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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,




                                                                341


   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,




                                                                344


   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




                                                                347


   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




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   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




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   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




                                                                355


   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




                                                                362


   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?




                                                                363


   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 Science Foundation

  10    to update some of the data that we had had since the 1970s,

  11    so we redrew some samples of the journals and did some

  12    additional journal-tracking work and that kind of thing.

  13    And I was able to add to that report the results of the

  14    aggregated scientific observations that we had had.  By that

  15    time, totally we had something like 20,000 survey responses

  16    from scientists and engineers and other professionals,

  17    mostly concerning the use of -- reading of journals and

  18    others, but also of the use of libraries, how they use

  19    libraries and so on.

  20               I continued to use -- well, I got a grant from

  21    the Special Libraries Association to pull together the data

  22    that we had from the special libraries.  I think we had

  23    something like 25 or 30 studies that we aggregated.  All of

  24    the clients agreed that we could use the information in an

  25    aggregated way if we didn't identify any individual




                                                                425


   1    responses from organizations, and my wife Jose Griffiths and

   2    I published a book called "Special Libraries:  Increasing

   3    the Information Edge."

   4               We hold -- I should also mention that we also did

   5    a lot of studies for -- for cooperative efforts of libraries

   6    across states.  We did statewide studies in New York,

   7    Massachusetts, Arizona, Wisconsin, Pennsylvania, Florida,

   8    Delaware, North Carolina, a whole bunch of states.  And in

   9    doing that, we obtained a lot of information about how

  10    libraries were used and how a library's properties were

  11    helping in the economics of library operations.

  12               MR. HUVELLE:  Your Honor, we don't have a dispute

  13    about the extent of the witness's experience in libraries.

  14               THE COURT:  I was wondering how long this was

  15    going to go on.  Mr. Plotz just asked him one question,

  16    and --

  17               THE WITNESS:  He said I should be elaborate -- I

  18    was instructed to be elaborate.

  19               THE COURT:  Not by the Court.  The Court's

  20    instruction is that you answer the specific question and do

  21    nothing more or less.

  22               MR. PLOTZ:  Well, I instructed him to be

  23    complete, and he took the instruction very literally.

  24               THE COURT:  Very well.

  25               MR. PLOTZ:  We can move on, however.




                                                                426


   1         Q.    Just briefly to finish up this area of the

   2    examination, are you a member of any professional societies?

   3         A.    I am a member of the American Statistical

   4    Association and the American Society of Information Science,

   5    and until I retired I was also a member of the Special

   6    Libraries Association.

   7         Q.    Have you taught in the area of information

   8    science?

   9         A.    I have.  I have taught as an adjunct lecturer at

  10    the University of Maryland and the University of Tennessee,

  11    and also had lectures at other universities, as well, by

  12    invitation, and I did a lot of workshops, so -- particularly

  13    in the library field.

  14         Q.    Have you received any honors and awards in

  15    information science?

  16         A.    The awards that I am most proud of are the --

  17    being the recipient of the Award of Merit of the American

  18    Society for Information Science, also the Research Award,

  19    the fourth recipient of that award, NASIS, Fellow in the

  20    American Statistical Association -- I'm particularly proud

  21    of that because my father also was a Fellow or was --

  22    retired.  And I recently was made an honorary member of the

  23    National Federation of Abstracting and Indexing Services and

  24    in recognition of lifetime achievement.

  25         Q.    Have you been retained as an expert in this case?




                                                                427


   1         A.    Yes, I have.

   2         Q.    Are you being compensated for your services?

   3         A.    No, no.

   4         Q.    Let me hand you Plaintiff's Exhibits --

   5               THE COURT:  You were retained as an expert by

   6    whom?

   7               THE WITNESS:  Pardon.

   8               THE COURT:  You say you were retained as an

   9    expert.

  10               THE WITNESS:  By the attorneys, Orans, Lupert, et

  11    al.

  12               MR. PLOTZ:  Counsel for the plaintiff.

  13               THE COURT:  For which you are not being

  14    compensated?

  15               THE WITNESS:  I am not being compen -- I was

  16    asked what my rate -- I kind of came into this a little bit

  17    reluctantly, the reason being -- I was asked by two lawyers

  18    to review Barschall's articles, and I was very happy to do

  19    that, and they came down to Knoxville when I was living down

  20    there, and I went over it, and I studied it fairly

  21    carefully.  And I felt that there were some -- might be some

  22    problems, and explained what those were.

  23               And they asked me if I would testify, and I said

  24    I would think about it.  And after awhile, I said, yes, I

  25    would testify, but I do not -- I do not want to be




                                                                428


   1    compensated because I don't want to be -- to appear to be

   2    adversarial.

   3               The reason for that is that the studies that I do

   4    oftentimes bridge across libraries and publishers and

   5    publishers of different kinds and things of that kind.  I

   6    think it's important for my information to be accepted as to

   7    not to have any appearance of being adversarial.  And that's

   8    the reason that I took that stand.

   9    BY MR. PLOTZ:

  10         Q.    Let me hand you Exhibits 2 and 3, which are the

  11    Barschall 1988 surveys, and ask you if those are the

  12    articles that you had been asked to render an opinion on.

  13         A.    Yes.  Yes, they are.

  14         Q.    Have you formed an opinion as to whether the

  15    surveys as reflected in Exhibits 2 and 3 reliably compare

  16    the cost effective -- the cost effectiveness of physics

  17    journals in connection with the acquisition decisions of

  18    libraries?

