Main Index: Trial Testimony June 11, 1997
339
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 GORDON & BREACH SCIENCE
PUBLISHERS S.A., STBS., LTD.
4 and HARWOOD ACADEMIC
PUBLISHERS GMBH,
5
Plaintiffs,
6
v. 93 CV 6656 LBS
7
AMERICAN INSTITUTE OF PHYSICS
8 and THE AMERICAN PHYSICAL
SOCIETY,
9
Defendants.
10
------------------------------x
11
June 11, 1997
12 10:15 a.m.
Before:
13
HON. LEONARD B. SAND
14
District Judge
15
16
17 APPEARANCES
18 ORANS, ELSEN & LUPERT, LLP
Attorneys for Plaintiffs
19 BY: LESLIE A. LUPERT
ROBERT L. PLOTZ
20 PETER E. SEIDMAN
21 COVINGTON & BURLING
Attorneys for Defendants
22 BY: RICHARD A. MESERVE
JEFFREY G. HUVELLE
23 SUSAN L. BURKE
24
25
340
1 (Trial resumed)
2 HARRY LUSTIG,
3 Resumed, and testified further as follows:
4 THE COURT: Good morning. Sorry for the delay.
5 You may be seated.
6 Mr. Lupert, you may continue.
7 MR. LUPERT: Thank you.
8 DIRECT EXAMINATION (Resumed)
9 BY MR. LUPERT:
10 Q. Dr. Lustig, we left off yesterday, just to put
11 this back into context, we were talking about Exhibit 59,
12 which I have put before you and I think the court clerk has
13 handed up to the Court, or will.
14 MR. LUPERT: Does the Court have Exhibit 59?
15 THE COURT: 59?
16 MR. LUPERT: 59.
17 THE COURT: What does it look like?
18 MR. LUPERT: It is a one-page document.
19 (Discussion off the record)
20 THE COURT: All right, I have it in front of me.
21 Q. I had asked you some questions about Professor
22 Barschall's letter to you in June, and the last line of it
23 says, "If you send out reprints, a covering letter could
24 make the point you wish to make."
25 Would you focus your attention on that,
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1 Dr. Lustig?
2 A. Yes.
3 Q. In fact, such a cover letter was drafted, and
4 that is reflected in Exhibit 65, is it not? I put that
5 before you, as well. Do you see the cover letter? It is an
6 exhibit to Exhibit 65. It is attached at the end of Exhibit
7 65.
8 Exhibit 65 is the American Physical Society
9 publications committee meeting, which you admitted and
10 stated you attended. And attached to it are B1 and B2 with
11 the words draft. I would like to focus you on appendix B1,
12 which is the September 1988 draft letter to "Dear Physics
13 Journal Subscriber," bearing signature blocks for Havens,
14 Lazarus and Lustig, do you see that?
15 A. I do.
16 Q. This is in fact the cover letter that was drafted
17 and approved, was it not, by the publications committee of
18 the American Physical Society?
19 A. It does appear that it was drafted. I'm not sure
20 whether it was approved by the committee, but it may very
21 well have been.
22 Q. Would you turn to the committee minutes
23 themselves, and look at paragraph VI, further distribution
24 of the HH Barschall article, in which Forman gave a progress
25 report. Who is Forman?
342
1 A. Dr. Miriam Forman was the associate executive
2 secretary of -- or deputy executive secretary of the
3 American Physical Society at the time.
4 Q. And the second sentence says, a mailing has
5 already been sent to Japanese nonmember subscribers. Forman
6 referred to letters written to accompany the Barschall
7 article which he had distributed from Havens, Lustig and
8 Lazarus to all other nonmember subscribers to APS journals,
9 appendix B1 and from Jeff Howitt, manager AIP marketing
10 services, to librarians, and I will go on with the rest of
11 the sentence in a minute.
12 That reference is to the two exhibits that are
13 attached, is it not?
14 A. I'm not sure, Mr. Lupert, because it says that an
15 article had been distributed and, as we know, that article
16 was not distributed.
17 Q. The letter states -- the paragraph that I just
18 read actually states that it had already been sent to
19 Japanese nonmembers. Is that an inaccuracy as far as you
20 know?
21 A. I don't know about Japanese, but it also states
22 that it had been distributed to other people and it
23 certainly hadn't.
24 Q. I would like you to try to focus on precisely
25 what I am asking you. I didn't think there was any dispute
343
1 about this but maybe there is. Is appendix B1 the letter
2 that was suppose to go out to all journal subscribers, being
3 the one that was to accompany the reprint of the '88
4 article, or is it not?
5 A. I believe appendix B1 is a draft of the letter
6 that some people had wanted to send out, yes.
7 Q. Including yourself?
8 A. Yes.
9 Q. And appendix B2, which is attached to these APS
10 minutes, is the letter that the AIP was going to send out,
11 correct?
12 A. It appears that way, although I have no direct
13 knowledge of that letter.
14 Q. Well, again, I refer you back to the minutes of
15 the meeting, which refer to that letter. Do you think that
16 it is an inaccuracy in these minutes, in its reference to
17 Jeff Howitt's letter that was to go out to all the AIP
18 members?
19 A. There is certainly an inaccuracy in the minutes,
20 because these letters were certainly not sent out.
21 Q. Is appendix B the letter that was supposed to go
22 out from the director of marketing of AIP to a variety of
23 sources concerning the Barschall survey of 1988?
24 A. It appears that way.
25 Q. And, indeed, the concept was to send this letter,
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1 these two letters, collectively to every single nonmember,
2 i.e., any library that subscribed to any journal of AIP or
3 APS, correct?
4 A. The minutes seem to say so, yes. The minutes do
5 say so, but I really can't recall exactly what was in my
6 mind in 1988, but the minutes do say so, yes.
7 Q. You don't dispute accuracy of that part of the
8 minutes, do you?
9 A. No.
10 Q. And, in fact, the minutes, if you go back to
11 paragraph VI, indicate that it is also going to go to
12 librarians who are members of the special libraries
13 association division of science and technology or the
14 division of physics, astronomy or mathematics; in addition,
15 it's to be drafted to physics department chairs and heads of
16 research of development organizations in the entire AIP
17 directory. Do you see that?
18 A. That's what the minutes say.
19 Q. To your knowledge, that's exactly what was going
20 to happen had the project not been aborted, correct?
21 A. I don't know. I don't know. Many things were
22 changed, but it's likely that would have happened, yes.
23 Q. Let me go back to a point concerning the input of
24 the two societies into the Barschall survey itself.
25 Do you recall that Dr. Barschall at one point in
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1 time in the spring of 1988, before publication, asked you
2 for an enormous quantity of budgetary information in
3 connection with the work he was doing on this survey?
4 A. Sir, I don't recall that, but having read the
5 depositions, it seems to have happened. I don't think it
6 was an enormous quantity. He asked me for some information
7 about the economics of publishing.
8 Q. Let me show you Exhibit 58.
9 THE COURT: Maybe you could just read off the
10 list of the next five exhibits that you will refer to.
11 MR. LUPERT: 58, 59, 88 -- those are the ones I'm
12 positive of for the next three or four. I'll try to do
13 that, Judge, from now on and I know it will move it a little
14 bit faster.
15 (Pause)
16 THE COURT: You may continue.
17 MR. LUPERT: Thank you, Judge.
18 Q. Looking at Exhibit 58, this reflects, does it
19 not, Barschall's letter to you thanking you very much for
20 sending the budgetary information about the journals, do you
21 see that?
22 A. It is the letter, but it is not reflecting it.
23 It is the letter, a copy of the letter.
24 Q. Indeed, the amount of information that you have
25 sent was an enormous amount of materials, was it not?
346
1 A. I don't recall at all what I sent, Mr. Lupert.
2 Q. Let me refresh your recollection, if I might, by
3 testimony at your deposition, December 8, 1994, page 347,
4 348:
5 "Q. But what was that budgetary information
6 that you sent to him that he wanted to use in his Physics
7 Today article?
8 "A. I believe I sent him an enormous amount of
9 materials."
10 A. Well, I tend to do that. I tend to overwhelm
11 people with material. I think I sent him the treasurer's
12 report and the data about the economics of publishing. It
13 could have been a lot of material, yes.
14 Q. And this is material that Dr. Barschall obviously
15 had requested from you as the treasurer of APS, correct?
16 A. It seems that way from this letter. I don't
17 recall the request, yes.
18 Q. The letter reflects that the AIP publishing
19 policy committee discussed the whole issue of whether
20 budgetary information should or should not be included by
21 Professor Barschall in the work that he was then drafting.
22 Do you see that sentence?
23 A. Yes, I do.
24 Q. Do you know of any other occasion in the history
25 of the AIP publishing committee where it actually considered
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1 what kind of material to include in this kind of a report,
2 the kind that Barschall was drafting?
3 MR. MESERVE: Your Honor, I would like to object.
4 This is an organization that was formed in 1899 --
5 THE COURT: To this witness's memory.
6 MR. LUPERT: I think I would take that
7 limitation, obviously. I'm not asking you to speculate
8 about what might have transpired outside of your tenure.
9 THE COURT: During the period of your
10 involvement.
11 A. Would you repeat your question, please, sir.
12 Q. To your knowledge, in the eleven years or so that
13 you serve as the treasurer of the APS, do you know of any
14 other occasion where the AIP publishing policy committee
15 took up questions about what was to be included in the kind
16 of article -- this type of article that Barschall was
17 drafting?
18 A. There are two parts of the question. I don't
19 know that there was any other consideration of any other
20 article being drafted, first of all, by the AIP publishing
21 policy committee. It wasn't the AIP publishing policy
22 committee that requested me to send that information. It
23 was apparently Professor Barschall. And, yes, other
24 volunteers and other officers and other members of
25 committees of our publications committee, other officers
348
1 frequently requested me to send budgetary information.
2 Q. Sir, Barschall was drafting an article that was
3 supposed to be, was it not, his article?
4 A. It was his article, yes.
5 Q. Isn't it a fact that this is the only occasion in
6 the eleven years you served with this organization that
7 there was an attempt to actually control what Barschall was
8 writing in the article?
9 A. I do not believe there was any attempt to control
10 what Barschall was writing in the article.
11 Q. Do you think the words in this letter from
12 Barschall to you at the meeting of the AIP public policy
13 committee, "There was unanimous support for the request that
14 I include information in the Physics Today article," is
15 attempt by the publications committee to have some control
16 over what Barschall was putting into this article?
17 A. Sir, if you would like me to surmise what
18 happened, I can do that. I wasn't there at all but I can
19 certainly surmise that there may have been a discussion
20 about whether this article should serve as an overall
21 tutorial about the economics of publishing, which was of
22 great interest to many people, and which, as you know, is
23 information very hard to get from other publishers, and they
24 may have discussed, should this particular article be viewed
25 by scholarly people which included the economics of
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1 publishing.
2 Q. Is that an attempt in your mind to control -- let
3 me back up. Is that at least an attempt in your mind where
4 the AIP was attempting to have input into what Barschall was
5 writing? Do you concede that?
6 A. Yes, we thought maybe he should write a much,
7 much different article, yes.
8 Q. The paragraph goes on to say that David
9 Lazarus -- now, he was the editor-in-chief of your
10 organization, the APS, correct?
11 A. Yes, sir, we established that.
12 Q. And he objected -- he objected to it. Do you see
13 that?
14 A. Yes, I see that.
15 Q. That gives me the impression that there was a
16 debate going on and votes being taken about what budgetary
17 information, if any, was going to go into this article. Do
18 you read it the same way I read it?
19 MR. MESERVE: Your Honor, this calls for
20 speculation by this witness as to what other people were
21 thinking.
