  23    April 18?

  24         A.    About this matter, the attorneys, Mr. Plotz,

  25    Mr. Lupert, the other attorneys.  I believe that's it.


   1         Q.    Am I correct, then, that you have not learned

   2    anything new regarding this matter except -- since April

   3    18 -- except what was told to you by the attorneys?

   4         A.    Correct.

   5         Q.    I would like to show you a copy of Defendants'

   6    Exhibit CCC.  Could you identify this document?

   7         A.    This is a report I prepared for this case.

   8         Q.    Did you testify on April 18 that it was a full

   9    and accurate statement of the opinions to which you expected

  10    to testify?

  11         A.    Yes.  I did make a couple of corrections on it.

  12         Q.    There were two minor corrections that you made?

  13         A.    Correct.

  14         Q.    Those were on page 7?

  15         A.    Correct, along with a clarification of the

  16    benefit effectiveness efficiency issue that we spoke of at

  17    the deposition.

  18         Q.    Apart from those corrections, this report, you

  19    testified, was a full and accurate statement of the opinions

  20    that you held and about which you expected to testify?

  21         A.    Correct.

  22         Q.    In your testimony yesterday, you asserted that

  23    Professor Barschall erred in comparing journals of different

  24    types; namely, review journals, letters journals, and

  25    archival journals, and also journals in different physics


   1    disciplines.  Do you recall that testimony?

   2         A.    Correct.

   3         Q.    That was one of the major criticisms that you

   4    articulated yesterday?

   5         A.    Correct.

   6         Q.    Can you refer me to the place in your report

   7    where you discuss that major criticism?

   8         A.    On page 5, No. 6, where it talks about variations

   9    in citation rate related to type of publication,

  10    nationality, time period, and size and type of specialty.

  11         Q.    Is there anything about review journals?

  12         A.    No.  It just says "variations in type of

  13    publication."  It doesn't specific -- you're right, it

  14    doesn't specifically mention review journals.

  15         Q.    And that was subparagraph 6?

  16         A.    6 on page 5, right.

  17         Q.    Now, on page 1 of your report, you refer -- and

  18    I'm going back to the correction that you made during your

  19    deposition --

  20         A.    OK.

  21         Q.    You referred to a cost/benefit ratio.  Do you see

  22    that?

  23         A.    Yes.

  24         Q.    You agree now that Dr. Barschall did not purport

  25    to prepare a cost/benefit ratio?


   1         A.    Correct.

   2         Q.    And that that is a different kind of analysis?

   3         A.    Related but different kind, correct.

   4         Q.    Different from cost effectiveness, which is what

   5    he did?

   6         A.    Correct.

   7         Q.    And so you -- all of your criticisms with regard

   8    to the adequacy of the cost/benefit ratio are misplaced; is

   9    that correct?

  10         A.    No.  It's, as I said at the deposition, even if

  11    you substitute the word "effectiveness" for "benefit" here,

  12    all the criticisms remain.  It's just a matter of using the

  13    word "benefit" instead of "effectiveness."

  14         Q.    Why did you use the wrong term there?

  15               MR. PLOTZ:  Objection.

  16         A.    Well --

  17               MR. PLOTZ:  Objection to the characterization,

  18    your Honor.

  19               THE COURT:  Overruled.

  20         A.    Cost/benefit analysis is a term in the common

  21    vernacular of economists and those who work with economists,

  22    and it's actually sort of the encompassing of all the types

  23    of analysis.  Cost-effectiveness is a piece.  If you think

  24    about a Vien diagram with the largest circle on the outside

  25    being cost/benefit analysis, cost-effectiveness analysis


   1    falls within that, and cost-efficiency analysis falls within

   2    that circle.

   3               Cost/benefit, using that term is really more of a

   4    sort of global term, which included many things that it

   5    shouldn't have.  But it's -- I think it's one that's

   6    throughout the sort of economics vernacular.  You know, this

   7    is "echo-speak" in some sense that people understand, using

   8    the term cost/benefit.

   9         Q.    Did you analyze, in your report, did you analyze

  10    his work with reference to the standards for cost-

  11    effectiveness studies or cost/benefit studies?

  12         A.    As I said, since "effectiveness" falls within the

  13    rubric of "benefit," it in some sense would be both,

  14    although I didn't analyze it with respect to him estimating

  15    the dollar value of a journal subscription.

  16         Q.    But in some senses it would be different?

  17         A.    Right.  The difference is inserting the term

  18    "dollar."

  19         Q.    The difference is also in terms of the

  20    comprehensiveness of the analysis of cost effectiveness?

  21         A.    Correct.

  22         Q.    My question is, when you judged the article for

  23    purposes of the report, did you use the wrong term or the

  24    wrong analysis?

  25         A.    It would have been more correct for me to use the


   1    effectiveness term, the cost-effectiveness term.

   2         Q.    But do you agree that you also used the wrong

   3    analysis in judging his report?

   4         A.    No.

   5         Q.    Can you look at the second paragraph on page 2?

   6         A.    Yes.

   7         Q.    Do the statements in that paragraph apply if

   8    you're judging his work in terms of cost-effectiveness?

   9         A.    No.  That statement refers to cost/benefit,

  10    right.

  11         Q.    So that's an indication that in fact you were

  12    judging his work by -- in terms of the wrong analysis.  You

  13    were applying the wrong economic construct to his work.

  14         A.    Just for that -- those single two senses, you can

  15    say that, but for the rest of the report, no.

  16         Q.    Are you saying that, for most of the report, you

  17    analyzed it in terms of the cost effectiveness study, but

  18    for those, that one paragraph, you deviated and analyzed it

  19    in terms of cost/benefit?

  20         A.    Well, as I said before, cost-effectiveness --

  21    cost/benefit is sort of the big circle and within that is

  22    cost effectiveness.  So analyzing it by the standards of

  23    cost-effectiveness by definition fall within a cost/benefit

  24    analysis.

  25         Q.    But a perfectly proper cost effectiveness


   1    analysis may -- indeed will -- fall short of a proper

   2    cost/benefit analysis --

   3         A.    Right.

   4         Q.    -- necessarily?

   5         A.    Yes.

   6         Q.    And there is no doubt in your mind that Professor

   7    Barschall had done a cost-effectiveness study?

   8         A.    Correct.

   9         Q.    And also that major components of it were a cost

  10    efficiency study?

  11         A.    By definition, you can't do a cost effectiveness

  12    without cost efficiency.

  13         Q.    So paragraph 2 is a mistake on your part?

  14         A.    No, it's -- I mean, the -- both sentences in

  15    paragraph 2 are correct.

  16         Q.    If you're talking about a cost/benefit study.

  17         A.    Correct.

  18         Q.    Which we are not.

  19         A.    Correct.

  20         Q.    Paragraph 3 on that page, am I correct in

  21    understanding that the principal concern expressed there

  22    with respect to Barschall's cost analysis is that a journal

  23    might add pages and pages of meaningless numbers and

  24    therefore lower its cost per impact; is that what you're

  25    saying?


   1         A.    Correct.

   2         Q.    Do you think that Professor Barschall assumed

   3    that his colleagues in the field of physics would not add

   4    pages and pages of meaningless data in order to affect the

   5    cost-per-impact ratio?

   6         A.    I don't pretend to know what he assumed.

   7         Q.    It would have been reasonable of him to make that

   8    assumption?

   9         A.    It's not always his colleagues in the field,

  10    though.  It's also the publishers that are making that

  11    decision about what is included with an article, whether or

  12    not data might be included or additional pages might be

  13    included.

  14         Q.    Do you believe that the points you make in this

  15    paragraph are a serious criticism of his work?

  16         A.    Yes.

  17         Q.    Can you look at page 3 of your report, the first

  18    full paragraph consisting of two sentences.

  19         A.    Yes.

  20         Q.    Do the statements in that paragraph have any

  21    relation to a cost effectiveness study?

  22         A.    It relates to benefit, so in this case you can

  23    substitute the word "effectiveness" for "benefit" and the

  24    statements are true.

  25         Q.    But do the statements have any relationship to


   1    your analysis of Dr. Barschall's cost-effectiveness study?

   2         A.    Yes, because I believe effectiveness is more

   3    appropriately measured by demand or use than by impact or

   4    citation.

   5         Q.    Paragraph 4 -- I'm sorry, page 4.  You criticize,

   6    starting on page 4, citation data; is that correct?

   7         A.    Correct.  I paraphrased from an article by

   8    MacRoberts and MacRoberts.

   9         Q.    You copied the seven points that MacRoberts and

  10    MacRoberts made?

  11         A.    Right.

  12         Q.    You didn't add anything new?

  13         A.    Correct.

  14         Q.    Is it true that many of the criticisms that

  15    MacRoberts and MacRoberts had suggested pertain only if

  16    you're using citation data to evaluate individual authors,

  17    not if you're using them to evaluate journals; is that

  18    correct?

  19         A.    I don't know if that's correct, because you can't

  20    make statements about the degree to which these problems

  21    influence different journals, or at least I'm not familiar

  22    with any research that has been done that have looked at the

  23    differences in citation or the error rates in citations and

  24    the possible differences between different journal titles.

  25         Q.    Well, one of the identified flaws is that an


   1    author may not include his middle initial, and therefore in

   2    terms of citation data the article may not be attributed to

   3    the right person.  That doesn't have anything to do with the

   4    assessment of journals, does it?

   5         A.    Can you point to that on this report?

   6         Q.    Page 6, Subpart B.

   7         A.    Correct.

   8         Q.    The same is true of A and C?

   9         A.    Correct.

  10               THE COURT:  How much longer will you be on

  11    cross-examination?

  12               MR. HUVELLE:  It will be a while.

  13               THE COURT:  An hour?

  14               MR. HUVELLE:  Maybe.

  15               THE COURT:  Half an hour?

  16               MR. HUVELLE:  Between that.

  17               THE COURT:  We will take a recess.

  18               MR. HUVELLE:  Thank you.

  19               THE COURT:  Off the record.

  20               (Discussion off the record)

  21               (Recess)

  22    BY MR. HUVELLE:

  23         Q.    Dr. Kingma, just a couple more questions on your

  24    report.  Can you turn to page 7.

  25               At the end of the first paragraph, with regard to


   1    impact factors, you state, "This truncation of the year of

   2    publication and the years of citations biases the measure of

   3    impact."  Do you see that?

   4         A.    Yes.

   5         Q.    The use of an impact factor precisely records the

   6    data for the period that it purports to cover; is that true?

   7         A.    Correct.

   8         Q.    And in the next paragraph, you make a couple of

   9    errors in your description of the impact factor, in the

  10    same -- in the following paragraph.  Do you see that?

  11         A.    Yes.  That's with my corrections, when my

  12    corrections came up.

  13         Q.    Did you misunderstand how the impact factor was

  14    calculated when you wrote this?

  15         A.    No.

  16         Q.    The changes would be in the first sentence, the

  17    year 1986 should read 1984 and 1985?

  18         A.    Right.  It's correctly described in the paragraph

  19    above that.

  20         Q.    And then the next sentence, again, the year 1986

  21    should read 1984 and 1985?

  22         A.    Correct.

  23         Q.    And in the next sentence, "a single year" should

  24    be "two years?"

  25               I'm sorry. "Two years" should be "one year."


   1         A.    Right.

   2         Q.    And "one year" should be "two years."

   3         A.    Correct.

   4         Q.    Page 9, you talk about the problems in counting

   5    pages.

   6         A.    Correct.

   7         Q.    Let me just ask you to look at a copy of Physical

   8    Review B.

   9               This has been marked as Exhibit XXXXX, is that

  10    correct?

  11         A.    Correct.

  12         Q.    And this is a journal published by the American

  13    Physical Society?  I will represent that to you.  And it

  14    says so on the front page.  And it's one of the journals

  15    included in Dr. Barschall's study.

  16               The concern you had about blank pages does not

  17    apply to this journal, does it?

  18         A.    It would appear with the issue in my hand that

  19    there aren't any completely blank pages that carry page

  20    numbers.  There are obviously half-blank pages, where one

  21    article ends and the next article begins on the next page.

  22    For example, on page 4699, half the page is blank, whereas

  23    half the page carries the end of the article.

  24         Q.    But it's not the case that there are full blank

  25    pages?


   1         A.    That are numbered.  There is a blank page but

   2    it's not numbered, near the end.

   3         Q.    Let me show you, for example, Ferroelectrics,

   4    Exhibit VVV, just one example there.  There's a blank page

   5    that's numbered.

   6         A.    Correct.

   7         Q.    So the journals that would be advantaged by this

   8    methodology would be one such as Ferroelectrics that number

   9    blank pages, correct?

  10         A.    The journal -- it's correct that the journals

  11    that would be advantaged by this methodology are ones that

  12    carry blank pages.  I don't know if these two issues are

  13    representative of Ferroelectrics and Physical Review B.

  14         Q.    Well, I'm not going to ask you to -- we'll let it

  15    stand there.

  16               But in any event, no matter whose advantage, it's

  17    not a very important point in terms of the scope of

  18    Dr. Barschall's study, is it?

  19         A.    It depends on how many pages were blank or how

  20    many pages were recognized.  It's also how many pages carry

  21    Roman numerals.

  22         Q.    Can you turn to page 10 of your report, Character

  23    Counting Bias.

  24               You refer to Dr. Barschall's methodology of

  25    counting a page which contains figures or tables as if it


   1    were completely filled with text.  Do you see that?

   2         A.    Yes.

   3         Q.    And you state that this methodology inherently

   4    discounts the value of figures, tables, and display

   5    mathematics; is that correct?

   6         A.    Correct.

   7         Q.    But your statement is not correct, is it?

   8         A.    Pardon me?

   9         Q.    Your statement is not correct?

  10         A.    That this bias is the cost per impact measure

  11    against journals?

  12         Q.    That it inherently discounts the value of

  13    figures, tables and displays.  What it does is treat a page

  14    containing figures, tables and displays as equivalent to a

  15    page of text?

  16         A.    It treats them as equivalent in size, even though

  17    they might have different production costs.

  18         Q.    But production costs should have nothing to do

  19    with Dr. Barschall's analysis?

  20         A.    Well, the price is part of his analysis.

  21         Q.    And the price is the price and it doesn't matter

  22    what the production cost is, does it?

  23         A.    Oh, it -- part of his analysis, he separated out

  24    translation journals for those production costs, so --

  25         Q.    Isn't it true that translation journals are


   1    journals that rarely have impact factors?

   2         A.    To my knowledge that's true.

   3         Q.    So he could not have done a cost-to-impact factor

   4    ratio for translation journals, or he would have to do it

   5    for such a limited sample that it wouldn't do much good?

   6         A.    I'm not sure that's the reason he gave for

   7    separating out translation journals.

   8         Q.    But it is a fact that he -- he did not have the

   9    data to do the full analysis with respect to translation

  10    journals?

  11         A.    I don't know if he had the data or not for

  12    translation journals or how many translation journals he had

  13    data on.

  14         Q.    But in any event, for purposes of Dr. Barschall's

  15    analysis, what's important to the librarian is the price,

  16    not how much it costs the publisher to compile certain

  17    pages?

  18         A.    The price is an important component of the

  19    analysis for a librarian.

  20         Q.    It's price and effectiveness?

  21               MR. PLOTZ:  He hadn't finished, your Honor.

  22         A.    The tables and display mathematics, one would

  23    assume, have bearing on the effectiveness, have some

  24    influence on the quality of information within there.  Now,

  25    if you remove it -- as we said before, this is any cost


   1    effectiveness, cost/benefit, cost efficiency analysis -- not

   2    cost efficiency.  Cost effectiveness, cost/benefit analysis

   3    has two parts to it, the cost part and the effectiveness

   4    part, and while you can take table and display mathematics

   5    and pull it out of the cost part, it winds up in the

   6    effectiveness part.

   7         Q.    This is not pulling it out of the cost side, is

   8    it?

   9         A.    His methodology is, by making an equivalence

  10    between characters and a table of the same size.

  11         Q.    It's assigning a value to mathematical tables?

  12         A.    Correct.

  13         Q.    Now, you may think mathematical tables have a

  14    value that's higher than text or lower than text, but I

  15    don't know -- do you have a way of assigning a value to

  16    mathematical tables in comparison to text?

  17         A.    He used a formula of one to one, basically.

  18         Q.    Right.

  19         A.    And he could have used a formula of 100 to 1

  20    or --

  21         Q.    1.2 to one.

  22         A.    -- 1.2 to one.  It's just an arbitrary pick.

  23         Q.    But you don't know if he discounts the value of

  24    tables.  All you know is he treats it as equivalent to text.

  25         A.    He treats it as equivalent to text, correct.


   1         Q.    And can you look at Phys. Rev. B.  Isn't it true

   2    that that journal, for example, has many tables, display

   3    mathematics, and figures?

   4         A.    Correct.

   5         Q.    You haven't looked at the journals in the study

   6    so you don't know whether or not it's true that all of them

   7    have such figures?

   8         A.    Correct.

   9         Q.    With regard to the including of journals, physics

  10    journals in different disciplines, review journals and

  11    letters journals, did you say that that is like comparing

  12    apples to oranges?

  13         A.    Correct.

  14         Q.    What did you mean by that?

  15         A.    Well, there are different -- they are different

  16    types of journals and carry with them different citations

  17    based on the type of journal it is.

  18         Q.    And you know that because you have compared them?

  19         A.    Because I have seen the numbers on them in

  20    reading the literature, correct.

  21         Q.    Not all the --

  22         A.    I think -- I think -- I'm sorry.  But I think

  23    that even Professor Barschall points to this in one of his

  24    articles.

  25         Q.    In fact, that's where you learned it?


   1         A.    No, I wouldn't say that I learned it from there,

   2    but it's one source of --

   3         Q.    Have you ever read a review journal in physics?

   4         A.    No, I have never read physics journals.

   5         Q.    Do you have any personal knowledge as to the

   6    citation rates for these different kinds of journals?

