barschall.stanford.edu header gif

Main Index: Trial Testimony June 12, 1997

                                                                462


   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 12, 1997
  12                                            10:05 a.m.
        Before:
  13
                            HON. LEONARD B. SAND
  14
                                                District Judge
  15

  16

  17
                                APPEARANCES
  18
        ORANS, ELSEN & LUPERT, LLP
  19         Attorneys for Plaintiffs
        BY:  LESLIE A. LUPERT
  20         ROBERT L. PLOTZ
             PETER E. SEIDMAN
  21
        COVINGTON & BURLING
  22         Attorneys for Defendants
        BY:  RICHARD A. MESERVE
  23         JEFFREY G. HUVELLE
             SUSAN L. BURKE
  24

  25




                                                                463


   1               (Trial resumed)

   2     DONALD W. KING, resumed.

   3               THE COURT:  You may resume the stand.  I remind

   4    you, you are still under oath.

   5    CROSS-EXAMINATION (Continued)

   6    BY MR. HUVELLE:

   7         Q.    Mr. King, I would like you to look at two

   8    documents that have been marked as Defendants' Exhibit WW

   9    and Defendants' Exhibit VV.

  10         A.    Yes.

  11         Q.    WW is a copy of your resume?

  12         A.    Yes.

  13         Q.    And a list of your publications?

  14         A.    Yes, sir.

  15         Q.    And Exhibit VV is a brief biography that was

  16    included in one of your publications?

  17         A.    Yes, sir.

  18         Q.    In both of those documents, sir, you listed the

  19    important honors and awards that you had received?

  20         A.    Yes, sir.

  21         Q.    In particular, in each document, you highlighted

  22    the fact that in the 1970's you were recognized as one of

  23    the most ten cited authors in the field of information

  24    sciences?

  25         A.    Yes, sir.




                                                                464


   1         Q.    Is that correct?

   2         A.    Yes, sir.

   3         Q.    In each case when you cited, or when you referred

   4    to that fact, you used the citation count as a reflection of

   5    the quality of your own work; is that true?

   6         A.    Yes, sir.

   7         Q.    I would like you to -- strike that.

   8               You submitted a report in connection with your

   9    work in this case?

  10         A.    I'm sorry?

  11         Q.    You submitted a report in connection with your

  12    work in this case?

  13         A.    Yes, sir, I did.

  14         Q.    Regarding citation analysis, in that report you

  15    referred to an article by Linda Smith?

  16         A.    Yes, sir.

  17         Q.    You referred to that article as a particularly

  18    balanced review of the pluses and minuses --

  19         A.    Yes, sir.

  20         Q.    -- of citation analysis in your own judgment?

  21         A.    Yes, sir.

  22         Q.    And in your view, that represented a fair

  23    assessment of the strengths and weaknesses of that

  24    methodology; is that correct?

  25         A.    Yes, sir.




                                                                465


   1         Q.    I would like to show you a copy of the Linda

   2    Smith article, which is part of Defendants' Exhibit LLL, and

   3    refer you to page 88, and address your attention to the top

   4    left about six lines down.  There are several sentences.

   5    Let me read it to you:

   6               "In the case of journals, for example, the

   7    usefulness of citations as a measure of the journal's

   8    quality varies according to the function of the journal.

   9    News journals may be of high quality but infrequently cited.

  10    Until more is understood about the reasons for citing,

  11    citation counts can best be viewed as a rough indicator of

  12    quality.  Small differences in citation counts should not be

  13    interpreted as significant, but large differences may be

  14    interpreted as reflections of differences in quality and

  15    impact.  Results of citation counts should be compared with

  16    alternative quality indicators to look for correlations.

  17    The validity of the measure is most fragile in citation

  18    counts for individual documents and authors.  One can have

  19    more confidence in comparisons of counts based on larger

  20    units such as journals."

  21         A.    Yes, sir, I would agree.

  22         Q.    Do you see that?  And do you agree with those

  23    statements by Ms. Smith?

  24         A.    Yes, I do.

  25         Q.    Yesterday I asked you about the observation that




                                                                466


   1    you made in the early 1980's, that citation analysis or

   2    citation counts were commonly used as a surrogate measure of

   3    use and value.  Do you recall that?

   4         A.    Yes, sir.

   5         Q.    That was an observation that you made in one of

   6    the books that you wrote --

   7         A.    Yes, sir.

   8         Q.    -- reflecting the results of your various studies

   9    for the National Science Foundation; is that correct?

  10         A.    Yes, sir.

  11         Q.    In support of that observation, you cited a

  12    number of analyses that validated the use of citation

  13    counts; is that correct?

  14         A.    Yes, sir.

  15         Q.    Do you recall that you cited the work of Cole &

  16    Cole, who had found that citation data correlated highly

  17    with survey data in determining the quality of a scientist's

  18    work?

  19         A.    Yes, sir.

  20         Q.    Do you remember that you cited the work of Bush

  21    and others which compared citation rankings of journals in

  22    economics with a study using expert opinions to obtain

  23    similar rankings?

  24         A.    Yes.

  25         Q.    And found that the two rankings were, quote,




                                                                467


   1    remarkably close?

   2         A.    Yes, sir.

   3         Q.    Did you also cite the work of Cohen and Shannon,

   4    who found that peer judgments of the innovative quality of

   5    research papers in plant physiology correlated very highly

   6    with the rates of citations to these papers?

   7         A.    Yes, sir.

   8         Q.    Is it true that you cited a number of other

   9    authors and studies to the same effect?

  10         A.    Yes, sir.

  11         Q.    Is it true that in that publication you concluded

  12    that citation counts provide an excellent surrogate measure

  13    for use and/or value?

  14         A.    Yes, sir.

  15         Q.    In many instances?

  16         A.    Yes, sir.  In instances.

  17         Q.    In many instances?

  18         A.    In many instances, yes.

  19         Q.    When you said that it provided an excellent

  20    surrogate measure, you were using the term "excellent" in

  21    the normal sense of outstandingly good?

  22         A.    Yes.

  23         Q.    And of exceptional merit?

  24         A.    Yes.

  25         Q.    Do you recall, as you mentioned yesterday, that




                                                                468


   1    you had published -- you published an article in Physics

   2    Today --

   3         A.    Yes, sir.

   4         Q.    -- in the early '80s?

   5               And in that article, you referred to a study that

   6    had been done by Charles River Associates?

   7         A.    Yes, sir.

   8         Q.    That was a study that you supervised, you

   9    developed the survey questionnaire and the protocol?

  10         A.    Yes.  We actually conducted the survey for

  11    Charles River.

  12         Q.    And you were responsible for designing it?

  13         A.    Yes.  Yes, sir.

  14         Q.    And it was well designed --

  15         A.    Oh, very well, I would say.

  16         Q.    -- thorough survey?

  17               And you surveyed physicists?

  18         A.    Yes, sir.

  19         Q.    And you attempted to determine exactly which

  20    scientific journals physicists considered to be the most

  21    important, correct?

  22         A.    Yes, sir.  I think that was -- the terminology

  23    was most important or most frequently used --

  24         Q.    Right.

  25         A.    Yes.




                                                                469


   1         Q.    And as a result of that survey, you identified

   2    six scientific journals that were rated by physicists

   3    pursuant to your own study as the most important or the most

   4    frequently used?

   5         A.    Yes, sir.

   6         Q.    Correct?

   7               And those six journals were the Physical Review,

   8    all sections?

   9         A.    I'll have to -- I'm sorry.  If you will just read

  10    it, I'm sure from the document I'm --

  11         Q.    Well, why don't I --

  12         A.    Right.

  13         Q.    -- not test -- the point is not to test your

  14    memory --

  15         A.    Right.

  16         Q.    -- but to get it right.

  17               If you can look at Defendants' Exhibit BBB.  The

  18    six journals for Physical Review, all sections combined --

  19         A.    Yes, sir.

  20         Q.    Physical?

  21         A.    Yes, sir, I see it.

  22         Q.    Physical Review Letters, Journal of Chemical

  23    Physics, Journal of Applied Physics, Physics Today and

  24    Science?

  25         A.    Yes, sir.




                                                                470


   1         Q.    And that's page 44 of the article?

   2         A.    Yes, sir.

   3         Q.    That refers to that?

   4         A.    Yes, sir.

   5         Q.    And it's the left-hand column half-way down the

   6    page you refer to that study?

   7         A.    Right.

   8         Q.    You recall we discussed this in the deposition?

   9         A.    Yes, sir.

  10         Q.    Do you recall that four of those six journals

  11    were included in Dr. Barschall's --

  12         A.    Yes, sir.

  13         Q.    -- analysis?

  14         A.    Yes, sir.

  15         Q.    The two that were not were Physics Today and --

  16         A.    Science.

  17         Q.     -- Science?

  18         A.    Yes.

  19         Q.    Because they are general interest?

  20         A.    Right.

  21         Q.    But the others are all research publications?

  22         A.    Yes, sir.

  23         Q.    Do you recall, as well, that all four of the ones

  24    that, under your study of the views and judgments of

  25    physicists, all four of those under Dr. Barschall's analysis




                                                                471


   1    were ranked among the top 15 of the 200 journals that he

   2    studied?

   3         A.    I don't recall what the number is.  I know there

   4    is a little dispute as to whether -- what that -- but it

   5    was -- yes, those are certainly the journals ranking

   6    highest, correct.

   7         Q.    All four of the ones --

   8         A.    Oh, absolutely.

   9         Q.    -- you identified as top-ranked?

  10         A.    Yes, sir.

  11         Q.    -- he identified as top-ranked?

  12         A.    Yes, sir.

  13         Q.    Would you agree that the 19 -- the analysis that

  14    was prepared under your supervision, the survey of

  15    physicists, reveals a high level of correlation between your

  16    results, the views of physicists, and the results of

  17    Dr. Barschall's study?

  18         A.    Yes, sir.

  19         Q.    The two are correlated?

  20         A.    Yes, sir.

  21         Q.    With respect to impact data, I believe that you

  22    commented yesterday on the fact that that impact data

  23    relates to articles published over a two-year period?

  24         A.    I don't -- well, I don't recall saying that.

  25    Yes, but that's what -- that's the way the impact measure




                                                                472


   1    was done by Barschall, yes.  In other words, he took the

   2    articles published in '84 and '85 and took the citations to

   3    those articles and over that two-year period, as I recall.

   4         Q.    But did I understand you to suggest that it would

   5    have been better for him -- it would have been better if he

   6    had looked at --

   7         A.    A longer period of time?

   8         Q.    -- a longer period of time?

   9         A.    It seems to me that it would -- there had be some

  10    merit in doing it over a long period of time.  I'm not sure

  11    how much difference that would make, but there is a

  12    potential.  It's a little bit like sampling.  There's always

  13    a potential bias for non-response.

  14         Q.    But am I correct in understanding that you're not

  15    aware of any factual basis for suggesting that --

  16         A.    No.

  17         Q.    -- that the results would be different --

  18         A.    No, no, I have not.

  19         Q.    If he looked at a longer period of time?

  20         A.    I have absolutely no basis at all to think that

  21    it would be different.