22 MR. LUPERT: I'm just asking him how he
23 interprets the language.
24 THE COURT: Were you at this meeting?
25 THE WITNESS: No, sir.
350
1 THE COURT: Sustained.
2 Q. You understand, from Dr. Barschall, do you not,
3 that he actually did not include the budgetary information,
4 because he ran out of time, correct?
5 A. Well, he says -- there were two reasons. He ran
6 out of time and there was objection, both.
7 Q. And the objection was one of the reasons?
8 A. I have to surmise that.
9 Q. Is it a fair statement in your experience that,
10 with respect to Physics Today, it does not necessarily print
11 what the author writes?
12 THE COURT: It doesn't?
13 MR. LUPERT: It does not publish is the word I
14 mean to use.
15 A. My impression is only an impression, sir, because
16 I -- oh, yes I did submit one article for Physics Today,
17 that is correct -- that some editorial discretion over
18 phrasing and words and grammar is exercised and sometimes
19 articles are shortened with the consent of the author but
20 that Physics Today does not really control the content of an
21 article in the sense of changing it.
22 Q. I had asked you yesterday about David Lazarus,
23 who I think you had described as an eminent physicist at the
24 University of Illinois?
25 A. You had described him as that, sir. I said he
351
1 was a respected physicist.
2 Q. Do you agree with the following statement: That
3 I understand that Physics Today actually controls the
4 contents of what is published in it? Do you agree with that
5 statement or not?
6 A. Well, I just tried to explain what I meant by
7 that statement, sir.
8 Q. The word "controls" -- the word "controls" in my
9 mind means, has the ability to determine what's going to be
10 written. Do you think that's a good definition of the word
11 "control"?
12 A. No, sir, it certainly controls it in that it can
13 reject articles. It doesn't accept most of the articles
14 and --
15 Q. And it also --
16 A. Sir, you interrupted me, I'm sorry.
17 Q. Please finish.
18 A. And I think it does sometimes make suggestions
19 for more felicitous phrasing. It may say to an author,
20 look, this is too much, this particular issue shouldn't be
21 in the same article, but it doesn't control, it doesn't
22 rewrite it without the author's consent.
23 Q. The word "control" is used, and indeed that is a
24 word you used in an affidavit that you swore to, do you
25 remember that?
352
1 A. No, sir.
2 Q. We'll come back --
3 A. I said I didn't control -- we didn't control what
4 was written.
5 Q. Do you agree or disagree with this statement:
6 That Physics Today actually controls the contents of what is
7 published in it?
8 A. Sir, I can't do any better than what I answered
9 to you. I had tried to explain what I mean about what
10 Physics Today really does.
11 Q. So you disagree with the statement that it
12 actually has the final decision about the contents of what's
13 going to be written?
14 MR. MESERVE: Your Honor, I object.
15 THE COURT: Sustained.
16 Q. I would like to show you the affidavit I just
17 referred to, which is Exhibit 88.
18 I would point you in particular to paragraph 4.
19 Before I do, this affidavit was drafted by you, was it not?
20 A. Yes, sir.
21 Q. Signed by you?
22 A. Yes, sir.
23 Q. And it was done with your knowledge for the
24 purpose of --
25 A. Excuse me, sir. Let me modify that. It was done
353
1 in consultation with counsel, of course.
2 Q. But it was executed by you after you read it?
3 A. Yes, sir.
4 Q. And it was done for the purpose of one of the
5 European litigations, correct?
6 A. The Swiss lawsuit is what was in issue, yes.
7 Q. And it was submitted in that Swiss lawsuit with
8 your consent?
9 A. Yes.
10 Q. It reads in paragraph 4 that, "The APS did not
11 request that Barschall conduct an examination of the costs
12 of scientific journals." Do you see that first part of
13 paragraph 4?
14 A. Yes, sir.
15 Q. Is that an entirely accurate statement given the
16 fact that Barschall had written asking whether it made sense
17 for him to do another survey and was given encouragement, as
18 the documents reflected that I showed you yesterday?
19 A. Yes, sir, I believe it is an accurate statement.
20 He did not request.
21 Q. Do you think that it would have been a fuller
22 statement to have revealed the APS's full involvement from
23 the beginning of the project?
24 A. Sir, I don't know whether it would have been a
25 fuller statement. I think the statement is accurate as it
354
1 stands. The APS -- the survey was entirely Professor
2 Barschall's idea and the APS did not request him to do the
3 survey.
4 Q. Now, before you signed this affidavit, you had
5 seen the exhibit that I just showed you concerning the AIP
6 publishing committee and its activities with respect to the
7 budgetary information, correct?
8 A. I probably hadn't seen it at that time, no.
9 Q. Sir, you signed this in October of 1989. The
10 exhibit is dated June of 1988.
11 A. Well, I did not see it at that particular time,
12 but it wouldn't have made any difference. I would have
13 signed the affidavit.
14 Q. When you wrote that the APS has never sought to
15 exercise any control whatsoever over the content and
16 conclusions of the work, was that an attempt to state that
17 there was no input whatsoever on the part of the
18 organization?
19 A. I don't believe so, because the sentence goes on
20 that we were interested in the work.
21 Q. Does the fact that Lazarus was one of the three
22 executives, of this triumvirate that you described
23 yesterday, the fact that he took the position, as he did, as
24 reflected in the exhibit about the budgetary information,
25 cause you to change your opinion whatsoever that the APS has
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1 never sought to exercise any control?
2 A. It does not change my opinion, sir.
3 Q. You don't think that this would be a more
4 accurate statement if it revealed Lazarus's input into the
5 drafting of the article?
6 A. If I wanted to write a scholarly history of the
7 Gordon & Breach affair, I might include that, but in a court
8 affidavit I think it was a completely accurate and truthful
9 statement as it stands.
10 Q. You mean it's more important to be fully accurate
11 in a scholarly article than in an affidavit that goes to a
12 court?
13 A. No, sir, I noticed that lawyers' affidavits are,
14 at least on our side, usually very terse.
15 Q. They are usually accurate, though, aren't they?
16 A. They are accurate, yes, sir.
17 Q. Do you recall that in the spring of 1988, while
18 Professor Barschall was actually writing the article, there
19 was a real sense of urgency about getting him to finish the
20 work so it could be published over the summer so reprints
21 could be sent with the renewal bills in the fall?
22 A. I believe some people felt that sense of urgency,
23 yes.
24 Q. And indeed, the people who felt that sense of
25 urgency included David Lazarus, correct?
356
1 A. I believe so.
2 Q. William Havens, the other member of the
3 triumvirate, correct?
4 A. I think he agreed to that, yes.
5 Q. And he was in favor of it, correct?
6 A. I think so, yes.
7 Q. And David Lazarus was an enthusiastic proponent
8 of the project, correct?
9 A. At that time, yes.
10 Q. And you were, too?
11 A. I was really the new boy on the block and I went
12 along, but I certainly agreed to it, yes.
13 Q. And, in fact, you and Dr. Barschall spoke, didn't
14 you, about making sure that this project was completed on a
15 rapid schedule.
16 A. I don't think Dr. Barschall and I spoke about
17 that, no.
18 Q. But you saw communications with him on which you
19 were copied, which made that point to him, correct?
20 A. Well, I did see some communications, yes.
21 Q. I wonder if we could pull out Exhibits 50 and 51.
22 (Pause)
23 MR. LUPERT: Does the Court have them?
24 THE COURT: Yes.
25 Q. In Exhibit 50, this is a memorandum -- I take it
357
1 this is an e-mail, is that correct?
2 A. I think so.
3 Q. And it is from David Lazarus to Professor
4 Barschall with copies to you and other senior executives of
5 AIP and APS, correct?
6 A. Yes, sir.
7 Q. And it includes Ken Ford, who was the CEO, if you
8 will, of AIP during this time?
9 A. Yes, sir.
10 Q. And Robert Marks, who was the head of the
11 publishing arm, correct?
12 A. Director of publications.
13 Q. And in this, it says, among other things, it
14 thanks Professor Barschall for sending a draft, Professor
15 Lazarus is saying "terrific draft" --
16 THE COURT: I have read it.
17 MR. LUPERT: Have you?
18 Q. And I want to ask you the question that the
19 sentence in here which says, "If there's a problem or delay
20 that APS will publish the data in a possibly somewhat more
21 brief report as a paid insert in Physics Today," is it your
22 understanding that a paid insert is similar to an
23 advertisement?
24 A. Not quite. What happened at the time when APS
25 did not have its own membership publication exempt for the
358
1 bulletin, we were able to get two pages in the Physics
2 Today, for news for APS, for our members, and we did have to
3 pay AIP for those pages.
4 Q. Let me ask you if you agree with Dr. Havens's
5 statement.
6 "Q. What is your understanding of the words,
7 'paid insert'?
8 "A. Maybe it would be, my understanding of that
9 would be that it would be something like a small
10 advertisement in Physics Today."
11 Robert Marks, who is also copied on this:
12 "Q. Do you know what a paid insert in Physics
13 Today refers to?
14 "A. That's an advertisement."
15 Do you agree or disagree with those statements?
16 MR. MESERVE: Your Honor, I would like to object.
17 He has brought up apparently some deposition testimony of an
18 entirely different witness about conversations evidently
19 between individuals not including Dr. Lustig.
20 THE COURT: The question is, do you agree with
21 that characterization of a paid insert in Physics Today in
22 this context?
23 THE WITNESS: Well, I -- whether Dr. Havens or
24 Dr. Lazarus meant to buy an advertisement, my own view would
25 have been that we should have put on the APS page in Physics
359
1 Today.
2 Q. Dr. Lazarus says in this e-mail, "I've already
3 discussed the importance of publishing this article with APS
4 officers." Do you see that? Wouldn't that also have to
5 have included you?
6 A. Probably, although I don't recall having had that
7 discussion.
8 Q. Why was Physics Today the medium of choice, the
9 word he used in this memo?
10 A. Because the article, of course, of doctor --
11 MR. MESERVE: Your Honor, I object. This calls
12 for speculation by this witness as to what --
13 THE COURT: Do you agree with the
14 characterization that Physics Today would be the medium of
15 choice for this article?
16 THE WITNESS: Yes, sir, it would, because the
17 article was directed to physicists and that was the journal
18 read by almost every physicist.
19 Q. Yes. In fact, the bulletin, which is the
20 bulletin of the American Physical Society, is not well read
21 at all, correct?
22 A. Well, parts of it were very well read, because it
23 is the part which published, among other things, all the
24 abstracts of papers and meetings, so a number of people did
25 read the abstracts, but most physicists would not read the
360
1 whole bulletin, no.
2 Q. Wasn't one of the major problems that faced the
3 APS in communicating with its members through the bulletin a
4 feeling, a general feeling, which you shared, that no one
5 reads the bulletin?
6 A. I think, as I explained to you in my deposition,
7 that is a little joke. I am old enough to remember when the
8 Philadelphia bulletin had an advertising slogan, "Everybody
9 in Philadelphia reads the bulletin." So I said, "Well,
10 nobody reads the APS bulletin."
11 Q. Isn't it a fact that the APS --
12 A. I didn't finish, sir, but let it go.
13 Q. Isn't it a fact that APS at this point in time
14 did not actually have a viable news magazine; many in APS
15 thought that Physics Today was such a document?
16 A. All physicists think, by the way, that Physics
17 Today is published by the American Physical Society rather
18 than the AIP. That is a big confusion. The bulletin of the
19 American Physical Society served too many purposes. It had
20 the purpose of a meetings program of abstracts as well as
21 news for the American Physics Society and articles like
22 Professor Barschall's that sometimes were cited, that was
23 not very efficient. The bulletin should simply be for the
24 meetings program, and we then create a membership
25 publication called APS News as a communications medium with
361
1 our members.