  19         A.    There are really a couple of problems that I have

  20    with the measures that were developed by Dr. Barschall, in

  21    terms of the -- well, the reason that the basis for my

  22    concern with his measures have to do with the fact that

  23    scientific journals tend to address different size audiences

  24    or different sizes of the subdisciplines.  It seems in

  25    science that there are some disciplines that are very broad




                                                                429


   1    in nature, but there are many subdisciplines that are rather

   2    narrow in nature, and that the journals, scientific

   3    journals, particularly the scholarly scientific journals,

   4    tend to be addressed to those disciplines and

   5    subdisciplines, and that the fact that journals cover

   6    different sizes of disciplines to me means that the two

   7    measures that were developed, the cost per character and the

   8    impact, are subject to some biases when comparing those --

   9    when comparing among journals.  I have no problem with

  10    comparing within a journal over time and so on, but I do

  11    have some problems with using those measures to compare

  12    across journals.

  13         Q.    Let me just stop you and ask you to look at one

  14    of the parts of the Barschall formula, and that's the cost

  15    per character, and ask you, what is the reason that a cost

  16    per character ratio is an unreliable measure for a librarian

  17    to use in comparing journals for acquisition purposes?

  18         A.    Scholarly journal publishing tends to have very

  19    high fixed costs that are associated with the preparation of

  20    the articles prior to any reproduction and distribution,

  21    and --

  22         Q.    What are some of those fixed costs?

  23         A.    Well, in journal publishing, there are really

  24    four components of cost that are involved, and one of those

  25    components is all the costs that are associated with article




                                                                430


   1    processing.  That includes the receipt of the article,

   2    making decisions whether to accept or reject it, sending it

   3    out to reviewers, doing editing, redaction, composition of

   4    those particular articles.

   5               The second component has to do with processing

   6    non-article text or parts of the journal.  That includes the

   7    cost of the -- preparing the cover, the table of contents,

   8    the letters to the editor, book reviews, editorials, and so

   9    on.

  10               The third component has to do with the actual

  11    reproduction and the distribution of the journals through

  12    subscriptions, and that includes the printing, wrapping,

  13    mailing, postage, and what's called subscription

  14    maintenance, which is fairly expensive.

  15               The fourth component has to do with what I call

  16    support activities.  It includes such things as marketing,

  17    administration, finance, budgeting, personnel operations,

  18    things having to do with copyright approvals, all of those

  19    kinds of things.

  20               THE COURT:  Am I correct that all of these things

  21    that you have discussed are reasons or causes of price

  22    differential?

  23               THE WITNESS:  Yes.  The read -- let me explain

  24    why that is.  And that is that a typical journal --

  25               THE COURT:  Just so that I can focus my




                                                                431


   1    question --

   2               THE WITNESS:  All right.  A typical journal --

   3               THE COURT:  The question you were asked is

   4    whether the cost per character ratio is an unreliable

   5    measure of cost differentials.

   6               THE WITNESS:  Among journals.

   7               THE COURT:  Yes.  But your response is an

   8    enumeration of the factors which cause the cost

   9    differential.

  10               THE WITNESS:  Right.  Now --

  11               THE COURT:  Those are two separate things, aren't

  12    they?

  13               THE WITNESS:  Well, what Barschall has done, and

  14    correctly so, what he has done is taken the -- see, what he

  15    has done is taken the price as a cost.  What he calls cost

  16    is the price of the journal.  That has nothing -- well, the

  17    price of the journal is affected by mainly two factors.  One

  18    is the cost to produce the journal and the number of

  19    subscriptions that you have, because you divide the number

  20    of subscriptions into the cost to produce the journal to

  21    establish what the price is, or at least how much you have

  22    to charge to at least recover the cost.

  23               The problem being that the fixed cost of journal

  24    publishing is very large, compared to the subscription and

  25    distribution cost, and, because of that, if you only have




                                                                432


   1    500 subscriptions, the cost and the cost per character must

   2    be at least somewhere between six and eight times the cost

   3    if you have 5,000 subscriptions.

   4               So you have kind of a chicken-and-egg thing,

   5    because from an economic standpoint we all know that if you

   6    increase the price of the journal the demand will go down at

   7    least some, but, on the other hand, you have the reverse of

   8    that, and that is that if you have a small population that

   9    you are serving, and therefore a small number of

  10    subscriptions, the price must be high.

  11               THE COURT:  It seems to me that one should ask

  12    two separate questions, and obviously it depends on what

  13    question is asked and what the purpose of the question and

  14    the answer is.  One question might be, do price

  15    differentials exist.  A second question might be, why do the

  16    differentials exist.  Those are two separate questions.

  17               THE WITNESS:  OK.  But to answer the first

  18    question, yes, there are price differentials.

  19               THE COURT:  Now, in determining the first

  20    question, only the first question, not the justification or

  21    respective value or so on, just on the first question, do

  22    price differentials exist, is cost per character a reliable

  23    measure?

  24               THE WITNESS:  It is a reliable measure of what

  25    the price per character that is purchased is, yes.




                                                                433


   1               THE COURT:  OK.  It is, I think you're saying,

   2    not a reliable measure to determine the justification or the

   3    necessity for those differentials, is that right?