  22         Q.    And it may well be that the data relating to that

  23    two-year period is representative of the data over a much

  24    longer period?

  25         A.    Yes, sir.  Yes, sir.




                                                                473


   1         Q.    In fact, in your deposition, when we discussed

   2    the differences between looking at the two-year period, as

   3    the impact factor does, and a longer period, you said that

   4    that's a nuance that's not terribly important; is that

   5    correct?

   6         A.    That's correct.

   7         Q.    Is it true --

   8         A.    May I qualify the statement?  And I only want to

   9    qualify it in this regard:  It depends on how the citation

  10    data are going to be used.  There are certain uses of

  11    citation data where the older data would have an impact but

  12    not for the purposes that we are talking about today.

  13         Q.    Is it true, as you have observed, that commercial

  14    publishers like to maximize profits?

  15         A.    Yes, sir.

  16         Q.    I believe you have noted a couple of times a

  17    study that suggested that, because of the nature of journal

  18    publishing, that publishers can increase their profits by

  19    raising their prices?

  20         A.    Up to an -- there's a point at which, if they

  21    raise it too high, they will begin to lose profit -- I mean,

  22    they will begin to lose -- profit.

  23         Q.    Isn't it true that at one point you did some work

  24    for AIP and recommended that they could raise their prices

  25    by as much as 60 percent and not lose any subscribers?




                                                                474


   1         A.    I believe that, in that study, what I suggested

   2    is that there was a great deal more sensitivity to price for

   3    individual subscriptions than to library subscriptions, and

   4    that they could, in the -- I believe it was increase the

   5    price of the library subscriptions by that much, without

   6    hurting -- now, I've done some studies since then that kind

   7    of corroborated that.

   8         Q.    Is it true that AIP did not follow your advice in

   9    that respect?

  10         A.    I was told that they did not follow my advice and

  11    I was told that they wished that they had.

  12         Q.    Because what they did was to charge far less than

  13    they could have?

  14         A.    I think it was -- now, I may be wrong about this,

  15    but I think it had to do more with the raising of the

  16    individual prices that they regretted.

  17         Q.    But is it true that you recommended they raise

  18    library prices --

  19         A.    Yes, sir.

  20         Q.    -- and they did not do that?

  21         A.    Yes, sir.

  22         Q.    Even though you said --

  23         A.    Well, I don't know what they did.  I -- they --

  24    Bob Marks one time remarked to me that he had wished that he

  25    had taken our advice, but --




                                                                475


   1         Q.    You were suggesting they maximize profits?

   2         A.    No.  No.

   3         Q.    You were suggesting they raise their prices?

   4         A.    Yes, sir.

   5         Q.    Is it true, as you have written in your report,

   6    that the viability of a journal is dependent on attracting

   7    high-quality manuscripts?

   8         A.    Yes, sir.

   9         Q.    Does that mean that if a journal fails to attract

  10    high-quality manuscripts, it will fail to gain subscribers

  11    or it will lose subscribers?

  12         A.    Well, in a -- there's an interactive effect

  13    there, having to do with the -- authors sometimes choose

  14    journals based on the -- one of the factors that they use is

  15    the demand, and therefore if there is a low demand for some

  16    journals, they won't go to it.  And if authors, good-quality

  17    authors, don't go to a journal, there will also be less

  18    demand.  So there's kind of an interactive effect there.

  19         Q.    But if we are confronted by a journal which has a

  20    low subscription rate, certainly one reason why that journal

  21    might have a low subscription rate is because the quality of

  22    the articles in the journal is low?

  23         A.    Yes.

  24         Q.    And there are other reasons why a journal might

  25    have a low subscription rate; is that correct?




                                                                476


   1         A.    Yes, sir.

   2         Q.    One would be the pricing strategy of the

   3    publisher?

   4         A.    Yes, sir.

   5         Q.    Another might be the reputation of the publisher?

   6         A.    Yes, sir.

   7         Q.    Another might be the quality of the marketing

   8    efforts?

   9         A.    Yes, sir.

  10         Q.    Is it true that, in the case of the journals

  11    studied by Dr. Barschall, in the ones that have low

  12    subscription rates, you do not know the particular reasons

  13    in the case of any individual journal why its subscription

  14    rate is low?

  15         A.    No, I do not.

  16         Q.    That would include the journals published by

  17    Gordon & Breach?

  18         A.    Yes, sir.

  19         Q.    Are you familiar with the Physical Review

  20    Journal?

  21         A.    Somewhat.

  22         Q.    How would you describe their subject area?

  23         A.    As I recall, it's a very broad subject area, and

  24    the articles themselves are pretty much review kinds of

  25    articles, and, as I recall, it's a very large journal.  It's




                                                                477


   1    got a lot of pages in it.

   2         Q.    What makes you say that they are review articles?

   3         A.    Well, that's -- that was my recollection of it.

   4    I -- I'm not sure about that.

   5         Q.    Isn't it true that the articles in the Physical

   6    Review Journal deal with very specialized subjects in

   7    physics?

   8         A.    That's my understanding, yes.

   9         Q.    Such as -- let me just give you a couple of

  10    titles -- "The Z Paren N Model of Grain Boundary Wedding,"

  11    "Electronic Spin Lattice Relaxation of Photo-Excited Triplet

  12    States in Disordered Organic Solids."

  13         A.    I'm not --

  14               MR. PLOTZ:  Judge, I object to the question.

  15         A.    I'm not a physicist.  I really can't comment on

  16    it, but it certainly sounds like a pretty specialized --

  17         Q.    Those don't sound like generalized subjects?

  18         A.    No, they certainly don't.  No.

  19         Q.    Each dealing with a fairly specialized area?

  20         A.    Yes, sir.  Yes, sir.

  21         Q.    In your review of Dr. Barschall's articles --

  22         A.    Yes, sir.

  23         Q.    -- do you agree that he accurately described what

  24    he did?

  25         A.    Yes, sir.




                                                                478


   1         Q.    Do you agree that his methods for collecting and

   2    analyzing the data were sound?

   3         A.    They appear to me to be sound, yes, sir.

   4         Q.    Do you recall in your report you stated,

   5    "Barschall normalizes the size of the journal in order to

   6    provide a common measure of cost per amount of article

   7    information" --

   8         A.    Yes.

   9         Q.    -- "received by the libraries."

  10         A.    Yes, sir.

  11         Q.    You recall making that statement?

  12         A.    Yes, sir.

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

  14    normalize the cost in that manner?

  15         A.    Yes, sir.

  16         Q.    You yourself -- I'm sorry.

  17               Within the field of physics, it should not make

  18    any difference whether you are using cost per character or

  19    cost per word in your analysis?

  20         A.    No.

  21         Q.    Is that correct?

  22         A.    I don't believe it makes any difference at all.

  23         Q.    You yourself have used cost per word in a lot of

  24    your work?

  25         A.    Yes, sir, I have.




                                                                479


   1         Q.    And you have also done many analyses using cost

   2    per article; is that correct?

   3         A.    Yes, sir, and I have used cost both from the

   4    standpoint of publication cost as well as the price that is

   5    charged.

   6         Q.    Right.  When I refer to cost, I'm usually

   7    referring to the price.

   8         A.    I know.  I know.

   9         Q.    And if you will interpret my --

  10         A.    Yes, sir.

  11         Q.    -- statements in that way.

  12               You have recognized in connection with the

  13    studies you have done for the National Science Foundation

  14    that, where there are variations in the number of articles

  15    and in the number of pages per article, that instead of

  16    comparing subscription price, to quote your words, perhaps a

  17    better indicator of price is price per article and price per

  18    kiloword page.  Is that correct?

  19         A.    Yes, sir.

  20         Q.    When you try to compare the cost of journals in

  21    the field of physics to eight other disciplines, you did so

  22    on the basis of cost per article or cost per word; is that

  23    correct?

  24         A.    Yes, sir, I did, and I also did it over time.

  25         Q.    Yesterday you provided an example, I believe, of




                                                                480


   1    two journals, one with a large base of subscribers and

   2    another with a smaller base of subscribers?

   3         A.    Yes, sir.

   4         Q.    And you explained why, in your judgment, under

   5    Dr. Barschall's analysis, a journal with a large number of

   6    subscribers would be rated higher than a journal with a

   7    small number of subscribers?

   8         A.    Yes, sir.

   9         Q.    You would agree that the conclusion from your

  10    example --

  11         A.    Let's clarify whether we're talking about the

  12    cost per character or the impact measure, because they are a

  13    little bit different.

  14         Q.    Well, if we're talking about the cost per

  15    character --

  16         A.    OK, good.

  17         Q.    In the example you gave, would you agree that one

  18    conclusion that can be drawn from your hypothetical is that

  19    one journal has a higher cost per character than the other?

  20         A.    Yes, sir.  It can have a higher cost per

  21    character than another.

  22         Q.    And you would agree that, under your

  23    hypothetical, that's an accurate conclusion?

  24         A.    Yes, sir.

  25         Q.    Insofar as Dr. Barschall has analyzed 200




                                                                481


   1    journals and he has ranked them by cost per character, you

   2    don't have any dispute that --

   3         A.    The re --

   4         Q.    -- those facts relating to cost per character are

   5    true, objective facts?

   6         A.    Yes, sir.

   7         Q.    Your quarrel is on the policy level, right?

   8         A.    Well, my -- the reason that I said what I said is

   9    that I was trying to distinguish between how that

  10    information is interpreted and how that information is used,

  11    and that's the only concern that I have about Professor

  12    Barschall's data.  I have absolutely no qualms at all about

  13    his doing a good job, a thorough job, and with good

  14    intentions.

  15         Q.    The work that you and Dr. Kingma have done in

  16    your professional careers has one area of overlap, doesn't

  17    it, in terms of your analysis of whether libraries ought to

  18    purchase journals or use some article delivery service or --

  19         A.    Yes.

  20         Q.    -- interlibrary loan?

  21         A.    Yes, sir.  Yes, sir.

  22         Q.    Both of you have recommended that libraries ought

  23    to cancel subscriptions of high-price journals that have

  24    relatively low readership?

  25         A.    That's -- yes, sir, and by the community served




                                                                482


   1    by the library.

   2         Q.    Could you look at PX 2.

   3         A.    I'm sorry, which?

   4         Q.    Plaintiffs' Exhibit 2.

   5         A.    That's the Bulletin of the American --

   6         Q.    Right.

   7         A.    OK.

   8         Q.    Can you turn to Table 3.

   9         A.    Yes, sir.

  10         Q.    Page 1442.

  11         A.    Yes, sir.

  12         Q.    Ranks 200 journals by cost per character?

  13         A.    Yes, sir.

  14         Q.    And the cost of the first one is .39?

  15         A.    Yes.

  16         Q.    And if you go to page 1443 and the bottom of the

  17    list, if you look to the first one that is listed with the

  18    cost per character over 14, do you see that?