   7         A.    From economics, not from physics.

   8         Q.    In your readings of economics, they discussed the

   9    citation rates of review journals in physics?

  10         A.    No.  My readings of the citation rates of letters

  11    journals and economics and original research journals and

  12    economics.

  13         Q.    Which you have done in connection with this case?

  14         A.    No, which was prior to this case.

  15         Q.    Is it true that not all review journals listed by

  16    Dr. Barschall have higher impact factors than archival

  17    journals?

  18         A.    I don't know.  I would have to look at the table.

  19    Do you want me to look at the tables?

  20         Q.    Yes.  Table 1 of PX 3.

  21         A.    Correct.  There are some review journals with

  22    lower impact numbers than some original research journals.

  23    I do not know -- I have to admit I do not know, under the

  24    review journals, what specialty or subspecialty these

  25    particular review journals might be reviewing.


   1         Q.    I believe you noted yesterday that Review of

   2    Modern Physics has an impact ratio of -- impact factor of

   3    27; is that correct?

   4         A.    For 1986, correct.

   5         Q.    Right.  And that's more than three times higher

   6    than any other review journal?

   7         A.    I believe so, correct.

   8         Q.    Do you think that's a fact that a librarian ought

   9    to know in connection with acquisition decisions, that

  10    Review of Modern Physics has a very high impact factor?

  11         A.    No.

  12         Q.    Doesn't that number tell the librarian that the

  13    articles in the Review of Modern Physics are relied upon

  14    with extremely high frequency by scientists?

  15         A.    It tells the librarian something about how

  16    physicists as a whole cite articles in the past two years

  17    from Review of Modern Physics, but that librarian has to be

  18    more concerned about how her or his particular set of

  19    patrons might use the Review of Modern Physics, and it might

  20    be that they use it a lot, but it also might be that they

  21    have better use of another journal.

  22         Q.    It suggests that if they -- even if they are

  23    reading other articles, that an article -- a journal that

  24    will be frequently cited in other journals is Review of

  25    Modern Physics; it tells you that, doesn't it?


   1         A.    Correct.

   2         Q.    It tells you that Review of Modern Physics is the

   3    Michael Jordan of physical journals, doesn't it?

   4         A.    I don't know if I would make that comparison.

   5         Q.    Well, 27 impact factor, the next one 7 in the

   6    same category; isn't that like scoring 63 points in a

   7    playoff game?

   8         A.    It certainly is more than three times higher than

   9    the next journal.

  10         Q.    You can say you can't compare Michael Jordan to

  11    other basketball players, can't you?  People say that, but

  12    you can?

  13         A.    They are using it in a different context,

  14    obviously.

  15         Q.    You can make a comparison.  The comparison is,

  16    he's better.  Right?

  17         A.    Correct.

  18         Q.    And that's what this data tells you, as to

  19    physical -- Review of Modern Physics, that, as compared to

  20    other physical -- physics journals, it is cited much more

  21    frequently, and a librarian might want to know that; is that

  22    correct?

  23         A.    I guess that's where the analysis sort of

  24    crumbles, and that we can say Michael Jordan is better in

  25    terms of all basketball players and we can say the Review of


   1    Modern Physics is more cited in terms of all these physics

   2    journals.  But can we say that the Review of Modern Physics

   3    is the best journal for our patrons in our library?  That's

   4    a different question.  Can we say that Michael Jordan is the

   5    best basketball player for our basketball team?  I don't

   6    know.  The length of magic might be might be very broad

   7    compared to any other player.

   8               THE COURT:  You said that the impact factor of 27

   9    was not relevant to the librarian whose concern should be

  10    the needs of the patrons of the --

  11               THE WITNESS:  Their library.

  12               THE COURT:  -- particular library.

  13               THE WITNESS:  Right.

  14               THE COURT:  Well, if we are dealing, for example,

  15    with a large university, isn't it reasonable to assume that

  16    the interests of the users of that library will bear some

  17    relationship to the world of physicists as a whole?

  18               THE WITNESS:  It depends on what specialties that

  19    university might support.

  20               THE COURT:  If you are dealing with a library for

  21    a commercial entity which is engaged in some very refined

  22    form of physical research, that might not be relevant, but

  23    for let's just say university libraries, would it not be

  24    relevant for a librarian in a university library to know

  25    that the Review of Modern Physics is more cited than any


   1    other such review?

   2               THE WITNESS:  Let me go back to the article by

   3    Bensman which showed that there wasn't a correlation or a

   4    very low correlation between impact factor and faculty

   5    ranking of journals.  And clearly within any discipline,

   6    there might be some large general journals that are

   7    important, but even universities are becoming very

   8    specialized, each and every department, and with those

   9    specialties there is typically a core of niche journals that

  10    support each specialty.

  11               THE COURT:  Without meaning to disparage

  12    academia, for which I have great respect, isn't one of the

  13    needs which a researcher has to have sources that can be

  14    cited for the particular propositions which are discussed in

  15    the article?  So isn't the citation itself a form of use of

  16    the publication?

  17               THE WITNESS:  Right.  You would have to use it in

  18    some sense to cite it, although sometimes people might cite

  19    things just because they read them in other things.

  20               THE COURT:  Sometimes you pad citations, like --

  21               THE WITNESS:  Right.

  22               THE COURT:  -- law clerks do when they do draft

  23    opinions.

  24               THE WITNESS:  The trick -- the trick is, though,

  25    that --


   1               THE COURT:  But you seem to be making a

   2    distinction between citation and use.

   3               THE WITNESS:  They are two different things.

   4               THE COURT:  Well, use is the greater, but isn't

   5    citation a form of use?

   6               THE WITNESS:  Yes.  What citations recognize,

   7    too, is a global measure of how much everybody cites it.

   8    Use within your library is a local measure of how much

   9    people -- the patrons you support are going to use a

  10    particular journal.

  11               THE COURT:  Let me just -- with respect to

  12    general libraries such as in universities, is it reasonable

  13    to assume that the interests or needs of a person who is to

  14    utilize the library will bear a relationship to the

  15    interests and needs of physicists at large?

  16               THE WITNESS:  Actually, universities over the

  17    last two decades have become more and more specialized, so,

  18    no, it's not -- you can't make that comparison anymore.

  19    Universities' libraries just simply can't buy everything

  20    that they want, and universities can't support all

  21    specialties that exist.  So many of them tend to limit that

  22    and decide to collect a set of faculty that have a certain

  23    niche themselves.

  24               At the university at Albany, for example, the

  25    Economics Department has a handful of faculty that


   1    specialize in public finance and a handful of faculty that

   2    specialize in econometrics, but we don't have -- we don't

   3    have a lot of economists that do agricultural economics or

   4    consumer economics.  We have one that does labor economics

   5    but not more than one.

   6               So we -- university departments are becoming more

   7    and more specialized.

   8               THE COURT:  But how about at the undergraduate

   9    level?  Is the nature of these publications such that the

  10    undergraduate level is not so relevant?

  11               THE WITNESS:  The undergraduate level is not as

  12    relevant because of -- you know, the journal publications

  13    themselves report research that is digestible to faculty and

  14    graduate students.  Some undergraduates certainly use those

  15    journals.  But it's, you know, it's -- I would say

  16    undergraduates don't go off and do research and do research

  17    to the degree necessary to have academic journals constantly

  18    at their disposal.

  19               THE COURT:  But they write papers?

  20               THE WITNESS:  They do write papers.  They do

  21    write papers, yes.

  22               THE COURT:  Which gets them in the library, one

  23    hopes?

  24               THE WITNESS:  Yes, one hopes.

  25               MR. HUVELLE:  I just have a couple of minutes.


   1    BY MR. HUVELLE:

   2         Q.    The point at which you took issue with me, I

   3    believe once again, is you said that the librarian is going

   4    to look at it differently.

   5         A.    Look at the impact number differently, correct.

   6         Q.    And am I correct in understanding from your

   7    testimony that you have emphasized the need of the librarian

   8    to look at the local community?

   9         A.    Correct.

  10         Q.    And I'm going to use a word that's sometimes used

  11    pejoratively, but I think it's the precise word.  Your

  12    perspective, or the perspective you advocate for the

  13    librarian, is a parochial one?

  14         A.    Meaning --

  15         Q.    Local.

  16         A.    -- a local one, yes.

  17         Q.    And of course libraries, even public libraries,

  18    often buy books based upon The New York Times best seller

  19    lists or a more global perspective of what's developing in

  20    the world of literature or whatnot, correct?

  21         A.    Correct.

  22         Q.    And Dr. Barschall was a respected physicist at

  23    the University of Wisconsin, which is a major center for

  24    studies in physics?  He was a member of the National Academy

  25    of Sciences, correct?


   1         A.    Correct.

   2         Q.    And he thought it was important that librarians

   3    know the global perspective of what journals were important

   4    to the scientists who are writing articles and developing

   5    knowledge in the sciences; is that correct?

   6         A.    He thought that was important, correct.

   7         Q.    And journals historically have played the key

   8    role in transmitting new knowledge from generation to

   9    generation in terms of science?

  10         A.    Correct.

  11               MR. HUVELLE:  No further questions.

  12               THE COURT:  Redirect?

  13               MR. PLOTZ:  Yes, your Honor.


  15    BY MR. PLOTZ:

  16         Q.    Dr. Kingma, you have been asked a lot of

  17    questions about impact factor, a lot of questions about

  18    cost.

  19               With respect to the market for library journals,

  20    you were asked whether this was an example of an imperfect

  21    market or market with imperfect information?

  22         A.    Correct.  I was asked.

  23         Q.    What does it mean for a market to have imperfect

  24    information?

  25         A.    Imperfect information means that either the


   1    seller or buyer does not have complete information about the

   2    transaction or good.  Usually we talk about it as the

   3    consumer not having complete information about the product

   4    that a seller is offering.

   5         Q.    And just speaking generically, what is a solution

   6    for a market which has imperfect information?

   7         A.    Generically, to provide accurate information

   8    about the quality, typically the quality of the product.

   9         Q.    Is it your view that the ratio of cost per

  10    character over impact factor provides additional information

  11    that helps solve the problem of an imperfect market?

  12         A.    No.  The appropriate term here is having correct

  13    information.  Adding correct information to a market

  14    improves the efficiency of that market.  Likewise, adding

  15    misinformation to that market may actually push that market

  16    away from efficiency, in economic terms.  I don't consider

  17    this cost per character per impact measure to be correct

  18    information for managing -- making collection development

  19    decisions within libraries.

  20               THE COURT:  I take it that applies as well to the

  21    decision by the author, at least in Exhibit 3, the Physics

  22    Today, the pitch, if I may use that colloquial term, is to

  23    authors rather than librarians.  In the last -- I don't have

  24    it.  Isn't the last paragraph an exhortation to authors

  25    rather than librarians?


   1               THE WITNESS:  Yes.

   2         Q.    Do you know, by the way, whether the journals

   3    which have lower ratios of cost per impact have the capacity

   4    to publish additional articles that authors might submit?

   5         A.    I don't know.

   6         Q.    Do you know whether anyone before Dr. Barschall

   7    performed a cost comparison survey based on a ratio of cost

   8    per character over impact factor?

   9               MR. HUVELLE:  Your Honor, I think we are outside

  10    the scope of the cross.

  11               THE COURT:  No, I will allow it.

  12         A.    I don't know.

  13         Q.    You are not aware of --

  14         A.    I am not aware of other articles, prior to this.

  15         Q.    You testified on cross, with respect to the cost

  16    side of the ratio, that a normalization of cost did not

  17    provide useful information, correct?

  18         A.    A normalization based on cost per page per

  19    character per article analysis, correct.

  20         Q.    And why is that?

  21         A.    It's simply not the purchasing decision that the

  22    librarian is making.  A librarian has to be concerned about

  23    how much they are paying, and that is paying for the

  24    subscription as a whole, and how much use their patrons are

  25    going to receive from that.  And clearly that's use for the


   1    subscription as a whole.

   2         Q.    Now, with respect, for example, to normalizing

   3    price per page -- you were asked some questions about

   4    that -- why doesn't that provide useful information to a

   5    librarian making an acquisition decision?

   6         A.    I don't think normalizing by price per page

   7    provides useful information to a librarian.  It's not --

   8    it's not the relevant decision for a librarian who is

   9    purchasing a subscription as a whole.

  10         Q.    In terms of the subscription to a journal -- a

  11    journal contains information, doesn't it?

  12         A.    Correct.

  13         Q.    And in determining the value of a journal, is one

  14    of the things that one must look at the quality of the

  15    information that's in the journal?

  16         A.    Correct.

  17               THE COURT:  Well, are you assuming that all of

  18    the editorial material in all of these journals are subject

  19    to a process of peer review?

  20               THE WITNESS:  No, certainly not -- I mean, the

  21    articles typically are subject to peer review but not

  22    always.  You know, I -- again, I don't know within every

  23    physics journal that appears in this which ones were subject

  24    to peer review and which were not.  And clearly there's some

  25    information that was not subject to peer review, like


   1    editorials and such.

   2               THE COURT:  Whether a particular journal has peer

   3    review or not, is that something which a librarian would

   4    consider in making a subscription?

   5               THE WITNESS:  Personally, I think that those

   6    journals with peer review are going to be of higher quality.

   7    But, again, a librarian has to be concerned about what their

   8    patrons use.  And if that means their patrons would rather

   9    have a journal that's not peer-reviewed but it's in some

  10    specialty that they really need, then they shouldn't make a

  11    decision based on the fact that there is another journal

  12    that is peer-reviewed.

  13               THE COURT:  Let's assume that you have two

  14    journals, both of which are subject to peer review by

  15    referees of comparable knowledge or standing in the field

  16    and who apply the same criteria.  If you indulge in that

  17    assumption, is the number of pages per subscription dollar

  18    of greater relevance?

  19               THE WITNESS:  I don't see in which case they are

  20    ever of relevance.  I mean, it's how much you're going to

  21    pay for the subscription and how much use you're going to

  22    get out of it.

  23               THE COURT:  Isn't --

  24               THE WITNESS:  There are some --

  25               THE COURT:  Isn't the use to be made -- doesn't


   1    it have some relationship to the quality of the editorial

   2    matter?

   3               THE WITNESS:  One could assume that more quality

   4    peer review would result in more quality articles and that

   5    might result in more use.  But again, within, you know,

   6    within the local decision making, does that result in more

   7    use for my patrons?

   8               THE COURT:  Similar to the criticism that is made

   9    of some political figures who are said not to exercise any

  10    leadership but merely to follow popular polls, you are

  11    assuming that the librarian's role is simply to cater to an

  12    existing demand and that the librarian has no input as to

  13    the quality?

  14               THE WITNESS:  I truly believe that the

  15    librarian's role is to cater to, as you say it, existing

  16    demand and expected future demand, because they are

  17    entrusted with university dollars in order to purchase

  18    journal subscriptions that are going to be used by the

  19    clientele at that university.  And I think that is -- it's

  20    important for them in terms of the management decisions.

  21               THE COURT:  Let me make sure I understand what

  22    you're saying.  You're saying, if we have two journals

  23    subject to the same peer review by equally conscientious and

  24    knowledgeable referees, and for the same subscription price

  25    one has 50 pages and the other has 500 pages, that that


   1    price differential is not something which the librarian

   2    should consider?

   3               THE WITNESS:  The price per page, is that what

   4    you're saying?

   5               THE COURT:  Yes, the price per page or

   6    subscription price.  Yes, price per page.

   7               THE WITNESS:  Well, the subscription price is

   8    important.  The subscription price is important.  That's

   9    key.  I just disagree with normalizing it on a per-page,

  10    per-character basis.  It's the value of the information, and

  11    the information can't be divided up.

  12               THE COURT:  Well, but my hypothetical assumes

  13    that there is the same peer review by the same standards in

  14    both publications, both journals.  Doesn't that give some

  15    comfort that the quality level will be comparable?

  16               THE WITNESS:  If I -- if you can stretch your

  17    hypothetical one more assumption and say these are both on

  18    the same topic, OK, two journals on the same topic --

  19               THE COURT:  The same topic.

  20               THE WITNESS:  Same topic, same everything, same

  21    quality of referees.  Then I would say, actually, that the

  22    economics of that situation means that the one journal won't

  23    be sold.  I mean, if you're saying that it's the exact same

  24    topic, exact same referees, etc., ultimately the market will

  25    decide as to which of these journals people will subscribe


   1    to.  And it's a decision in some sense of, you know, how

   2    faculty will use -- hopefully how faculty will use those

   3    journals.

   4               THE COURT:  It's also a function of how

   5    knowledgeable the market is.

   6               THE WITNESS:  True.  The market needs accurate

   7    information to make those decisions.

   8    BY MR. PLOTZ:

   9         Q.    Dr. Kingma, on the cross-examination, there was

  10    an analogy of -- the grocery store analogy of pasta and

  11    beans.  Is considering journals in different topics

  12    something like considering a choice between pasta and beans

  13    in a grocery store?

  14         A.    I would say that's analogous.  It might even be a

  15    stronger difference among the journals, though.

  16         Q.    Why is that?

  17         A.    I mean -- well, pasta and beans are both sort of

  18    consumable items that, if I'm looking for a side dish that

  19    evening, I might eat either pasta or beans.  But if I'm a

  20    faculty member in one specialty, journals from the other

  21    specialty might be of no use or value to me at all, only the

  22    journals within my specialty.

  23         Q.    Would it make sense for a library to buy an

  24    inexpensive journal that's seldom used?

  25         A.    No.


   1         Q.    Would it make sense to buy an expensive journal

   2    that's seldom used?

   3         A.    No.

   4         Q.    Would it make sense to buy an expensive journal

   5    that is frequently used?

   6         A.    Yes, if there's enough use to justify that

   7    subscription price, yes.

   8         Q.    Just to complete the box, would it make sense to

   9    buy an inexpensive journal that's frequently used?