2 Q. Let me put before you Exhibit 103, which is a
3 task force report on membership and meetings publications of
4 the American Physical Society dated March 10, 1990.
5 I ask you to take a look at the first page, "Task
6 Force." Do you see the big label, "Task Force on
7 Membership"? The first page with writing on it.
8 A. Yes, sir.
9 Q. Doesn't it say, "The major problems put to the
10 task force were these: One, no one reads the bulletin.
11 Unlike other units of the AIP, APS does not actually have a
12 viable news magazine." Is that a false statement?
13 A. Sir, you'll see that the first instance is in
14 quotations, so that's quoting someone, actually. That is
15 not necessarily a conclusion of the task force. But, as
16 I've just testified, sir, that is essentially correct; we
17 wanted a news medium, a newsletter, if you will, which
18 exclusively concentrated on news for the APS, and the
19 bulletin did not fulfill that purpose.
20 Q. And back in the spring of 1988, when the to-do
21 was going on about getting Barschall's work out quickly,
22 there was a recognition that it was absolutely essential to
23 get this into Physics Today because the bulletin was so --
24 was read by so few people, correct?
25 A. No, sir. Initially there was no thought getting
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1 this into the bulletin. Professor Barschall had prepared
2 that article entirely for Physics Today, and only -- had the
3 intention to publish it, and only after the editor of
4 Physics Today said, you cannot publish such a dry,
5 scholarly, long article of tables, that she needed a shorter
6 summary for that, only then, in order to have the
7 documentation that we always felt the scholarly work needed,
8 Professor Barschall then decided to submit the
9 documentation, the scholarly documentation to the bulletin.
10 Q. And that was something APS was really in favor
11 of, right?
12 A. Sir, APS, I think -- I wasn't involved with that,
13 but Dr. Havens talked to me about that -- was in favor of
14 having full documentation of the article rather than simply
15 the summary that appeared in Physics Today. And, therefore,
16 APS, I think Dr. Havens, and then the board, indeed felt
17 that the rest of the article, the scholarly documentation,
18 that explanation of methodology should be published in the
19 bulletin.
20 Q. And that there should be a publication in Physics
21 Today -- because Physics Today goes to 100,000 people,
22 correct?
23 A. Physics Today was certainly the preferred medium
24 for such an article --
25 Q. Because it has 100,000 people who read it?
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1 MR. MESERVE: Objection.
2 THE COURT: I think, really, we don't have to
3 labor each point.
4 Q. Were you aware that in June of 1988, several
5 months before publication, the preprint that combined
6 certain aspects of the bulletin article and Physics Today
7 article, notably table 2, that ranked publishers, was
8 distributed or made available a convention of librarians?
9 A. I became only aware of that as hearsay, I think,
10 after litigation started.
11 Q. You were not involved in that project?
12 A. Not at all, sir.
13 Q. But you know now that that actually happened?
14 A. Well, I don't know what actually happened. I
15 know that there is an allegation that a number of preprints
16 were distributed in a meeting. I don't know what actually
17 happened.
18 MR. LUPERT: Judge, a stipulation that was
19 entered into, which is called a stipulation but it is, I
20 guess, more of a representation by the defendants,
21 concerning the aborted mailing, takes care of the aborted
22 mailing in 1988 of those two letters that are attached to
23 Exhibit 65.
24 In addition to that, there was another aborted
25 project in 1989 which is identical which I would go into. I
364
1 asked Mr. Meserve this morning whether he would stipulate
2 that his stipulation includes the project in '89. I don't
3 want to belabor the point, but I do not yet have that
4 representation.
5 MR. MESERVE: Your Honor, it is true that
6 Mr. Lupert did ask me about 1989. The facts were, as I
7 understand it -- and perhaps it is that Mr. Lupert, for
8 reasons of his own, feels that he needs to go into it -- the
9 article was not distributed in 1988 and it was reevaluated
10 later. It wasn't two different processes. They were
11 saying, gee, we've got to resolve our issues with Gordon &
12 Breach and we are not going to be able to do anything with
13 this and they didn't do it at either time.
14 All of this is irrelevant for purposes of this
15 case, given the stipulation that, but for Gordon & Breach's
16 complaint, we would have distributed it, and exactly when in
17 time all of these decisions were made, given that there are
18 no damages in this case -- it is all a forward-looking
19 injunction -- I believe they are completely irrelevant.
20 MR. LUPERT: Judge, I would ask for a stipulation
21 that a decision was made, there were 14,000 copies of this
22 made in 1988. This wasn't sent. They did the same thing in
23 '89 and they reproduced very similar letters. The letters
24 were destroyed because at a point in time when Gordon &
25 Breach had brought the lawsuit the project was aborted then.
365
1 I can prove it if the Court thinks it is necessary. I think
2 it should be stipulated to along with the stipulation that
3 we did yesterday.
4 MR. MESERVE: We are prepared to state that in
5 1988, these copies were prepared for sending out. They
6 weren't sent out. It was reevaluated in 1989 and the same
7 copies, the same letters, were all ready to go. In 1989 we
8 also didn't send them out. If that is what Mr. Lupert is
9 looking for, then that is a fact.
10 MR. LUPERT: I think that does it.
11 BY MR. LUPERT:
12 Q. I want to ask you about one aspect of the '89
13 project.
14 I want to show you Exhibit 80.
15 (Pause)
16 I apologize. That is the wrong exhibit. Exhibit
17 73.
18 MR. LUPERT: Exhibit 73.
19 Q. Exhibit 73 is another e-mail, this one is from
20 Lazarus to you, correct?
21 A. Yes, sir.
22 Q. It says in the first sentence, "Harry, as I
23 recall, last year we had a" -- can you read that word?
24 A. "Palpably." I think it is a typographical error,
25 sir.
366
1 Q. -- "palpably smaller than usual fall-off in
2 nonmember subscriptions. I would like to think that this
3 was a result of our sending along that splendid letter."
4 Is that splendid letter that he's talking about
5 that letter that went to all the librarians back in 1987
6 that you and the others signed?
7 A. I noticed, Mr. Lupert, that you skipped about six
8 words in reading me those two sentences which, by the way --
9 Q. Definitely --
10 A. Yes, that is an interesting observation that you
11 may want to think about. But the -- I do not know what the
12 letter refers to, but --
13 Q. But it is likely --
14 A. It is likely the letter that you talked about
15 yesterday in terms --
16 Q. The mass mailing?
17 A. Sorry, sir, I didn't finish.
18 Q. The mass mailing?
19 MR. MESERVE: Objection, your Honor.
20 THE COURT: Try not to interrupt each other, just
21 for the sake of the reporter, and for the sake of courtesy
22 and expedition.
23 MR. LUPERT: Clearly. I apologize. I apologize.
24 Q. I will rephrase the question so that you know
25 what I am talking about. Answer as fully as you like.
367
1 The letter, the "splendid" letter, is that the
2 mass mailing letter, that went out in August of 1987?
3 A. I surmise that that is the letter which had to do
4 with the first article in 1986, yes.
5 Q. He goes on to say: Modesty and common sense tell
6 me that since AIP experiences essentially the same ulterior
7 effect without the benefit of our letter, it may more likely
8 be attributable to other causes. The one which comes to
9 mind most prominently is the existence of the previous
10 Barschall article in Physics Today, correct?
11 A. That's what the letter says, yes, the e-mail
12 says, yes.
13 Q. He's saying that, in the next sentence, if you
14 keep reading, that librarians likely remember Barschall's
15 article, relied on it, made decisions based on it, and
16 that's one cause, at least according to Lazarus, of why the
17 cancellation was palpably smaller, correct.
18 A. That's what he's saying, but now I am really
19 rather confused, because, as I understood it, that letter
20 that was sent out was a cover letter with a reprint of that
21 first Barschall article, and then he talks about the
22 librarians remembering the Barschall article. So this
23 couldn't be two different things. It would be the same --
24 same article.
25 Q. The previous Barschall article that's referred to
368
1 is the 1986 article, correct, PX1. I went over that with
2 you yesterday?
3 A. Yes, sir. But I believe that the letter that
4 you've just told me about and you gave me a date is the
5 letter that went out with the first Barschall article.
6 Q. That's right.
7 A. So how can Dr. Lazarus sign different -- one of
8 the two as the different cause if it is the same article.
9 Q. Try to focus on the language of the e-mail,
10 please.
11 Dr. Lazarus is saying that the mass mailing in
12 '87 with the '86 article was taken seriously by librarians
13 even without any marketing effort on our part in the current
14 year, 1988, which was the year that the letters were
15 aborted. Do you see that?
16 A. Yes, I do.
17 Q. Isn't that what he's saying?
18 A. I'm sorry, I think we are talking cross purposes.
19 What he is saying is that there was a letter of a 1986
20 article and then they also read the article directly
21 perhaps, and he doesn't know which of these causes, if any,
22 that he thinks the drop off is due to.
23 Q. He says it may well be, in his opinion, in any
24 event, that librarians were using -- you may be right -- the
25 cover letter that went out or the article itself?
369
1 A. The cover letter contained the article, as well.
2 So he's saying basically, one or the other they relied on
3 the article, yes. That's his opinion, he stated.
4 Q. Besides librarians, the focus of the sending out
5 of these reprints and statements about it went to the author
6 market, as well, correct?
7 A. No, sir, I don't think there were any reprints
8 sent to the author market.
9 Q. Let me correct.
10 If we take out the word reprints, am I correct,
11 though, that there was a marketing campaign based on the
12 Barschall surveys directed at the author market?
13 A. No, sir, the only thing that I know is that the
14 authors would have read or could have read the Physics Today
15 article and the bulletin article.
16 Q. But is it not true that even if that's all they
17 did, that APS considered that to be marketing as well?
18 A. I do not believe that the publication of the
19 articles themselves in the bulletin or in Physics Today were
20 considered marketing by anyone.
21 Q. Let me show a letter that has been developed in
22 this case at some length. It is a letter from Val Fitch,
23 president of the APS, dated May of 1988. It is PX53.
24 MR. MESERVE: Your Honor, I'm really wondering
25 why we are spending our time going into this in light of the
370
1 stipulation that we have entered into.
2 THE COURT: And the answer to that, Mr. Lupert
3 is?
4 MR. LUPERT: The stipulation doesn't cover
5 secondary uses. It just simply says that they are certain
6 that in the future they are going to use these in commercial
7 use. There is no stipulation that in fact this letter
8 constitutes an example of secondary use. It's directed at
9 the author market, and if I have a stipulation to that
10 effect I will accept. Obviously it would be a good thing
11 and move the case forward.
12 MR. MESERVE: The plaintiffs are seeking an
13 injunction. They need to be able to establish what our
14 future intention is as to the use of Barschall type surveys.
15 Obviously the 1988 survey is of no use now because there is
16 a stipulation that we handed up to the bench yesterday and
17 which I discussed with Mr. Lupert the other day. It was
18 that we intend to use surveys employing the Barschall
19 methodology for commercial advertisement and promotion,
20 which gets him over the hurdle of what he needs regardless
21 of whether or not there had been secondary uses back in this
22 ancient history.
23 THE COURT: Why isn't that true?
24 MR. LUPERT: If the Court agrees. I need
25 guidance from the Court, frankly, on this. The Court has
371
1 set out certain elements in its opinion that I thought we
2 needed to prove, one of which was that there were sufficient
3 secondary uses to warrant relief in this case. If you
4 have -- if this is a stipulation, part of that --
5 THE COURT: One moment.
6 (Pause)
7 THE COURT: The Court will take a five-minute
8 recess. See if you can explore that further with each other
9 during the recess.