  19         A.    That's on page 1444?

  20         Q.    Right.

  21         A.    Yes.

  22         Q.    The bottom 14 journals.

  23               1444.

  24         A.    Right.  The ones greater than 14.

  25         Q.    Right.




                                                                483


   1         A.    Yes.

   2         Q.    Starting with "Crystal Lattice Defects" by Gordon

   3    & Breach at 16?

   4         A.    Yes, sir.

   5         Q.    Do you see that almost all of the ones following

   6    that are Gordon & Breach journals?

   7         A.    Yes, sir.

   8         Q.    Do you have any explanation of why the Gordon &

   9    Breach journals are so expensive compared to the other 200?

  10         A.    I suspect that it is because the audience in the

  11    subscription -- number of subscriptions is low.

  12         Q.    Do you think that the other 186 journals all have

  13    different audiences?

  14         A.    I don't know.  I really don't know.

  15         Q.    Did you inquire whether there is anything

  16    regarding the business practices of Gordon & Breach which

  17    would account for the high level?

  18         A.    May I inquire --

  19         Q.    I'm sorry?

  20         A.    I'm sorry.  Did I inquire about the high level?

  21         Q.    In connection with your work for Gordon & Breach

  22    in this case --

  23         A.    No, no, no.

  24         Q.    -- did you ask what the profit margin is for

  25    Gordon & Breach?




                                                                484


   1         A.    No.

   2         Q.    That could account for the high cost, could it

   3    not?

   4         A.    Yes, sir.  Yes, sir.

   5               MR. HUVELLE:  Your Honor, if I may have one

   6    minute?

   7               (Pause)

   8               I have nothing further, your Honor.

   9               THE COURT:  Mr. Plotz, redirect?

  10               MR. PLOTZ:  Yes.

  11    REDIRECT EXAMINATION

  12    BY MR. PLOTZ:

  13         Q.    Mr. King, on the last point that Mr. Huvelle

  14    asked you, with respect to what could account for the

  15    placement of Gordon & Breach journals, besides profit, are

  16    there other factors -- besides profit and size of the

  17    potential readership, subscriptions, are there other factors

  18    which can contribute to the price of a journal?

  19         A.    Probably the -- probably the most important one

  20    would be the size of the potential audience, the potential

  21    readership, but there are a number of factors that enter

  22    into whether or not the journals are subscribed to or not.

  23    If it's a society journal, obviously the membership can

  24    determine the personal subscriptions, and there are factors

  25    that enter into it.




                                                                485


   1         Q.    Are some journals more profitable than other

   2    journals within a publisher?

   3         A.    I don't know.  I have never seen anything

   4    recorded in the literature about the profit of journals --

   5    of commercial journals.  The only thing that I have seen in

   6    the literature is a study that was done in the 1970's that

   7    indicated across all commercial publishers the profit was

   8    about 14 percent before tax and the authors reported that

   9    would be about 7 percent after tax.  And there are -- a

  10    couple of articles have suggested that the profit is around

  11    10 percent.

  12               There was an article recently by a librarian who

  13    quotes a Forbes article that said that one publisher had

  14    roughly a 40 percent profit but that probably included trade

  15    journals, but there is just very little infor -- a lot of

  16    speculation about how much profit publishers make but very

  17    little really good data on that.

  18               My sense is that probably journals are a little

  19    bit like books in that publishers do very well on some books

  20    and lose on others.  I suspect that some journals are

  21    marginal or perhaps lose a little bit, and there are some

  22    that do very well, within a publisher.  But that's

  23    speculation.  I don't know that for sure.  That's just an

  24    intuitive feeling that I have about the field.

  25         Q.    Now, Table 3 that you looked at from the Bulletin




                                                                486


   1    article, does Table 3 say anything about the subscription

   2    size of any journals?

   3         A.    No, sir.

   4         Q.    Do you know, from looking at Table 3, what the

   5    subscription size of any journal is?

   6         A.    No.  No, I don't.

   7         Q.    Is that, in your view, information -- let me

   8    start over.

   9               Is knowing the number of subscriptions to a

  10    journal information that, in your view, would be necessary

  11    to properly interpret the cost information --

  12         A.    Yes.

  13         Q.    -- it contained?

  14         A.    Yes.

  15         Q.    Could you explain that?

  16         A.    The reason is that, in a way, that would be kind

  17    of a way of normalizing those prices, and so that it would

  18    make comparison much more meaningful if you know the -- I'm

  19    talking now about comparison among the journals, much more

  20    meaningful if you knew what the number of subscribers were.

  21         Q.    You said in answer to one of Mr. Huvelle's

  22    questions near the end of the examination that your concern,

  23    or one of your concerns with the use of the cost per

  24    thousand, as Barschall did, was in how that information is

  25    used.




                                                                487


   1         A.    That's right.

   2         Q.    Could you explain what that concern is?

   3         A.    Well, it's just that if the cost per character

   4    reflects a low subscription, then -- and that subscription

   5    is also -- represents a small potential readership, then

   6    it's unfair, perhaps even unwise, to compare that against a

   7    very large subscription journal where the price is bound to

   8    be much lower and, therefore, that the cost per character is

   9    bound to be much lower, for the reason of the size.

  10         Q.    Why is it unfair or unwise to make that

  11    comparison?

  12         A.    Because, if one is comparing the merits of one

  13    journal against the other, it just seems to me that it

  14    doesn't make sense.

  15         Q.    Now, you ticked off in answer to Mr. Huvelle's --

  16    some of Mr. Huvelle's questions some factors that can affect

  17    subscription size other than the size of potential --

  18         A.    Yes.

  19         Q.    -- readership.  Do you recall that?

  20         A.    Yes.

  21         Q.    In your view, of all of those factors, what is

  22    the most important determinant towards determining the size

  23    of subscription to a journal?

  24         A.    The size of the subscription?

  25         Q.    The number of subscribers.




                                                                488


   1         A.    Probably the potential readership.

   2         Q.    Why is that?

   3         A.    Because it ranges so greatly among the different

   4    fields.

   5         Q.    Well, is it your view that the number of

   6    subscriptions to a journal will ever exceed the number of

   7    potential readers?

   8         A.    No.  I suppose it could happen but I can't

   9    imagine that it would.  There is certainly no evidence that

  10    the number of subscriptions even comes close to the number

  11    of potential readers because most of the journals now are

  12    subscribed to very heavily by libraries, and that's the main

  13    source for many journals.

  14         Q.    Now, the various sections of the Physical Review

  15    A, B, C, and D, which you were asked about on

  16    cross-examination, do you know whether each of those

  17    sections covers one specialization or many specializations?

  18         A.    I don't.  I really don't.

  19         Q.    If you assume that they cover -- that each one

  20    covers many specializations, would that in your view affect

  21    the size of potential readership of those journals?

  22         A.    Yes, it would.

  23         Q.    How would it affect the size?

  24         A.    Because you would have a number of people from

  25    the different specializations who would read not all of the




                                                                489


   1    articles in those journals but a portion of those articles

   2    in those journals.

   3         Q.    Now, you also testified in answer to one of

   4    Mr. Huvelle's questions that it's sound to normalize cost on

   5    a per character or per article basis, right?

   6         A.    Yes.

   7         Q.    And that in fact you have from time to time done

   8    that?

   9         A.    Yes.

  10         Q.    In your own work?

  11         A.    Yes.

  12         Q.    For what purpose have you done that?

  13         A.    Mostly for the purpose of comparing over time to

  14    see what the trends are over time.  Most of this work was

  15    done initially for a study called "Statistical Indicators of

  16    Scientific and Technical Communication," and, as that

  17    implies, what we were trying to do is provide a range of

  18    kinds of information that people could use and see what the

  19    trends were over time, because there was a lot of concern

  20    about what was happening with the journal publishing

  21    business at that time.

  22               THE COURT:  You did a study comparing cost of

  23    scientific journals with eight other disciplines?

  24               THE WITNESS:  With physics, with the eight other

  25    disciplines.  At that time the National Science Foundation




                                                                490


   1    subdivided the scientific community into nine fields.  One

   2    field was physical sciences, which included physics and

   3    chemistry; mathematic science, which includes statistics,

   4    computer science, life science, etc.  And that's what he was

   5    referring to.

   6               He was saying that you did it for physics to

   7    compare -- I mean, for the physical sciences to compare

   8    against the other sciences.  That's what I think Mr. Huvelle

   9    was referring to.

  10         Q.    What was the comparison that you were drawing in

  11    that study that you referred to?

  12         A.    It was merely measuring across the nine fields

  13    within each of the nine fields what the statistical

  14    indicators were, partially to show those in the field what

  15    the differences were between their field and the other

  16    fields and that kind of thing.  And so they could use those

  17    data within the fields.  Because for most of these

  18    statistical indications, there were tremendous differences

  19    among the fields.

  20         Q.    Were you using the cost per kiloword or cost per

  21    article data to make comparisons among individual journals

  22    for acquisition purposes?

  23         A.    No.

  24         Q.    Do you believe that that is a proper use of a

  25    cost per kiloword or cost per article?




                                                                491


   1         A.    I don't.  I think it can be used with caution and

   2    particularly if you take into account the number of

   3    subscribers.

   4         Q.    Were you using the cost per kiloword or cost per

   5    article statistic to compare publishers as a whole?

   6         A.    No.

   7         Q.    Do you believe that that type of statistic should

   8    be used?

   9         A.    Only perhaps type of publisher.  Because I do --

  10    quite a bit of my analysis is to compare type of

  11    publisher -- now, I don't think I did that as much back then

  12    as I have in my recent publications.  I -- my recent

  13    publications, I have tried to make distinctions among four

  14    types of publishers, commercial, society, educational

  15    presses, and other types of publishers.

  16         Q.    Do you believe that that statistic should be used

  17    to make acquisition or cancellation decisions at a library

  18    based on the identity of the specific publisher?

  19         A.    I don't.  I -- one thing that I should point out

  20    is that, even though I have evaluated collection development

  21    activities, I have not really delved into all the details as

  22    to how people make acquisition decisions, but I personally

  23    would not use it, but I'm not -- I haven't been on the

  24    firing line, but I personally would not use that statistic.

  25         Q.    You were referred in your cross-examination to an




                                                                492


   1    expert, an article by Linda Smith?

   2         A.    Yes, sir.

   3         Q.    You were quoted a section dealing with whether or

   4    not citation counts can be used.

   5         A.    Yes, sir.

   6         Q.    Does the size of the potential audience of a

   7    journal affect the number of citations to that journal?

   8         A.    I believe that it does.

   9         Q.    And generally how does it affect it?

  10         A.    Well, the -- let me qualify what I'm saying.  If

  11    one were looking at subdivisions of a discipline and if

  12    those subdivisions were totally contained -- that is, all

  13    the authors, all the readers, all the citations fell within

  14    each of those divisions -- then you would expect -- and you

  15    had constants of the reading per scientist, author per

  16    scientist and number of citations per article, if you had

  17    those all contained within subdivisions, then the impact

  18    would be -- should be exactly the same across all

  19    subdivisions because of the arithmetic and averaging these

  20    things out.