  10         A.    Yes.

  11         Q.    Now, in terms of, you said, in response to a

  12    question from Judge Sand a few minutes ago, that your view

  13    is that the librarian's function is to respond to the

  14    current needs of its patrons and the expected future needs,

  15    correct?

  16         A.    Correct.

  17         Q.    Who will predict what those expected future needs

  18    or trends are?

  19         A.    Typically the librarian is going to be making the

  20    decision about --

  21         Q.    Based on what information?

  22         A.    Based on the information they have available.

  23    Hopefully they have information on use.  Hopefully they have

  24    information on requests for different journal titles like

  25    interlibrary loan, or hopefully they have talked to the


   1    faculty to determine what journals would be the best buys

   2    for their library.

   3               THE COURT:  Wouldn't the key factor be to see

   4    what the curriculum will be for the near future?

   5               THE WITNESS:  I think that would be -- yes, I

   6    mean, that's extremely important.  Hopefully that will come

   7    out in the expressed wishes of the faculty.

   8               THE COURT:  My limited contact with academia in

   9    law school is that there is an inquiry made by the librarian

  10    with respect to what material the faculty members would like

  11    to see in the library in the light of what it is that they

  12    will be teaching.

  13               THE WITNESS:  Right.

  14               THE COURT:  Isn't that standard?

  15               THE WITNESS:  I don't know if that's standard at

  16    every library.  That's an important thing that should be

  17    done, correct.

  18    BY MR. PLOTZ:

  19         Q.    I want to turn for the moment to the denominator

  20    of the ratio impact factor.

  21               Citation analysis -- rather, citation count is

  22    not the same thing as impact factor, right?

  23         A.    Correct.

  24         Q.    In assessing whether or not either citation count

  25    or impact factor reliably measures the effectiveness or the


   1    benefit of a journal, one must consider what citations

   2    measure, right?

   3         A.    Right.

   4         Q.    And if there are flaws in terms of what it is --

   5    or the value of what a citation measures, would that have an

   6    adverse impact on the validity of citation count?

   7               MR. HUVELLE:  I object to the leading nature of

   8    this question.

   9               THE COURT:  Overruled.

  10         A.    Errors in citation or impact would affect using

  11    it, correct.

  12         Q.    Is that true in a cost/benefit analysis?

  13         A.    Correct.  I mean, given the errors that are known

  14    to exist in citation analysis, those errors will produce

  15    errors within subsequent analysis that relies on them,

  16    pretty much by definition.

  17         Q.    So they would produce errors in a cost

  18    effectiveness analysis?

  19         A.    Correct.

  20         Q.    Now, one of the -- I want to direct your

  21    attention to one of the articles that you cited in your

  22    report, an article by Moed and Vreins.  What did Moed and

  23    Vreins --

  24               THE COURT:  Now, aren't you really going entirely

  25    beyond the scope?


   1               MR. PLOTZ:  No.  Actually, this is going to be

   2    directly relevant to the cross with respect to whether or

   3    not the flaws in citation analysis are directed to

   4    individual authors or to journals as a whole.

   5               THE COURT:  You may continue.

   6    BY MR. PLOTZ:

   7         Q.    Just to put it in context, though, what issue

   8    were Moed and Vreins looking at?

   9         A.    Moed and Vreins were looking at clerical errors

  10    principally, by authors in citing materials.  They took a

  11    set of journal titles and then looked for whatever errors

  12    might have been produced by the authors in those citations.

  13         Q.    Were there any differences across the journals

  14    they looked at in the types of errors that they found?

  15         A.    They weren't going to find any errors in terms of

  16    journal titles, because of the way they collected the data,

  17    by establishing a set of journal titles.

  18         Q.    What errors were they looking at?  What types of

  19    errors?

  20         A.    They were looking at errors such as misspelling

  21    of names, misspelling of articles, etc.  And they found

  22    among those that there was roughly a 9-percent error rate

  23    among citations.

  24         Q.    Were there any differences among the journals

  25    they looked at in terms of the types of errors that were


   1    predominant in each journal?

   2               THE COURT:  When you say "a 9-percent error

   3    rate," do you mean an error of sufficient magnitude so that

   4    the correct reference was not credited with the citation?

   5               THE WITNESS:  In errors -- an error, period,

   6    meaning misspelling of a word, misspelling of a name.

   7               THE COURT:  With the consequence that the

   8    citation was not credited in the analysis?

   9               THE WITNESS:  They weren't looking at the

  10    ultimate citation database.  They were just looking at a

  11    collection of articles.  So you can't say it goes to the

  12    next step, with the consequence.

  13               THE COURT:  And they were saying?

  14               THE WITNESS:  That they were errors in the way

  15    authors put their citations together; they make mistakes.

  16               THE COURT:  For our purposes, the significant

  17    question is whether the nature of the errors was such as to

  18    skew the analysis?

  19               THE WITNESS:  Correct.

  20               THE COURT:  Were these errors of such a nature?

  21    If someone misspelled your name, puts an E at the end

  22    instead of an A, but in the analysis it's clear that it's

  23    your book which is being cited so that they, I guess, would

  24    call it a hit in today's language, then the error is of no

  25    significance?


   1               THE WITNESS:  Right.  I don't know the answer to

   2    that, your previous question.  That is what it comes down

   3    to.

   4    BY MR. PLOTZ:

   5         Q.    Leaving clerical errors aside, is there a

   6    subjective component to an author's decision to use a

   7    citation?

   8         A.    Clearly, there is subjectivity based on -- as was

   9    mentioned before, positive and negative cites carry the same

  10    weight.  Even though one is -- might not be favorable and

  11    the other is favorable, in the final analysis they both

  12    count as a hit.  There may be, you know, minor cites of some

  13    related research which is counted equally to a major piece

  14    of work that had major influence on your research.  But

  15    those, again, are both counted as equal hits.

  16         Q.    In connection with the question Judge Sand asked

  17    you a few moments ago, the relationship of citations and

  18    use, are there uses of journals beyond citation?

  19         A.    Yes, there are.

  20         Q.    What kind of uses would there be?

  21         A.    In reading the literature, knowing what is out

  22    there, looking for things that might be related to your

  23    research, there are, in the physical sciences, there are

  24    clearly a lot of uses within the corporate sector that don't

  25    result in citations.  This is well known.


   1               There are, you know, obviously, a body of uses

   2    beyond simply those that you are going to cite.

   3               THE COURT:  How much longer do you think redirect

   4    will be?

   5               MR. PLOTZ:  Longer than five minutes.

   6               THE COURT:  We are adjourned until 2 o'clock.

   7               (Luncheon recess)




















   1                 A F T E R N O O N    S E S S I O N

   2                             2:05 p.m.


   4               Resumed, and testified further as follows:

   5               THE COURT:  Good afternoon.  You may be seated.


   7    BY MR. PLOTZ:

   8         Q.    Dr. Kingma, on cross you were asked a whole lot

   9    of questions concerning five theoretical measures of

  10    effectiveness of journals, do you recall that?

  11         A.    Correct.

  12         Q.    And just so we have them in front of us, what are

  13    those five theoretical measures?

  14         A.    The five theoretical measures are readership, or

  15    readings; use; survey of faculty opinions; citations; and

  16    impact.

  17         Q.    And is that list you just gave us in any

  18    particular order of importance?

  19         A.    Yes.  I regard it to be listed as best to worst,

  20    best being readings or use of a journal in terms of

  21    measuring effectiveness.

  22         Q.    Are any of those five measures in your view

  23    invalid measures of effectiveness of journals?

  24         A.    Yes.  I consider the impact factor to be an

  25    invalid measure of effectiveness.  It has serious problems


   1    inherent in it that don't make it a worthwhile measure.

   2         Q.    And what, briefly, are those problems?

   3         A.    The problems that we discussed before, of its

   4    dramatic variability from year to year, of it makes it

   5    difficult to compare cross subspecialties, the different

   6    kinds of types of journals, the inherent problems in

   7    citation analysis, and one more, the fact that it's a global

   8    measure rather than a local measure.

   9         Q.    In terms of its year-to-year fluctuations, you

  10    were asked some questions on cross relating to the review of

  11    modern physics impact factor as reported in the Barschall

  12    study, which was 27, correct?

  13         A.    Correct.

  14         Q.    Do you know what happened to that impact factor

  15    in the next year, 1987?

  16         A.    In 1987, actually there was a 40-percent decline

  17    in the impact factor down to a little more than 16.

  18         Q.    Now, what is it about citation count that you

  19    rank at above impact factor in your list of theoretical

  20    measures?

  21         A.    Well, citation count gives a more complete

  22    picture of a journal.  In some sense, if you wanted even

  23    more information about the citations for a journal, you

  24    would want to take the citation count for every year from

  25    the initial existence of the journal until today's date to


   1    see what the total citation count was, how it varied from

   2    year to year, etc.  The impact factor just gives you a very

   3    small snapshot of those citations, two years publication,

   4    one year citation snapshot.

   5         Q.    Now, you were asked on cross about your statement

   6    in your report that you considered the impact factor to be a

   7    biased measure, and you were asked whether in fact it wasn't

   8    a precise measure; do you recall that?

   9         A.    Yes.

  10         Q.    I believe you answered that it was a precise

  11    measure.

  12         A.    It is a precise measure in terms of the

  13    mathematics of it; counting up the number of citations,

  14    dividing it by the number of source items.

  15         Q.    What is it about it that you claim is biased?

  16         A.    It's biased in terms of its use, its use

  17    particularly in these articles, for making managed library

  18    management decisions.

  19         Q.    Just to be clear, when you refer to "these

  20    articles," you mean the Barschall's?

  21         A.    The Barschall articles.  Developing this cost per

  22    character per impact measure leads to -- potentially leads

  23    to biased decisions in terms of collection development.

  24    Basically in one year you can have a journal with a very

  25    high impact factor leading to a very, let's say, good score


   1    according to the Barschall method.  The next year with that

   2    impact factor changing all of a sudden you've changed the

   3    score of it, the ultimate score of the cost per impact

   4    measure.

   5         Q.    And what is wrong with that?

   6         A.    Well, potentially in one year a librarian could

   7    decide to subscribe to a journal and the next year

   8    unsubscribe to a journal, even though the use or value of

   9    that journal to the core patrons that they serve remains

  10    constant, even though the impact factor on a global scale is

  11    changing from year to year.

  12         Q.    Now, let me turn to use, which is one of the

  13    measures that you have placed reliance on.  Could you please

  14    describe how a library can measure use?

  15         A.    Yes.  Use studies are done in a variety of ways.

  16    There was one done at the University at Albany several years

  17    ago that involved putting stickers on every volume of every

  18    journal on the shelf, telling all the patrons of the

  19    library, through letters and through big signs throughout

  20    the library, not to reshelf journals had they pulled them

  21    down to look at them.  It said very explicitly, don't put

  22    this back on the shelf.  Those journals then were collected

  23    throughout the library, a core of undergraduate students

  24    were hired to perform this task, and every time it was

  25    reshelved a little mark was made on the white sticker.  When


   1    the white sticker collected so many marks -- I don't know if

   2    it was 20 or 40 marks -- a new white sticker was put on and

   3    that information was recorded by journal title and by year.

   4         Q.    And then what ultimately was done with the

   5    information?

   6         A.    Well, ultimately you have a database of the use

   7    for each year of -- by every journal title.  And you can

   8    take that information and look at the subscription prices

   9    for those journals, and get a cost per use.  Now, the reason

  10    that's relevant is that when you look at cost per use for

  11    journal titles, your alternative in collecting the same

  12    information or acquiring the same information for patrons to

  13    use is to go through interlibrary loan, and there you are

  14    acquiring it out of an article by article basis, and it has

  15    also essentially a cost per use.  So those cost per use

  16    comparisons can be made between the journal on the shelf and

  17    the alternative means of collecting the same information.

  18         Q.    Is conducting a use study such as you described

  19    easy or difficult to do?

  20         A.    It's somewhat straightforward to do, but it can

  21    be costly.  It can be difficult to put together the core of

  22    students that you need and the methods you need to collect

  23    this kind of information.

  24         Q.    Does that make the exercise of conducting a use

  25    study invalid?


   1         A.    No, it doesn't make it invalid.  It makes it --

   2    while there are difficulties in doing it and costs

   3    associated in doing it, it is really the best thing to do to

   4    make wise management decisions --

   5               THE COURT:  It gives no indication, does it, of

   6    the amount of time spent in consulting that or reading that

   7    particular volume?

   8               THE WITNESS:  No, it doesn't.

   9               THE COURT:  Then, if you take the wrong book off

  10    the shelf by mistake, it distorts the result, doesn't it?

  11               THE WITNESS:  If you take the wrong book off the

  12    shelf by mistake, yes, there are going to be those errors,

  13    but note that --

  14               THE COURT:  Isn't it a fact that any one of these

  15    methods is going to be subject to that type of picayune

  16    possibility of distortion?  You refer to the problem of two

  17    authors having identical names, and you don't know how often

  18    that happens, two authors with identical names.  I don't

  19    know how often it happens that somebody takes a book off the

  20    shelf by mistake.  But don't you have to have a sort of a

  21    generous margin of error for all of these pursuits?

  22               THE WITNESS:  I think with the use study, though,

  23    while there may be a margin for error within it, it is still

  24    a very nice type measure of what local patrons value within

  25    that library.  And you have a direct comparison for that.


   1    Acquiring the same articles through interlibrary loan, and

   2    in which case some people might fill out the interlibrary

   3    loan form incorrectly or might be interested in an article

   4    but find out that it is not particularly useful to them;

   5    they are still requesting it and asking that it be delivered

   6    to them.

   7               I think that's -- in any research that you do

   8    that involves collection of numbers, there are almost, you

   9    know, automatically there is going to be an error of margin.

  10         Q.    That's true for citations as well as use studies?

  11         A.    Yes.

  12         Q.    Would it make sense to you, assuming this could

  13    be done, for a nationwide use study to be done and then used

  14    by librarians in making their acquisition decisions?

  15         A.    No, you see, that doesn't make any sense because

  16    you are concerned with the use that your patrons at your

  17    library get from journals that you're thinking about

  18    purchasing as an acquisitions librarian.

  19         Q.    Now, Mr. Huvelle asked you a hypothetical

  20    question, and I would like to restate the hypothetical just

  21    a little bit differently.

  22               He asked you to assume that the cost per impact

  23    formula was a valid measure of cost effectiveness, and he

  24    asked you whether or not, with that assumption, you agreed

  25    that the APS journals listed in table 1 were more cost


   1    effective.  I would like to state it a little bit

   2    differently.

   3               You believe that the cost per impact formula is

   4    not a valid measure of cost effectiveness, correct?

   5         A.    Correct.

   6         Q.    Do you believe that the fact that the APS

   7    journals rank at the top of the various categories in table

   8    1 says anything one way or the other about their relative

   9    cost effectiveness?

  10         A.    No, I don't.

  11               MR. PLOTZ:  I have nothing further, your Honor.

  12               THE COURT:  Anything further of this witness?

  13               MR. HUVELLE:  No, your Honor.

  14               THE COURT:  Thank you.  You may step down.

  15               (Witness excused)

  16               MR. LUPERT:  Shall we call the next witness, your

  17    Honor?

  18               THE COURT:  Yes, please.

  19               MR. LUPERT:  The next witness is going to be

  20    Dr. Harry Lustig.

  21               MR. MESERVE:  Your Honor, I have one housekeeping

  22    matter that relates to this witness.  You recall yesterday

  23    that we had a discussion about a stipulation.  I offered a

  24    stipulation to Mr. Lupert yesterday and he suggested that I

  25    enter it, which I have done, and provided him with a copy.


   1    This is the stipulation.  It is intended to find a way --

   2    since we are running late, to find a way to streamline this

   3    trial.  I believe based on the deposition and on the

   4    documents that have been identified as exhibits, that I

   5    anticipate that Mr. Lupert intends to spend some time with

   6    Mr. Lustig or Dr. Lustig talking about whether the past

   7    survey would have been used for commercial advertising or

   8    promotion.  In an effort to streamline this issue, we have

   9    provided the stipulation, which, as you'll see, stipulates

  10    that we intend to use surveys employing the Barschall

  11    methodology as reflected in the relevant exhibits for

  12    commercial advertising or promotion and intend to obviate

  13    the need for evidence about the past activities which relate

  14    to the 1988 survey.

  15               THE COURT:  Mr. Lupert, does this stipulation

  16    meet the plaintiffs' needs?

  17               MR. LUPERT:  Well, it is obviously acceptable to

  18    the plaintiffs to have the defendants concede a point they

  19    have not conceded before, which is that they actually will

  20    intend and do intend in the future to use these surveys for

  21    commercial purposes, which I think is a significant

  22    concession.

  23               I had thought about this overnight.  It was

  24    something proposed unilaterally by Mr. Meserve.  I am not

  25    quite sure of what it accomplishes, frankly, from a --


   1               THE COURT:  Well, his hope is that it obviates

   2    the need for the plaintiffs to introduce evidence to prove

   3    this point, and, therefore, saves -- sir, why don't you have

   4    a seat and we will call you when we are ready.

   5               Does it serve that purpose?

   6               MR. LUPERT:  It is clearly going to serve the

   7    purpose of eliminating certain points that I would otherwise

   8    have had to raise.  There was considerable testimony, for

   9    example, that I would have burdened the Court with, with

  10    depositions that dealt with this topic from witnesses who

  11    would not otherwise testify here.  Certainly, we won't need

  12    to burden the Court with that.  So, yes, there will be a

  13    savings.

  14               I had asked Mr. Meserve whether he would

  15    stipulate to the next point, which is that, assuming we met

  16    the standard under Casterol, as this court will define it,

  17    whether he would agree that an injunction would be an

  18    appropriate remedy.  That he was not willing to agree to and

  19    I can't force him to agree to that, obviously.

  20               THE COURT:  Why don't we accept the stipulation

  21    that defendants hereby stipulate that they intend to use

  22    surveys employing the Barschall methodology (as reflected in

  23    plaintiff's Exhibits 1 to 3) in commercial advertising or

  24    promotion as those terms are used in the Lanham Act.  And

  25    the defendants so stipulate?