10 I take it what Mr. Meserve is saying is, in light
11 of the stipulation that the use that the defendants would
12 make of material embodying a Barschall methodology in the
13 future, unless an injunction issues, is a commercial use,
14 makes academic the question whether the previous use, if
15 they may, was also a commercial use. We'll take that up
16 after the recess.
17 (Recess)
18 THE COURT: We are going to break today for lunch
19 at a quarter of 1, a little earlier than usual, a quarter of
20 1 to 2 o'clock.
21 MR. LUPERT: Does the court have a motion
22 schedule this week?
23 THE COURT: It is not a problem. I may have to
24 take a half-hour break, but we'll go right through.
25 MR. LUPERT: Judge, with respect to the point
372
1 that was raised just before the break, as we analyze it,
2 there are two problems. One is that the essence of this
3 Lanham Act false advertising case is the falsity of the
4 advertising message, and in order for us to be able to
5 establish the falsity of the advertising message, the Court
6 obviously has to know what the advertising message was.
7 Then the rest of the evidence, arguably expert evidence but
8 not entirely, will establish whether the test on which that
9 message is based is a reliable test, stands for the
10 proposition set forth in the ad. And to take the
11 advertisements out, it just strikes us as an almost
12 impossible scenario unless it is stipulated to as to exactly
13 what the message was, and the like.
14 THE COURT: What the message was, is that not
15 contained in the printed material that was disseminated?
16 MR. LUPERT: Largely, yes.
17 THE COURT: What this last line of inquiry seems
18 to be is whether there was a commercial motivation for the
19 studies and for the distribution of the studies. And
20 Mr. Meserve is raising the question whether that is really
21 necessary in light of the stipulation that, absent an
22 injunction, they will, for commercial purposes, make further
23 use of this methodology.
24 MR. LUPERT: There are two points. One, I think
25 it's important, in terms of the scope of the injunction, to
373
1 establish the consumer audience, if there is a stipulation
2 that that includes not only librarians, which is what the
3 reprint concept was about, as well as potential authors,
4 which would be the members of APS and the like, that would
5 cover one problem.
6 THE COURT: Well, as to that, I think I have
7 previously noted that in the Physics Today article,
8 Dr. Barschall explicitly states that one of the ways to deal
9 with this is for authors to publish in the not-for-profits.
10 I don't see that as being a big issue.
11 MR. LUPERT: If it is not a contested issue,
12 there is a contest as to whether, according to your old
13 ruling, putting such a statement into an academic magazine
14 like Physics Today can constitute a commercial message. You
15 ruled that, despite that language, it is protected.
16 THE COURT: Yes.
17 MR. LUPERT: The letter I was about to show the
18 witness, which your Honor also had before him during one of
19 the phases of this case, is a letter that was directed at
20 the author market, which I believe clearly constitutes
21 commercial speech for promotional use. I do need to
22 establish that, as well as, I think I have to establish the
23 nature of the commercial message in order to prove the
24 falsity point. I don't disagree with your Honor that these
25 are in writing. If they are admitted and it is admitted
374
1 that's the message, I'll move on.
2 THE COURT: What is the issue as to what the
3 nature of a commercial message is? Isn't the commercial
4 message that the economics of journals on physics favor the
5 not-for-profit publishers as distinguished from the
6 plaintiff?
7 MR. LUPERT: I don't think it is the economics.
8 I thinks it the formula that Barschall developed, which is a
9 formula, unprecedented formula, based on cost per thousand
10 characters, etc.
11 THE COURT: All right.
12 MR. LUPERT: The letter, for example, that we are
13 debating focuses on that.
14 THE COURT: So what is the issue as to what the
15 message is? I mean, I may not have stated it very
16 artistically or detailed, but is there a serious issue as to
17 what it was that Barschall was trying to convey? Is there?
18 I direct that to the defendant.
19 MR. MESERVE: Your Honor, I think that the
20 problem that Mr. Lupert is addressing is that the articles
21 themselves are protected speech. The Court has already
22 ruled that and they stand aside from the commercial context.
23 As I understand, the point that he is trying to
24 make is that we have said that we would, in order to
25 simplify this trial, we intend in the future to make
375
1 commercial use of future surveys, of course, presuming that
2 the surveys come out with the results that show that AIP and
3 APS journals are at the top of the pile.
4 THE WITNESS: No.
5 MR. MESERVE: If that were the case, then we have
6 said we intend to use that message in commercial advertising
7 and promotion. He has raised the question of what is the
8 message.
9 And the message, I think, is that that is the one
10 that is established by articles themselves, that the AIP and
11 APS journals are more cost effective than other journals,
12 that AIP and APS journals are a better bargain than other
13 journals, and we're prepared to say that. That is a fact
14 that we believe the methodology establishes.
15 THE COURT: And you stipulate that that's the
16 message.
17 MR. MESERVE: That's the message.
18 MR. LUPERT: The message goes on in other
19 secondary uses to talk about better quality of the journals
20 themselves. It goes on to talk about the publisher
21 producing better quality journals. That is a concept that
22 is significant to the extent --
23 THE COURT: Well --
24 MR. LUPERT: And it incorporates all of those
25 concepts.
376
1 THE COURT: The problem with that is that the
2 injunction that you seek is with respect to future
3 commercial use of material embodying the methodology.
4 Now, I take it that if somebody writes an article
5 which says AIP and APS journals are better because they have
6 more distinguished authors or more careful peer review by
7 higher standards, that is not something that you would seek
8 to enjoin. You might seek, but you wouldn't have much
9 optimism as to your likelihood of prevailing on that.
10 MR. LUPERT: But that is not this case.
11 THE COURT: So aren't these other possible
12 inferences that one might draw from the core message of the
13 Barschall writings really something which would be beyond
14 the scope of injunctive relief?
15 MR. LUPERT: We have framed an injunction based
16 strictly on Lanham Act, false advertising cases.
17 THE COURT: Yes.
18 MR. LUPERT: We have focused this case on the
19 Casterol concept that if you have an advertisement that is
20 based on a test and the claim is the test proves product A
21 is superior in value, quality, whatever, to product B, if
22 the test is unreliable, the test either was unreliable in
23 and of itself or it doesn't prove that point, or both.
24 THE COURT: And isn't the claim that the tests
25 prove, the tests being the Barschall analysis, prove that
377
1 AIP and APS is more economical?
2 MR. LUPERT: No, I don't think that is the
3 message. I think the message is that they are trying to say
4 the journals are a better value in quality.
5 THE COURT: In quality?
6 MR. LUPERT: That is certainly what the secondary
7 uses say. Professor Barschall testified -- I read this to
8 the witness yesterday -- his definition of cost
9 effectiveness was quality -- quality. It encompasses
10 economic value certainly. But they were trying to come up
11 with a formula that would persuade librarians to choose
12 journals because one journal had better quality. Indeed,
13 they went further and tried to create a formula that would
14 rank publishers so that librarians wouldn't even go to the
15 next step, figuring out what journal to buy, you buy APS
16 journals over Gordon & Breach journals.
17 THE COURT: You are making a distinction between
18 quality and cost?
19 MR. LUPERT: In these advertisements, there are
20 some that talk about better value in terms of quality.
21 That's what Barschall --
22 THE COURT: Value and quality are quite
23 different.
24 MR. LUPERT: But Barschall in his own testimony
25 states that his definition of cost effectiveness, his
378
1 perspective on all of this, was a formula that was producing
2 a way of ranking quality. His concept was that you can take
3 this impact statistic, which is a snapshot of citations, and
4 use that as a proxy for quality. Because in his mind, I
5 gather, authors would cite to papers of higher quality with
6 more frequency than to papers with lower rates of citations.
7 He was equating citation count to impact of quality. That
8 is what he is doing. That is the whole point of this
9 exercise.
10 MR. MESERVE: Your Honor, as I believe the Court
11 is aware, Professor Barschall is deceased now and he
12 unfortunately is not here to testify. He was not involved
13 himself and certainly is not going to be involved in any
14 future decisions as to how a future survey employing his
15 methodology might be employed in fewer commercials or
16 advertising and promotion.
17 What the articles and we believe the articles
18 themselves say is that AIP and APS journals are more cost
19 effective than those of other publishers. They also say, in
20 terms of cost per thousand characters, that they are better
21 bargains or greater bargains or greatest bargains or words
22 like that. And the point here is, if we were to use what
23 the survey itself establishes in support of the propositions
24 for which the surveys relate, that we are prepared to say
25 that we would do that.
379
1 Now, Mr. Lupert would like to say that, well,
2 gee, we might use the survey for something that the survey
3 deals with, hypothetically might deal with, some other
4 issue. That's hard for us to stipulate that we're going to
5 use the survey in support of the fact that he had better
6 peer review or some other proposition.
7 THE COURT: Where is the language -- I know it is
8 in your memoranda, I'm not sure I have it here -- the
9 language of your proposed injunction?
10 MR. LUPERT: It is at page 51 of our pretrial
11 memorandum.
12 THE COURT: Page 51?
13 MR. LUPERT: If you don't have it, I can just
14 hand it up.
15 THE COURT: I was just handed it.
16 (Pause)
17 THE COURT: Well, when you say, you seek an
18 injunction that they be prohibited based on the Barschall
19 methodology from claiming that a journal published by
20 plaintiffs is less cost effective, that I think we have no
21 problem with for these purposes. Inferior --
22 MR. LUPERT: That's the word that it was intended
23 to pick up, the point we are debating. That was a word
24 that's intended to be less quality, of less quality. That's
25 what I meant by that.
380
1 THE WITNESS: That is not correct.
2 MR. MESERVE: Your Honor, to the extent that his
3 use of the word "inferior" is intended that they are
4 inferior I don't remember because they are less cost
5 effective or less value than -- these are all three concepts
6 that are related, and it is clear that the Barschall survey
7 does deal with the fact that the AIP and APS journals are
8 more cost effective than others, and they do have higher
9 value in terms of cost per thousand characters. The
10 implication of those is that they are superior journals. In
11 that sense, they are superior journals.
12 THE COURT: But, Mr. Lupert, you are telling me
13 now that by "inferior," you are talking about the editorial
14 content apart from cost factors?
15 MR. LUPERT: The editorial content meaning, yes,
16 the quality of the pieces, what Barschall said.
17 THE WITNESS: No.
18 MR. LUPERT: It includes a measure of the quality
19 of the material that was published. That's what Barschall
20 was trying to accomplish.
21 THE COURT: Where does he say that?
22 MR. LUPERT: At page 72 --
23 THE COURT: Of?
24 MR. LUPERT: Of his transcript of November 14,
25 1996.
381
1 THE COURT: Does he say that in Exhibits 1, 2 or
2 3?
3 MR. LUPERT: That's the clear implication of cost
4 effectiveness. I don't think that the defendants'
5 definition of cost effectiveness, just because it has an
6 economic -- it is an economic term that librarians don't
7 understand, physicists don't understand, it was never
8 intended by Barschall or the defendants to exclude the
9 notion of quality. I think what's happened is that the
10 expert testimony and the cross which focused on the
11 economics of cost effectiveness is perhaps being used as a
12 substitute for what Barschall was doing.
13 THE COURT: You are saying that you believe that,
14 apart from what Barschall may have said in a deposition, but
15 what is said in his publications which were disseminated,
16 reprinted and disseminated, or in the other commercial use
17 made of the Barschall studies, the claim is made, economics
18 aside, that the AIP and APS publications are superior in
19 quality?