  21               The problem is, in my view -- and this is

  22    speculation; I have not done this analysis -- but I believe

  23    that the fact that you have a fair amount of cross citations

  24    across the subdisciplines, that this means that the -- if a

  25    particular journal has a small potential readership, that




                                                                493


   1    that particular journal is likely to have fewer citations to

   2    it than a journal that has very large citation --

   3    readership.  And I give again as an example the extreme,

   4    which would be Science.  I'm sure that the number of

   5    citations to -- on the average to the Science articles is

   6    much greater than very small disciplines, where very -- that

   7    is, very small -- journals that have very small readership.

   8         Q.    When did you write the book that Mr. Huvelle

   9    cited to you in which you wrote that citations were an

  10    excellent surrogate measure?

  11         A.    I wrote the book -- the book was published, I

  12    believe, in 1981.  Much of the material that went into the

  13    book was gathered over a period of about five or six years.

  14         Q.    Is it still your view today that citations are an

  15    excellent surrogate measure for use?

  16         A.    For use?  It seems to me that I have no reason to

  17    believe that the amount of citation is correlated to the

  18    amount of use.  I mean, I -- that's part of the reason that

  19    I suspect that those fields that have very little -- that

  20    fields that have very little readership probably have a

  21    relatively smaller number of citations.

  22               MR. PLOTZ:  One moment, your Honor.

  23               No further questions.

  24               THE COURT:  Anything further of this witness?

  25               MR. HUVELLE:  May I have just one second, your




                                                                494


   1    Honor?

   2               Your Honor, I would just like to make sure I got

   3    into evidence one document, which is Defendants' Exhibit XX.

   4    I am not even sure whether I showed it to the witness.  But

   5    it is the one that I was referring to.

   6               MR. PLOTZ:  I would object.  It is a prior

   7    writing.  He was asked about it.  He was asked what he said.

   8    But I would object to the document itself.

   9    Cross-examination is impeachment material.

  10               THE COURT:  I believe Mr. Huvelle is not hearing

  11    that.

  12               MR. HUVELLE:  Your Honor, let me see if I gave it

  13    to the witness.

  14               Do you have a copy of this?

  15               THE WITNESS:  I don't.  I have a copy back in my

  16    briefcase, if you want me to get it.  That might be the

  17    easiest way to do it.

  18               MR. HUVELLE:  No, the easiest way is for me to

  19    find the document.

  20               THE COURT:  For what purpose would you be

  21    offering it?

  22               MR. HUVELLE:  In this article he cites a number

  23    of additional sources that I didn't go into in support of

  24    the value of citation analysis, and I would like to just put

  25    it in the record as additional support for his own views,




                                                                495


   1    that he has written.

   2               MR. PLOTZ:  I think what he wrote then is

   3    hearsay.  He can ask him about it.  He can ask him about

   4    what he believed, what he believed then, what he believes

   5    now.  He can cross-examine him on it.  But --

   6               THE COURT:  He has done that.

   7               MR. PLOTZ:  But the document itself is hearsay.

   8               THE COURT:  You have done that.  What is there in

   9    addition to what you have established in the examination

  10    that that document added?

  11               MR. HUVELLE:  Some additional authority for the

  12    validity of citations as a measure of use and value.

  13               THE WITNESS:  I'm at a point right now where I'm

  14    wondering whether I answer -- I understood the question that

  15    I was asked by Mr. Plotz.  May I have the question and

  16    answer asked again?  Because there seems -- my answer seemed

  17    to have caused some little turmoil here and I'm not quite

  18    sure why.

  19               THE COURT:  Well, you were asked whether today --

  20    you said today you have no reason to believe that the amount

  21    of citation is correlated to the amount of use.

  22               THE WITNESS:  I do believe that the amount of --

  23    I do believe that the amount of reading is correlated to the

  24    number of citations.

  25               I'm sorry.  I may have -- I may have




                                                                496


   1    misunderstood the question.  And I thought my explanation

   2    certainly expounded on that.  I --

   3               THE COURT:  Reading is a prerequisite to

   4    citation.

   5               THE WITNESS:  Absolutely.

   6               THE COURT:  One hopes that people don't cite when

   7    they haven't read it.

   8               THE WITNESS:  By the way, there are studies that

   9    show that there are a few -- I think it's something less

  10    than 10 percent -- but there are a few citations in which

  11    the author actually didn't read the article.  There are

  12    instances of it, but not a great number.

  13               THE COURT:  I'm in a profession in which citation

  14    is quite a common practice.

  15               THE WITNESS:  Yes.

  16               THE COURT:  I have some familiarity with --

  17               THE WITNESS:  Oh, yes.  Yes.

  18               THE COURT:  -- citation.  So when you say that

  19    there is a correlation between extent of readership and

  20    extent of citation, is that telling us anything very

  21    profound?

  22               THE WITNESS:  Not particularly.  But I -- it is

  23    only of -- I only mention that partially because I believe

  24    that if a journal has a small potential readership, that

  25    that particular journal will have fewer citations to it.




                                                                497


   1               THE COURT:  Fewer readers and fewer citations?

   2               THE WITNESS:  Right, to it.  And that those

   3    journals that are very large are likely to have more

   4    citations to those journals --

   5               THE COURT:  As a consequence of having more

   6    readers?

   7               THE WITNESS:  More readers, exactly.  That's all

   8    I've said.  And there is certainly some evidence that was

   9    cited in my book that would suggest that that is true.  I

  10    have not done a study myself to establish that, but in --

  11               THE COURT:  Had you in 1997 changed your views on

  12    that subject?

  13               THE WITNESS:  No.

  14               THE COURT:  From those that you expressed in

  15    1980 --

  16               THE WITNESS:  No.

  17               THE COURT:  All right.

  18               THE WITNESS:  But this does have a bearing on the

  19    use of the impact factors, because if a journal has a small

  20    number of citations to it, the impact factor is going to be

  21    low.

  22               THE COURT:  But that journal may nevertheless be

  23    serving a very worthwhile purpose in the scientific

  24    community?

  25               THE WITNESS:  Oh, absolutely.  Absolutely.  And




                                                                498


   1    all I'm saying is, so that if you compare the impact of a

   2    small journal that's just a super journal for a small

   3    community, because they have very few citations to those

   4    articles, that you shouldn't be comparing that to a Science

   5    Magazine that has a lot of citations to it because the

   6    audience is very large.  That's the point that I was trying

   7    to make.

   8               MR. HUVELLE:  Just a couple of questions.

   9    RECROSS EXAMINATION

  10    BY MR. HUVELLE:

  11         Q.    If you have a large journal with a lot of

  12    articles and you compare it to a small journal with fewer

  13    articles, isn't it true that the impact factor normalizes

  14    the size of the journal --

  15         A.    Yes.

  16         Q.    -- because you determine the average rate of

  17    citation --

  18         A.    Yes.

  19         Q.    -- per --

  20         A.    Article.

  21         Q.    -- article?

  22         A.    Yes.  But I'm -- yes, absolutely.  Sure.  Of

  23    course.

  24               MR. HUVELLE:  Your Honor, I would like to have

  25    the witness identify Exhibit XX, and introduce it into




                                                                499


   1    evidence as -- I will -- could you look at --

   2               THE COURT:  As what?  As a prior consistent

   3    statement of the witness?

   4               Objection sustained.  Let's move on.

   5               Anything further of this witness?

   6               MR. HUVELLE:  One question.

   7               THE COURT:  Yes.

   8         Q.    Is it true, sir, that circulation data is not

   9    available for many publishers?

  10         A.    Yes.

  11         Q.    Thank you.

  12               THE COURT:  OK.  Thank you, Mr. King.

  13               MR. PLOTZ:  Judge, the second-to-last question

  14    Mr. Huvelle asked, I have to clarify one point.

  15               THE COURT:  This is known as having the last word

  16    syndrome.  You may.

  17               MR. PLOTZ:  I will try to be very brief.

  18    REDIRECT EXAMINATION

  19    BY MR. PLOTZ:

  20         Q.    With respect to the question you were asked just

  21    a couple questions ago about impact factor, the relationship

  22    of impact factor for a small journal and a large journal --

  23         A.    Let's make a distinction now whether you're

  24    talking about "large" in terms of the number of articles or

  25    "large" in terms of the number of subscriptions, because I




                                                                500


   1    think there's a little bit of confusion on that.

   2         Q.    I'm referring to "large" in the sense of number

   3    of subscriptions and "small" in the sense of number of

   4    subscriptions.

   5               Will there be a difference between those two

   6    categories in terms of the number of citations per article?

   7               MR. HUVELLE:  Your Honor, this isn't following up

   8    on my question.  I don't see why he should have the last

   9    word on this.

  10               THE COURT:  I will allow it, on the

  11    representation it is the last question.

  12         A.    In my view, that it is a -- the impact factor

  13    will be different for the -- for a large subscription

  14    journal than a small subscription journal.

  15         Q.    And different in what pay?

  16         A.    In that they -- the number of citations -- the

  17    average number of citations per article will reflect the

  18    potential readership of those two journals.

  19         Q.    Thank you.

  20               THE COURT:  Thank you.

  21               (Witness excused)

  22               THE COURT:  Plaintiff may call its next witness.

  23               MR. LUPERT:  Our next witness is the principal of

  24    the plaintiffs, Martin Gordon, but I understood from

  25    Mr. Meserve that he has a logistical problem.




                                                                501


   1               THE COURT:  Yes.  Do you want to call a witness

   2    out of turn?

   3               MR. LUPERT:  We don't object.  If it's Dr. Ramsey

   4    you're talking about?

   5               MR. MESERVE:  Yes, that's correct.

   6               THE COURT:  All right.  Then we will call a

   7    defendants' witness out of turn.

   8               MR. MESERVE:  Defendants call Professor Norman

   9    Ramsey.

  10     NORMAN F. RAMSEY,

  11         called as a witness by the defendants,

  12         having been duly sworn, testified as follows:

  13    DIRECT EXAMINATION

  14    BY MR. MESERVE:

  15         Q.    Professor Ramsey, where are you employed?

  16               THE CLERK:  Please state your full name, sir.

  17               THE WITNESS:  My name is Norman F. Ramsey,

  18    R-A-M-S-E-Y.

  19    BY MR. MESERVE:

  20         Q.    Professor Ramsey, where are you employed?

  21         A.    I'm a professor emeritus at Harvard University, a

  22    Higgins professor of physics emeritus.

  23               It's an endowed professorship and Higgins is the

  24    man who gave the money.

  25         Q.    Professor Ramsey, when did you receive your




                                                                502


   1    Ph.D.?

   2         A.    In 1940.

   3         Q.    With whom did you work?

   4         A.    I worked with Professor I.I. Rabi.

   5               I received it from Columbia University.

   6         Q.    What was the nature of the work that you

   7    performed?

   8         A.    This was doing -- actually, I had the very good

   9    fortune, about two months after I started working with him,

  10    he invented the very first magnetic resonance experiment,

  11    and I was involved in that.