   4               THE WITNESS:  That's right.  Now, if I may, the

   5    difficulty I have with a measure is not -- if one is

   6    measuring that cost per character over time for a specific

   7    journal, it tells you a great deal about what is happening

   8    with that journal, that is, are the costs going -- the

   9    prices going up and this kind of thing.  But if you are

  10    comparing one journal to another journal, the price of one

  11    journal may be high because the community that is being

  12    served is very low and therefore the number of subscriptions

  13    is very low.

  14               THE COURT:  But if I am a librarian and my task

  15    is to determine whether or not to subscribe to a journal,

  16    then if I am a good librarian, I know, internally, that is,

  17    from my faculty or my employer or so on, what my needs are,

  18    whether I need a very specialized publication on some very

  19    small field of interest to very few people but of

  20    interest -- I know that.  Right?

  21               THE WITNESS:  That's exactly right.

  22               THE COURT:  And so that's a determination that I

  23    make totally without --

  24               THE WITNESS:  That's right.

  25               THE COURT:  -- regard to Barschall or anything




                                                                434


   1    other than what I know from within my institution?

   2               THE WITNESS:  That's right.  Now, libraries have

   3    an alternative.  If their readers or their users aren't

   4    going to use a journal very much, there is an alternative

   5    source to get that, because they get it through interlibrary

   6    borrowing and document delivery, and there are some economic

   7    tradeoffs that have been established.

   8               THE COURT:  Now I know what type of journals I

   9    need, right?  And I think we have to assume that the

  10    librarian has some familiarity with these journals.

  11               THE WITNESS:  Yes, they do.

  12               THE COURT:  I surely do not, but the librarian

  13    does.  Given that knowledge, is the cost per character ratio

  14    a factor, a factor, which the librarian might consider in

  15    determining which journal to purchase?

  16               THE WITNESS:  In my view, the best measure, if it

  17    can be obtained, is the cost per use, the amount of reading.

  18    In other words, a journal can have a low cost -- low price

  19    per character and another journal a high price per

  20    character, but in either case the selection should be based

  21    on determination of the cost to the library compared with

  22    using alternative sources for that journal, not comparing

  23    the journals among themselves.

  24               THE COURT:  Cost per use in the physics community

  25    at large or within the library?




                                                                435


   1               THE WITNESS:  Within the library, by the library

   2    community.

   3               THE COURT:  Of course, that you know only after

   4    the fact, right?

   5               THE WITNESS:  Well --

   6               THE COURT:  You have already purchased and then

   7    you make the determination.

   8               THE WITNESS:  This is one of the advantages of

   9    what they call collection development at libraries, of

  10    collection development dealing with journals, and that is

  11    that -- there are two kinds of decisions.  One is that a new

  12    journal will come out, or in some instances a professor may

  13    come aboard and say we should have this journal or something

  14    like that.  But the second kind of decision has to do mostly

  15    with journals that you already have in the library and have

  16    already gained experience over the years, and I believe that

  17    most librarians know pretty well which journals are used a

  18    lot, and for the most part there is really no decision on

  19    those particular journals.

  20               Where the decision comes in is on a set of

  21    marginal journals, maybe 10 percent of them or 20 percent of

  22    them.  I -- I'm not a librarian so I can't say definitely.

  23    But in those instances, they use a number of different ways

  24    of making a decision as to whether to obtain those journals

  25    or not.  They will ask the faculty -- what they will




                                                                436


   1    sometimes do is send out a list of journals that they are

   2    thinking about canceling and ask the faculty or in a special

   3    library the professionals in the organization whether they

   4    should cancel those journals or not.  And they will get some

   5    feedback in that way.  They get feedback in other ways as

   6    well.

   7               But for the most part it is really mostly a

   8    decision concerning what you know about your library

   9    community and this kind of thing.  In a sense, all the cost

  10    per character does is kind of normalizes by the size of the

  11    journal.  It takes the size of the journal out of

  12    consideration and what the price is.  But there are some

  13    journals that cost $1,000 and you should subscribe to them

  14    because there is a need for those journals in the community.

  15    On the other hand, there may be journals that are only $50

  16    that you would have no need for; it may be cheap but you

  17    shouldn't get them because there is just no need for them.

  18               And the same thing holds with the cost per

  19    character.  There may be costs per character that are very

  20    high that you should take because the need for those

  21    journals may exist.  There may be cost per characters very

  22    low that you shouldn't take.  You shouldn't take it just for

  23    cost per character is all I'm saying.

  24    BY MR. PLOTZ:

  25         Q.    Now, can you illustrate the effect of the size of




                                                                437


   1    a discipline -- let me back up.

   2               Does the size of the discipline have an impact on

   3    the number of subscriptions to a journal?

   4         A.    Absolutely.

   5         Q.    What kind of impact is that?

   6         A.    Obviously, if you have a small discipline of

   7    1,000 or 2,000 people that are in the discipline, there is a

   8    cap as to how many subscriptions you could possibly expect

   9    for those.  On the other hand, you may have broad

  10    disciplines covered by the science, for example, science

  11    magazines, for example, where you have hundreds of thousands

  12    of readers, and the point is that, because of the character

  13    of the publishing cost, the price that must be charged in

  14    order to recover those costs, it has to be very high for

  15    small subscription journals and considerably lower for very

  16    large subscription journals.  I can give you an example of

  17    that, if I may.

  18         Q.    Could you give an example?

  19               THE COURT:  This is simply just another example

  20    of cost of publishing in any area, right?  You have the

  21    fixed costs, and once you have done all the editorial work,

  22    the difference between the press running 1,000 copies or

  23    10,000 copies is very small, right?