20 MR. LUPERT: Judge, the sentence that you had
21 referred us to before, the article which was disseminated,
22 Barschall writes, "Articles of such journals also have the
23 greater impact, so that authors, too, will benefit by
24 publishing impact."
25 What he testified about, why, I asked him these
382
1 very questions, and Barschall is the one who wrote it. The
2 physicists audience is the one that's getting it. Certainly
3 they are the ones --
4 THE COURT: Let me -- forgive me. Is it the
5 defendants' contention that utilization of the Barschall
6 methodology supports the proposition that, entirely apart
7 from cost factors, AIP and APS journals are superior to the
8 for-profit published journals?
9 MR. MESERVE: Let me answer that a little fully,
10 your Honor. Barschall did array in his article the impact
11 factor, which is, we have heard, the measure of the
12 frequency of citation. So he did make, include in his
13 article a statement that did include information, no
14 statement, but he did include information as to impact, and
15 that's clearly something that he displayed, and the fact of
16 the matter is, the institute of scientific information's
17 data as impact does show that the AIP and APS journals have
18 high impact.
19 THE COURT: You mean more frequently cited?
20 MR. MESERVE: Pardon me?
21 THE COURT: Impact means more frequently cited?
22 MR. MESERVE: More frequently cited than the way
23 we have talked about. But in terms of whether we are going
24 to say that the thrust of the articles had to do with cost
25 effectiveness and cost, namely, the price per thousand
383
1 characters and the ratio of price per thousand characters to
2 impact, and greatest bargains point, I believe, goes to the
3 point about price, cost effectiveness. Barschall defined,
4 and I believe all testimony is, he meant that to refer to
5 cost to thousand characters per impact. I can't imagine any
6 other proposition for which the Barschall article or
7 Barschall methodology can be cited.
8 MR. LUPERT: Perhaps I can just interrupt.
9 Plaintiff's Exhibit 65B, which is the aborted letter that
10 was signed by the director of marketing that was to go to a
11 mass distribution states, "As summarized in the following
12 table, this research places our publications in the highest
13 ranks of quality and value." What follows is the table
14 ranking publishers. That is what that letter precisely
15 says. This isn't something that we are fearful of. This is
16 exactly what the problem is. It is not the only problem,
17 but it certainly is a major problem.
18 MR. MESERVE: This, your Honor, is in the letter
19 from AIP that I believe was not sent. I believe that the
20 table that follows does relate to impact.
21 THE COURT: Well, but what Mr. Lupert is saying
22 is, this is what he would seek to have enjoined and that
23 this does talk about quality and value. And -- well, what
24 do you understand quality to mean in that sentence?
25 MR. MESERVE: I obviously had no connection with
384
1 this when it was written. I presume that there was intended
2 to be a reference to impact information as being a surrogate
3 for, I guess we used the term "use" yesterday, and that the
4 data do show that AIP and APS journals are used more than
5 those of other journals and that that ought to be seen
6 perhaps as a reference to quality, in that people use them
7 for purposes.
8 THE COURT: I think I have to pursue the question
9 whether it is a claim of the defendants that the Barschall
10 methodology supports the conclusion that the AIP, APS
11 journals are in the highest rank of quality. Because if
12 that is the claim, then obviously the plaintiffs have the
13 right to show that that would be a false claim. If that is
14 not the claim, then we could stipulate to that and then the
15 scope of this gets narrower and narrower, which would be all
16 to the good.
17 MR. MESERVE: Do you mind if we confer a moment?
18 THE COURT: No, I wouldn't mind.
19 MR. MESERVE: We will make it short.
20 THE COURT: We will go from 12:30 to 2, so that
21 could be -- do you have more?
22 MR. LUPERT: I have one other area totally
23 unrelated to anything that we have been discussing.
24 THE COURT: Why don't you do that and then we
25 will break.
385
1 Just to make clear, value for these purposes is
2 not the equivalent of quality.
3 MR. LUPERT: We could take out dictionaries and
4 probably have a big debate about that. I think you'll find
5 that in some definitions of the word "value" there are,
6 either inherent in it or certainly maybe even part of the
7 definition, notions of things being better than other things
8 for reasons other than cost or whether they are bargains
9 compared to other things. I think the word "value," when it
10 is used by a layman, and certainly not economists, it has a
11 pretty broad scope to it.
12 THE COURT: All right.
13 MR. LUPERT: In any event --
14 THE WITNESS: As I pointed out, they use the word
15 quality and value.
16 THE COURT: All right.
17 MR. LUPERT: What I'm going to do, judge, is I'm
18 not going to go into any of the specific secondary uses at
19 this moment and focus on one last point.
20 BY MR. LUPERT:
21 Q. That is, Dr. Lustig, do you know a man named
22 Eugene or do you know of a man named Eugene Garfield?
23 A. I know of his name. I have never met him, sir.
24 Q. Who is he?
25 A. I understand that he is, or was, the head of the
386
1 Institute for Scientific Information.
2 Q. He is the man who founded the Institute for
3 Science Information, correct?
4 A. I didn't know that, sir. You are saying that.
5 Q. He is man who was primarily responsible for
6 creating the Science Citation Index, is that not true?
7 A. I don't know that. I know that he was the head
8 at some time.
9 MR. LUPERT: Let me have Exhibit 217B. It is a
10 memorandum dated February 22, 1990, with a February 16, 1990
11 newsletter attached.
12 MR. MESERVE: I don't think we have a copy of the
13 exhibit.
14 (Discussion off the record)
15 MR. MESERVE: I object. This is not an exhibit
16 that has been marked.
17 MR. LUPERT: If it hasn't been marked, it is
18 completely inadvertent. It is on our list. It is just
19 totally inadvertent. It is a memorandum from Dr. Lustig to
20 Dr. Barschall. It is dated February 22, 1990. It is the
21 subject of substantial cross-examination, not only of this
22 witness but of a number of other witnesses during the
23 deposition process. It is not a document that is a surprise
24 in any sense.
25 MR. MESERVE: Your Honor, we object. We have
387
1 changed exhibit lists and this wasn't on the list and it
2 hasn't been provided to us.
3 MR. LUPERT: Judge, there are 500 exhibits and if
4 we inadvertently missed one, I apologize. I can't tell you
5 that we did.
6 THE COURT: Do you know what the exhibit is?
7 Have you seen it before?
8 MR. LUPERT: It was the subject not only of
9 examination of this witness that I took but it has been the
10 subject of examination of ISI witnesses, of Isabel Czech,
11 who is an ISI executive, and it is just one of those
12 inadvertent things.
13 THE COURT: Maybe you can defer that to 2 o'clock
14 also and give Mr. Meserve an opportunity to refamiliarize
15 himself with the document and see whether he still objects.
16 Is there anything else you can do?
17 MR. LUPERT: The only other exam that I had
18 planned on doing, your Honor, was to take him through the
19 Fitch letter. There is one point about the Fitch letter
20 that is --
21 THE COURT: Which is the Fitch letter?
22 MR. LUPERT: The Fitch letter is Exhibit 53,
23 which is the mass mailing to 40,000 physicists.
24 THE COURT: 53, yes, I have.
25 MR. LUPERT: 53.
388
1 BY MR. LUPERT:
2 Q. Do you have 53 in front of you? Could you just
3 tell us who Val Fitch is?
4 A. Val Fitch, if he's still alive, he was the
5 elected volunteer president of the American Physical Society
6 in 1988.
7 Q. Was he a Nobel laureate?
8 A. He is a Nobel laureate.
9 Q. He is a Nobel laureate?
10 A. Yes, sir.
11 Q. And he is at Princeton University?
12 A. He is still at Princeton University, although
13 retired.
14 Q. At the time -- is it Dr. Fitch?
15 A. Yes, of course.
16 Q. Dr. Fitch wrote "measured by the ratio of the
17 number of citations to the cost of the journal." Do you see
18 that, "measured by the ratio" --
19 A. Yes, I do.
20 Q. Is the number of citations, in your mind,
21 equivalent to impact?
22 MR. MESERVE: Objection, your Honor. This is not
23 a letter that was prepared by this witness. I don't know
24 that this was processed through him in any way.
25 THE COURT: Apart from this letter, on your
389
1 understanding of the Barschall study and conclusions and
2 methodology, is the number of citations the same as impact?
3 THE WITNESS: I'm not sure, your Honor. But I
4 believe number of citations means total number of citations
5 to a journal or an author. I believe the impact means the
6 average number of such citations per article in the journal.
7 THE COURT: And that's the difference?
8 THE WITNESS: In my mind, sir. But I may not --
9 I may be wrong.
10 MR. LUPERT: Judge, I would like to, then, just
11 defer the rest of this, which may go away, and the question
12 of this exhibit which somehow mysteriously has disappeared.
13 THE COURT: All right. We will be adjourned
14 until 2 o'clock.
15 (Luncheon recess)
16
17
18
19
20
21
22
23
24
25
390
1 A F T E R N O O N S E S S I O N
2 2:05 p.m.
3 HARRY LUSTIG, Resumed.
4 MR. MESERVE: Your Honor, we have one issue we
5 would like to deal with before we resume with Dr. Lustig.
6 You had asked us to keep you informed of
7 scheduling for the trial. We have entered a number of
8 stipulations, as the Court has noted, in an effort to try to
9 streamline things. For one reason, that doesn't seem to
10 have worked in shortening things. That's not a disparaging
11 remark at all. It's just an observation.
12 Mr. Lupert has two witnesses, and after
13 Dr. Lustig is through, we had designated eight witnesses and
14 had hoped that some of them might drop by the wayside based
15 on what sort of case the plaintiffs put in. The likelihood
16 is that, here it is Wednesday, that we are going to finish
17 on Friday seems to me to be negligible. My best current
18 estimate is that we are probably into at least Tuesday
19 before the case is submitted.
20 THE COURT: Well, thank you for alerting me to
21 that. As chance would have it, that is not going to create
22 a problem. That is, I am going to be available.
23 MR. MESERVE: We have one -- I just wanted, so
24 that the Judge is aware of one additional issue. Mr. Lupert
25 indicated over the break that he has a witness who is here
391
1 as an expert that he needs to get on this week.
2 THE COURT: He wants to take him out of turn.
3 That is no problem, so far as I am concerned.
4 MR. MESERVE: We are trying not to do that, but
5 what we have is, we have several witnesses who are only
6 available this week because we rearranged schedules. We
7 have an 81-year-old man, Nobel laureate, who we are bringing
8 in -- he is coming in today, and I am reluctant to make him
9 come back next week. So what our intention is, we have
10 named Dr. Lustig as our witness, to let Mr. Lupert complete
11 his examination. Dr. Lustig can be here next week, and I
12 would do the examination that I would have otherwise done
13 now of Dr. Lustig.
14 THE COURT: Sure. You can reserve your right.
15 I thought we had left the question whether there
16 is a claim based on the Barschall methodology of superior
17 quality apart from cost. It's relevant because the
18 plaintiffs' proposed injunction includes an injunction,
19 commercial utilization of the Barschall methodology, to show
20 that any journal that is published by the plaintiffs is
21 inferior. Has there been any further thinking on that
22 issue?
23 MR. MESERVE: We had a very brief conversation
24 about that, your Honor. There is certain data that is in
25 the Barschall survey that, as to citation impact, that does
392
1 have a bearing, is a measure of some sort. It does relate
2 to quality in that it is reasonable to believe that journals
3 that are highly cited are cited for a reason. The
4 methodology, however, is clearly designed to show the cost
5 effectiveness of various periodicals. It would be our
6 intention in the future to use the survey in terms of
7 observations as to matters relating to cost effectiveness.