   1               MR. MESERVE:  That's correct, your Honor.

   2               THE COURT:  Very well.

   3     HARRY LUSTIG,

   4         called as a witness by the plaintiffs,

   5         having been duly sworn, testified as follows:


   7    BY MR. LUPERT:

   8         Q.    Dr. Lustig, you were the treasurer, were you not,

   9    of the American Physical Society until late last year?

  10         A.    I was the treasurer from 1985 to November 10,

  11    1996.

  12         Q.    And you remain a paid consultant for the

  13    organization to date, do you not?

  14         A.    I am now a one-day-a-week consultant for the

  15    organization.

  16         Q.    You testified at your deposition that among the

  17    consulting activities that you do for the defendant APS is

  18    to consult on the litigation and the issues pertaining to

  19    the case that we are now trying?

  20         A.    That is one of my duties.  I have a certain

  21    memory about the case, yes.

  22         Q.    And you remain active on several committees of

  23    the APS?

  24         A.    No, I'm not on any committees of the APS.

  25         Q.    In terms of how the APS operates, as I understand


   1    it, it has three what we call day-to-day operating

   2    officials, is that not correct?

   3         A.    Well, they are called the free operating

   4    officers, yes.

   5         Q.    One of them was the treasurer?

   6         A.    One of them was the treasurer.

   7         Q.    When I say "was the treasurer," this remains true

   8    today; there is the treasurer, correct?

   9         A.    To the best of my understanding, that remains

  10    true today.

  11         Q.    And there is an executive secretary, correct?

  12         A.    Yes, sir.

  13         Q.    And there is a gentleman or a woman who is called

  14    editor-in-chief, correct?

  15         A.    Right now it is a gentleman, yes,

  16    editor-in-chief.

  17         Q.    And each of these, if I call them noneditorial

  18    functions, I would be correct?

  19         A.    No, I don't think so.  You wouldn't be correct

  20    with respect to the editor-in-chief.

  21         Q.    Well, the editor-in-chief doesn't spend his time,

  22    does he, editing articles?

  23         A.    Actually he does review appeals, so he has to

  24    look at articles.

  25         Q.    He reviews appeals as one of his functions, and


   1    his other functions are noneditorial, correct?

   2         A.    Well, his other functions are help choose,

   3    recommend to the counsel, editors for the journals.

   4         Q.    And among his other functions are what we would

   5    call publishing or business functions?

   6         A.    Actually, that is now not very much the case.

   7    Now the treasurer is considered the publisher of the

   8    journals.

   9         Q.    And is it a fair statement to say that APS

  10    basically, in terms of its revenue stream, depends upon the

  11    sale of its journals?

  12         A.    Well, it is a little more complicated than that.

  13    APS has four different activity groups, if you will:

  14    Publications, research publications is one of them.

  15    Meetings is another.  Membership service is another.  And,

  16    finally, what we call finally our member activity.  Outreach

  17    education is another.  And by and large we want each of

  18    these activities to stand on their own feet.

  19         Q.    In terms of the revenue stream, I would like you

  20    to try to focus on the revenue stream.  Do you remember, you

  21    were the treasurer focusing on the idea of bringing in

  22    money?

  23               Am I correct that APS was dependent in terms of

  24    bringing money into its operations to sell its journals?

  25         A.    Well, financially, the journals were the largest


   1    portion of operations, and so both the expenses and the

   2    revenues of the operations were larger than any of the

   3    others.

   4         Q.    In effect, APS could not survive without the sale

   5    of its journals, correct?

   6         A.    No, I don't think that is correct.  We are now in

   7    a position where we could survive -- if we had no expenses

   8    for our journals, we could manage all the other activities

   9    now without the journals.  Of course, we couldn't tolerate

  10    large losses of the journals --

  11         Q.    Sir --

  12               THE COURT:  There are other main revenues,

  13    sources of membership?

  14               THE WITNESS:  Membership dues, meetings,

  15    registrations, and we do get some grants from foundations

  16    for some of our scientific studies on the issue of physics

  17    and society.

  18         Q.    If I did the math correctly -- and I'm more than

  19    happy to show you this document.  This is the 1996 annual

  20    report of the American Physical Society, which indicates, of

  21    its revenue stream of about 29 million, 24 million was the

  22    result of the sale in a category called reserve

  23    publications; is that about what your memory is?

  24         A.    Well, that is correct, but of course the expenses

  25    were mostly in research publications.


   1         Q.    Correct.  And the document which perhaps I should

   2    show you, if I might, is Exhibit 6D.  And it shows, does it

   3    not, that 80 percent, approximately a little bit more than

   4    80 percent of the revenue stream of APS was from the sale of

   5    journals and it had $20 million in expenses due to the sale

   6    of journals, leaving a net of 3.2?

   7         A.    Well, it wasn't all from the sale of journals.

   8    There were also page charges and other incomes in connection

   9    with journals.  It wasn't all sale, but yes, you are

  10    basically correct.

  11         Q.    If the sale of journals, and taking in a page

  12    charge revenue about which there has been testimony before

  13    you, there was 24 million and there was a net of about 3.2

  14    million?

  15         A.    That is true for that particular year, yes, sir.

  16         Q.    And it is about the same percentage from year to

  17    year?

  18         A.    No, the net surplus is not the same from year to

  19    year.

  20         Q.    So the net surplus may have decreased but the

  21    percentage of revenue stays in the 75 to 80 percent area?

  22         A.    75 to 80 percent, yes, sir.

  23         Q.    That was true from 1986?

  24         A.    1985.

  25         Q.    -- 1985 until you left last year, right?


   1         A.    I believe that was approximately true, yes, sir.

   2         Q.    For AIP, to your knowledge was it about the same?

   3         A.    I don't really remember the AIP numbers very

   4    well, but I would say probably about the same, yes.

   5         Q.    And within the revenue stream itself, I am

   6    correct, am I not, that the largest portion of the revenue

   7    year to year to the APS comes from the sale of journals to

   8    academic libraries?

   9         A.    That's been true in recent times.  It wasn't

  10    always true.

  11         Q.    Well, it's been true since the mid-'80s to the

  12    mid-'90s, correct?

  13         A.    It has gone up actually, since, yes.

  14         Q.    In other words, the percentage of income derived

  15    from libraries has actually increased from the time you

  16    started as the treasurer?

  17         A.    That's correct.

  18         Q.    That has been true for both AIP and APS?

  19         A.    I'm not sure about AIP at all.

  20         Q.    We'll focus on APS.

  21               I had asked you a moment before, I mean, given

  22    these numbers, do you agree with my statement that without

  23    the sale of journals, that APS could not survive?

  24         A.    No, I do not agree, sir.  Because we have now put

  25    ourselves into a position where we no longer depend on


   1    surpluses from journals to help finance any of the other

   2    activities.  And APS was of course founded as a service

   3    society for physics and not as a publisher.

   4         Q.    Let me rephrase it slightly then.

   5               Certainly the journal publication program

   6    couldn't survive without the revenue stream from the

   7    libraries?

   8         A.    That's certainly true about the journal program,

   9    yes.

  10         Q.    Now, Physics Today -- you are familiar with the

  11    journal Physics Today?

  12         A.    Yes, I am.

  13         Q.    Just to get some background, that is the

  14    background that AIP sends out to anyone who is a member of

  15    AIP, any of the member societies?

  16         A.    That is correct.  There are no members of AIP.

  17         Q.    Let me bring that out as well.  AIP doesn't have

  18    individual members.  It actually has member societies.  Is

  19    that correct?

  20         A.    That is by and large true.

  21         Q.    And AIP basically has about ten of these member

  22    societies, of which APS is one of them?

  23         A.    That is correct.

  24         Q.    APS on the other hand has individual members?

  25         A.    That is correct, sir.


   1         Q.    And it has about 40,000?

   2         A.    That is right.

   3         Q.    And it had about 40,000 back in the mid-'80s.  It

   4    stayed about the same --

   5         A.    Roughly the same.

   6         Q.    The magazine Physics Today, in which of course

   7    the Barschall survey appeared both in 1986 and in 1988, am I

   8    correct that the distribution was about 100,000 each time?

   9         A.    Well, I'm not sure exactly, but roughly that.

  10    That's a roughly right number, yes.

  11         Q.    OK.  Just as a little bit of additional

  12    background information --

  13               MR. LUPERT:  Will your Honor be able to keep up

  14    with me?  I see the court clerk has left.  If I have

  15    documents --

  16               MR. MESERVE:  I couldn't hear the exhibit number.

  17               MR. LUPERT:  It is 112.

  18               THE COURT:  What are we looking at now?

  19               MR. LUPERT:  I am looking at Plaintiff's Exhibit

  20    112.

  21         Q.    I would like to put this before you.  Thank you.

  22               There is a language that you use, Dr. Lustig,

  23    that differentiates between academic libraries and the

  24    40,000 members, if I understand it.  In all these documents,

  25    when you refer to members, you are referring to the 40,000,


   1    approximately, physicists?

   2         A.    That's right.

   3         Q.    When you refer to nonmembers, you are referring

   4    to the academic libraries, correct?

   5         A.    That's correct.  Unlike other publishers who

   6    distinguish between institutional and individual

   7    subscriptions, we distinguish between library, institution

   8    and APS member subscriptions.

   9         Q.    Just for the court to understand this, because

  10    there are a lot of documents that use the phrase

  11    "nonmembers," we are invariably talking about academic

  12    libraries, correct?

  13         A.    That's correct.

  14         Q.    And this document, if you could turn to --

  15               THE COURT:  What is a nonacademic library?

  16               MR. LUPERT:  To differentiate it from corporate,

  17    basically.  It seems to be the rubric that is used by this

  18    particular society, judge.

  19               THE WITNESS:  We don't have corporate members.

  20               MR. LUPERT:  Right.

  21         Q.    In fact, when the judge asks about, are there any

  22    libraries other than academic libraries, that the words

  23    nonmember in fact equate only with academic libraries?

  24         A.    No, not just academic libraries, any libraries.

  25         Q.    This document reflects that at least at this


   1    period of time, in 1991, there were slightly over 2900 APS

   2    nonmember accounts representing a little over 10,000

   3    subscriptions.  It is on page 7.

   4               Is that about the right number, as far as you

   5    recall?

   6         A.    Well, I really can't recall what the right number

   7    is for 1987 right now, but it sound about right.

   8         Q.    This was actually 1991.  I would show you other

   9    documents.  But are we in the right ballpark basically --

  10         A.    You said 10,000?

  11         Q.    There were 10,000 subscriptions for about 2900

  12    libraries.

  13         A.    2900 different libraries together accounted for

  14    about 10,000 subscriptions, that sounds about right.

  15         Q.    And that sounds about right during your entire

  16    tenure period?

  17         A.    Pretty much so.

  18         Q.    If I could ask you to take a look at page 33.

  19    Remember, these have numbers at the bottom of them,

  20    Dr. Lustig, which are just numbers that were put on by

  21    counsel.  There is a number that says APS 3321.  Do you see

  22    that on the bottom right-hand corner?

  23         A.    I will have to find it.

  24         Q.    There are two tables there, table 2, table 3, and

  25    it says "subscriptions by journal for 1990, 1991."  Do you


   1    see it there?

   2         A.    Yes, I could.

   3         Q.    Do you see that there is a column under table 3

   4    that says "PRA"?  Does that stand for Physical Review A,

   5    Physical Review B, etc.?

   6         A.    It does.

   7         Q.    And the "PRL" at the bottom is Physical Review

   8    Letters?

   9         A.    It does.

  10         Q.    And it says "Physical Review '90, '91," and those

  11    are the actual subscriptions for those journals, correct?

  12         A.    These are library subscriptions.

  13         Q.    Since those dates, there has been, has there not,

  14    an annual decline?

  15         A.    There was an annual decline before these dates,

  16    as well, but it was generally not as high as this particular

  17    year.

  18         Q.    Right.  Is it not true that there has been an

  19    average annual decline, going back to the -- sometime in at

  20    least the '80s through the time you left, of about 3 percent

  21    per year?

  22         A.    2 to 3 percent per year, yes.

  23         Q.    So these numbers here would have to be modified

  24    slightly to account for those adjustments, correct?

  25         A.    That's correct, sir.


   1         Q.    Now, talking about cancellations for a moment --

   2    I can take that document back from you.  I am going to have

   3    some great number of documents and I don't want to overload

   4    you.

   5               Am I correct in stating that generally, during

   6    your tenure from '85 on, a major problem facing the APS --

   7    and I want you just to focus on the APS for a moment -- was

   8    cancellation by librarians?

   9         A.    It was a problem, yes.

  10         Q.    And, in fact, among the things you wanted to try

  11    to accomplish as the treasurer was to stanch the tide of

  12    those cancellations?

  13         A.    Correct.  Well, that was one of my goals, but I

  14    had a different problem and perhaps a more difficult

  15    problem, too, Mr. Lupert.  That was because of the

  16    tremendous growth of our journals, we had to increase the

  17    price every year.  We had 9, 10 percent growth and my

  18    community, which is composed of academics and librarians, to

  19    some extent and the provosts and our readers were very

  20    reluctant to allow me to make the proposed price increases

  21    that were necessary to keep up with that growth.  So that I

  22    considered my biggest problem.

  23         Q.    So you had -- the biggest problem was the

  24    increasing prices, and another problem, and I daresay a very

  25    important problem, was cancellations, correct?


   1         A.    The biggest problem was my being allowed to make

   2    the necessary increases in prices.

   3         Q.    Right.  But let's talk about it in terms of what

   4    those actual price increases were.

   5               Am I not correct that those price increases in

   6    the 1980s period were large?

   7         A.    Yes.  They had reached about 15 percent per year.

   8         Q.    And, indeed, do you recall that in 1987/88, APS

   9    across the board had to increase its prices by 26.9 percent?

  10         A.    That was a very unfortunate and unusual

  11    happening.  Because of illness in the family I was unable to

  12    attend the council the year before so they did not follow my

  13    recommendation for the 15 percent price increases then but

  14    made a much lower one, so, yes, we had to compensate that

  15    one the next year for the losses.

  16         Q.    Let me, so that we have the facts straight:  In

  17    1986-'87, the price increase was 12 percent and in '87-'88,

  18    it was 26.9 percent?

  19         A.    Yes.

  20         Q.    If I might show you Exhibit 77 and ask if you

  21    would please turn to page 5181, again, one of those numbers

  22    that were put on by counsel.

  23               Do you see it there?

  24         A.    Yes, sir.

  25         Q.    There is a chart, "Average Price Increases"?


   1         A.    Yes.

   2         Q.    That is an accurate chart, as far as you know?

   3         A.    I prepared that chart, so I have to assume it's

   4    accurate.

   5         Q.    And by the mid -- let's say 1992, 1993, this

   6    problem with cancellations was just as great as it had been

   7    back in the '87/'88 period?

   8         A.    My reading is that the main problem was not

   9    cancellations.  Main problem was continued growth of the

  10    journals by 10 percent a year.

  11         Q.    And the increase in the prices that resulted?

  12         A.    And the increase in the prices that had to be

  13    charged, yes.

  14         Q.    But nevertheless there were cancellations every

  15    year?  There was a net cancellation, let's call it a net

  16    loss of subscribers, every single year, correct?

  17         A.    That is correct.

  18         Q.    And there were increasing prices every single

  19    year?

  20         A.    Pretty much -- not every year, not for every

  21    journal, but every year.

  22         Q.    For most of the journals between 1986 and the

  23    time you left at the end of last year, there were increases

  24    in most of the journals and there were net cancellations in

  25    terms of the revenue stream for APS every single year,


   1    right?

   2         A.    That is correct.

   3         Q.    And these were of concern to you, correct?

   4         A.    Yes, there were.

   5         Q.    Now, do you recall that there was, on top of

   6    these concerns, a concern about what the impact of page

   7    charge income -- to be more precise, a concern about what

   8    the loss of page charge income might cause in terms of even

   9    having to increase prices further?

  10         A.    There was certainly a tremendous concern about

  11    the whole page charge issue, Mr. Lupert.  It is a very

  12    complex issue, and I will be glad to testify to the -- if

  13    you ask me, yes, there was concern about the future of page

  14    charges in the --

  15         Q.    In fact, do you recall that at one point you

  16    wrote that if page charge income were eliminated, you

  17    would -- that is, the APS -- would have to raise prices over

  18    60 percent for one of its major publications, Physical

  19    Review C, and over 58 percent for another one of its major

  20    publications, Physical Review D?

  21         A.    Well, that was an estimate that took into account

  22    various hypotheticals that didn't happen.  It proposed the

  23    page charge would be eliminated.  It also took into account

  24    that there would be continued growth and it was predicated

  25    on the fact that we were going to make the same on net


   1    revenues, wanted to make the same net revenues.  None of

   2    this happened, of course.

   3         Q.    But there were analyses that were done from time

   4    to time which looked at what would happen if this page

   5    charge revenue were eliminated, correct?

   6         A.    There was such analysis, yes.

   7         Q.    And in one of the analyses -- and I would be

   8    happy to show it to you if you don't remember it -- there

   9    was a -- you wrote that the effect would be, as I indicated

  10    in my last question, over 60 percent for Physical Review C

  11    and over 58 percent for Physical Review D.  That is about

  12    correct, right?

  13         A.    This was written to tell people that they simply

  14    couldn't eliminate all page charges.

  15         Q.    This page charge income, to put it back into

  16    context, this is where the author is charged by the society

  17    for the privilege, if you will, of having his or her article

  18    published in the APS journal, right?

  19         A.    Authors, after the articles are accepted -- long

  20    after they are accepted, are asked on a voluntary basis to

  21    help defray the cost of the journals to contribute a fee per

  22    page, called a page charge, obviously partly from their own

  23    pocket, but mostly from their overall research grant, since

  24    this was part of research and it was totally voluntary.  And

  25    that is an institution which American journals have had for


   1    a long time.