  24               THE WITNESS:  Well, the cost when you take the

  25    fixed cost across the 1,000 or 10,000 is very different.




                                                                438


   1    For example, typically, if you have 500 subscriptions, it

   2    probably will cost on the order of $800 to $1,000 in order

   3    to recover those costs.  If you have 5,000 subscriptions,

   4    the cost may be down around $100 to $150.

   5               And so that partially dictates price.  There are

   6    other factors that enter into price as well.  But the point

   7    is that, if you are using price in the way in which

   8    Barschall and others have used it, then it's unfair to -- if

   9    you have two journals that have exactly the same number of

  10    characters, the same number of articles and so on, and one

  11    of them may cost $1,000 because of the low population being

  12    served, the other one may cost only $150 or $200, and yet

  13    the Barschall will say that one is -- the rating of one is

  14    maybe five to ten times higher, and only because of the size

  15    of the discipline covered.

  16               THE COURT:  We are going to take a break.  But

  17    when we come back, the problem that I'm having is -- and it

  18    goes back to what I was asking before, and I think it's

  19    fairly critical -- the difference between saying these price

  20    differentials exist and its relevance to you, the librarian,

  21    who knows what the demands, the needs, are for the

  22    particular library at which you are employed and saying that

  23    there are perfectly good, valid reasons why the cost

  24    differentials exist, and that's what I want to pursue with

  25    you when we come back, but we will take a five-minute break.




                                                                439


   1               (Recess)

   2               THE COURT:  Well, Mr. King, I sort of left a

   3    question with you.  Do you have any comment?

   4               THE WITNESS:  Yes.  Going back to what the

   5    Barschall measure does, in effect what it is is the price

   6    paid for a piece of information.  That is what the measure

   7    is.  And it seems to me that, at least from the economic

   8    considerations, that it is irrelevant how big the document

   9    is, which is the normalization that Barschall is using, but,

  10    rather, it is a matter of trading off and comparing the cost

  11    of subscribing to those journals, the cost per use of

  12    subscribing to those journals, as opposed to the cost per

  13    use to going to alternative sources for the articles.

  14               Now, I am saying that recognizing that it is hard

  15    to measure use, and Bruce Kingma has done it and some others

  16    have done it in detail, but it is not done normally within

  17    the libraries.  Some have a sense of what the number of uses

  18    are.  But one of the most difficult -- it's a very difficult

  19    process in collection development.  It's one of the --

  20    there's a lot of art involved to it.  There is a lot of

  21    interaction between the librarians and their users and a

  22    sense that they gain about that.

  23               They use a lot of different techniques to

  24    determine what journals they should acquire and so on.  But

  25    I would be -- if you went to the extreme, the extreme being




                                                                440


   1    the only information that a librarian is going to use is the

   2    Barschall measures, they would be making some horrendous

   3    mistakes.

   4               THE COURT:  Because cost is not the only factor?

   5               THE WITNESS:  Because cost is not the only

   6    factor.  And the cost per piece of information or the price

   7    per piece of information is certainly not the only factor.

   8    BY MR. PLOTZ:

   9         Q.    Now, is there a difference between commercial and

  10    society publishers, a general difference in terms of the

  11    scope of coverage of their journals?

  12         A.    I don't know that for certain, but it certainly

  13    appears to me that society publishers -- there are really

  14    four kinds of publishers -- society, commercial, educational

  15    presses and other presses -- but it seems to me that in

  16    comparing the society publishers and the commercial

  17    publishers, that it appears that each of them has satisfied

  18    a particular niche, where the commercial publishers tend to

  19    develop small journals that satisfy the emerging small

  20    subdisciplines that emerge all of the time, whereas the

  21    society publishers tend to address a much broader audience

  22    where they have an entire society with membership and this

  23    kind of thing.  Whereas with the very small disciplines,

  24    other than with special interest groups within societies,

  25    that there really -- oftentimes it isn't big enough to




                                                                441


   1    really justify having a full society.

   2         Q.    Have you in your research developed any data

   3    relating to the average or median number of subscriptions

   4    for society versus commercial journals?

   5         A.    Yes, I have.  Could an exhibit -- I forgot what

   6    the -- the average number of subscriptions for society is

   7    very much larger than the average number of subscriptions

   8    for commercial journals.  Commercial journals, half the

   9    commercial journals have less than -- or, excuse me, about

  10    41 percent of commercial journals have fewer than 1,000

  11    subscriptions; whereas with societies, only about 6 percent

  12    have fewer than 1,000 subscriptions.  But I forget what the

  13    average is.  It's really gone out of my brain.

  14         Q.    Is there a value to scientists in having journals

  15    devoted to specific specialties?

  16         A.    In my view there is.  I think it's very important

  17    to be able to publish a group of articles that are bundled

  18    together in journals that have a -- are addressed to a

  19    specific subdiscipline so that when they go to get that

  20    information they know where to go to get it in a particular

  21    journal.  There has been some terms bandied about in the

  22    library community where they talk about just in case where

  23    you get -- you acquire journals just in case somebody needs

  24    them.  Now they've kind of gone to just in time, that is, to

  25    obtain the information when it is needed, but there is




                                                                442


   1    another aspect to that, and that is just review.  And that

   2    is that a --

   3               MR. HUVELLE:  Your Honor, I don't think this

   4    answer is responsive to the question.

   5               MR. PLOTZ:  I think if the witness is permitted

   6    to answer, it will be clear.