8 Now, we don't believe that we have ever made a
9 claim that relates to quality in isolation from
10 consideration of cost. Mr. Lupert did point to a draft of a
11 letter that is part of Exhibit 65, which was this letter
12 that is signed by Mr. Howitt. That too does use the word
13 "quality," but it is in the context that "The research
14 places our publications" -- and I am quoting -- "in the
15 highest ranks of quality and value." So even when the word
16 "quality" was used in this draft letter, that was never
17 sent, it has always been in the context of considering the
18 issue in the context of value or cost.
19 And so, your Honor, I don't think that, under any
20 stretch of the circumstances, we have never contemplated
21 using and do not contemplate using the Barschall survey for
22 something that relates to quality in isolation. If
23 Mr. Lupert wants to explore this issue with Dr. Lustig, I
24 think that further stipulations are unlikely to satisfy him,
25 and probably the easiest and shortest thing is to just let
393
1 the case proceed.
2 MR. LUPERT: Judge, I wonder whether Mr. Meserve
3 would in fact then stipulate that they in the future,
4 regardless of the outcome of this case, will not use the
5 Barschall methodology to make statements about the quality,
6 relative quality, of them as a publisher or their journals.
7 If I heard him right, that is what he is saying, and I don't
8 understand why it is, if they are not going to do that in
9 the future, they won't simply agree not to do it in the
10 future as a matter of record. It seems a very easy solution
11 to this whole conundrum.
12 MR. MESERVE: I have not conferred with my
13 clients about that, your Honor, and I don't think that under
14 any circumstances Mr. Lupert is entitled to an injunction or
15 entitled to make that request, and I decline to.
16 THE COURT: I am not inclined to compel further
17 comment by Mr. Meserve with respect to that. What
18 Mr. Meserve said is a matter of record.
19 If your point is that, as the issues, the real
20 issues, get narrower and narrower, the necessity for this
21 litigation, other than litigation for the sake of
22 litigation, which I know is a separate serious issue, keeps
23 diminishing. I certainly agree.
24 I have said to the parties on numerous occasions
25 that I have a real concern whether the inability to resolve
394
1 this case by a stipulation -- because the areas, I think, of
2 bona fide dispute are very narrow -- raises the question of
3 whether the litigation has a life and purpose of its own.
4 But I think we have resolved the quality issue as much as it
5 is going to be resolved in this colloquy.
6 MR. LUPERT: I just would respond, from the
7 plaintiffs' point of view -- I have been involved in this
8 case for a very long time, and I had mentioned before,
9 without detailing it because I think it's inappropriate,
10 given the restrictions on going into prior settlement
11 discussions, that from the plaintiffs' point of view, I
12 personally, my firm and my clients, have sought a solution
13 to this, have offered numerous suggestions, and
14 unfortunately they have just not been accepted, and we are
15 open -- and I mean this as sincerely as I know how to say --
16 to suggestions.
17 THE COURT: Well, it's a non-jury case. If there
18 were a jury here, I would be spending a great deal of time
19 with you trying to be a catalyst to a consensual resolution
20 of this case. But I am the fact finder, and so you have to
21 fend for yourselves, unless you want to go to a magistrate,
22 and I really think the level of sophistication and quality
23 of counselling and so on makes that not an appropriate thing
24 to do.
25 MR. LUPERT: We have an open issue. I had noted
395
1 that the objections to documents include each of the
2 writings that would constitute the secondary uses. I note
3 the Court's comment earlier today before the break that
4 question, I guess it was, isn't it true that the secondary
5 uses by and large do find their way into specific
6 statements, that is, written statements, and I alert the
7 Court that there is this objection. So I find myself,
8 either I have to press forward to introduce these documents,
9 or I have to have Mr. Meserve agree that these documents can
10 go in. Otherwise, the record will be devoid of any evidence
11 as to what exactly the -- what we claim the advertising or
12 promotional message is.
13 THE COURT: Why don't you offer the exhibits and
14 see whether there is an objection or not.
15 MR. MESERVE: There is an objection. They have
16 just handed it to me.
17 Your Honor, we did make an objection. In light
18 of the stipulation, we didn't see why the record should be
19 burdened with these documents. We would, in light of the
20 fact that that has not been successful in shortening this
21 trial, we would be prepared to reexamine that issue, and I
22 think most of these documents are ones that we would be
23 prepared to withdraw our objection to.
24 THE COURT: Very well.
25 MR. LUPERT: Why don't I just present them to the
396
1 witness quickly and see whether there is an objection to any
2 specific ones. With the Court's permission, that might be
3 the most efficient way to do it.
4 DIRECT EXAMINATION (Resumed)
5 BY MR. LUPERT:
6 Q. I had presented to you before, Dr. Lustig, an
7 exhibit, which has been marked 53 -- it's the letter from
8 Professor Fitch, the Nobel laureate, as you described him,
9 from Princeton to colleagues.
10 A. You described him that way, sir.
11 Q. I'm sorry, sir?
12 A. You described him that way, in your question.
13 Q. I described him what way?
14 A. As a Nobel laureate.
15 Q. I lost you on this. Is he not -- I did
16 misremember. Is he a Nobel laureate or isn't he?
17 THE COURT: It doesn't matter whether he is or
18 isn't.
19 MR. LUPERT: I lost the point of the statement.
20 Q. You, in this letter, "Dear colleague" -- may I
21 just show you my copy to expedite this? You know this was
22 sent?
23 A. Yes, it was sent. It was the annual --
24 THE COURT: That's all. Yes. Yes. You are
25 going to be asked a series of questions. Counsel has to
397
1 ask, for purposes of introducing exhibits in evidence, all
2 he wants to do is establish a foundation. He will ask you a
3 question which you can answer yes or no, and just answer it
4 yes or no.
5 THE WITNESS: Thank you, sir.
6 Q. If you would look at 53, it says "Dear
7 colleague." That is intended, I take it, to be the members
8 of the APS, correct?
9 A. Yes, sir.
10 Q. That's about 40,000 people, correct?
11 A. Yes, sir.
12 Q. And it's a letter that states, among other
13 things, "Measured by the ratio of the number of citations to
14 cost of the journals, the APS publications score among the
15 highest of all with some of our competitors, orders of" --
16 THE COURT: Now, Mr. Lupert, if you just want to
17 introduce them, you really don't have to read from them,
18 right? Why don't you, in one fell swoop, say, I show you
19 exhibits whatever through whatever and I offer them in
20 evidence.
21 MR. LUPERT: I offer this document in evidence.
22 THE COURT: 53 is offered in evidence.
23 MR. MESERVE: No objection.
24 THE COURT: Received.
25 (Plaintiff's Exhibit 53 received in evidence)
398
1 Q. In addition to this letter that was actually
2 sent, there have been two letters which were previously
3 identified by you as ones that were drafted, approved by the
4 APS Publications Committee meeting in September 1988, but
5 not sent. These are Exhibits 65, marked appendix B1 thereto
6 and B2.
7 I ask you, are these two letters actually letters
8 which were drafted, approved -- and I won't read to the
9 Judge what they say.
10 MR. LUPERT: And I would offer them in evidence,
11 if so.
12 A. I believe the first letter, the APS letter, was
13 approved. I do not believe the APS Publications Committee
14 could have approved or disapproved a letter from Mr. Howitt.
15 Q. But you know that the letter from Mr. Howitt,
16 marked as Appendix B2, was in fact a subject of discussion
17 as referred to in paragraph VI of the minutes of the
18 meeting, correct?
19 A. Yes.
20 MR. LUPERT: I offer --
21 THE COURT: 65?
22 MR. LUPERT: -- Exhibit 65 and its attachments.
23 MR. MESERVE: We have no objection to the two
24 drafts that are attached.
25 THE COURT: Received.
399
1 MR. LUPERT: Exhibit 65, your Honor, are the
2 minutes and indicate clearly in VI the fairly extensive
3 distribution. I would offer that document as well.
4 THE COURT: Yes, Exhibit 65?
5 MR. MESERVE: No objection.
6 MR. LUPERT: No objection, sorry.
7 (Plaintiffs' Exhibit 65 received in evidence)
8 Q. In addition -- and I will do this very quickly,
9 if you will, Dr. Lustig. You remember yesterday I discussed
10 with you that there was a perceived problem at the APS where
11 its members, that is, the physicists who got the copies of
12 the journals at a very low price, on occasion were
13 depositing them at the library, thereby saving the library,
14 on occasion, from having to buy at the more expensive price.
15 Do you recall that?
16 A. Yes.
17 Q. I mentioned to you that there was a concern that
18 the violators were voracious. Do you recall that?
19 A. Well, I -- I recall you saying that, yes.
20 Q. Do you agree that there was a perception, at
21 least among some people --
22 THE COURT: Do you have a document you want to
23 introduce?
24 MR. LUPERT: I have a document I want to confront
25 the witness with.
400
1 THE COURT: What is the exhibit number?
2 MR. LUPERT: 62, 63, and 67, which indicate --
3 THE COURT: What they indicate.
4 Is there an objection?
5 MR. MESERVE: No objection.
6 THE COURT: Received.
7 (Plaintiffs' Exhibits 62, 63, and 67 received in
8 evidence)
9 MR. LUPERT: It's too easy, Judge.
10 THE COURT: 62, 63, and 67 are received.
11 Q. In addition to written communications directly,
12 as we have just gone over, did you attend, on two occasions,
13 conferences of librarians at which Barschall's tables were
14 either shown on slide presentations or distributed?
15 A. I attended some committee meetings, I believe, at
16 which Barschall's -- some of Barschall's presentation formed
17 a small part of an overall presentation.
18 Q. Do you recall that, among the slides that you
19 actually showed at one of these meetings with librarians,
20 was Table 2, the Ranking of Publishers. And I will show
21 you, to refresh your recollection and move this along,
22 Exhibit 122. Is this a summary report of a meeting that you
23 held with numerous librarians?
24 A. Sorry, sir. May I read this, please?
25 There were six librarians present. If that's
401
1 numerous, that's --
2 Q. What organizations were they from, sir?
3 A. Various organizations.
4 Q. They were from organizations that represent large
5 numbers of librarians; isn't that correct?
6 A. Well, I have to see where they were.
7 Q. Anne Okerson was there, wasn't she?
8 A. Yes, she was there.
9 Q. She was from -- what's the name of that
10 organization, the AR --
11 A. The Association of Research Libraries, it's a
12 professional organization.
13 Q. How many libraries are in the ARL, approximately?
14 A. I have to estimate. I would say about 100.
15 Q. Of those 100, aren't they considered to be among
16 the most prestigious libraries in the United States?
17 A. They are the libraries with the largest
18 collections.
19 Q. And having looked at this document, do you now
20 recall that, among other things that you did is to put on a
21 slide show, and I don't mean that in a nasty way, but you
22 used slides to demonstrate various things about the APS, and
23 that one of the slides was table 2, the ranking of
24 publishers, and I would ask you to direct your attention to,
25 with the Bates-stamped numbers on the bottom, APS No.
402
1 005302. Do you see it there?
2 A. The slide show itself, sir, was a -- only a part
3 of that meeting. Most of the meeting was --
4 THE COURT: Apart from whether it's two minutes
5 or the entirety, was it done at the meeting?
6 THE WITNESS: Yes, sir.
7 Q. I point out to you, and is it not true, that
8 Henry Barschall was there and identified as the Chair of the
9 Publications Committee of APS?
10 A. Yes, sir.
11 Q. And the meeting in fact had been arranged by
12 Professor Barschall and Ms. Okerson of the ARL, correct?
13 A. I don't think -- I think it was arranged by
14 Dr. Okerson.
15 Q. Take a look at page 5294, the second page of this
16 document. I direct you to the line just before the final
17 paragraph, and I read to you and ask you if this is not
18 correct: "The meeting had been arranged by Barschall and
19 Okerson."
20 A. I'm sorry. Where are you looking, sir?
21 MR. LUPERT: Judge, may I approach the witness
22 just to show him where the line is?