   2         Q.    Am I not correct about this statement, that the

   3    page charges and library subscriptions come ultimately from

   4    the same institutions?  That is a correct statement?

   5         A.    Well, if you mean the American taxpayer, yes,

   6    that is by and large a correct statement.  But they do not

   7    come from the same -- certainly do not come from the same

   8    sources inside an institution.

   9         Q.    But the physics department, in this case, is

  10    responsible by and large for the page charges that the APS

  11    charged the authors?

  12         A.    No, that is not correct, Mr. Lupert.

  13         Q.    The money comes from the National Science

  14    Foundation in the first instance, does it not?

  15         A.    And the grant --

  16         Q.    And the grants come from the NSF to the

  17    university and from the university department -- am I wrong

  18    that it is not the department, it is the university as a

  19    whole?

  20         A.    You are wrong about that, Mr. Lupert.  The grant

  21    goes to the individual investigator.

  22         Q.    In a department?

  23         A.    In a department.  For example, it is portable.

  24    If an investigator leaves an institution, he can almost

  25    always take that grant with him.  It is administered


   1    technically through the university, which has some fiduciary

   2    responsibility, but it is basically an individual

   3    investigator who decides how to use his grant money, whether

   4    to use it for page charges or for travel or for graduate

   5    student support or whoever.

   6         Q.    You would agree with me that, in concept, the

   7    page charges in library subscriptions come ultimately from

   8    the same institution and sources, is that correct?

   9         A.    No, I just explained what I meant by that.  It

  10    comes ultimately probably from the U.S. taxpayer, in the

  11    sense that the libraries are sometimes financed from

  12    indirect costs from grants and the grants go directly to

  13    investigators.  But the impact on who pays is very

  14    different.  For example, there is no correlation.  We have

  15    libraries which basically buy journals but have no

  16    researchers at all and pay page charges, and we have

  17    researchers who pay page charges where the libraries may not

  18    even subscribe to the journal.

  19         Q.    Doctor, let me show you a document that appears

  20    to be one that you wrote.  It is Plaintiff's Exhibit 153.

  21               Would you take a moment and just look at that.

  22               (Pause)

  23         A.    Yes, sir.

  24         Q.    This is a memo from you to someone named Cindy

  25    Rice?


   1         A.    Yes.

   2         Q.    Are those your initials next to the name Harry

   3    Lustig?

   4         A.    Yes, they are.

   5         Q.    This is actually a discussion about Gordon &

   6    Breach's voluntary negative page charge concept, is it not?

   7         A.    No, it's not.  That is mentioned, inter alia, in

   8    terms of a much more general discussion.

   9         Q.    But it contains a discussion about Gordon &

  10    Breach's page charge policy, does it not?

  11         A.    It contains a statement about the Gordon & Breach

  12    paying negative page charges to authors, yes.

  13         Q.    I would point you to the third full paragraph on

  14    the first page, as it runs over to the next page, where you

  15    wrote, "Of course, the idea that page charges and library

  16    subscriptions come ultimately from the same institutions and

  17    sources is correct and would lead to the conclusions that a

  18    simple funding model should be established."  Do you see

  19    that?

  20         A.    You are saying on the first page?

  21         Q.    It is the third paragraph that runs over to the

  22    next page.  Indeed, it would be the first full sentence on

  23    the second page.

  24               Do you see it there?

  25         A.    Well, as I said, by this I meant, or should be


   1    more precise, they ultimately come from the federal

   2    government generally, from the U.S. taxpayer.

   3         Q.    But on a global United States basis, I mean every

   4    library, every university that has an author that is

   5    publishing with an APS journal, that university budget, or

   6    that grant from the NSF, is being used to pay some page

   7    charges, correct?

   8         A.    No, that is not correct.  Some people pay no page

   9    charges whatsoever.  Some universities pay no page charges

  10    also.

  11         Q.    Those who pay, those who pay, that is a factor

  12    that produces substantial revenue, does it not, for the APS?

  13         A.    No, not any more.  It doesn't produce substantial

  14    revenue.

  15         Q.    Back in the '80s did it produce substantial

  16    revenue?

  17         A.    The last number I remember from the '80s are

  18    about 15 percent of the revenues.

  19         Q.    So about 15 percent --

  20         A.    Yes.

  21         Q.    -- of the $24 million in revenue, that would be

  22    about $4 million dollars?

  23         A.    3.6.

  24         Q.    Three and a half million dollars, to be precise.

  25    Would you say that is a substantial amount?


   1         A.    In dollars it is a lot of money, in percentages

   2    it is not.

   3         Q.    Three and a half million dollars is more than the

   4    entire net from publications in that year?  And I would

   5    refer you back to Exhibit 6, that I showed you earlier.

   6         A.    You are talking about a different year maybe.  As

   7    I said, it is roughly the same number, yes.

   8         Q.    In other words, the amount of page charge revenue

   9    was approximately the whole net revenue to the APS?

  10         A.    It is a lot less now.

  11         Q.    But back then, when Professor Barschall did his

  12    survey, were page charges, let me say, as relevant an issue

  13    to our case at that point in time?

  14         A.    They were certainly a significant part of our

  15    revenue, yes.

  16         Q.    Would you agree with me that, with respect to the

  17    price increases that were occurring back in the 1980s, that

  18    librarians basically were traumatized?

  19         A.    I think that's fair, about price increases in the

  20    publishing community as a whole, yes.

  21         Q.    And they were traumatized and they were

  22    complaining about price increases, were they not?

  23         A.    They were complaining more about particular

  24    publishers than others.

  25         Q.    But they were complaining about these price


   1    increases, and these complaints also dealt with the APS

   2    price increases, correct?

   3         A.    There were rare, if any, complaints about the APS

   4    price increases.

   5         Q.    Did it not come to your attention, sir, during

   6    the 1980 time frame, mid to late 1980 time frame, that

   7    librarians were deeply concerned and objecting to the price

   8    increases of society journals?  And they may well have been

   9    objecting to commercial journals price increases, too.  I

  10    don't mean to exclude that.  But that they were in fact, and

  11    it came to your attention, deeply concerned and objecting to

  12    the price increases of APS?

  13         A.    I don't remember that.  I do remember that, with

  14    whatever interaction I have had with librarians, they kept

  15    telling us, of course, you guys are the good guys, we aren't

  16    really concerned about your prices or price increases.

  17         Q.    Did you not state -- strike that.

  18               Was it not stated in your presence, at least on

  19    one occasion, at an executive committee meeting of the APS,

  20    that nonmember subscription prices have been rising

  21    dramatically and for the libraries traumatically in the

  22    context of APS price increases?

  23         A.    I'm not sure if it was in the context of APS

  24    price increases, but yes, of course 15 percent increases are

  25    a burden on the libraries.


   1         Q.    They were complaining about them.  They were

   2    finding them not only dramatic but traumatic?

   3         A.    You can find it traumatic without complaining

   4    about it.  I don't remember having heard any complaints.

   5         Q.    Did you attend from time to time publication

   6    policy committee meetings?

   7         A.    I attended almost every publication policy

   8    meeting since I am a statutory member.

   9         Q.    We are talking of the AIP?

  10         A.    I'm sorry, only APS.  A publications committee of

  11    the APS.

  12         Q.    Did you attend from time to time AIP publications

  13    policy committee meetings?

  14         A.    To the best of my knowledge, I have never

  15    attended any AIP publications policy committee.

  16         Q.    Did you know a man named Jeffrey Howitt?

  17         A.    I believe I have met him.

  18         Q.    Jeffrey Howitt was the director of marketing of

  19    AIP, was he not, at some point in the 1980s?

  20         A.    I only learned that recently.

  21         Q.    Did you know a man named Robert Baensch?

  22         A.    Yes, I knew Robert Baensch.

  23         Q.    Robert Baensch was the director of publications

  24    for a time of AIP, was he not?

  25         A.    He was.


   1         Q.    That was to run the whole publishing arm, the

   2    physical publishing of journals and other things, correct?

   3         A.    Under the direction of the executive director of

   4    AIP, yes.

   5         Q.    That was Baensch's function, correct?

   6         A.    It was, yes.

   7         Q.    And did it come to your attention that he was

   8    stating that librarians were deeply concerned and objecting

   9    to price increases?

  10         A.    I don't recall such a statement.

  11         Q.    Did it come to your attention that Jeffrey

  12    Howitt, the director of marketing in this 1987 period, was

  13    stating that library complaints about raising prices were a

  14    real factor?

  15         A.    I don't recall that either.  It may have had, but

  16    I just don't recall now what happened in 1987.

  17         Q.    You don't dispute those points?

  18         A.    I don't remember.  I can't dispute them.

  19         Q.    The AIP actually publishes mechanical

  20    publications function for the APS journals, doesn't it?

  21         A.    Not all of the journals.

  22         Q.    But for some?

  23         A.    For many of the journals.  On a contract, of

  24    course.  We paid them for that, yes.

  25         Q.    Did you know a man named Ken Ford?


   1         A.    Oh, yes.

   2         Q.    And Ken Ford was the executive director of the

   3    AIP until relatively recently, correct?

   4         A.    No, Dr. Kenneth Ford was the executive director

   5    until 1993, I believe.

   6         Q.    1993, I'm sorry.

   7               Who replaced him?

   8         A.    Dr. Marc Brodsky.

   9         Q.    Dr. Marc Brodsky, who is here in court with us,

  10    correct?

  11         A.    I saw him a little while ago, yes, he is here.

  12         Q.    You said you didn't know how, but you knew

  13    Dr. Kenneth Ford, didn't you?

  14         A.    I did know Dr. Kenneth Ford.

  15         Q.    And you knew him very, very well, didn't you?

  16         A.    I knew him as a physicist.  I knew him in many

  17    ways, yes.  I knew him fairly well, but I wouldn't say we

  18    were close friends or colleagues.

  19         Q.    But you dealt with him on a regular basis in

  20    terms of activities that were similar between the two

  21    organizations and called for coordination, correct?

  22         A.    Well --

  23         Q.    Well, from time to time, yes?

  24         A.    I also dealt with him on occasions where there

  25    was argument and competition between the organizations, yes.


   1         Q.    Did you consider Dr. Kenneth Ford to be an honest

   2    man?

   3         A.    I would, yes.

   4         Q.    Did it ever come to your attention that he had

   5    made any misstatements?

   6         A.    Oh, I'm not sure about that.  He may have been

   7    slightly inaccurate, as all of us are, but I can't convict

   8    him of any real misstatements.

   9         Q.    You basically considered him to be a man of

  10    integrity?

  11         A.    Absolutely.

  12         Q.    Do you agree with this statement, that, in

  13    connection with AIP, that it is a competitor of all other

  14    organizations that also publish physics journals?

  15         A.    That isn't my view of looking at it.  It is

  16    clearly Dr. Ford's way of looking at it, but it is not my

  17    way of looking at it in terms of APS journals.

  18         Q.    But that is a correct view that Dr. Ford had of

  19    AIP?

  20         A.    I can't say that it is correct.  That was his

  21    view.

  22         Q.    But certainly, Dr. Lustig, you considered that

  23    APS was in competition with other publishers for authors,

  24    did you not?

  25         A.    For what, sir?


   1         Q.    For authors.

   2         A.    Yes, but only in a very limited sense.  I would

   3    be glad to explain that.  But only in a very limited

   4    sense --

   5         Q.    You considered, did you not, that there was in

   6    fact stiff competition between commercial publishers on the

   7    one hand and society publishers on the other hand for the

   8    authors, correct?

   9         A.    No, there wasn't stiff competition in general for

  10    the APS journals and those of commercial publishers.

  11         Q.    I'm sorry, sir?

  12         A.    There was not stiff competition for most of the

  13    APS journals and those of commercial publishers.

  14         Q.    Well, was there stiff competition as between any

  15    journals of the APS on the one hand and other publishers on

  16    the other hand?

  17         A.    There was one journal in which the editors

  18    believed there was competition, Physical Review D.

  19         Q.    Do you recall a publication called the APS News?

  20         A.    Yes, indeed.  That's a membership publication.

  21         Q.    And this was a publication that was distributed

  22    to the members?

  23         A.    It's only been for a few years that we've had

  24    this publication.

  25         Q.    But it goes to the 40,000-odd members?


   1         A.    Yes, sir, it does.

   2         Q.    I want to at this point put before you a copy

   3    from March of 1992, which is Plaintiff's Exhibit 125, and

   4    ask you if you would look at what is the fourth page, though

   5    it's marked page 2 at the bottom, the paragraph that says

   6    "the disadvantages."  I would ask you to --

   7               MR. MESERVE:  Excuse me, counsel.  We seem to be

   8    missing a copy of the exhibit.

   9               MR. LUPERT:  125?

  10               (Pause)

  11               MR. MESERVE:  We found another.  Sorry.

  12               MR. LUPERT:  I wonder if I might ask -- does the

  13    Court have it?

  14               THE COURT:  Yes, I have it.

  15               MR. LUPERT:  Thank you.  I wonder if I might ask

  16    you to turn to the page that I designated to you.  It is

  17    numbered page 2, though it is the fourth page of the

  18    document itself, where it says, "However, some of the

  19    Physical Review sections face stiff competition from a

  20    scientific publishing industry in which page charges are not

  21    the standard practice."

  22               Do you see that quote?

  23         A.    Yes, I do.

  24         Q.    Now, when we talk about a publishing industry in

  25    which page charges are not standard practice, as of March


   1    1992, the date of this document, we were talking about the

   2    commercial publishing industry, correct?

   3         A.    No, you are also talking, for example, of the

   4    British Institute of Physics, which is a society which

   5    doesn't have page charges.

   6         Q.    What would you include in your definition of

   7    "competition" as it is used in this sentence the commercial

   8    publishers, or would you say they don't even come into --

   9         A.    First of all, to the best of my knowledge,

  10    Mr. Lupert, I didn't write this article.

  11         Q.    This statement in the APS News, sir, do you

  12    disagree with it or agree with it?

  13         A.    I agree with one section.  I agree that for one

  14    section of the Physical Review, Physical Review D, and to a

  15    smaller extent for another section, Physical Review C, which

  16    publish a lot of theoretical papers, which means the

  17    principal investigators, they have rather small budgets.

  18    Some of these principal investigators did go to one or two

  19    other journals with some of their papers.

  20         Q.    So you agree with the statement?

  21         A.    I said what I agreed with, yes.

  22         Q.    Do you know a man named David Lazarus?

  23         A.    Yes, I do.

  24         Q.    And David Lazarus was the editor-in-chief of the

  25    APS during at least part of the time that you were the


   1    treasurer, correct?

   2         A.    He was already editor-in-chief before I came on,

   3    yes.

   4         Q.    And he stayed for a number of years.  And do you

   5    know when he retired?

   6         A.    I believe it was in 1991, but I'm not totally

   7    sure.

   8         Q.    But he was there during the time that Professor

   9    Barschall's studies were developed and published, correct?

  10         A.    Yes.

  11         Q.    And the other man who was there during that whole

  12    time period, the third member of what I call the

  13    triumvirate, but you don't have to adopt that word --

  14         A.    You are not the only one who called it that.

  15         Q.    I thought I remembered that from something other

  16    than my making it up.  In the triumvirate, you were the

  17    treasurer and Mr. William Havens was the executive secretary

  18    and Mr. David Lazarus -- and they may well be doctors and

  19    I'm not trying to say they are not, I don't remember, or

  20    professors -- they were the men who ran the day-to-day

  21    operations of the APS during the relevant time frame, i.e.,

  22    when Professor Barschall was --

  23         A.    When Dr. Havens was the executive secretary, he

  24    was then called the officer for many, many years, yes, and

  25    we were the three operating officers.


   1         Q.    Now, I take it David Lazarus, who is a renowned

   2    professor at the University of Illinois, if I remember

   3    correctly --

   4         A.    He is retired now.

   5         Q.    He is retired now but he was a very esteemed

   6    individual, you agree with me, right?

   7         A.    He was a well regarded physicist, yes.

   8         Q.    He was a man with whom you had very, very

   9    frequent contact because of the way this triumvirate ran,

  10    correct?

  11         A.    Not as frequent as I would have wished because

  12    Dr. Lazarus was not at headquarters.  He have operated from

  13    the University of Illinois.

  14         Q.    OK.  But in any event, you were in contact with

  15    him on --

  16         A.    From time to time.

  17         Q.    -- more than a random basis, correct.

  18         A.    From time to time, yes.

  19         Q.    He was a man you considered to be an honest man,

  20    too, correct?

  21         A.    Yes.

  22         Q.    So do you agree with the statement that one of

  23    the motivations of the APS was to attempt to persuade

  24    authors to submit their papers to AIP, APS journals?

  25         A.    Yes, and in the same sense for example that


   1    Harvard wants to get hundreds of thousands of applications

   2    so they can be very choosy and reject most of them, yes.

   3         Q.    But one of the goals was to stipulate, your

   4    Honor, prod, convince, potential authors who were good, the

   5    good ones, to submit their papers to APS journals?

   6         A.    Well, we knew we had the best journals in the

   7    world and we certainly wanted to get a crack at the best.

   8         Q.    So, therefore, there was a process that was in

   9    place at the APS that had that as a goal, it wasn't a

  10    theoretical point, it was a practical, let's go out and

  11    accomplish that, correct?

  12         A.    I don't think there was any process in place to

  13    do that.  We were just hoping it would happen.

  14         Q.    Do you say the same thing about librarians, that

  15    it was just kind of a hope, or was there, generally

  16    speaking, take the period of '86 through the time of

  17    Barschall's studies into the late 1980s, was there a process

  18    in place for attempting to persuade librarians to either

  19    purchase APS journals or at least not cancel them?

  20         A.    For a very long time there was no such process.

  21    As Dr. Lazarus would say, Physical Review sells itself.  You

  22    can't sell it.  You either need it or you don't need it and

  23    most people need it.