   7         A.    "Just review" means that you are bundling these

   8    two -- group of journal articles that will be just for a

   9    particular group of people.

  10         Q.    Did Barschall in his surveys take account of the

  11    effect of the potential size of readership on a journal?

  12         A.    No.

  13               THE COURT:  Let's go back to what he did and what

  14    he didn't do.

  15               THE WITNESS:  Right.

  16               THE COURT:  What you said is that it is

  17    misleading because cost is not the only factor, right?

  18               THE WITNESS:  That's right.

  19               THE COURT:  Do you have the two articles --

  20               THE WITNESS:  Yes, I do.

  21               THE COURT:  -- in front of you?

  22               THE WITNESS:  Yes.

  23               THE COURT:  In the bulletin -- is it your

  24    interpretation of these articles that he has said, in

  25    substance, that cost is the only factor to be considered in




                                                                443


   1    determining cancellation?  I understand --

   2               THE WITNESS:  No.  No, he doesn't --

   3               THE COURT:  He doesn't say that, right?

   4               THE WITNESS:  No, he doesn't.  He --

   5               THE COURT:  Indeed, I am looking at the Physics

   6    Today article, and he says, second sentence:  "Decisions on

   7    cancellations are usually based on the research interests of

   8    the users of the library."  You agree with that, don't you?

   9               THE WITNESS:  Yes.

  10               THE COURT:  "But the decision making process can

  11    be improved if a quantitative measure of the cost

  12    effectiveness of the journals is available."  Do you quarrel

  13    with that?

  14               THE WITNESS:  Here he is using cost

  15    effectiveness, of course, as "cost" being the cost per

  16    character and "effectiveness" being the impact measure.

  17               THE COURT:  Yes.

  18               THE WITNESS:  I don't see how that measure can

  19    help the librarian that much, I really don't.

  20               THE COURT:  The conclusion that he reaches, the

  21    most specific recommendation he makes is in his last

  22    paragraph.  He says, "Authors can help physics libraries by

  23    publishing their papers in journals that have a low cost per

  24    character."

  25               Now we have shifted from the librarian to the




                                                                444


   1    author.  That is a different decision making process, right?

   2               THE WITNESS:  That's right.  That's right.

   3               THE COURT:  And the author, I suppose, begins

   4    with an evaluation of the audience that he wishes to reach.

   5               THE WITNESS:  That's right.

   6               THE COURT:  And wants to reach the largest number

   7    of readers within that audience in the most prestigious,

   8    accepted journal, right?

   9               THE WITNESS:  Right.

  10               THE COURT:  Now, do you have any quarrel with the

  11    suggestion that, in that process, the authors' decision

  12    making process, the author should consider what the cost to

  13    the subscriber will be of the journal to which the article

  14    should be submitted?

  15               THE WITNESS:  I think the problem is, as I see

  16    it, that, if in fact all the authors abided by this

  17    recommendation, that what you would end up having is larger

  18    and larger journals.  That is, all of these small journals,

  19    because the price of them is so high, would end up migrating

  20    to the larger journals, that is, the larger subscription

  21    journals, where the subscription price is low.

  22               The problem with that is that, because the fixed

  23    cost of acquiring those additional journals or those

  24    different additional articles in the journals will mean that

  25    the price of those journals is going to have to go up, and




                                                                445


   1    as a consequence, what will happen is that people will --

   2    libraries will end up subscribing to journals where some of

   3    the articles are appropriate to their users, where another

   4    set of articles in those journals are not appropriate at

   5    all.  So they are paying for articles that aren't going to

   6    be used.  From a systems standpoint, it doesn't make sense

   7    to do what I have -- what he has suggested, from my view.

   8         Q.    Let me ask you -- you have the bulletin in front

   9    of you?

  10         A.    Yes, I do.

  11         Q.    In the listing, in Table 1 on page 1438, which

  12    lists journals in alphabetical order, does Barschall provide

  13    any information as to the potential size of readership as to

  14    any journal?

  15         A.    No.

  16         Q.    In your view, is that a flaw in what he did?

  17         A.    It's not a flaw in what he did.  It's a flaw in

  18    how he is suggesting the information be used.  The

  19    information he has is perfectly valid for some uses but not

  20    other uses.  In other words, there are some -- in

  21    interpreting the data, sometimes -- for certain uses it's

  22    perfectly valid.  For example, if I were a publisher, I

  23    would like to get this information over time so you could

  24    see whether the cost per character and the impact are

  25    changing over time.  But for a specific journal.  But I




                                                                446


   1    don't -- I am very uncomfortable with using it to compare

   2    journals.

   3         Q.    Why is that?

   4         A.    Because of the distortion that is inherent in

   5    comparing journals that serve small user populations and

   6    others that serve large populations, comparing those two

   7    journals.  Because the cost per character is bound to be

   8    different.

   9         Q.    Let me ask you now to take a look at Table 2 in

  10    the Physics Today article.  Do you have that?

  11         A.    Yes.

  12         Q.    That is the listing by publisher as opposed to

  13    journal.

  14               Did Barschall take account of the different size

  15    of potential readership in this table?