23 THE WITNESS: I see it now. Yes, yes.
24 Q. So is that not accurate, it was Professor
25 Barschall himself who had arranged this, with Ms. Okerson?
403
1 A. I believe so, yes.
2 Q. And I would ask you now just one more question
3 about this document. If I could ask you to turn to the page
4 marked APS 005295, where it says "Presentation by APS," and
5 I ask you to take a look at the 6 bullet point or asterisk,
6 if you see it there?
7 A. The sixth one, you say, or six?
8 Q. Yes, No. 6.
9 A. Yes.
10 Q. It says, "Among the topics covered were the
11 consequent extraordinary cost effectiveness of APS'
12 journals. (This was demonstrated with extracts from the
13 Barschall 1988 Physics Today article and D a just released
14 Survey published in Optics News)." Do you see that?
15 A. Yes, sir.
16 Q. That's a correct statement?
17 A. Yes.
18 MR. LUPERT: I would offer this document in
19 evidence.
20 MR. MESERVE: No objection.
21 THE COURT: Received.
22 (Plaintiffs' Exhibit 122 received in evidence)?
23 Q. And finally, there was another meeting, was there
24 not, in approximately May of 1992, conducted by the ARL in
25 Charleston, South Carolina, I believe. Do you remember
404
1 that?
2 A. It was a meeting of the Scholarly Communications
3 Committee of the Association of Research Libraries, yes,
4 sir.
5 Q. I want to show you what has been marked as
6 Plaintiffs' Exhibit 130.
7 MR. LUPERT: Does the Court have a copy?
8 Q. I ask you to take a glance, if you would, at the
9 very first page. It's a fact, is it not, that someone on
10 your staff named Mona --
11 A. My secretary.
12 Q. I'm sorry?
13 A. My secretary.
14 Q. Your secretary, Mona, sent you enclosed -- sent
15 you sets of what is attached so that you could distribute
16 those sets to the attendees, correct?
17 A. I think she sent them for that purpose, yes.
18 Q. And indeed they were distributed, correct?
19 A. No, I don't think so, sir.
20 Q. While we are looking for something, I would point
21 out to you that it included the sets that were sent to you,
22 Table 1 and Table 2 from the Physics Today article, Table 2
23 being the ranking the of publishers, correct?
24 A. It says they include that, yes.
25 Q. It's the very last page of the way this has been
405
1 stapled. Do you see that?
2 A. I agree with that, yes.
3 Q. Excuse me just one second.
4 You testified in this case --
5 MR. MESERVE: What page number?
6 MR. LUPERT: November 8, 1994, Mr. Meserve, at
7 page 410.
8 Q. -- concerning this particular document, you were
9 asked the following question and gave the following answer.
10 Tell me if this testimony is correct. I asked you the
11 question -- Mr. Meserve, at the beginning of line 8:
12 "Q. And could you tell me whether this is in
13 fact the group of pages that you distributed at this meeting
14 in Charleston?
15 "A. I don't believe I distributed them. I may
16 have used them, but I don't believe I distributed them.
17 "Q. Why did you ask for 20 clipped sets?
18 "A. I'm sorry. Does it say 20 clipped sets?
19 "Q. It says at the bottom of the first page,
20 'enclosures, 20 clipped sets, one original.'
21 "A. Well then I stand corrected."
22 Did you so testify?
23 A. Well, I stand corrected about not having had
24 them. I do not stand corrected about not having distributed
25 them, sir.
406
1 MR. LUPERT: Judge, I would offer this in
2 evidence.
3 MR. MESERVE: No objection.
4 THE COURT: Received.
5 (Plaintiff's Exhibit 130 received in evidence)
6 Q. At either of the library -- let's go to the first
7 library convention. I just had one other question about it,
8 the one where you used Table 2 as a slide.
9 It is correct, is it not, that you did not in
10 your presentation concerning Table 2 state to the audience
11 any limitations, any qualifications with respect to that
12 particular table, correct?
13 A. I really don't recall exactly what I said when
14 the table was shown, sir, but --
15 Q. Let me --
16 A. Do you mean about the 20 percent lack of
17 significance of results or what?
18 Q. No.
19 A. I'm sorry.
20 Q. You're not familiar with Table 2. Do you have --
21 A. Yes, I am familiar with Table 2.
22 Q. Table 2 is the ranking of publishers?
23 A. Yes, sir.
24 Q. When you showed the slide, isn't it a fact that
25 you said nothing about any particular limitations that the
407
1 audience should take into account in taking account of that
2 material you were showing on the slide?
3 A. Sir, I have absolutely no memory what I said at
4 the slide show.
5 Q. At your deposition of the same date, page 121,
6 line 19 through the end of the page, were you asked the
7 following question and did you give the same -- did you give
8 the following answer, with respect to this slide show
9 presentation in November '91:
10 "Q. Did you talk about any of the caveats that
11 the audience should bear in mind when looking at this?
12 "A. Any caveats?
13 "Q. Any limitations on the usefulness of the
14 data.
15 "A. I don't see any limitations on it."
16 Is that a truthful statement?
17 A. That's a truthful statement, except for the --
18 MR. MESERVE: Your Honor --
19 A. -- Dr. Barschall's -- sorry.
20 MR. MESERVE: Objection, your Honor. This is not
21 inconsistent with Dr. Lustig's testimony. He said he
22 doesn't recall.
23 MR. LUPERT: He's saying --
24 THE COURT: Having heard that read, that question
25 and that answer, does that refresh your recollection as to
408
1 whether, when you were addressing the people at that first
2 library conference, you did or did not say anything with
3 respect to any limitations on the use of Table 2?
4 THE WITNESS: No, sir, it does not.
5 THE COURT: It does not, all right. Let's move
6 on.
7 Q. With respect to the second presentation in
8 Charleston, the one reflected on Exhibit 130 that we just
9 went over, the 20 sets --
10 THE COURT: I am a little confused. I thought
11 you reached a point where you wanted for the record to have
12 introduced the exhibits relevant to the prior commercial use
13 made by the defendants of the Barschall material. I
14 thought -- have you finished that now?
15 MR. LUPERT: With respect to the presentation to
16 librarians, because it is more than just showing a piece of
17 paper or a slide, there were statements made, and the only
18 other question I had --
19 THE COURT: You have one more?
20 MR. LUPERT: Literally one. It has to do with
21 whether --
22 THE COURT: It will take us longer to discuss it
23 than for you to ask the question.
24 MR. LUPERT: Thank you, sir.
25 Q. With respect to the second library presentation,
409
1 the one in 1992 in Charleston, it is true, is it not, that,
2 with respect to the tables from the Barschall survey, you
3 did not state to the assembled any limitations about them
4 whatsoever?
5 A. I, again, sir, I do not recall what I said.
6 Q. On this -- I think you answered this one very
7 clearly. And I would refer counsel to page 415, line 24,
8 through the next page, of just one question and answer:
9 "Q. What else did you say, sir, with respect
10 to any limitations" --
11 I'm sorry.
12 You said -- in fact you testified about the 20
13 percent error rate. You said you probably told the audience
14 about that.
15 A. Yes, right.
16 Q. And then I asked you the question:
17 "Q. What else did you say, sir, with respect
18 to any limitations, if any, whether Barschall had written
19 them or not? What, if any, limitations did you tell the
20 readers they should keep in mind when looking at either
21 Table 1 or 2?
22 "A. I don't think I particularly told them
23 about any limitations you should keep in mind."
24 Is that a truthful statement?
25 A. Yes, and when I was saying I don't recall, I'm
410
1 glad you reminded me that I did testify about the 20 percent
2 uncertainty.
3 Q. So, in fact, that is an accurate statement that
4 you now remember?
5 A. Yes.
6 Q. Before lunch, I gave counsel a copy of what we
7 had inadvertently left out, which was Exhibit 217B. I
8 understand from Mr. Meserve he has no objection to the
9 document.
10 THE COURT: 217B?
11 MR. LUPERT: 217B.
12 THE COURT: Received.
13 (Plaintiffs' Exhibit 217B received in evidence)
14 MR. LUPERT: Our concern, Judge, is that it
15 attaches 97A. Does your document include the attachment?
16 No. So you need 97A, which is the document referred to in
17 the exhibit.
18 Q. Let me put before you what has been marked as
19 217B --
20 MR. LUPERT: I'm having more trouble with this
21 one exhibit. I can't win on this exhibit. I very much
22 apologize and I'm embarrassed.
23 Can I just move this along by just showing the
24 witness my copy?
25 THE COURT: Yes.
411
1 Q. Do you recall that, in or around the early part
2 of 1990, you wrote a memo to Dr. Barschall concerning a
3 discussion that you had read in a newsletter from Marsha
4 Tuttle? Do you see that?
5 A. Yes, sir.
6 Q. Can you just in a sentence tell me who Marsha
7 Tuttle is?
8 A. Marsha Tuttle is a librarian -- I'm not sure
9 where -- who conducts an open newsletter with librarians,
10 other interested people, an electronic newsletter, on issues
11 of scholarly journals.
12 Q. And this particular issue happened to be
13 reflecting a panel discussion attended by Henry Barschall,
14 Eugene Garfield, and others, correct?
15 A. I'm not sure.
16 Q. I thought you had looked at it during the lunch
17 break, I'm sorry.
18 A. No, sir, I haven't.
19 Q. All right. I had given it to your counsel in
20 hopes of moving this along.
21 THE COURT: This is to Barschall, "whose foray
22 into journal cost analysis has brought him perhaps more
23 attention and notoriety than his chosen field of nuclear
24 physics." That's Marsha Tuttle's reduction of it?
25 MR. LUPERT: She has a way with the word.
412
1 A. I'm not sure whether that's hers or someone
2 else's. I think it's certainly true.
3 Q. I was going to focus a little bit more on what
4 Eugene Garfield had said, if I might. I would just like to
5 bring out, to the witness's attention, on the first page of
6 this, where you are sending it to Dr. Barschall, you say,
7 "We must do something to counter the dangerous misstatements
8 of people like Garfield." That's what it says, correct, yes
9 or no?
10 A. That's what it says.
11 Q. Just take a look at what Mr. Garfield said. He
12 is the fellow, at this point before lunch, that founded the
13 ISI. That much you know, right?
14 A. You said that. I know he wasn't the head before.
15 Q. And the ISI is the one that publishes the impact
16 factor?
17 A. I think so, yes, that's correct.
18 Q. Let's look at what Dr. Garfield said.
19 MR. LUPERT: Judge, I would refer you to the page
20 marked 4.
21 Q. I would just like to ask you a series of
22 statements on whether you agreed with this.
23 MR. MESERVE: Your Honor, I provided Mr. Lupert
24 with an extra copy of this exhibit. He doesn't need to hang
25 over the witness's head.
413
1 MR. LUPERT: I very much apologize. I didn't
2 realize you had it. Here. Take a look at this one. That
3 is the exhibit. We appreciate that, Mr. Meserve.
4 Q. Would you look at the statements by Doctor -- by
5 Mr. Garfield, please, beginning on No. 4?
6 A. Page 4?
7 Q. Do you see No. 4, do you see "Eugene Garfield"?
8 A. Yes.
9 Q. In remembering that you had used the phrase
10 "dangerous misstatements" about him, did you disagree with
11 his statements in the beginning of the second paragraph,
12 that if you did "an audit of not-for-profit firms, it would
13 look at a number of factors, including tax exemption, page
14 charges, preferential postage rates, subsidies. When these
15 are examined, the differences between them and the
16 for-profit publishers might not be so great," did you
17 consider to that be a dangerous statement?