  12         Q.    Did Professor Rabi get any awards as a result of

  13    that?

  14         A.    Yes.  Rob received the Nobel Prize partly based

  15    on work in part which we did together.

  16         Q.    Was this the fundamental technology that allowed

  17    magnetic resonance imaging in hospitals?

  18         A.    Yes, although there were intermediate steps

  19    before magnetic resonance imaging came in many years later.

  20         Q.    After you received your Ph.D., what were the

  21    nature of research activities that you undertook for the

  22    federal government during World War II?

  23         A.    Yes, well, during World War II, at the beginning

  24    of the War I was urged, and even before the War started for

  25    the U.S., I was urged to work on radar research at MIT




                                                                503


   1    Radiation Laboratory, and I was in charge of development of

   2    three-centimeter wavelength radar, which proved to be one of

   3    the most effective radars used during World War II.

   4         Q.    Did you work on another radar-related project

   5    towards the end of the War?

   6         A.    Yes.  At the end of the War, partly related to

   7    World War II, at the urging of the scientific community, I

   8    went to Los Alamos.

   9         Q.    Did you work on the Manhattan Project?

  10         A.    Yes, I did.

  11         Q.    That was to develop the atomic bomb?

  12         A.    Yes.

  13         Q.    Are you still conducting research?

  14         A.    Yes, I am.

  15         Q.    In what fields have you conducted research over

  16    the years?

  17         A.    Well, there have been a number of years, so it

  18    covers quite a few years, fields, but I would say definitely

  19    atomic physics, molecular physics, nuclear physics, particle

  20    physics, and with special emphasis on high-precision

  21    measurements in those fields, using a modification of this

  22    magnetic resonance method.

  23         Q.    Have you ever used any prizes or awards for your

  24    scientific work?

  25         A.    Yes, an embarrassingly large number.




                                                                504


   1         Q.    Could you just mention a few of them?

   2         A.    I would say the leading ones are the 1989 Nobel

   3    Prize in physics; the 1988 National Medal of Science, which

   4    is awarded by the President of the United States; the

   5    Vannevar Bush award of the National Science Board; and the

   6    Medal of Honor of the Institution for Electrical and

   7    Electronic Engineering.

   8         Q.    Are you a member of the National Academy of

   9    Sciences?

  10         A.    Yes, I am.

  11         Q.    Is that an honor, to be --

  12         A.    Yes, indeed.

  13         Q.    I presume, Dr. Ramsey, that you have published

  14    extensively in the field of physics?

  15         A.    Yes, I have published over 400 papers and about

  16    three books so far.  And I shipped one booked off to the

  17    publisher last Monday.

  18         Q.    Professor Ramsey, I am going to hand you an

  19    exhibit that has been marked as Defendants' Exhibit X.

  20    Could you identify that exhibit for me, please.

  21         A.    Yes.  That's --

  22         Q.    That's actually two things.

  23         A.    One is a brief summary of my biography, and then

  24    the other is a fairly complete bibliography.  It actually

  25    goes up to 1996, and a couple of articles since then but




                                                                505


   1    essentially it's complete.

   2         Q.    Have you published in a variety of fields in

   3    physics?

   4         A.    Yes.  Yes, I have.

   5         Q.    You mentioned the book that you just sent off to

   6    the publisher.  What was the nature of that book?

   7         A.    Well, this was a -- a book for a private

   8    publisher, World Scientific, and it's a combination.  It's a

   9    reprint volume of my 56 most important papers, accompanied

  10    with about a 50-page autobiography, accompanied by a

  11    one-page retrospective commentary on each of the articles.

  12         Q.    Of your 56 top papers, how many were published in

  13    Physical Review?

  14         A.    Well, I know that I -- I know that only by virtue

  15    of this publication, and 45 of them were in either the

  16    Physical Review or Physical Review Letters, or -- 45 of them

  17    were by the American Physical Society publications, that is,

  18    Physical Review Letters or Physical Review.

  19         Q.    And how many of them were in journals published

  20    by the American Institute of Physics?

  21         A.    Five.

  22         Q.    Does that leave six publications that were in

  23    journals of publishers other than the --

  24         A.    Yes.

  25         Q.    -- APS and AIP?




                                                                506


   1         A.    Yes.

   2         Q.    Is your allocation of your best papers among the

   3    various publishers something that is typical for prominent

   4    physicists?

   5         A.    I would think so, yes.

   6               MR. LUPERT:  Objection, your Honor, to the lack

   7    of foundation.  He has not been offered as an expert or

   8    identified as an expert, and, frankly, I concede his

   9    expertise in physics without question.

  10               THE COURT:  Do you want to lay a foundation?

  11         Q.    Professor Ramsey, do you read an extensive number

  12    of literature in physics?

  13         A.    Yes.

  14               MR. LUPERT:  Judge, I object.  He has not been

  15    offered as an expert.  He just simply hasn't been offered

  16    for this purpose.  We had an identification of experts.  We

  17    went through the entire rule procedure.  This is not a topic

  18    he has been offered for.  I therefore object to it.

  19               THE COURT:  I think it's a fact question.  I

  20    think he can testify if he believes it's within his

  21    knowledge and background as to where something occurs.  I

  22    don't think that's --

  23               MR. LUPERT:  I think it would also be hearsay.

  24               THE COURT:  Overruled.

  25               MR. LUPERT:  I really do think this should have




                                                                507


   1    been offered as expert testimony so we had a chance to

   2    develop it if it's a relevant point.  We have no ability to

   3    counter this.  I really don't particularly see its

   4    relevance, but --

   5               THE COURT:  Overruled.

   6         Q.    Professor Ramsey, the question that I had asked

   7    you was whether the allocation of your best papers among the

   8    various publishers is one that you believe is typical for

   9    productive physicists in the United States?

  10         A.    Yes.  I think for the more productive ones, yes.

  11    Though I will agree I'm not an expert.  I've not analyzed

  12    everyone else's paper.

  13         Q.    Why do you have so many of your publications, of

  14    your best publications, in the journals of the APS and the

  15    AIP?

  16         A.    Because, the first part of that is that it is the

  17    high-prestige journal to publish in.  If they are highly

  18    selected and they will be read -- I mean, I publish things

  19    because I want people to know about them, and this is the

  20    best likelihood of their knowing about them, if they are

  21    published in leading journals.

  22         Q.    Have you ever published in a Gordon & Breach

  23    journal?

  24         A.    No, I have not.

  25         Q.    Why not?




                                                                508


   1         A.    Well, I haven't had anything special in that

   2    field and I've not felt that -- I felt that the Physical

   3    Review would be a much more desirable place to publish, if I

   4    could get the paper accepted.

   5         Q.    Do you read articles in the field of physics in

   6    connection with your work?

   7         A.    Yes.

   8         Q.    Do you read the journals cover to cover?

   9         A.    No.

  10         Q.    How do you select what to read?

  11         A.    Combination of reasons, of ways -- one is first

  12    when you start on one thing, you pick up other

  13    possibilities.  The second thing is talking to other people.

  14    The -- and scientific meetings.  You learn about things.

  15               Then there are several journals, such as Science

  16    and Physics Today, which sort of report on interesting and

  17    exciting news.  And I hear about that -- for example, there

  18    was recently one I feel very much interested in, by Karl

  19    Wyman at the University of Colorado.  I looked up that

  20    article with great interest.  It turned out it was in

  21    Science Magazine.

  22         Q.    Do you receive preprints from --

  23         A.    Oh, yes.

  24         Q.    -- physicists that have citations that caused you

  25    to go and read the article?




                                                                509


   1         A.    That's correct.  That's correct.

   2         Q.    And you read review articles that provide

   3    citations that give you direction of what to go and read?

   4         A.    Yes.

   5         Q.    Where do you obtain access to the --

   6         A.    I --

   7         Q.    -- articles that you want to read?

   8         A.    Through the libraries, mostly the Harvard College

   9    Library.

  10         Q.    Would your access to an article in a library be

  11    facilitated if the article were in a specialized journal or

  12    a more general journal?

  13         A.    No, it would not -- it would be a little more

  14    difficult, because I have nowhere to find it in the big

  15    journals.

  16         Q.    A little more difficult --

  17         A.    That it would be more difficult finding the

  18    journal.  I think if it's an efficient sufficiently, highly

  19    selective one, it might not be in the library.

  20         Q.    So is it your testimony -- I think there may be

  21    confusion as to your answer on that question.

  22               MR. LUPERT:  Objection to the leading nature of

  23    this entire inquiry, your Honor.

  24               THE COURT:  Refrain from leading.

  25               MR. MESERVE:  I am sorry.




                                                                510


   1         Q.    Is it your practice to cite the sources on which

   2    you rely in your research?

   3         A.    Yes.

   4               MR. LUPERT:  Judge, this is supposed to be direct

   5    testimony.  It's just not.

   6               THE COURT:  It is a leading question.

   7         Q.    Dr. Ramsey, could you describe your citation

   8    practices in your publications?

   9         A.    Yes.  I like to give credit where credit is due.

  10    I cite the leading articles which led me to the development

  11    a little bit on the -- if it's a totally new or fairly new

  12    thing, I like to give the past history of it and quote the

  13    people who did the earlier things that led to the ideas.

  14         Q.    Are you familiar with the Gordon & Breach

  15    journals in the field of physics?

  16         A.    Some, not highly.

  17         Q.    Are there any particular Gordon & Breach journals

  18    with which you are familiar?

  19         A.    The current topics of -- it is sort of Review

  20    Journal.

  21         Q.    Are you referring to a Comments Journal?

  22         A.    Comments Journal is what -- the name I was trying

  23    to think of.

  24         Q.    The Comments Journal, I think, in Nuclear

  25    Physics?




                                                                511


   1         A.    Correct.

   2         Q.    How often do you look at that journal?

   3         A.    Not very often.

   4         Q.    If there were a good article in that journal, you

   5    would cite it, wouldn't you?

   6         A.    Oh, sure.

   7         Q.    Have you ever cited a --

   8               THE COURT:  That's an instance of your refraining

   9    from asking a leading question?

  10               MR. MESERVE:  I'm sorry, your Honor.  I'm trying

  11    to expedite this.

  12         Q.    Have you ever cited a Gordon & Breach journal?

  13               MR. LUPERT:  Judge, it's just -- the entire

  14    examination is as if this was the cross of their own

  15    witness, and I'm sorry to have to pop up every --

  16               THE COURT:  I think the point is well taken.

  17               MR. MESERVE:  Pardon me?

  18               THE COURT:  I think the point is well taken.  I

  19    think you can ask non-leading questions and it will not --

  20    it will not slow things down.  It will speed them up,

  21    obviously.

  22               MR. MESERVE:  Yes, I understand.

  23         Q.    Could you describe your citation of Gordon &

  24    Breach journals?

  25         A.    I believe I cited one very nice review article.




                                                                512


   1    It had it on electric dipole moments field, which I have

   2    done -- was chiefly quoted in -- it was an article based on

   3    my work, as a matter of fact, but it was a very nice

   4    summary.