  16         A.    Not apparently.

  17         Q.    Was that a flaw, in your view?

  18         A.    In my view, yes.

  19         Q.    Why is that?

  20         A.    Well, again, it's a flaw in the sense in which he

  21    is interpreting the meaning of the data that he had

  22    presented.  Again, it would make sense to me if you took the

  23    AAS or the APS and used this data over a period, over time,

  24    and developed trends in both the average cost per character

  25    and the average cost to impact as an indicator to say things




                                                                447


   1    are changing and therefore we have to look to see why they

   2    are changing and so on.  But to compare one journal

   3    publisher against another to me doesn't make sense for the

   4    very reason I talked about, where you are compounding the

   5    error, it seems to me.

   6         Q.    When you say "compounding the error," what do you

   7    mean?

   8         A.    Compounding the bias of comparisons.  Because

   9    some -- I mean, clearly, society publishers tend to publish

  10    to a broader community than the -- and commercial publishers

  11    tend, it seems to me, to cater to smaller communities.

  12         Q.    Let me turn to the denominator of Barschall's

  13    formula, impact factor, and ask you what in your view is the

  14    reason that impact factor is not a reliable measure for

  15    comparing journals in making library acquisition and

  16    cancellation decisions?

  17         A.    Well, I believe that, in measuring the average

  18    number of citations per article in a journal, we will have

  19    some of the same fallacy as the cost per character, in the

  20    fact that I believe that small -- that journals that have a

  21    small potential readership will have a smaller impact

  22    factor -- no, they will have a larger impact factor -- I'm

  23    sorry -- it will have a smaller impact factor than the

  24    journals that cater to a larger potential readership.

  25               And the reason that I think that is that it seems




                                                                448


   1    to me that, if you just take the extremes again that if you

   2    have a small journal that is addressed to a population of

   3    about 2,000, that the number of citations to those journals

   4    is going to be substantially less than the number of

   5    citations to a very large journal such as science

   6    magazine -- large I mean in terms of number of

   7    subscriptions, because they have hundreds of thousands of

   8    subscribers and therefore are bound to have more citations

   9    to that journal.

  10               Now, I don't think that those extremes hold

  11    exactly in a linear way down to the very small journals, but

  12    I do think that there is a tendency for the number of

  13    citations to reflect the readership, and certainly there

  14    have been a number of studies which correlated the citation

  15    of articles to the readership of articles, and that kind of

  16    confirms what I have said.

  17         Q.    Does impact factor measure use at a particular

  18    library?

  19         A.    No.  No, that's -- that's another weakness, is

  20    that, if in fact impact, that is, the average citations per

  21    journal, or per article, reflects the amount of readership,

  22    it is reflecting the amount of readership across all of the

  23    scientists or engineers.  But, again, within the specific

  24    library, there may or may not be people that are -- they use

  25    it within -- from library to library or organization to




                                                                449


   1    organization is likely to be different, but doesn't

   2    necessarily reflect individual organizations.

   3         Q.    What is a half-life of citations?

   4         A.    A half-life of a citation is that, in measuring

   5    when a particular article is cited, a half-life means that,

   6    if you have a half-life of five years, it means half of the

   7    citations to that article took place in the past five years

   8    and half of the citations to that article took place beyond

   9    five years.

  10         Q.    And what is the half-life of science journal

  11    citations generally?

  12         A.    Generally the half-life is anywhere from about

  13    five to ten years depending on discipline.

  14         Q.    What period of time does the impact factor

  15    measure?

  16         A.    Two years.

  17         Q.    What effect if any does that fact have on the

  18    validity of using impact factor to compare journals?

  19         A.    There is a potential bias for the amount of

  20    citations that transpire beyond two years.  It may or may

  21    not be, but there is a potential for it.

  22         Q.    Is there a relationship between the number of

  23    readings of an article and the number of citations?

  24         A.    The number of readings and number of citations?

  25         Q.    Yes.




                                                                450


   1         A.    There has certainly been a lot said in the

   2    literature that there is a relationship between the number

   3    of readings and the number of citations.  I think

   4    intuitively that's probably true.

   5         Q.    Do you know what proportion of all readings

   6    citations constitute?

   7         A.    In the studies that we have done, we have

   8    estimated that the average readings per article ranges from

   9    about 500 to 1,000 readings per article depending on the

  10    field of science.  The number of citations to an article

  11    tends to be in the order of magnitude of around, anywhere

  12    from 10 to 20, perhaps, so you're only -- you're talking

  13    about far less than 5 percent of the readings are used for

  14    the purpose of citing those documents.

  15         Q.    What if any effect does that fact have, in your

  16    view, on the validity of using impact factors --

  17         A.    Potential bias?

  18         Q.    -- to compare journals?

  19         A.    It has the same potential -- well, there are two

  20    things that concern me about the amount of reading and

  21    comparing that against the citations.  One of them is that

  22    citations are done mostly by authors, obviously, and

  23    author -- most articles are written by academics, and yet

  24    most reading of scientific articles are done outside of the

  25    academic community, so that there is a tendency to -- that




                                                                451


   1    the information may be used entirely differently out in

   2    industry and government labs and this kind of thing than

   3    within the academic institutions, so that, even if there is

   4    a high correlation of the number of readings within the

   5    academic community and citations, it may not reflect the

   6    usefulness and the purposes for which information is used

   7    outside of the academic community.

   8         Q.    Now, let me ask you about putting the ratio

   9    together, cost per character over impact factor.  What is

  10    the reason in your view that combining these two measures in

  11    that way does not reliably compare journals in connection

  12    with libraries' acquisition decisions?