  24               Afterwards, there were some sporadic attempts to

  25    let librarians know about the cost effectiveness of the APS


   1    journals.

   2         Q.    That was a marketing effort, was it not?

   3         A.    Well, that is a sore point with me.  I don't

   4    consider it marketing, but I can see that many people would.

   5         Q.    When you go out and you try to persuade somebody

   6    to buy something from you, because your product in your mind

   7    is better or whatever it is that you think makes the

   8    purchase decision go your way, don't you consider that to be

   9    an attempt to promote your product?  Isn't that the right

  10    word for it?

  11               MR. MESERVE:  Your Honor.

  12               THE COURT:  Yes.

  13               MR. MESERVE:  I would like to object.  We filed a

  14    stipulation for the express purpose of trying to avoid

  15    getting into this area of the fact that the survey would be

  16    used in the future to obtain --

  17               THE COURT:  I don't think this is going to that

  18    point.  I take it this is going to the motivation for the

  19    Barschall study, which I think is not -- I understood your

  20    stipulation to be directed to future use and whether the

  21    plaintiff would have the burden of producing evidence of

  22    danger of repetition.  But that this line of inquiry is

  23    going to the motivation for Barschall's study.

  24               MR. MESERVE:  Your Honor, as you recall, from

  25    1994, the court issued a decision in which it said that the


   1    Barschall study was protected speech.

   2               THE COURT:  Yes.

   3               MR. MESERVE:  So the issue as to whether -- the

   4    whole issue about what the Barschall study is and its

   5    motivations is out of this case.  We are only dealing with

   6    an injunction with regard to secondary uses, the commercial

   7    advertising and promotion in the future.  I believe the

   8    implication of the Court's ruling and your instructions with

   9    regard to discovery as to the article itself is that this

  10    was protected speech and this is an issue that is no longer

  11    in the case.

  12               THE COURT:  Do you want to respond to that?

  13               MR. LUPERT:  I really wouldn't say much more than

  14    what your Honor has already stated, that I have to prove

  15    several elements to obtain an injunction in this case.  I

  16    have to get into -- and I have to get into the motivation.

  17    And that's what this is all about.  The history of what

  18    happened is so germane to the decisions your Honor is going

  19    to have to make.

  20               There also hasn't been a stipulation that I can

  21    utilize for any purpose as to what the secondary uses are,

  22    for that matter, either.  I have to prove that, too.

  23               THE COURT:  I think that this is permissible by

  24    way of a background for the secondary uses.

  25    BY MR. LUPERT:


   1         Q.    I was asking you whether you recall that,

   2    beginning at some point in the mid-1980's, that a decision

   3    was made in which you participated and voted yes to

   4    distribute a Barschall cost comparison survey to every

   5    single subscriber of an APS journal.

   6         A.    I don't recall such a meeting at all, but I do

   7    believe that there is a document which I signed, which

   8    agreed to some such distribution --

   9         Q.    Let me show you the document --

  10         A.    -- to librarians.

  11         Q.    Excuse me.  Are you finished?

  12         A.    Yes.

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

  14    Plaintiff's Exhibit 31 and ask you to take a look at it.

  15               Is this -- this is a document -- just a moment,

  16    Doctor.

  17               Have you had a chance to take a look at this

  18    document?

  19         A.    Yes, sir.

  20         Q.    This bears your initials again, the HL?

  21         A.    Oh, yes, under the signature, yes.

  22         Q.    I take it when you sign memoranda of this sort,

  23    it is because you are authorizing them to be sent, correct?

  24         A.    Yes.

  25         Q.    And you've read it before it was sent and


   1    approved it, correct?

   2         A.    I think I did read it, yes.

   3         Q.    And in this document, you and Dr. Lazarus,

   4    editor-in-chief, are talking about the letter to librarians.

   5               I would like to put before you what is

   6    Plaintiff's Exhibit 33.

   7               MR. MESERVE:  I would like to note an objection

   8    if we are getting into this area, your Honor, for two

   9    reasons:  First of all, let me note that Exhibit 33 itself

  10    is outside the limitations period of this case.  But,

  11    secondly, as your Honor will recall, we got into the need

  12    for this second stipulation that I filed today as a result

  13    of an earlier stipulation that I filed where I indicated

  14    that, but for this litigation, the litigation by Gordon &

  15    Breach, we would have distributed the Barschall article, the

  16    1988 article, which would have been within the limitations

  17    period, and I just raise the issue of whether, in the

  18    interest of streamlining the case, we are spending this time

  19    on this ancient are history in light of the stipulations.

  20               MR. LUPERT:  Your Honor, this is a very, very

  21    brief cross and frankly it is really a very important cross.

  22    This is actually a mass distribution of what is a purely

  23    commercial message.

  24               THE COURT:  I will allow it.

  25               MR. LUPERT:  Thank you, judge.


   1         Q.    Have you had a chance to look at Exhibit 33?

   2         A.    Yes, I've glanced at them, yes.

   3               THE COURT:  We will take our mid-afternoon

   4    recess.

   5               MR. LUPERT:  Thank you, judge.

   6               (Recess)

   7               MR. LUPERT:  Shall I continue?

   8               THE COURT:  Yes.

   9               MR. LUPERT:  Thank you.

  10    BY MR. LUPERT:

  11         Q.    I had meant to put before you -- I think I did

  12    put before you -- Exhibits 31 and 33.

  13         A.    Yes, I have them.

  14         Q.    31, the memo you approved, is a memo approving

  15    sending the mailing of the Barschall 1986 survey, correct,

  16    to librarians, correct?

  17         A.    To nonmember subscribers, yes, the librarians.

  18         Q.    That's why I wanted you to give me the definition

  19    of nonmembers.  That's the library community.

  20               And Exhibit 33, which is the August '87 document,

  21    that bears your signature and David Lazarus's, correct?

  22         A.    Yes.

  23         Q.    This is in fact the letter that was sent to the

  24    librarian community, correct?

  25         A.    I believe that is correct.


   1         Q.    Approximately how many of those letters, then,

   2    were sent?

   3         A.    I don't know the answer to that, Mr. Lupert.

   4         Q.    Do you remember I showed you a document earlier

   5    on that reflected that there were in the neighborhood of

   6    3,000 library accounts, 2900 I think was the approximate

   7    number, is that about the right ballpark?

   8         A.    That is about the right ballpark.

   9         Q.    Now, I would like you just to focus, if you

  10    would, on the language in Exhibit 31, for the moment.

  11               This memo was sent to the members of the council.

  12    Is the council, is it analogous to the board of directors of

  13    a public company?  It runs -- it is ultimately in charge?

  14         A.    It is the supreme governing organ of volunteers,

  15    yes.

  16         Q.    And it ultimately then would have had the

  17    authority to -- strike that.

  18               It has the authority make the major decisions at

  19    APS, correct?

  20         A.    Yes, sir.

  21         Q.    And obviously, I take it, there was no dissent

  22    from members of the council about sending this letter,

  23    because the letter went out, right?

  24         A.    I don't remember that.  Whether it was a

  25    unanimous vote or not, I don't remember.


   1         Q.    But they certainly approved it, correct?

   2         A.    It says it was approved by the council in this

   3    memo, yes.

   4         Q.    Exhibit 33, if I can just focus you on the

   5    language of it, I would like to focus you on the first

   6    sentence to begin with, if I might, where it says, "Soon you

   7    will be receiving your 1988 renewal bill."  Do you see that?

   8         A.    Yes, sir.

   9         Q.    And am I not correct that the purpose of this

  10    letter, Exhibit 33, was to give the librarian community an

  11    explanation for why prices were going up but why,

  12    nevertheless, APS journals were a good buy?

  13         A.    Yes, sir.

  14         Q.    And, in fact, it was timed, was it not, to be

  15    received by the librarian community with their renewal bills

  16    from APS, correct?

  17         A.    It says that in the first sentence, yes, sir.

  18         Q.    And, in fact, that's exactly what happened.  The

  19    renewal bills go out in September; this letter went out in

  20    August; bingo, if you will, it is received by the librarians

  21    at the time they get renewal bills; hopefully they will have

  22    read it by the time they have to pay the bill, right?

  23         A.    Yes.

  24         Q.    Do you consider that to be a promotional

  25    endeavor?


   1         A.    I consider it an explanation of facts, sir --

   2         Q.    But you have don't consider it --

   3         A.    But I can see that others who are more hip to

   4    contemporary language could consider it marketing or

   5    promotion, but I didn't.

   6         Q.    The issue here of the inclusion of a reprint of

   7    the 1986 issue of Physics Today, the earlier Barschall

   8    comparison survey, do you now remember, sir, as you sit here

   9    today, that you had actually read that survey before you

  10    sent it?

  11         A.    No, sir.  Actually, I reread it a week ago and it

  12    sounded all very new to me.

  13         Q.    Do you mean to tell us that you sent this letter

  14    to approximately 3,000 people, after having obtained

  15    governing board approval, and you never even bothered to

  16    read the Barschall survey to see if it proved any of the

  17    points that are in here?

  18         A.    No, sir, I didn't say that.  I said I don't

  19    remember having read it at the time.

  20         Q.    Do you remember at your deposition, when I asked

  21    you this question over and over and over again, you

  22    repeatedly said, I did not read this article until many

  23    years later?

  24         A.    Sir, I think I said, I don't remember having read

  25    that article until many years later.


   1               MR. LUPERT:  May I have Dr. Lustig's deposition

   2    transcript?

   3         Q.    Let me put before you pages 313 and 314, my

   4    question beginning on page 313, line 14.

   5         A.    Sorry, which page, sir?

   6         Q.    It is on page 313, beginning at line 14, where it

   7    reads:  "Now, putting before you" -- and it is one of these

   8    letters to the librarians that went out during this time

   9    frame -- "this letter from Barschall to you, it refers to

  10    the earlier, that is, the 1986 Physics Today article,

  11    apparently.  Does that now refresh your recollection, sir,

  12    that in fact you had seen the 1986 Physics Today survey

  13    before the Gordon & Breach lawsuits were initiated in 1989?

  14               "A.    Quite the contrary.  I stand by my

  15    recollection that I did not see the 1986 article before the

  16    lawsuits were initiated.  I do remember being extremely

  17    surprised when the lawsuits were launched or the

  18    prosecutions were launched first to see a reference to the

  19    article in 1986.  Nowhere in my memory bank was there an

  20    article in 1986."

  21               Was that your best recollection?

  22         A.    Well, this is what I said at the deposition, yes,

  23    sir.

  24         Q.    What is the fact.  I mean before you sent a

  25    letter --


   1               THE COURT:  Excuse me.  Which is the '86 article?

   2               MR. LUPERT:  Plaintiff's Exhibit 1.

   3               THE COURT:  Plaintiffs' Exhibit 1.

   4               MR. MESERVE:  Your Honor, there was an earlier

   5    Barschall article that was published in 1986 and this letter

   6    refers to that.  All of this of course is outside the

   7    limitations period for this case.

   8               MR. LUPERT:  Your Honor is quite right.  I

   9    neglected to identify this for the Court to give context to

  10    these letters.

  11               Let me put a copy of the 1986 comparison survey

  12    that Dr. Barschall did before the witness, as well.

  13    BY MR. LUPERT:

  14         Q.    This was a comparison that he did of certain

  15    physics journals with mathematics journals with philosophy

  16    journals, correct?

  17         A.    Yes, sir.

  18         Q.    And he used a cost per thousand character

  19    analysis, correct?

  20         A.    Yes, sir.

  21         Q.    It was not until the 1988 survey that he came up

  22    with the denominator for the formula called impact, correct?

  23         A.    Well, he called -- the characters were also the

  24    denominator, yes, but the impact was not introduced until

  25    1988.


   1               THE COURT:  All right.

   2               MR. LUPERT:  Thank you, Judge.

   3         Q.    Now, putting before you Exhibit 33 again, I am

   4    trying to figure out how you could have written that,

   5    "Professor Barschall has published an article in the

   6    December '86 issue of Physics Today," etc., and then you go

   7    on to state "using the proper quantitative measure."  When

   8    you use the word "proper," you mean that you are adopting

   9    that quantitative measure as a proper measure, correct?

  10         A.    I state my opinion that that's the proper

  11    measure, yes.

  12         Q.    "Barschall demonstrates most convincingly that

  13    the journals of the APS and the AIP are a great bargain

  14    compared to other physics journals and even compared to

  15    nonphysics journals."  Then it says, "A reprint of

  16    Barschall's article is enclosed.  Thus, even with the

  17    current price increases, our journals remain an outstanding

  18    buy for libraries."

  19               What I'm trying to figure out is how you could

  20    have written those statements without even bothering to read

  21    the Plaintiff's Exhibit 1, the December 1986 survey?

  22         A.    Well, sir, I didn't say that I didn't read it.  I

  23    said I didn't recollect at the time of the deposition that I

  24    read it.

  25         Q.    When you said, "I stand by my recollection that I


   1    did not see the '86 article before the lawsuits," which

   2    would be the Gordon & Breach lawsuits in 1989, "were

   3    initiated."  That phrase, "I stand by my recollection that I

   4    didn't see it," is intended to convey to the questioner and

   5    to the Court that you simply didn't remember it as opposed

   6    to, it is your firm memory that you didn't see it?

   7         A.    No, I didn't say it was my firm -- I stand by my

   8    recollection that I didn't see it, sir.

   9         Q.    That you did not see it?

  10         A.    That's correct.

  11         Q.    Then your recollection is that you did not see

  12    it.  I go back to my prior question, which is, could you

  13    explain to us how you went about writing a letter setting

  14    forth what are, I would daresay, very strong opinions to the

  15    entire relevant library audience about a survey you hadn't

  16    even bothered to read?

  17         A.    I didn't say that, sir.  On the basis of seeing

  18    this letter, I have to conclude now that I did see it.  But

  19    I did not have that recollection at the time I gave my

  20    deposition.

  21         Q.    OK.  Now you remember seeing it.  Do you remember

  22    also that your real purpose when you wrote Plaintiff's

  23    Exhibit 33 was really, let's try to convince the librarians,

  24    please, don't cancel any more of our journals, we need the

  25    revenue, we are an outstanding buy, look at this cost


   1    comparison survey, it proves it?

   2         A.    Sir, I don't remember, even now, seeing it.  I

   3    just say that I infer from having written this letter that I

   4    have seen it.

   5         Q.    But having now looked at Exhibit 33, this mass

   6    mailing to librarians, don't you agree with me that what you

   7    were trying to do, you and your brethren at APS, including

   8    David Lazarus, what you were attempting to accomplish was to

   9    promote the sale or to promote the concept of not canceling

  10    any more APS journals to the entire librarian community?

  11         A.    I was trying to explain why the prices went up,

  12    that they were still a very good buy, and, yes, I was hoping

  13    that that would influence them not to cancel any more

  14    journals.

  15         Q.    So you would agree with me that it had a

  16    promotional --

  17               THE COURT:  Isn't that answer good enough?

  18               MR. LUPERT:  Yes.  It is, actually.  I got

  19    carried away.  My apologies.

  20               THE COURT:  That's why I am here.

  21         Q.    The message, as well, as you understood it, in

  22    this mass mailing to librarians was when the phrase "cost

  23    effectiveness" -- skip it.  Withdrawn.

  24               The title of the 1988 article, which has been

  25    identified as PX3, in Physics Today, is called "The Cost


   1    Effectiveness of Physics Journals."  Do you remember that?

   2         A.    Yes, sir.

   3         Q.    Do you remember that?  I'm sorry, I didn't hear

   4    you?

   5         A.    Yes, I do.

   6         Q.    And did you understand that the phrase "cost

   7    effectiveness," as used by Dr. Barschall, was intended to be

   8    a synonym for quality?

   9         A.    No, sir.

  10         Q.    Now, I take it you helped us -- I understand your

  11    relationship with certain other individuals in the

  12    organization.  Professor Barschall is someone you have known

  13    for a very long time and you think very highly of him?

  14         A.    I actually haven't known him for a very long

  15    time.

  16         Q.    How long have you known him?

  17         A.    I only met him personally after he became a

  18    treasurer and that he was a member of our publications

  19    committee, personally, but I knew of his reputation and his

  20    work.

  21         Q.    And you knew of his work and you thought well of

  22    his work?

  23         A.    I knew of his work.  I actually used his work in

  24    my own research.

  25         Q.    And he is a world-class physicist?


   1         A.    He is.

   2         Q.    No question.  He was involved, was he not, in the

   3    Los Alamos project, where the atom bomb was developed?

   4         A.    He was involved, yes, sometime in the 1940s, yes.

   5         Q.    This I am really not sure.  But I remember an

   6    incident back in the '60s at the University of Wisconsin in

   7    which a physics lab that was built was destroyed and he got

   8    a tremendous amount of notoriety as an antiwar act?

   9         A.    The target was a mathematics lab, actually, which

  10    had an army contract, but his lab got the brunt of it and

  11    was destroyed and his graduate student was killed.

  12         Q.    And it got a tremendous amount of notoriety?

  13         A.    I don't know about that.

  14         Q.    I am a preacher of the '60s and I remember that.

  15    But it did get tremendous publicity and his name became a

  16    name that was in the newspaper quit a bit during that era?

  17         A.    I'm not sure about that at all, but it terminated

  18    his career as an experimental physicist.

  19         Q.    If I were to read you testimony, which I'm

  20    looking for, from Dr. Barschall in this case, in which he

  21    says, in answer to this question -- this is on Barschall

  22    November 14, 1996, page 72, line 8.

  23               "Q.    We'll come back to that in a minute, but

  24    what is it about using the cost per thousand characters

  25    divided by impact that makes it perhaps the most significant


   1    measure of cost effectiveness?

   2               "A.    Because it includes a measure of the

   3    quality of the material which is published."

   4               That's Dr. Barschall's testimony.  Do you want to

   5    correct the testimony you gave a minute before where I asked

   6    you about what cost effectiveness meant as you understood

   7    the term to now state that yes, Dr. Barschall was in fact

   8    attempting to equate that formula with quality?