   5         Q.    How many times have you cited it?

   6         A.    I think -- I don't know, and I have not had a

   7    chance to really look it up.  I think maybe once or in two

   8    or three, somewhat, review articles.

   9         Q.    Could you describe your citation of the practices

  10    regarding the journals of the APS and AIP?

  11         A.    Well, they -- I don't make any special effort to

  12    do it for any special journal, but I do like to quote the

  13    principal and give reference to the principal things that

  14    led to the development and the ideas, and it's true, that's

  15    very frequently one of the APS journals.

  16         Q.    What about AIP journals?

  17         A.    The same is true of AIP journals, particularly

  18    the journal there that I probably most cite is the Journal

  19    of Chemical Physics.

  20         Q.    Can you give us some notion of -- you said you

  21    cite them frequently, but how frequently?

  22         A.    Well, I'd say -- it depends on what article I'm

  23    writing on.  If it's only one -- if it pertains to chemical

  24    physics, in those areas, I would cite almost every article,

  25    if it's one on --




                                                                513


   1         Q.    I meant with respect to your citation of APS and

   2    AIP journals.

   3         A.    What?  I don't understand the question.

   4         Q.    I was asking you a question about -- you said you

   5    cite them frequently and I was asking the question how

   6    frequently do you cite them?

   7         A.    Well, usually I would say -- any article,

   8    depending on the length of the article, I would say most of

   9    the articles I write will have maybe 15, 20, 25 citations,

  10    out of which number probably, I think, 80 percent are

  11    probably to the APS publications and the others to spread

  12    over all the journals.

  13         Q.    Why so many citations of APS and AIP?

  14         A.    Because they haven't done --

  15               MR. LUPERT:  I object to the form of the

  16    question.

  17               THE COURT:  Overruled.

  18         A.    Repeat the question, please.

  19         Q.    Why so many citations to APS and AIP journals?

  20         A.    Because that's where most of the important work

  21    has been done in publishing.

  22         Q.    Professor Ramsey, are you a member of the

  23    American Physical Society?

  24         A.    Yes, I am.

  25         Q.    Have you served as an officer?




                                                                514


   1         A.    Yes, I have.

   2         Q.    Could you briefly describe your experience as an

   3    officer?

   4         A.    Right.  My first serving as an officer was back

   5    in 19 -- somewhere around 1950, when I was an elected member

   6    of the Council of the American Physical Society, and then

   7    later in 1978 and '79, I was President of the American

   8    Physical Society, and this also included being vice

   9    president over a period and past president.

  10         Q.    How were you selected?

  11         A.    This is by ballot of the Society, actually,

  12    the -- to make sure there is some competition, the

  13    Nominating Committee is required to nominate at least two

  14    candidates, and then it -- further nominations are open to

  15    members of the Society and then there is an election of the

  16    members.

  17         Q.    Is it an honor to be selected president?

  18         A.    Yes, it's a great honor.

  19         Q.    Is there any work involved?

  20         A.    Yes, lots of work.

  21         Q.    There's more than one year of work involved?

  22         A.    Yes.  It's about a four-year period.  The first

  23    period, as vice president, then as president elect and then

  24    as president, and then most recent past president.

  25         Q.    You indicated it's a lot of work.  Is it a




                                                                515


   1    full-time job?

   2         A.    In some res -- you had to keep up your old

   3    full-time job at Harvard while doing it, when I would say

   4    it's pretty much of a full-time job in addition.

   5         Q.    What kind of people are selected as officers of

   6    the --

   7         A.    Usually outstanding -- very outstanding

   8    physicists.

   9         Q.    In what communities?

  10         A.    From the community of physics, I would say the

  11    majority probably come from universities, some of them come

  12    from industry.

  13         Q.    What is the purpose, if you know, of the American

  14    Physical Society?

  15         A.    The purpose is, I think, very well stated in its

  16    constitution.  It's for the purposes of advancing the

  17    knowledge and advancing and diffusing the knowledge of

  18    physics and its applications to human welfare.

  19         Q.    Do you know what the APS's tax status is?

  20         A.    It's non-profit.

  21         Q.    How large is the membership of APS?

  22         A.    About 40,000.

  23         Q.    Do you know the international distribution of

  24    membership of the APS?

  25         A.    I don't know the exact amount.  There is a big




                                                                516


   1    international distribution; I would say probably 90 percent,

   2    85, 90 percent are probably U.S. citizens, but there is

   3    quite a large foreign membership.

   4         Q.    Are the members principally physicists?

   5         A.    The members are almost all physicists, although

   6    the requirements for becoming a member are not very severe,

   7    so you can be a member without it.

   8         Q.    Are members required to publish in APS journals?

   9         A.    No.

  10         Q.    How does the APS go about achieving this purpose

  11    of advancing the knowledge and diffusion of physics?

  12         A.    By a variety of mechanisms.  One important one is

  13    we arrange meetings of the -- annual meetings and for sort

  14    of all physics in which there are invited papers, usually

  15    about 45 minutes' duration on the principal advances in the

  16    field recently.  Then any member of it can contribute at

  17    each meeting one ten-minute long contributed paper.

  18               Then there are four or five slightly more

  19    specialized meetings, usually several of the fields of

  20    physics in those meetings, taking place in different parts

  21    of the country, and then there are much smaller meetings

  22    which are sponsored by the Physical Society.  Then of course

  23    very importantly are the journals, particularly for the

  24    Physical Society, the Physical Review, which, incidentally,

  25    the title is a little confusing.  The word "review" is in




                                                                517


   1    that.  This is an original source for original publications.

   2    It's chiefly because it's a hundred years old.  That was the

   3    title picked a hundred years ago.  Everybody knows what it

   4    is.  It's quite different from, say, The Reviews of Modern

   5    Physics, which is also an APS publication, which is a review

   6    journal that usually has reviews of a number of articles.

   7         Q.    The Physical Review Letters is another entity?

   8         A.    Physical Review Letters is a very important

   9    additional part of the others -- it's for faster publication

  10    of particularly urgent papers, but then this is --

  11    publication is by no means the only activity.  We also have

  12    various programs for supporting education in the schools,

  13    for the arrangement for mentor or mentors from the

  14    universities to give talks in various high schools in their

  15    area, and the same thing from the people from the larger

  16    universities, come to the smaller ones and give talks.

  17               There is a special program for women and

  18    minorities in physics with which we had more women and more

  19    minorities in physics and efforts to encourage that.

  20    There's a program on scholarships for that.  There are

  21    prizes awarded for -- particularly with emphasis for

  22    younger people.  And then there is an international, very

  23    important international activity, both for international

  24    arrangements of meetings and cooperation, but also, in

  25    special cases, for example, for the poorer countries, we




                                                                518


   1    arrange for means of getting some publications to the

   2    libraries which cannot support it, at least some of the

   3    principal publications, including in our own journals but

   4    also some contributed by the people.

   5         Q.    Does the Society also have activities in the

   6    area, general area of public affairs?

   7         A.    Yes.  Yes, there's a special -- both in the

   8    information link, for example, I've had a study at one stage

   9    on photovoltaics, whether this was any possibility of ever

  10    contributing to the energy problem or not.  And the answer

  11    was, it looks -- it's difficult.  It's going to be expensive

  12    but maybe it will come in.

  13         Q.    Who runs the Society?

  14         A.    It's run by, I would say basically by the

  15    Council.  It's an elective council of members.  There

  16    actually are two ways the Council is formed.  Actually, the

  17    Society is divided into divisions, the different fields of

  18    activity, and each division has one or more members of the

  19    Council, and then there are openly -- there are general

  20    counselors that are elected by the whole membership.

  21         Q.    Are the members of the Council compensated?

  22         A.    No, neither is the president.

  23         Q.    From what community do the members come from?

  24         A.    I would say it comes -- probably mostly from

  25    university, but it comes from the physics community.  It




                                                                519


   1    includes people from industry.  It includes people from the

   2    universities.  And --

   3         Q.    There has been previous testimony about the three

   4    principal operating officers of the Society.  Are those

   5    officers physicists?

   6         A.    Yes.  They are.  They are.  And there are some

   7    paid officers of the Society, as the president or vice

   8    president, but there is a treasurer and executive officer,

   9    used to be executive secretary, at the time I was there, and

  10    then the editor-in-chief.

  11         Q.    Who sets the policy for the APS?

  12         A.    The Council.

  13         Q.    Do the members of the Council have any personal

  14    financial stake in the APS?

  15         A.    No.

  16         Q.    What in your experience are the most important

  17    considerations that guide the decisions of the Council?

  18         A.    I would say the things that are specified in

  19    the -- in the charter, in the constitution, namely, for the

  20    advancement and diffusion of the knowledge of physics and

  21    its applications to human welfare.

  22         Q.    Do you have personal experience with the American

  23    Institute of Physics?

  24         A.    Yes.

  25         Q.    What is that experience?




                                                                520


   1         A.    I was chairman of the governing board of the

   2    American Institute of Physics for about six years, from

   3    about 1980 to 1986.

   4         Q.    What is the function of the board?

   5         A.    It is the governing board.  It is just like the

   6    Council of the Physical Society.  It is what determines the

   7    policy of the organization and elects the officials and the

   8    paid staff.

   9         Q.    What is the purpose of the American Institute of

  10    Physics?

  11         A.    The purpose of the American Physical -- of the

  12    American Institute of Physics is essentially the same.  Its

  13    constitution is also for the advancement and diffusion of

  14    the knowledge of physics and its application to human

  15    welfare, but in the case of the American Institute of

  16    Physics, which is really an organization of which the

  17    members are other organizations -- the Physical Society is

  18    one of the member organizations of the American Institute of

  19    Physics, but so also is the Acoustical Society, Astronomical

  20    Association, and nine other organizations.  And it

  21    basically -- the American Institute of Physics does the

  22    things which are best done by that group together as opposed

  23    to separately.

  24         Q.    Why are some things best done collectively?

  25         A.    Because they can be done more efficiently.  For




                                                                521


   1    example -- and they are sometimes done cooperatively.  For

   2    example, one of the valuable things done by both are the

   3    matters pertaining to employment opportunities, and

   4    particularly there is a range of -- many meetings of, say,

   5    the Physical Society are a -- oh, what is colloquially

   6    called the slave market, I apologize, but it's essentially

   7    an opportunity for potential new Ph.D.s to be interviewed by

   8    professors who are looking for high-rate employers,

   9    employees, and now that -- one is somewhat administered in

  10    part by AIP.  It's somewhat managed by APS.

  11         Q.    How does the AIP achieve its purposes?

  12         A.    It achieves its purpose by getting a examination

  13    of things.  A different but very important one is once or

  14    twice a year for the officers of the member societies to

  15    have a meeting at which they can exchange their views.  They

  16    can discuss common problems and how best to meet them and

  17    solutions that different people have done.

  18         Q.    Has the a -- excuse me, professor.  I didn't mean

  19    to interrupt you.