  13         A.    To the degree that the impact factor reflects the

  14    potential readership, that if you put that in the

  15    denominator with the cost per character in the numerator,

  16    you're getting a double whammy, you're compounding the

  17    effects of the potential readership.

  18         Q.    Could you just explain what you mean by that?

  19         A.    That means that, in comparing the average ratios

  20    among journals, that the bias towards the larger

  21    subscription journals is compounded.

  22         Q.    Do you believe that Barschall's formula should be

  23    used by a librarian in making acquisition decisions?

  24         A.    I think that Barschall's information has many

  25    very useful uses, but I personally, if I were a librarian, I




                                                                452


   1    would not use it.

   2         Q.    What should a librarian consider in making those

   3    decisions?

   4         A.    Well, the -- if the librarian has sufficient

   5    information, I would use it -- I would base it on the price

   6    of the journal and the extent to which the journal is used,

   7    and compare that against alternative sources for the

   8    information, and I would factor in other considerations, the

   9    accreditation requirements of the library, in an academic

  10    library, the desires of the community served.  If the

  11    library is -- I think that, in reading Michael Keller's

  12    report, he mentioned a number of things that are very valid

  13    in making decisions.  Certainly you have an archival

  14    interest in an academic library, not so much in special

  15    libraries.  Special libraries are somewhat different.  And

  16    of course they buy a lot of these journals too.

  17         Q.    Does the Barschall formula address any of the

  18    factors that you just mentioned in your previous answer?

  19         A.    No.  No.

  20               MR. PLOTZ:  I have no further questions.

  21               THE COURT:  Mr. Huvelle, you may inquire.

  22    CROSS EXAMINATION

  23    BY MR. HUVELLE:

  24         Q.    Good afternoon, Dr. King.

  25         A.    Mr. King.




                                                                453


   1         Q.    Mr. King.  Do you agree that the APS, AIP

   2    journals are the premier journals in physics?

   3         A.    They seem to be, yes.

   4         Q.    And do you agree that any reliable study of cost

   5    effectiveness of journals would show that the APS, AIP

   6    journals are the best?

   7         A.    Do they demonstrate that?

   8         Q.    In your judgment, would any sound analysis of

   9    cost effectiveness demonstrate that the APS, AIP journals

  10    are indeed the best?

  11         A.    Let's make sure that we're talking about what

  12    cost is, that if you're talking about cost or price -- and I

  13    think it's important to make that distinction and I don't

  14    mean to be arbitrary.

  15         Q.    Let me withdraw the question.

  16         A.    Yes.

  17         Q.    Dr. Barschall, in his analysis, used three

  18    measures; is that correct?  Cost per thousand characters,

  19    impact, and then the ratio --

  20         A.    Yes.

  21         Q.    -- of those --

  22         A.    Yes.

  23         Q.    -- two.  And am I correct that one of his points

  24    in the article which the Judge directed your attention to

  25    earlier was that the decision making process by librarians




                                                                454


   1    in terms of acquisition decisions can be improved if

   2    Dr. Barschall's measures are made available to librarians?

   3    Is that your reading of the article?

   4         A.    Yes.  That's what he seems to say.

   5         Q.    You have no quarrel with the notion that the data

   6    reflected in Dr. Barschall's measures should be made

   7    available to university librarians to assist, along with

   8    other information, in making acquisition decisions; is that

   9    correct?

  10         A.    It seems to me that librarians need to use as

  11    much information as they possibly can.  However, I do

  12    believe that, if they use that for the sole purpose of

  13    comparing one journal to another, that it can be misleading.

  14         Q.    But do you agree that, in addition to the other

  15    factors which you know librarians do look at when they are

  16    making acquisition decisions, do you agree that, if in

  17    addition Dr. Barschall's data is made available to them,

  18    that would be helpful to them?

  19         A.    Not particularly.  I just don't believe that it

  20    would be very useful.

  21         Q.    Can I ask you to look at your deposition, page

  22    90.

  23         A.    You're looking at the -- where I say, "That's

  24    right."  And you question, but you have --

  25         Q.    Let me -- the question was:




                                                                455


   1               "Q.    But you have no quarrel with the notion

   2    that the data reflected in those measures be available to

   3    university librarians to assist, along with other

   4    information, in making those decisions?

   5               "A.    No."

   6         A.    No, I don't have -- the point is that the data

   7    there, and they can -- they could use it, but I don't think

   8    that it would be particularly useful.  I don't -- well --

   9         Q.    And then did you say --

  10               THE COURT:  If there were a paragraph, if in

  11    Physics Today, if in either of those, if there were another

  12    paragraph and the paragraph said, "Many factors should enter

  13    into the decision making process of librarians, including

  14    especially the research interests of the users of the

  15    particular library."

  16               THE WITNESS:  Right.

  17               THE COURT:  "Also, it should be recognized that

  18    different cost considerations and interests are operative

  19    with respect to highly specialized journals having limited

  20    circulation."  If those two sentences were in these reports,

  21    would you have any quarrel with it?

  22               THE WITNESS:  Say that again, sir.  I -- I'm

  23    sorry to do that, but I want to make sure I understand

  24    exactly what you're saying.

  25               THE COURT:  Yes.  If there were a paragraph where




                                                                456


   1    it said, "Many factors should enter into the decision making

   2    process of librarians, including especially the research

   3    interests of the users of the particular library," if it

   4    said that --

   5               THE WITNESS:  Yes.

   6               THE COURT:  "Also, it should be recognized that

   7    different cost considerations and interests are operative

   8    with respect to highly specialized journals having limited

   9    circulation."