   9         A.    I took your question to mean cost per 1,000

  10    characters and now you have expanded it to cost per thousand

  11    characters per impact, and indeed if the impact is included

  12    I believe it is a measure of quality.

  13         Q.    So that in these promotional materials, if you

  14    will adopt my phrase, when the words "cost effectiveness"

  15    are used, in fact it is, at least in your mind, a synonym

  16    for quality?

  17         A.    The 1986 article didn't have an impact study so

  18    it couldn't have been a synonym for quality.

  19         Q.    Jump forward to 1988 and whatever publicity went

  20    out about that.  When the words "cost effectiveness" were

  21    used, you would agree with me that that was intended to mean

  22    quality?

  23         A.    If it includes the impact, yes.

  24         Q.    Would you agree with the following statement --

  25    and this refers to the 1986 survey, PX1, would you agree


   1    with the following, that the 1986 article was written to

   2    demonstrate how prices that AIP and its member societies

   3    charge are much lower for the amount of information in the

   4    journals than other publishers?

   5               MR. MESERVE:  Your Honor, I would like to object.

   6    It calls for speculation by this witness as to why an

   7    article that he didn't write was written.

   8               MR. LUPERT:  Judge, I think this evidence will

   9    show a remarkable link.

  10               THE COURT:  Well, no, I think the objection is

  11    well taken to the form of the question.

  12               MR. LUPERT:  Why don't I rephrase it.

  13         Q.    Do you recall attending a meeting at which

  14    Professor Barschall stated that his purpose in writing the

  15    '86 article was to demonstrate how the prices of AIP and its

  16    member societies are much lower for amount of information in

  17    the journals than other publishers?

  18         A.    No, sir, I do not recall attending such meetings.

  19         Q.    Do you recall a statement to that effect ever

  20    having been made?

  21         A.    No, sir, I don't recall any such statement.

  22         Q.    Do you think that that is an incorrect statement?

  23         A.    I don't recall -- you asked me whether I recall

  24    him making such a statement, and I don't recall it.

  25         Q.    Do you know whether that is an incorrect


   1    statement, that the purpose that Professor Barschall had,

   2    the actual purpose when he formulated his formula for '86,

   3    was to demonstrate how the prices that AIP and its member

   4    societies charge are much lower than other publishers for

   5    the amount of information in the journals?

   6               MR. MESERVE:  Objection.  It calls for

   7    speculation.

   8               THE COURT:  No, the question is whether he

   9    remembers Dr. Barschall making that statement.

  10               MR. MESERVE:  I think the question was whether he

  11    agrees that the purpose was --

  12               MR. LUPERT:  Let me start with the judge's

  13    question so that I can just move it on and it will make it

  14    so much quicker, with the Court's permission.

  15               THE COURT:  Yes.

  16         Q.    Do you remember Professor Barschall making the

  17    statement to you in your presence whether -- to you or in

  18    your presence, that he was writing it, and he came up with a

  19    formula -- this is the '86 formula -- to demonstrate how the

  20    prices that AIP and its member societies charge are much

  21    lower for the amount of information than --

  22         A.    No, sir, I don't remember Professor Barschall

  23    ever making such a statement, but you did ask me that just

  24    before, the same question.

  25         Q.    Do you consider such a statement to be correct or


   1    incorrect?

   2         A.    I'm sorry, if you want to say --

   3               THE COURT:  As to that, that is the objectionable

   4    question.  That is asking this witness as to Dr. Barschall's

   5    motivation.

   6         Q.    Well, based on his use of the --

   7               THE COURT:  And that is the '86 and the witness

   8    has testified that '86 didn't have the impact and

   9    therefore -- well --

  10               MR. LUPERT:  What I'm trying to establish, and I

  11    think it is a rather important point, that the formula was

  12    developed for the -- I have it.  It is in writing.  I have a

  13    statement that I am just about to confront the witness with,

  14    although I'm not quite sure that he was at the meeting where

  15    Professor Barschall actually said this.  But it is a

  16    document in evidence that has not been objected to.

  17         Q.    Let me show you what has been marked --

  18               MR. MESERVE:  Your Honor, I believe that, in

  19    light of the stipulation this morning, there is a large

  20    number of exhibits that relate to this issue in which we did

  21    object.

  22               MR. LUPERT:  I don't think you objected on the

  23    basis of hearsay, authenticity and the like, and obviously

  24    if you have an objection, you have an objection.

  25               There was no enumerated objection to this


   1    particular document, which is the minutes of the publication

   2    board of the American Institute of Physics dated April 9,

   3    10, 1987.

   4               MR. MESERVE:  What is the exhibit number?

   5               MR. LUPERT:  The exhibit number is 24.

   6         Q.    I have put this before you.  If I could ask you

   7    to take a look --

   8               MR. MESERVE:  Your Honor, these are the minutes

   9    of an AIP meeting.  This witness was an official of a

  10    different organization as to an issue -- it is a publication

  11    board meeting.  He has testified he didn't go to AIP

  12    publication board meetings.

  13               MR. LUPERT:  I would like to ask the witness

  14    whether, by looking at the statement that is purported to be

  15    made by Professor Barschall, he has a recollection that

  16    Professor Barschall stated to him -- in fact, they are the

  17    minutes which begin, Judge, at page 3210, on page numbered 6

  18    at the top, but the Bates stamp is --

  19               THE COURT:  Whether looking at the minutes of a

  20    meeting that he did not attend, if it refreshes his

  21    recollection that on another occasion Dr. Barschall made

  22    that statement?

  23               MR. LUPERT:  I would put that question to him.

  24               THE COURT:  Objection sustained.

  25               MR. LUPERT:  Judge, I would note that this


   1    document is in evidence and I wonder whether I might take

   2    one sentence and point it out to the court.  It is on page

   3    6.  It is under the category 4B, Journal Prices.  Barschall

   4    began by referring to a table that appeared in an article he

   5    recently authored in Physics Today, the December '86 issue.

   6    The table Barschall explained shows the cost per thousand

   7    characters of a sample of journals in both physics and

   8    mathematics and compares it to corresponding statistics and

   9    philosophy.  It is the next sentence.  Barschall emphasized

  10    that the point of the article --

  11               THE COURT:  All right.  If it is in evidence I

  12    would have to read it.

  13               MR. MESERVE:  Your Honor, we object.

  14               THE COURT:  You object to this being in evidence?

  15               MR. MESERVE:  Yes, your Honor.  We provided

  16    Mr. Lupert with a copy this morning, with an objection on

  17    this document.

  18               MR. LUPERT:  Judge, that is an impossible

  19    version.

  20               THE COURT:  What is an impossible version?

  21               MR. LUPERT:  We exchanged detailed objections to

  22    documents last week or early last week, including noting

  23    hearsay, authenticity objections and the like.  This was not

  24    on that list.  I frankly hadn't even seen the document they

  25    are talking about.  These are minutes of a meeting of AIP.


   1    There has never been any dispute --

   2               THE COURT:  In any event, you are not going to

   3    elicit anything from this witness, so with respect to it,

   4    suppose you move on and address that later.

   5         Q.    Let's talk about the 1988 survey.

   6               Is it true that just after the August letter to

   7    librarians enclosing the 1986 survey, Exhibit 33, Barschall

   8    wrote you, asking whether it would be useful for him to do

   9    another survey?

  10         A.    I'm not sure about the date, sir.  You would have

  11    to refresh my memory about the dates of when this happened.

  12         Q.    I will be happy to.  Let me show you what has

  13    been marked as Exhibit 35.  It is dated September 8, 1987.

  14    I remind you that the letter to the librarians is dated

  15    August 1987.  I ask you, does this refresh your

  16    recollection, sir, that shortly after the letter to

  17    librarians went out, Professor Barschall contacted you in

  18    writing asking you, "Would it be useful" -- I refer you to

  19    the very last paragraph on the second page -- "would it be

  20    useful if I tried to extend my survey both in time and

  21    coverage?  I would be interested in getting APS and AIP

  22    reactions to this idea, in particular, what additional

  23    information would be helpful"?

  24               Do you remember that?

  25         A.    Yes, sir, he says earlier that he has been --


   1    made an effort to update the survey to 1987 and he did ask

   2    if we think it would be useful, yes, sir.

   3         Q.    You then very quickly communicated back to him,

   4    yeah, that's a good idea, correct?

   5         A.    I don't know how quickly it was.  Again, I didn't

   6    write the document but I did agree that it would be a good

   7    idea, yes.

   8         Q.    Do you recall as well that during this very time

   9    frame the AIP was communicating with Dr. Barschall also

  10    encouraging him to go forward?

  11         A.    Well, I've seen since some letters about that,

  12    yes.

  13         Q.    So that is a fact, is it not?

  14         A.    I've seen letters which state that, yes.

  15         Q.    I wonder if I could show you what has been marked

  16    as Exhibit 36.  It is a letter from Robert Marks of AIP to

  17    Dr. Barschall on which you are copied.  Do you see that?

  18         A.    Yes, sir.

  19         Q.    And this was, was it not, as you understood it,

  20    encouragement by the AIP to Dr. Barschall to go forward,

  21    correct?

  22         A.    Yes, it says the survey would be useful.

  23         Q.    Indeed, this letter goes on to say, does it not,

  24    that not only would it be useful, but it would be a good

  25    idea to include certain additional information in the next


   1    survey that perhaps Professor Barschall had not used in his

   2    first survey?

   3         A.    Yes, it says that.

   4         Q.    And among the information would be size, total

   5    number of pages published and annual total subscription

   6    price, do you see that?

   7         A.    Yes, sir, I do.

   8         Q.    In fact, do you know for a fact that

   9    Dr. Barschall complied with these requests and in fact

  10    included that information?

  11         A.    Whether it was in response to this request or

  12    not, I don't know, but I think the 1988 survey did include

  13    this information.

  14         Q.    OK.  Now, you may remember that -- well, let me

  15    ask you a preliminary question.

  16               To your knowledge, did Dr. Barschall communicate

  17    with any other publisher concerning whether it would be a

  18    good idea to go forward with yet another survey?

  19         A.    I don't have any knowledge about that.

  20         Q.    You don't know one way or the another?

  21         A.    I don't know one way or another.

  22         Q.    I pointed out to you earlier that by this point

  23    in time -- this is now September of 1987 -- the APS had

  24    decided to impose the largest increase over all of its

  25    journals in the 1980s?  Do you remember that was the 27


   1    percent figure?

   2         A.    I'm not sure that -- there were some larger ones

   3    earlier, but I'm not sure if it was in the late '70s or

   4    early '80s.

   5         Q.    For the five years ending 1987 -- forget ten

   6    years -- it was the largest by far, it was almost double any

   7    other price increase?

   8         A.    It was the largest.

   9         Q.    And at that point in time, it was also true that

  10    costs at APS were rising substantially?

  11         A.    Well, the latter was the cause of the price

  12    increases, yes.

  13         Q.    There were sharp and steady increases in costs,

  14    were there not?

  15         A.    There was, yes.  I've testified there was steady

  16    growth of about 8 or 10 percent.

  17         Q.    Indeed, as of this point in time -- this is now

  18    the point where Professor Barschall has written should he --

  19    would be useful to go forward with another survey -- APS was

  20    running at a deficit?

  21         A.    I don't recall that.

  22         Q.    Let me show you, if I might, Exhibit 38, which is

  23    your treasurer's report, I believe, dated November 1, 1987.

  24         A.    Yes, sir.

  25               MR. LUPERT:  Does the court have a copy?


   1         Q.    If I could turn your attention, Dr. Lustig, to

   2    page 6, numbered 6, bearing APS 4410.  Are you with me?

   3    Paragraph D, Publications Finances.  Do you see that?

   4         A.    Yes.

   5               THE COURT:  What page are you on?

   6               MR. LUPERT:  I am on the page numbered 6, but it

   7    bears the Bates stamp 4410, if it is easier to find it that

   8    way, on the right-hand corner.

   9         Q.    Could you tell me what this is -- this document

  10    is your report, is it not?

  11         A.    It is a treasurer's report, yes, that I made.

  12         Q.    You wrote that?

  13         A.    I wrote it, yes.

  14         Q.    And on page 6, the second paragraph, second

  15    sentence, "We actually ran a deficit in our publications

  16    budget," does that now refresh your recollection that as of

  17    this point in time, November 1, 1987, there was a deficit in

  18    your publications budget?

  19         A.    In the past fiscal year, 1986, yes.

  20         Q.    That was a factor that was significant?

  21         A.    It caused me concern, yes, sir.

  22         Q.    Page charge income.  Go to page 7.

  23               There may be a bar on this, which frankly would

  24    have been put on by someone in my office, on our only copy,

  25    so it was not on the original.  It should not have been


   1    there.  But using the bar as a way of finding things, if you

   2    could see the paragraph beginning, "The change has come

   3    about principally because of the council's decision

   4    progressively to lower page charges" -- do you see that?  Do

   5    you see that?

   6         A.    The change in the relative income from different

   7    sources.  If you look at the previous paragraph, yes.

   8         Q.    And there was in fact a decision at that point in

   9    time to lower page charges?

  10         A.    Yes, there was.

  11         Q.    And that would have lowered revenue, correct?

  12         A.    From page charges.

  13         Q.    And in fact, the decision to lower page charges

  14    had been motivated -- and just read on with me -- by a

  15    desire to be fair to the physics community, to improve the

  16    competitive position of our journals vis-a-vis the

  17    commercial publishers which do not request payment from the

  18    authors, specifically with regard to high quality papers in

  19    high energy theory.  Do you see that?

  20         A.    I do see it, yes.

  21         Q.    Is that a correct statement?

  22         A.    Yes.  I testified exactly the same thing about an

  23    hour ago.

  24         Q.    So there was a deficit.  There were prices that

  25    were going up in the largest amount in the last five years.


   1    A decision had been made in November of '87 to phase out

   2    page charge income because to do so would improve the

   3    competitive position with commercial publishers.  All of

   4    that is true as of the point that Professor Barschall wrote

   5    his letter saying, would it be useful if I did another cost

   6    comparison survey, right?

   7         A.    Yes, the decision was not to phase them out but

   8    to lower the page charges.

   9         Q.    And all of what I said, with that correction that

  10    you just made, is true as of the time Professor Barschall

  11    writes his letter saying, would it be useful if I did

  12    another survey, right?

  13         A.    Yes.

  14         Q.    Now, am I also correct about two other revenue

  15    components that face APS?  You charge a price -- one price

  16    to academic libraries, but you also allow members, that is,

  17    the 40,000 physicists, to buy their journals just about at

  18    cost, maybe just a drop over?

  19         A.    As I said before, it isn't just academic

  20    libraries, it is all libraries, Mr. Lupert.

  21         Q.    With that correction.  But the physicists

  22    members, the 40,000, they are the ones who can buy this same

  23    journal at a much, much lower price than the library?

  24         A.    As members they have to pay only the last copy

  25    price, which means the postage and paper of that copy which


   1    they are receiving.

   2         Q.    In fact, and we'll come back to this in a little

   3    bit, there was a real concern at APS that the members who

   4    were getting their copy at cost, if you will, or just a

   5    little bit over, were depositing their copy in the library,

   6    the library was then canceling the journal and depriving APS

   7    of revenue, and that was a problem and one that was focused

   8    on, correct?

   9         A.    Well, not the members, Mr. Lupert, some members.

  10         Q.    OK --

  11         A.    And, furthermore, it was not particularly

  12    necessarily a question of cancellation -- we have no

  13    evidence of any of that -- it was a question of new

  14    libraries or new research centers, particularly in Europe,

  15    starting up which never had an APS journal and members

  16    there -- not being used to differential pricing, because

  17    commercial publishers have very little of that -- thought it

  18    was proper for them to pay the member rates and then place

  19    the issue in the library, and of course we thought that was

  20    unfair and improper, yes.

  21         Q.    But the answer to my question, in a word, is,

  22    yes, that it was a concern that, whether it was a few or a

  23    lot, but there was a potential loss of revenue that was

  24    occurring because the members were basically giving the copy

  25    to the library and the libraries were making the decision,


   1    at least on some occasions, we're a lot better off paying

   2    the member price than we are paying this much larger APS

   3    academic library price, let's just go forward with the

   4    member journal?

   5         A.    I corrected your statement, the members, because

   6    I wanted to make you understand it was not a very large

   7    financial concern.  It was a relatively small one, being

   8    just a few -- maybe a hundred members or so.

   9         Q.    You mean, there was a point where your brethren

  10    on the threesome that ran the APS thought that this was a

  11    problem of size, and they in fact described these people as

  12    voracious and they had to be stopped, do you remember that?

  13         A.    It was largely a moral judgment on our part.  We

  14    don't like people to cheat inadvertently or knowingly.

  15         Q.    Do you recall that after receiving Marc's letter

  16    on which you were copied, Professor Barschall wrote back

  17    very promptly and said, I'm going to go forward and do

  18    another survey?

  19         A.    I don't recall specifically what letter you are

  20    referring to.

  21         Q.    I wonder if I might show you Exhibit 37.  It is

  22    dated October 5, 1987.

  23         A.    Yes, sir.

  24         Q.    Do you recall learning that Professor Barschall

  25    had signaled that he was going to expand his physics journal


   1    survey and go forward, but it would have to wait a couple of

   2    months because he had -- he was busy, he had a couple of

   3    other things?

   4         A.    No, I don't recall ever having seen this letter,

   5    Mr. Lupert.

   6         Q.    Do you recall learning that information -- well,

   7    certainly you learned at some point Professor Barschall was

   8    going to go forward and do the work, right?

   9         A.    I had learned about it when he showed me a draft,

  10    I believe.

  11         Q.    That was the first time you learned of that?

  12         A.    I think so.

  13         Q.    He didn't tell you before that he was working on

  14    this?

  15         A.    I don't recall that, no.

  16         Q.    By the way, did you know that professor -- strike

  17    that.