  20               Does the AIP publish journals?

  21         A.    Yes.

  22         Q.    Why does it publish journals?

  23         A.    I would say it publishes journals which, I would

  24    say, in a certain sense they feel need to be published that

  25    aren't being published by other organizations, but, in




                                                                522


   1    particular, ones that are more cross-field.  For example,

   2    the one that I am most familiar with and have had a fair

   3    number of -- several of my publications in is the Journal on

   4    Chemical Physics.

   5         Q.    Beyond the scientific journals, are there any

   6    other publications?

   7         A.    Yes.  It also publishes the Physics Today, which

   8    actually goes to member -- not just to the Physical Society

   9    but also it goes to the other organizations who are member

  10    organizations who are members of AIP.  It's a general review

  11    journal.

  12         Q.    Does the AIP publish books now?

  13         A.    It used to publish but I believe it is stopping

  14    that.

  15         Q.    You mentioned that AIP has some service

  16    functions.  You mentioned career planning and placement

  17    activity.

  18         A.    Yes.

  19         Q.    Are there other service functions?

  20         A.    Oh, yes.  I mean, for example, that's one which

  21    adds an efficiency.  Although to the Physical Review, it's

  22    published -- the publisher officially is the American

  23    Physical Society.  The actual mechanics of putting out the

  24    publication is handled by the American Institute of Physics.

  25    And it also -- American Institute of Physics does that for a




                                                                523


   1    number of other journals, a number of the member societies

   2    as well.  It's a very helpful service to them.

   3         Q.    Does the AIP conduct statistical studies?

   4         A.    Yes, particularly on employment opportunities.

   5    It tries to make -- a very difficult thing -- to make

   6    predictions as to how -- what's going to be the need of

   7    physicists in the future.  Future-predicting is hard.

   8         Q.    Are there any activities of the AIP in the

   9    general area of the history of physics?

  10         A.    Yes, yes, a very important one.  There is the

  11    so-called Neils Bohr Library, which is the main library,

  12    actually, for history of physics, and then along with it, a

  13    library collection.  They also do a very good correlation

  14    job.  They don't try to do it all themselves.  They, for

  15    example, had urged me to have the historian at Harvard be

  16    sure I get him the right kind of collection of my files.

  17    They won't want to bother with them there.  They try to be

  18    serving more.  But there is a center from which the people

  19    who are interested in the history of physics can go to find

  20    out where the files are.

  21         Q.    You mentioned the governing board.  Are the

  22    members of the governing board volunteers?

  23         A.    The members of the governing board are indeed

  24    volunteers.  They are unpaid.  But they are usually selected

  25    by the member societies.  In other words, there are these




                                                                524


   1    various organizations that are part of it.  And each one of

   2    these nominates or -- nominates or selects members of the

   3    group to be on the governing board.  And then the chairman

   4    of the governing board is elected by the board as a whole.

   5         Q.    I would like to turn to some of the issues that

   6    have been raised in this case.

   7               Are you familiar with page charges --

   8         A.    Yes, I am.

   9         Q.    -- of physics journals?

  10               What are they?

  11         A.    They are an attempt to help on a very serious

  12    problem in physics:  The cost of preparing the first print

  13    version is very expensive because of the mathematic setup

  14    and whatnot, and it is a small fraction of the total

  15    research cost but it is a large cost as a book.  And I think

  16    many of us feel -- I think if it could be done, it's the

  17    best way -- that it is best actually to have part of the

  18    cost of the original setup of the article paid for as part

  19    of research.

  20         Q.    Who pays the page charges?

  21         A.    It is paid for from the research grant of the

  22    individual.  Now, in some respects I hate paying page

  23    charges because it reduces my research money.  But it is

  24    also a very unfair burden to put such an expense on the

  25    libraries.




                                                                525


   1         Q.    Are page charges -- something a researcher

   2    submits, an article, he pays to have the article published;

   3    is that right?

   4         A.    Yes.  It's charged through his research grant.

   5    Now, ultimately, that means it comes from the research

   6    foundation, or the government, whichever provided the money.

   7         Q.    Does the money come from a library budget?

   8         A.    No, no, not from the library, no.

   9         Q.    Well, you have indicated, in your discussion of

  10    page charges, part of the reasons why there are page charges

  11    is to defray part of the expenses of the dissemination of

  12    research information.  Are there problems that have arisen

  13    with page charges?

  14         A.    Oh, yes, there are problems.  I mentioned one.

  15    And I feel it myself.  I hate to see my -- some of my

  16    research money spent for any purpose other than more

  17    research, so there is -- the research scientist, on the one

  18    hand, does not want to lose his research money.  On the

  19    other hand, he also doesn't want the libraries to be

  20    impoverished, because they are one of the principal means of

  21    diffusing the knowledge of physics.

  22         Q.    Have page charges been a source of controversy --

  23         A.    Yes.

  24         Q.    -- at APS and AIP?

  25         A.    Yes, they are.  For the reasons I have mentioned,




                                                                526


   1    it is clear you can either say there should be no page

   2    charges or there should be.  And you can worry that the page

   3    charges may reduce some people's willingness to write

   4    articles.

   5         Q.    You mentioned earlier that the Physical Review

   6    had several sections.

   7         A.    Yes.

   8         Q.    What do you mean by "sections"?

   9         A.    Well, they are subdivided according to fields of

  10    interest.  I mean, there's and A, B, C, and D, and E, as it

  11    now is.  And, for example, A is one of the ones I'm very

  12    active in, atomic, molecular and optical physics.  B is

  13    condensed matter physics in which I do research.  C is

  14    nuclear physics in which I have done some research.  D is

  15    particle physics, in which I had published things.  And E

  16    is, I think, what used to be part of A.  It moved over into

  17    E, and it has to do with things like chaos.

  18         Q.    Is there a logic, if you know it, to the -- as a

  19    physicist, in looking at the various sections of Physical

  20    Review, that explains how things have been subdivided?

  21         A.    Well, I think, yes, there is a logic.  It's not a

  22    unique logic.  There are many ways these things would be

  23    divided.  I think the way it's divided in the Physical

  24    Review is a good one but it is by no means the only way.

  25         Q.    Why is it a good one?




                                                                527


   1         A.    It's a good one because you can find the articles

   2    easily.  It's easy to remember.  But, for example, you can

   3    equally well make a division in which, as is done in some

   4    journals, some of the European journals, you combine nuclear

   5    and particle physics, you put them in the same category.

   6         Q.    But are the matters covered in, for example,

   7    Physical Review A, interconnected fields of physics?

   8         A.    Yes.

   9         Q.    In your experience, are the articles in Physical

  10    Review any less specialized than those in other journals?

  11         A.    No.  No.

  12         Q.    Could you explain what sort of necessary level of

  13    detail is required for an article in a journal publishing

  14    original research?

  15         A.    Well, in the first place, it's different in a

  16    letter article -- in the Physical Review Letters it's

  17    different than in Physical Review.  Because Physical Review

  18    Letters is restricted in length, but in particular, even in

  19    that you try to give all the background to understand it.

  20    But in the Physical Review articles, you certainly should

  21    explain things in enough detail so that the experiment can

  22    be repeated by other people, so that it can be criticized,

  23    and criticized intelligently, and found to be erroneous if

  24    it's erroneous.

  25         Q.    Do the norms of science require a certain level




                                                                528


   1    of detail so as to enable this capacity to replicate and

   2    verify the research results?

   3         A.    Yes, they do.  I think it's -- some authors are

   4    better about doing it than others.

   5         Q.    During your terms of activity with the APS and

   6    AIP, were there debates about the pricing of journals?

   7         A.    Yes.

   8         Q.    What was the nature of those debates?

   9         A.    I think debated -- it's basic schizophrenia.  On

  10    the one hand, we are anxious to get the word out or anxious

  11    to have the libraries have subscriptions to all the possible

  12    journals, so we want to keep the prices down.  On the other

  13    hand, we have the problem if we do it in part by page

  14    charges, then that comes off of research budgets, and so we

  15    try -- we have to compromise.

  16         Q.    What would be the impact of increasing prices of

  17    the AIP and APS journals on subscriptions?

  18         A.    I don't think it would have much of an impact at

  19    all on the number of our subscriptions.  It would have a

  20    little impact.  I mean, for example, the very poor countries

  21    would probably be unable to continue their subscription.  A

  22    few cases where universities have multiple subscriptions,

  23    they could drop it, but the biggest effect of a big increase

  24    in Physical Review prices would be, I think, a marked

  25    reduction in the ability of libraries to purchase other




                                                                529


   1    journals.

   2         Q.    Are you familiar with the article that was

   3    published in Physics Today by Professor Barschall in July

   4    1988?

   5         A.    I now am.

   6         Q.    That's Plaintiffs' Exhibit 3.

   7         A.    Yes.  Actually, I did not read it when it first

   8    came out.

   9         Q.    I'm going to hand you a copy of Plaintiffs'

  10    Exhibit 3.

  11         A.    Yes.

  12         Q.    You said you didn't read it when it came out --

  13         A.    No.

  14         Q.    -- but you read it --

  15         A.    I read it when it became a controversial issue.

  16         Q.    Meaning before your deposition in this case?

  17         A.    Yes, before my deposition, yes.

  18         Q.    I would like to have you turn to Table 1 of

  19    Plaintiffs' Exhibit 3.  That's found at page 58.

  20         A.    Yes.

  21         Q.    I would like to have you look at the fact that

  22    this table is clustered into eight different broad

  23    categories; is that correct?

  24         A.    Yes.

  25         Q.    Do these groupings, in your view, reflect a




                                                                530


   1    sensible way to examine the physics literature?

   2         A.    Yes.

   3               MR. LUPERT:  Objection, your Honor.

   4         A.    It's not --

   5               MR. LUPERT:  I object.  We're getting back to

   6    leading.

   7               THE COURT:  Overruled.

   8         A.    Yes, I think it's a very sensible one.  It is not

   9    a unique one.  I could -- there could be several others

  10    which I would also think are sensible.

  11         Q.    I would like to have you look through each of the

  12    categories and tell me which of the categories are ones in

  13    which you have published work.

  14         A.    Right.  I have certainly published things in

  15    letters journals and review journals, atomic physics.  I

  16    have not done anything in condensed matter physics.  I have

  17    done in nuclear physics, particle physics, and I think one

  18    each in applied physics and instrumentation.

  19         Q.    Is there any major journal in each of these areas

  20    that should have been included in this table that wasn't?

  21         A.    It's --

  22               MR. LUPERT:  Objection.

  23         A.    -- very hard to think of all other journals.

  24               MR. LUPERT:  Objection.  This is --

  25               THE COURT:  Excuse me?




                                                                531


   1               MR. LUPERT:  Withdrawn, your Honor.

   2         A.    Would you repeat -- please run through -- I'm not

   3    sure if the question was approved or not.

   4               THE COURT:  You may answer.

   5         A.    Yes.  I don't see any obvious omissions, but it's

   6    very hard in looking at a list to tell whether something

   7    isn't there.

   8         Q.    You're not aware of any major journal that was

   9    excluded?