  10               THE WITNESS:  Now, I'm still not sure what you're

  11    saying, that --

  12               THE COURT:  Well, what I have said -- it seems to

  13    me that your main quarrel is that there is a need for the

  14    niche journal and that the costs of producing it are higher

  15    than --

  16               THE WITNESS:  That's right.

  17               THE COURT:  So if those two thoughts -- I think

  18    the first thought, about factors entering into the decision

  19    making process, I think is one but not both of these are.

  20    What I'm trying to find out, if Barschall had said those two

  21    things, one, many factors, the primary factor is the needs

  22    of your library and, two, recognize that when you're dealing

  23    with the highly specialized journals with limited

  24    circulation, there are different cost considerations --

  25               THE WITNESS:  That's right.




                                                                457


   1               THE COURT:  -- if it said those two things, would

   2    you then be content with it?

   3               THE WITNESS:  I would be content with it.

   4    BY MR. HUVELLE:

   5         Q.    Indeed, Mr. King, it's your opinion that the

   6    Barschall measures would be helpful to librarians, isn't it?

   7         A.    The only -- the way in which I think that the

   8    Barschall measures can be helpful is if the Barschall

   9    measures were obtained over time and one could see that

  10    the -- that there is, so the librarian could look at any

  11    particular journal, a particular journal, and not in

  12    comparison with other -- but with --

  13         Q.    Could you look at page 91 of your deposition --

  14         A.    Yes.

  15         Q.    Line 13.  It's a continuation of the questioning

  16    relating to the three measures and their use by librarians.

  17               "Q.    Would you agree that they would be -- they

  18    are potentially helpful criteria or measurements?

  19               "A.    I think they are helpful, along with many

  20    other factors."

  21               Was that your testimony?

  22         A.    Yes.

  23         Q.    Is that your testimony today?

  24         A.    I am qualifying that testimony by saying that

  25    they are helpful if you look at those factors over time for




                                                                458


   1    a particular journal so that you can see that the price per

   2    piece of information is changing over time or that the --

   3    well, that's more important.

   4         Q.    Are you saying, sir, that the data would be

   5    useful if Dr. Barschall had been permitted to do another

   6    analysis the following year and then the year after?

   7         A.    Yes.  It would be more useful with that.  But

   8    only for -- only to look at trends for that -- of a

   9    particular journal, not to compare journals.

  10         Q.    Let me ask you about the impact factor data that

  11    he used.  He obtained that from the Science Citation Index;

  12    is that correct?

  13         A.    Yes.

  14         Q.    Do you agree that that is the standard source of

  15    citation data?

  16         A.    Absolutely.

  17         Q.    Am I correct that you have no basis for believing

  18    that he relied on inaccurate or false data --

  19         A.    No.

  20         Q.    -- with respect to impact?

  21         A.    No, no indication of that whatever.

  22         Q.    Would you agree that citations are a measure of

  23    scholarly value?

  24         A.    I'm sorry.  Is a measure of?

  25         Q.    Scholarly value.




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   1         A.    It's certainly an indicator of scholarly value,

   2    yes.

   3         Q.    Do you agree that impact data are widely used by

   4    publishers, librarians, and scientists as a benchmark for

   5    comparing journals?

   6         A.    It is used by -- I don't know whether it's widely

   7    used, but it is used by librarians and -- by some

   8    librarians, and by some publishers.  I don't know so much

   9    nowadays how it's being used, but --

  10         Q.    Could you look at page 64 of your deposition,

  11    line 5:

  12               "Q.    Do you agree that the impact data that

  13    Professor Barschall used for his analysis are widely used by

  14    publishers, librarians, and scientists as a benchmark for

  15    comparing journals?"

  16               Then Mr. Lupert objects to the form of the

  17    question.

  18               "A.    Yes."

  19               Was that your testimony?

  20         A.    Yes.

  21         Q.    Is that your testimony today?

  22         A.    Yes.  "Widely" is a -- kind of an arbitrary term.

  23         Q.    In reporting --

  24               THE COURT:  Are you going to another area?

  25               MR. HUVELLE:  Not -- if you want to stop now,




                                                                460


   1    that's fine.

   2               THE COURT:  I have another matter at 4:30.  If

   3    you have one more question on the same area, that's fine.

   4               MR. HUVELLE:  Let me ask one more question.

   5         Q.    In reporting the records of your work for the

   6    National Science Foundation, did you write that, "Citation

   7    counts are commonly used as a surrogate measure of use and

   8    value"?

   9         A.    Yes.

  10               MR. HUVELLE:  I am content to stop there.

  11               THE COURT:  All right.

  12               MR. HUVELLE:  For the day.

  13               THE COURT:  We will adjourn until 10 a.m.

  14    tomorrow.

  15               May I see counsel in the robing room.

  16               (Adjourned to 10:00, Thursday, June 12, 1997)

  17

  18

  19

  20

  21

  22

  23

  24

  25




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   1

   2                        INDEX OF EXAMINATION

   3

   4    Witness                    D      X      RD     RX

   5    HARRY LUSTIG.............340

   6    DONALD W. KING...........416

   7

   8                         PLAINTIFF EXHIBITS

   9    Exhibit No.                                     Received

  10     53 ..........................................397

  11     65 ..........................................399

  12     62, 63, and 67 ..............................400

  13     122 .........................................403

  14     130 .........................................406

  15     217B ........................................410

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25