18 A. I not only disagreed with it, sir, I was so
19 annoyed by that that I used the word "dangerous," perhaps
20 injudiciously, but, yes, I disagree with that, and I even
21 more disagree with the implication that an expert like
22 Mr. Garfield on citation analysis has really anything of
23 great insight to say about the economics of publishing
24 itself about the not-for-profit and for-profit publishers.
25 Q. Did you also consider it to be a dangerous
414
1 misstatement by the head of ISI that "There is also a
2 potential for misuse of statistics, since the same figures
3 can be given many different interpretations?" I'm quoting
4 the next paragraph, the last sentence.
5 A. Well, it's in general true about statistics, sir,
6 but if it is meant -- if that refers to the allegations or
7 the statements Mr. Garfield makes about costs and tax
8 exemption, I really think it would be dangerous to draw any
9 conclusions about Dr. Barschall's statistics from the
10 allegations about internal costs.
11 Q. In the very next sentence, the very next
12 paragraph, he says, "If an audit determines the
13 cost-effectiveness of various publishers, Garfield asked,
14 would librarians make journal purchase decisions based
15 solely on these factors? He hopes not, for not all factors
16 are equal."
17 Do you agree with that?
18 A. Oh, I absolutely agree. I would not make such
19 decisions as a librarian, either, solely based on
20 cost-effectiveness factors.
21 Q. Indeed, the fact that journals include review
22 articles or research articles need to be weighed, since
23 there is different value received?
24 A. I think so, that's correct.
25 Q. And "The size of the audience is another
415
1 significant factor, as is peer rankings of journal quality."
2 A. I'm not sure what he means by "the size of the
3 audience," but certainly peer rankings is extraordinarily
4 important.
5 Q. Do you disagree with Mr. Garfield, the founder of
6 ISI, that the size of the audience is another significant
7 factor?
8 A. Well, Mr. Garfield is no expert on the economics
9 of publishing. He is an expert on citation factors, and
10 unless I understood better what he means by the "size of the
11 audience," I would disagree.
12 Q. Then he says, "Impact is used to describe the
13 effect of citations. Quality evaluation, however, requires
14 more detailed content and context analysis."
15 Is that an example of a dangerous misstatement by
16 Mr. Garfield?
17 A. No. I think that's more or less a statement I
18 would agree with.
19 I might say the other thing I was annoyed with,
20 one is the allegation that we enjoyed -- we in the nonprofit
21 world enjoyed perks. Having just come over on a standby
22 basis on a Saturday night flight, I was really annoyed by
23 that.
24 MR. LUPERT: Judge, thank you very much for your
25 patience. I don't think I have any further questions.
416
1 THE COURT: Do you wish to reserve?
2 MR. MESERVE: I do wish to reserve, your Honor.
3 THE COURT: Very well. I take it you will be
4 back.
5 THE WITNESS: Thank you, sir.
6 THE COURT: You may step down.
7 (Witness excused)
8 MR. LUPERT: Shall we call our next witness?
9 THE COURT: Yes.
10 MR. LUPERT: Judge, our next witness is Donald
11 King. Mr. Plotz will examine.
12 DONALD W. KING,
13 called as a witness by the plaintiffs,
14 having been duly sworn, testified as follows:
15 DIRECT EXAMINATION
16 BY MR. PLOTZ:
17 Q. Mr. King, what is your field?
18 A. I'm a statistician by training, and I have been
19 working in the information science field for the last, about
20 30 years.
21 Q. How are you or have you been employed?
22 A. I graduated from school in 1960, and I have been
23 employed ever since then up until this past year.
24 Q. In what capacity were you employed?
25 A. In my first year, I was employed as a statistical
417
1 consultant for a statistical consulting company. After the
2 first year, I co-founded a company called Westat, which is a
3 statistical consulting company, and I was with Westat until
4 two years after it was acquired by another company. Then I
5 worked for a company called Infomatics for one year on a
6 particular project, and then started a group called the
7 Center for Quantitative Science as a division of another
8 company, and bought it out and changed the name to King
9 Research. And that happened in about 1976, and since then I
10 have been operating as King Research.
11 In 1993, I believe, I changed it to a sole
12 proprietorship and started thinking about retiring.
13 Q. Is that what you have done --
14 A. Yes.
15 Q. -- this past year?
16 A. Yes.
17 Q. Are you still doing work in your field?
18 A. I'm doing two, basically two things. I'm
19 lecturing. This last year I did teach a couple of college
20 courses. And I am also writing. I am primarily trying to
21 summarize some of the research that I have done in the past
22 that was proprietary in nature, in order to try to make it
23 available to the field of information science and libraries.
24 Q. Now, over the course of your work life that you
25 have just described, generally what kinds of work, what
418
1 kinds of assignments, have you done?
2 A. Well, initially, when we started the company
3 Westat, our first major contract was with the U.S. Patent
4 Office to look into designing experiments for evaluating
5 automated search and retrieval systems, and I actually
6 worked as a consultant for the U.S. Patent Office for about
7 nine years, I believe it was.
8 And at that time I began to work on other
9 information-related assignments as well, to the predecessor
10 of the National Technical Information Service and American
11 Psychological Association and some others, and in addition
12 to that I was doing some other work in the medical field,
13 and some highway operations, research kinds of things, as
14 well.
15 Then I began to get some work, do some work, for
16 the National Science Foundation. The first contract we had
17 with the National Science Foundation, I think, was around
18 1968, and it was to prepare a manual and a book on
19 evaluation of information services and products. And
20 following that, I started doing some other work for the
21 National Science Foundation, looking into the feasibility of
22 what was then called editorial processing centers. The
23 editorial processing centers was a concept that was to bring
24 together manuscripts of journal articles and take advantages
25 of economies of scale and technologies and so on in order to
419
1 begin to build electronic databases. And that study
2 involved some economics of the -- my work involved mostly
3 the economics of the -- looking into the editorial
4 processing centers.
5 In the early part of the 1970's, when I started
6 the Center for Quantitative Sciences, we began to get a
7 series of studies with the National Science Foundation,
8 mostly to look into what was called statistical indicators
9 of scientific and technical communication, and from that
10 followed on several other contracts, including a major
11 contract to look into electronic publishing. That work was
12 done in the late 1970's.
13 The work that we did for the National Science
14 Foundation was to -- really involved three kinds of
15 efforts. One of them was to begin to track the -- and
16 describe the scholarly scientific journal systems, and I did
17 that by drawing a sample of scientific journals, and this
18 was in 1977, and we took a subsample of those journals and
19 went back and obtained detailed information concerning those
20 journals back to 1960, concerning those journals with regard
21 to the number of pages in the journals, the number of
22 articles in the journals, the number of article pages, the
23 number of graphics, the number of authors, the number of
24 citations, and all of that kind of information. And we did
25 this in order to begin to develop trends to see what was
420
1 happening over the -- over time, as far as scholarly
2 publishing was concerned, because there's a lot being -- a
3 lot of change taking place, even back in those days. And
4 there was a sense that electronic publishing might be coming
5 already.
6 The other thing we did is to begin to look at
7 surveys of scientists and engineers. I was using initially
8 in the statistical indicators citation counts as a surrogate
9 nature for the use of or rating of scientific materials, or
10 scientific articles, and I decided to get away from that
11 because I didn't feel comfortable doing that because we had
12 discovered, contrary to popular belief at that time, that
13 there was substantially more reading of journal articles
14 than a lot of people had thought.
15 And so we did a national statistical survey of
16 scientists and engineers and obtained information about the
17 reading habits of scientific journals in particular.
18 I should point out, we also included technical
19 reports in a lot of the work that we did, but I seemed to
20 focus much more on the scholarly journals because I felt
21 that they were, in some ways, more important.
22 We also did a follow-up survey for the National
23 Science Foundation in 1984, again doing a national
24 statistical survey of scientists, engineers, to update the
25 data that we had from 1977.
421
1 In addition, during that time, I did several
2 other studies, but probably one of the most important is
3 that, following the 1976 copyright law, we did the major
4 study for the CONTU, to establish the extent of photocopying
5 in interlibrary loan and lending, and to determine what
6 impact the copyright law was likely to have on that.
7 And we also did the -- a five-year follow-up on
8 it, although I wasn't as involved in that way. The other
9 one I was heavily involved. The first one I was heavily
10 involved in.
11 We also did some work for the National Commission
12 on Libraries and Information Sciences, helped develop the
13 themes for the 1978 White House conference on national --
14 the National Conference on Information and -- Information
15 Services.
16 There was a period in there when we did a study
17 on the value of information for the Commission on Federal
18 Paperwork, and coincidentally did some work on determining
19 statistical aspects of data collection in the federal
20 government as well. But that led to a study for the
21 Department of Energy Office of Scientific and Technical
22 Information down in Oakridge, where we were asked to try to
23 come up with some measures of the usefulness and value of
24 the energy database, and we did that.
25 The client felt that it was important not only to
422
1 find out what the value of the information was, but also to
2 determine the contribution that intermediary services made
3 to that value, and libraries being an intermediary service.
4 So we got an additional contract partially funded by the
5 National Science Foundation to look into the value of
6 libraries and the contribution that they make to value of
7 information.
8 From that followed a number of studies that have
9 to do with -- that has to do with looking at libraries,
10 special libraries in particular, and their organizations and
11 the usefulness and value that they make -- the contribution
12 they make to the information that their users utilize.
13 Those studies involved -- were of two kinds. One
14 is, in every study we did a survey of users of information
15 in general, information provided from books and other
16 documents such as journal articles, and then we examined the
17 extent to which libraries contracted to that information.
18 And that involved a number of different government agencies
19 such as the National Institutes of Health, Department of
20 Justice, several, FBI, the -- a number of companies such as
21 AT&T, Bell Labs, the Kodak, the Bristol Meyers, Proctor &
22 Gamble, a large number of companies, and some government
23 laboratories such as Oakridge National Laboratories.
24 During this time also, we did, in addition to the
25 follow-up on the copyright law, we did a study to look at
423
1 the cost and benefits of copyright formalities, and I gather
2 that the result of that study helped lead to some rethinking
3 at the Bern Convention as part of the copyright community in
4 the U.S.
5 We also did a couple of studies for the American
6 Institutes of Physics. One of them had to do with looking
7 at the pricing policies of physics journals, and putting
8 that into a larger context, because I felt that there were a
9 number of things that affect demand for journals, for
10 example, with page charges, if you increase the cost of page
11 charges, it means that you may lose some quality articles,
12 which means it will affect the demand. The demand will
13 affect cost. And that will affect price and so on. So
14 there are a number of interactions that take place within
15 the American Institutes of Physics community, some of which
16 I provided quantitative data, some of which I provided
17 evidence from other studies and so on.
18 We did another study for AIP which I looked at
19 this morning. I can't remember exactly what we did. The
20 other one was so much fun that it just stands in my mind.
21 But -- and we also wrote an article for Physics Today. I
22 think it was published in 1982.
23 In 19 -- I think it was 1991 or '92, my wife was
24 given a fairly prestigious position down at the University
25 of Tennessee as a collaborating scientist, which was
424
1 partially sponsored by the Oakridge National Labs and the
2 University of Tennessee, and it was kind of like an endowed
3 chair but not -- a little bit different in some respects.
4 But so we decided to go down there, and I, at that time,
5 wanted to begin to pull together some of the data that I had
6 collected over the years, because so much of it was
7 proprietary.
8 And in addition, she got a contract at the
9 University of Tennessee with the National Sci |