  18               Professor Barschall was at the University of

  19    Wisconsin, correct?

  20         A.    Madison, yes, sir.

  21         Q.    Do you know whether the University of Wisconsin

  22    had ever conducted any surveys of librarians based on

  23    whether they were using journals or not?

  24         A.    I know that now.  I didn't know it at the time.

  25         Q.    But you now know that back in 1987, for example,


   1    there had been a use study that Professor Barschall knew

   2    about at the University of Wisconsin?

   3         A.    No, sir, I knew that there was a later use study.

   4         Q.    There was a later one.  When did that take place?

   5         A.    I'm not sure of the exact year.  I think it was

   6    around 1992.

   7         Q.    You did not know that there also had been one

   8    back in around 1987?

   9         A.    No, sir.

  10         Q.    Professor Barschall at the time of this

  11    correspondence that we went over, he was, until March of

  12    1988, on the governing board of AIP, was he not?

  13         A.    I believe so.

  14         Q.    The governing board of AIP is like the executive

  15    council of APS, it is the supreme -- did you use that word,

  16    the supreme authority?

  17         A.    There is no such thing as the executive council

  18    of APS.

  19         Q.    But instead it is called the governing board?

  20         A.    The governing board is the equivalent of the

  21    council of APS.

  22         Q.    And Professor Barschall at some points in time

  23    had been on the publications committees of both AIP and APS?

  24         A.    He had been on the publications committee of APS

  25    and on the publications board of AIP.


   1         Q.    And they have basically the same function, which

   2    is the oversight of the business end of the publications arm

   3    of the organizations, correct?

   4         A.    No, that's not the function -- certainly not the

   5    function of the APS publications committee.

   6         Q.    Let's first talk about AIP.  Is it correct that

   7    AIP's publication as a committee -- is that the right word?

   8         A.    Publications board.

   9         Q.    Publications board.  Is it correct that the

  10    publications board of AIP has a business function; it

  11    oversees the physical publication?

  12         A.    I do not know that.  I don't believe that.  But I

  13    believe it has all the editors of AIP journals on it, I

  14    think.

  15         Q.    At some point in time after the 1986 survey went

  16    out, the 1986 survey, did it come to your attention that

  17    Gordon & Breach had written a letter stating its complaints

  18    or concerns, if you will, about aspects of that '86 survey?

  19         A.    No, sir, no such letter was received.

  20         Q.    Let me show you what has been marked as Exhibit

  21    21, which appears to be a letter from Gordon & Breach

  22    Science Publishers, Inc., to the American Physical Society

  23    and Professor Henry H. Barschall, 335 East 45th Street, and

  24    then there is a second letter -- a second addressee, and

  25    Professor Barschall, care of the APS, do you see that?


   1         A.    I see it, yes.

   2         Q.    Now, it has been your testimony that you never

   3    saw this letter, correct?

   4         A.    I didn't see it until you sent it after the

   5    litigation had started, yes.

   6         Q.    After Barschall, Professor Barschall had

   7    decided -- strike that.

   8               After it was stated to Professor Barschall that

   9    it would be useful for him to go forward with another

  10    survey, did you have any discussions with him at any time

  11    about whether it would be a good idea to check any of the

  12    data or any other aspect of the work he was doing with

  13    publishers other than APS?

  14         A.    He did not ask to check the data with APS, sir.

  15    So that didn't come up.

  16         Q.    OK.  You said, and I'll show this to you in a

  17    minute, that you received a draft -- in fact, you received

  18    more than one draft of the Barschall second survey, the one

  19    that becomes PX3, which is the summer of '88?

  20         A.    I'm not so sure, sir.  I think the draft I

  21    received was a draft of what was meant to be only a single

  22    article.  So I don't think it corresponded to either of the

  23    two exhibits.

  24         Q.    OK.  But it was a draft.  You received a draft?

  25         A.    It was a draft of an article that Professor


   1    Barschall was writing on cost effectiveness of physics

   2    journals.

   3         Q.    So he sent you a draft and he asked for your

   4    comments, right?

   5         A.    Yes, sir.

   6         Q.    You gave him comments.  We'll go over that in

   7    just a minute.

   8               Do you remember you gave him comments?

   9         A.    I gave him some comments, yes.

  10         Q.    Did you ask Professor Barschall whether, in words

  11    or substance, it would be fair or in the exercise of doing

  12    this as a scientist if you gave other publishers a draft and

  13    let them comment on it, too?

  14         A.    I didn't.

  15         Q.    Did you have such a conversation with him, sir?

  16         A.    I did not have such a conversation --

  17               MR. MESERVE:  Your Honor, I would like to object.

  18    We are getting into the whole editorial process for the

  19    preparation of the original Barschall article, which is

  20    something that in your --

  21               THE COURT:  Why are we doing this?

  22               MR. LUPERT:  Judge, you have actually ruled, in

  23    the phase of the case that dealt with our attempt to amend

  24    the complaint and the secondary use phase, that this very

  25    type of evidence of the participation of the business people


   1    at AIP and APS in the drafting was relevant to the issue of

   2    secondary use.  I would add that I think it is relevant to

   3    the issue of whether an injunction should issue.  It is

   4    footnote 5 in that opinion and it goes to those very issues.

   5               MR. MESERVE:  I believe that our stipulations

   6    should have fulfilled any evidentiary question that

   7    Mr. Lupert is raising.

   8               THE COURT:  Footnote 5?

   9               MR. LUPERT:  I believe it is footnote 5 in the

  10    decision in 1985 -- 95, I'm sorry.  1995.

  11               THE COURT:  '94 was the main opinion.

  12               MR. LUPERT:  You are absolutely right.

  13               (Pause)

  14               THE COURT:  I see.  There is a '95 decision, 905

  15    F. Supp., and --

  16               (Pause)

  17               MR. LUPERT:  Do you have the right cite?  I'm

  18    confused myself.  I only have the --

  19               THE COURT:  Our conclusions here --

  20               MR. LUPERT:  That is the one, exactly.

  21               MR. MESERVE:  Your Honor, may I respond?

  22               THE COURT:  Yes.

  23               MR. MESERVE:  If this arose in the context in

  24    which we had filed summary judgment on the issue of whether

  25    there had been secondary uses, and your Honor I believe was


   1    ruling on, making an observation at footnote 5, that some of

   2    this evidence would be probative, I believe, in the context

   3    of whether there had been secondary uses at a time when the

   4    plaintiffs were seeking to recover damages and what had

   5    happened in the period of '86, '87, '88, '89 and on what

   6    would have been relevant as to whether there had been

   7    secondary uses that would justify damages for the

   8    plaintiffs, in light of the stipulations, I would believe

   9    that we are in a situation where the issue of whether there

  10    are secondary uses of this history is now irrelevant.

  11               THE COURT:  Well, this inquiry, as I understand

  12    it, is to elicit whether the matter was intended or geared

  13    for purposes of the secondary usage.

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

  15               THE COURT:  And I believe what I said there was

  16    that, although I was not permitting the opening of a new

  17    substantive count, I was not then ruling on its

  18    admissibility at this trial.

  19               MR. MESERVE:  In the same decision that we are

  20    talking about, or the 1995 decision, you had denied a motion

  21    made by Gordon & Breach to reopen your 1994 decision in

  22    which you had held that the argument --

  23               THE COURT:  Yes, it is in connection with that

  24    that I'm saying that I'm not then ruling on its

  25    admissibility at this trial with respect to those issues


   1    which had survived.  In any event, I overrule the objection.

   2    BY MR. LUPERT:

   3         Q.    I think the question was whether --

   4               THE COURT:  You asked Dr. Barschall whether he

   5    intended to send his draft to other publishers?

   6               MR. LUPERT:  Thank you, judge.

   7               THE WITNESS:  I did not ask Dr. Barschall that,

   8    no, sir.

   9         Q.    So the topic of whether it would be fair, in a

  10    general sense, when doing this kind of a survey, to send

  11    copies to more than one of the publishers that was included

  12    just never came up?

  13         A.    I took it at its face value and I didn't question

  14    Dr. Barschall asking him to comment on whether the prices he

  15    had quoted taken from the covers of APS journals were

  16    correct or the number of pages were correct.  So there was

  17    no general inquiry by Dr. Barschall of us or anyone to

  18    correct the actual numbers.

  19         Q.    There was, in fact, when you got drafts, there

  20    was back and forth about what should go in it; that is a

  21    fair statement, is it not?

  22         A.    I made some grammatical corrections, and I said I

  23    don't quite understand what the word "impact" means myself,

  24    so I think we would approve the article if you define

  25    "impact."


   1         Q.    You think that has a grammatical impact?

   2         A.    No, I said "and."  And I made the suggestion that

   3    he should define a technical term.

   4         Q.    Do you remember, sir, having gotten a draft and

   5    writing Professor Barschall and saying, in almost these

   6    words, APS journals and AIP journals come out so well, why

   7    don't you just come out and say it?  Didn't you write that

   8    in virtually those terms?

   9         A.    That was in a different draft, not the one you

  10    asked me about.  And, yes, I did say, you might as well

  11    state the conclusions clearly.

  12         Q.    That means you got more than one draft, then?

  13         A.    Yes, I said I got one draft of a general article

  14    before there was any decision that it could not be published

  15    in Physics Today, and then I probably got another draft.

  16         Q.    Let's go over the first draft for just one

  17    second.  Let me show you Exhibit 47.  It is dated March 9,

  18    1988.

  19         A.    Yes.

  20         Q.    Do you see this one?

  21         A.    Yes, sir, I do.

  22         Q.    Just pause for one second so the Court can get a

  23    copy.

  24               MR. LUPERT:  It would expedite things, actually,

  25    if you could pull out not only 47 but 48 and 57 and 59 at


   1    the same time.  I would be able to move with much more

   2    speed.

   3               THE COURT:  We are going to have to stop promptly

   4    at 4:30.  I have a conference call that I have to take

   5    promptly at 4:30.

   6               Which are we looking at now?

   7               MR. LUPERT:  We are looking at a progress report

   8    dated March 9, 1988, Exhibit 47, from Heinz Barschall.

   9         Q.    And I take it "Harry" is Harry Lustig?  That's

  10    you?

  11         A.    Yes, it is.

  12         Q.    This was a progress report, it so states?  And he

  13    enclosed two printouts and he said APS journals look good by

  14    both measures, do you see that?

  15         A.    Yes, I do.

  16         Q.    And you got this, correct?

  17         A.    Yes.

  18         Q.    It was then that you wrote back, did you not,

  19    saying, in this Exhibit 48, that it would be better if you

  20    defined "impact"?  Do you see that?

  21         A.    I believe that is my answer, yes.

  22         Q.    So when you said, would you please define

  23    "impact" for those who are not familiar with the definition

  24    in the citation index, I take it you were referring to

  25    librarians?


   1         A.    I was referring to the readers.  This was meant

   2    to be published in the physics journal.

   3         Q.    Isn't it a fair statement that in your opinion,

   4    librarians don't know what impact is and neither do

   5    physicists; it is a statistic from something called the

   6    Science Citation Index?

   7         A.    I don't have any such opinion.  I myself wasn't

   8    too clear what it was and I wanted it defined more clearly

   9    at the time.

  10         Q.    You didn't know what it was, correct?

  11         A.    I wasn't completely clear what it was.

  12         Q.    And in fact you are a trained physicist, are you

  13    not?

  14         A.    Yes.

  15         Q.    You've taught in physics, have you not?

  16         A.    Oh, yes, a lot.

  17         Q.    And in fact, you have a considerable reputation

  18    in physics, do you not?

  19         A.    That is not for me to say.

  20         Q.    In fact, once Professor Barschall got Exhibit 48,

  21    he responded to you, did he not, in which he said, or to

  22    your knowledge, you did in fact define "impact" so that

  23    people would know what it was, right?

  24         A.    Yes, of course.  The main exchange on 47 and 48

  25    was about a question that Dr. Barschall was personally


   1    concerned, why was the journal he had been editor of not as

   2    cost effective as another APS journal, and I give him the

   3    explanation for that.

   4         Q.    But, indeed, one of the issues was, hey, look,

   5    nobody knows what this statistic impact is.  I don't know

   6    what it is.  I'm a physicist.  We'd better get that

   7    definition in there, right?

   8         A.    I think he adopted my suggestion, yes.

   9         Q.    There then came a time, did there not, on June 1,

  10    1988, in which Dr. Barschall sent you a second draft, and

  11    you wrote him this letter, which is PX57.  I would like you

  12    to take a moment and just read that to yourself,

  13    particularly paragraph 1.

  14               (Pause)

  15         Q.    Have you read it?

  16         A.    Yes, I have.

  17         Q.    Where you said that you should state explicitly

  18    in the text that in every category the APS and AIP journals

  19    are the most cost effective, correct?

  20         A.    Yes.

  21         Q.    That's what you wanted him to write?

  22         A.    I suggested that.

  23         Q.    That's right?

  24         A.    I put as a question, shouldn't you state it

  25    explicitly, yes.


   1         Q.    Do you recall that Professor Barschall wrote

   2    back, and he said -- in fact, let me just show you the

   3    letter --

   4               MR. LUPERT:  This is Exhibit 59, Judge.

   5               THE COURT:  Yes.

   6         Q.    -- in which he said, in respect to the question

   7    of stating that APS journals come out the best, that the

   8    editors of AIP felt strongly that the point would make the

   9    articles sound too much like propaganda, too much like

  10    propaganda, and would reduce its credibility, do you see

  11    that?

  12         A.    Yes, I do.

  13         Q.    And when profess Barschall used the word

  14    "propaganda," he meant advertising?

  15         A.    I don't know.  He used "propaganda."

  16         Q.    But you understood that what he meant was

  17    propaganda -- strike that.

  18               You understood that when he used the word

  19    "propaganda," he meant advertising?

  20         A.    No, I think the word "propaganda" speaks for

  21    itself.

  22         Q.    You don't think that that's synonymous, as used

  23    in this letter, with advertising?

  24         A.    I don't think so.

  25         Q.    I wonder if I might read you something that


   1    Professor Barschall said about this topic and ask you if you

   2    agree with him.

   3               MR. MESERVE:  Your Honor, I would like to object.

   4    I think it is improper.  It doesn't make a difference

   5    whether he agrees with somebody else's testimony.

   6               THE COURT:  Yes, I don't --

   7               MR. LUPERT:  I thought this was the modus

   8    operandi.  I have done this so often.

   9               THE COURT:  This is on the issue of whether

  10    propaganda is advertising or not?  I don't think that is

  11    worth spending time on.

  12               MR. LUPERT:  I'm sorry, sir.

  13               THE COURT:  I don't think that is worth spending

  14    time on.

  15               MR. LUPERT:  Thank you.

  16         Q.    In this letter, in the last sentence, it also

  17    says, does it not, if you send out reprints, a covering

  18    letter could make the point you wish to make, correct?

  19    Isn't that what it say?

  20         A.    That's what it says.

  21         Q.    Ultimately, was a decision made to send out a

  22    cover letter with a reprint?

  23         A.    I don't know about that.

  24         Q.    You don't know --

  25         A.    I don't recall how I -- the reprints weren't sent


   1    out, so I don't know what decision was made.

   2         Q.    You don't recall a series of back and forth with

   3    your co-executives concerning whether or not reprints should

   4    be sent out with cover letters, with the 1988 renewal bills?

   5         A.    I recall there were some discussion of that in

   6    which I was tangentially involved, but I do not recall what

   7    the discussions said about cover letters right now.

   8         Q.    Do you remember that there was a cover letter

   9    prepared that was approved at the highest levels of APS, a

  10    cover letter quite similar in style to Exhibit 33 that went

  11    out the year before?

  12         A.    Can you show it to me, please?

  13         Q.    I show you my copy.

  14               That is the '87 one.  Don't you remember that

  15    there was a letter of very similar style that was drafted,

  16    approved at the highest levels of APS, and created,

  17    reproduced, 12 to 15,000 copies of it were made; don't you

  18    remember any of that?

  19         A.    I do not.  Sorry.

  20               MR. MESERVE:  Your Honor, this is what we

  21    stipulated to that we intended to distribute in 1988.

  22               THE COURT:  This is the one which was not sent

  23    after Gordon & Breach --

  24               MR. MESERVE:  That is correct, your Honor.

  25               THE COURT:  So why is there need to --


   1               MR. LUPERT:  His testimony just goes to, in the

   2    plaintiff's view, the issue of whether this organization was

   3    creating, with Professor Barschall, a formula that was

   4    direct and true to the point --

   5               THE COURT:  My question wasn't an invitation to a

   6    closing statement.  But it is stipulated, as I understand,

   7    that, but for the protests made to counsel by the plaintiff,

   8    that the defendants would in 1988 have distributed reprints

   9    similar to the practice that they followed in '87, is that

  10    correct?

  11               MR. MESERVE:  That's correct, your Honor.

  12               THE COURT:  All right.

  13               MR. LUPERT:  If your Honor feels that that is

  14    sufficient on this point, it is a given.

  15               THE COURT:  I don't want to cut you off.  If

  16    there is something beyond that that you are seeking to

  17    establish -- if that's what you are seeking to establish, it

  18    is established.

  19               MR. LUPERT:  I am also seeking to establish,

  20    though I will review this material -- in fact, it is 4:15,

  21    4:20.  With your Honor's statement, this would be an ideal

  22    time for me to adjourn, to review what I had in mind to do

  23    on some of these topics.

  24               THE COURT:  That's what's known as an offer that

  25    I can't refuse.


   1               All right, we are adjourned, then, until 10 a.m.

   2    tomorrow.

   3               MR. LUPERT:  Thank you.

   4               (Witness excused)

   5               (Adjourned to 10 a.m., Wednesday, June 11, 1997)























   2                        INDEX OF EXAMINATION

   3    Witness                    D      X      RD     RX

   4    BRUCE KINGMA.............161    161     234

   5    HARRY LUSTIG.............259