  10         A.    I don't see Physical Review E, although it may be

  11    because at the time this was prepared there may not have

  12    been a Physical Review E.

  13         Q.    And Physical Review E, in your view, is a major

  14    journal?

  15         A.    Yes.  But I think it was started -- I believe it

  16    was split off from A probably after this was published.

  17         Q.    Would you rely on the Barschall methodology or on

  18    the Barschall articles in selecting the journals that you

  19    need for your work?

  20         A.    No, I would not, not, I think, if the article

  21    seemed to me very reliable for what it does and it defines

  22    well what it does.  On the other hand, I'm -- I know from

  23    reading the journals what ones I would want.

  24         Q.    Well, should libraries, in your view, rely on it?

  25         A.    I think -- no, they should not.  Libraries should




                                                                532


   1    depend -- make full utilization of what's usually in the

   2    library committees in the different fields.  For example, at

   3    Harvard, there's a library committee and it basically

   4    recommends to the library what really is of greatest

   5    interest to the people there, and it shouldn't be done just

   6    by any sort of rule of cost or impact even.  On the other

   7    hand, I think it's an excellent article and it's nice

   8    information for the people who make the decision.

   9         Q.    Should the information be available to the

  10    libraries?

  11         A.    Oh, it should certainly be available.

  12         Q.    Have your views on the usage of the Barschall

  13    article changed since your deposition in this case?

  14         A.    No.  They may not be totally clear as stated in

  15    the deposition.  They haven't changed.

  16         Q.    Did you intend to imply anything different about

  17    the use of the Barschall article in your deposition --

  18               MR. LUPERT:  Objection.  We are resuscitating a

  19    witness that hasn't even been cross-examined.

  20               THE COURT:  I think it's a little anticipatory

  21    rebuttal.

  22         Q.    Did you intend to imply anything different during

  23    your --

  24               MR. LUPERT:  Objection, your Honor.

  25               THE COURT:  Sustained.




                                                                533


   1               MR. MESERVE:  Your Honor, I have no further

   2    questions of this witness.

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

   4               MR. LUPERT:  Thank you, Judge.

   5               (Recess)

   6               THE COURT:  Mr. Lupert?

   7               MR. LUPERT:  Thank you.

   8    CROSS-EXAMINATION

   9    BY MR. LUPERT:

  10         Q.    Dr. Ramsey, we met when I had the --

  11         A.    Yes, sir.

  12         Q.    -- opportunity to take your deposition in Boston

  13    a few weeks ago.

  14               One of the topics we talked about at that

  15    deposition, you may recall, was the question of whether

  16    either AIP or APS was interested at certain times in the

  17    issue of creating new journals, new specialized journals.

  18    Do you remember we talked about that?

  19         A.    Yes.

  20         Q.    As I recall your testimony, what you said was

  21    that there were discussions about that very topic, correct?

  22         A.    Correct.

  23         Q.    And a problem invariably arose, however, and --

  24    that's correct too, right?

  25         A.    Yes.  Well, not invariably, but usually.




                                                                534


   1         Q.    Usually.  That's a fair word.  Usually arose.

   2    And the problem that arose was that there were basically --

   3    and if I state this wrong, just correct me -- but there were

   4    basically so many different factions that had reasons for

   5    why particular specialized -- new specialized journals might

   6    be a good idea or might not be a good idea that it led to

   7    just interminable debate, that might go on for a couple of

   8    years.  By the time you got to the end of the debate, there

   9    really wasn't any need for the journal anymore.

  10         A.    That is, I would say, an overstatement, but they

  11    were interminable, as you correctly say -- term it, and, no,

  12    new journals were started.

  13         Q.    There were some.

  14         A.    But it was not very effective.

  15         Q.    But it was hard to start a new journal,

  16    basically?

  17         A.    It's a very democratic organization.

  18         Q.    It was the environment that really prevented the

  19    creation of new journals, correct?

  20         A.    Didn't prevent.  But there was the advantage of a

  21    democracy, but it's slow, but it's also an advantage of

  22    democracy that it proceeds well.

  23         Q.    It's a fair statement, just to summarize it, that

  24    at the time you were involved -- and I'm going to come back

  25    to the time frame in just a minute -- but starting a




                                                                535


   1    specialty journal was hard because different factions had

   2    their own interests?

   3         A.    It was hard, yes.

   4         Q.    And I believe you had testified at your

   5    deposition that in your view, commercial publishers could

   6    move much faster?

   7         A.    Yes, they can.

   8         Q.    And I think you also testified that there is a

   9    need for commercial publishers, correct?

  10         A.    Yes, yes.

  11         Q.    And one of the reasons why there is a need for

  12    commercial publishers is because society simply can't

  13    publish all the good articles that are out there?

  14         A.    That's correct.

  15         Q.    In fact, while Mr. Meserve brought out the fact

  16    that certainly the great majority of your papers are in the

  17    journals of the two organizations you were affiliated with,

  18    you in fact have published with commercial journals?

  19         A.    Yes.  Particularly physics letters.

  20         Q.    I'm sorry, sir?

  21         A.    Physics letters is one of the principal ones.  It

  22    is a major -- a European journal.

  23         Q.    I just wanted to mention that it's relevant to

  24    this case that there are not-for-profit publishers and there

  25    are commercial publishers and you have published some papers




                                                                536


   1    with commercial publishers?

   2         A.    Sure.

   3               MR. MESERVE:  Your Honor, Mr. Lupert, I am sure,

   4    is well-intentioned, but he keeps on interrupting the

   5    witness in his answer.

   6               MR. LUPERT:  Do I?  I'm sorry.  If I do, please,

   7    I don't mean to.

   8         Q.    But so we're on the same wavelength -- and if I

   9    interrupted you, please, give a full answer -- you have

  10    published with commercial publishers?

  11         A.    Yes, correct.

  12         Q.    Now, while you obviously have an enormously

  13    varied and wonderful career, frankly, there are certain

  14    subspecialties of physics about which you really don't know

  15    very much, correct?

  16         A.    Correct.

  17         Q.    One of the examples that come up in this case is

  18    ferroelectrics.  It's fair to say that is an area you don't

  19    know too much about, right?

  20         A.    Well, I know a little about it, because we have

  21    used it.

  22         Q.    But you have not published in that area, right?

  23         A.    No.

  24         Q.    Do you know what percentage, even in approximate

  25    terms, the Gordon & Breach journal Ferroelectrics publishes




                                                                537


   1    of all the research in the area of ferroelectrics?

   2         A.    No, I do not.

   3         Q.    If I told you that there had been testimony in

   4    this case that the journal ferroelectrics, the Gordon &

   5    Breach journal, publishes in the neighborhood of 25 percent

   6    or so of the research, that would not be something you would

   7    know?  No?

   8               MR. MESERVE:  Your Honor, I object.  This witness

   9    has just said he doesn't know anything about --

  10               THE COURT:  He has repeated that he doesn't know.

  11    And Mr. Lupert's question isn't evidence.

  12         Q.    Do you have the Physics Today article up there

  13    with you?

  14         A.    Yes, I do.

  15         Q.    You were asked some questions by Mr. Meserve

  16    concerning the journals that are called Physical Review A

  17    and divide themselves up into A, B, C, D, and perhaps E

  18    these days.  I am correct, am I not, about the following

  19    principle:  First, Physical Review A, for example, publishes

  20    specialized research, correct?

  21         A.    Yes.

  22         Q.    True.  But the specialized research that it

  23    publishes is in a variety of different specialties, correct?

  24         A.    Yes, but in atomic molecular optical.

  25         Q.    The point that I'm trying to get at, and just




                                                                538


   1    tell me if you agree, is that the journal called Physical

   2    Review A, while it publishes highly specialized research,

   3    publishes papers in a variety of specializations?

   4         A.    Yes.  You could subdivide on down and down, yes.

   5         Q.    Indeed, I think at the deposition you were good

   6    enough to tell me, and correct me if I'm wrong, that in the

   7    subcategory called atomic physics, for example -- do you see

   8    it?

   9         A.    Yes.

  10         Q.    -- the journal called Hyperfine Interaction,

  11    which is the fifth journal -- do you see it?

  12         A.    Yes.

  13         Q.    That is published by a commercial publisher,

  14    correct?

  15               That is one of the specialties that is covered by

  16    Physical Review A as well?

  17         A.    Yes, that's correct.

  18         Q.    But that Physical Review A just doesn't cover

  19    hyperfine interaction?

  20         A.    Oh, no.  Physical Review A, I would certainly --

  21    I have written a number of papers on hyperfine interactions

  22    and they have been published in Physical Review A.

  23         Q.    Right.  But Physical Review A would also cover

  24    papers that you have written or that others have written on

  25    other specialties?




                                                                539


   1         A.    That's correct, but in the somewhat limited field

   2    of atomic physics.

   3         Q.    Correct.  And I take it the same is true, as we

   4    look through each of these six substantive subdivisions that

   5    Professor Barschall used, that each of the Physical Review

   6    sections that are listed there are general journals in the

   7    sense that they publish in a variety of different

   8    specializations; that's a fair characterization, is it not?

   9         A.    Well, there is specialization and specialization.

  10    I mean, many people would consider atomic physics as a field

  11    of specialization.  It's not all of physics.  But it's also

  12    true there are subdivisions within atomic physics.  There

  13    are subdivisions within hyperfine interactions if you want

  14    to go on.  Hyperfine is in the subfield of hyperatomic

  15    physics and hyperfine interactions of atoms is another

  16    subdivision within that specialty.

  17         Q.    Let me focus you on instrumentation just as an

  18    example.  I'm not going to take you through every one of

  19    these subdivisions, but just as an example, the third entry,

  20    could you tell me what that stands for, the AIP journal?

  21         A.    Reviews of Scientific Instruments.

  22         Q.    The Reviews of Scientific Instruments, I think

  23    you testified --

  24         A.    It's an AIP journal, I think, yes.

  25         Q.    I think I said an AIP journal.  But it is an AIP




                                                                540


   1    journal.

   2         A.    Sorry.

   3         Q.    The Review of Scientific Instruments, it's fair

   4    to say it covers the gamut of topics in instrumentation,

   5    correct?

   6         A.    Yes.

   7         Q.    While the journal Particle Accelerators, or at

   8    least the topic particle accelerators, the last one on that

   9    list, that is a specialized field within the area of

  10    instrumentation?

  11         A.    Yes.

  12         Q.    Thank you.

  13         A.    But, for example, I have published an article on

  14    accelerators in the AIP -- the Review of Scientific

  15    Instruments.  And it was a fairly specialized one.

  16         Q.    But again, not to belabor the point, but the

  17    review of science instruments covers topics other than

  18    particle accelerators?

  19         A.    Yes, it does.

  20         Q.    Now, you were president of the APS, and I think

  21    if I recall correctly, but tell me if I'm wrong, the year

  22    was 1979?

  23         A.    Yes.

  24         Q.    You were the operating head of the governing

  25    council -- I have forgotten the title, frankly.




                                                                541


   1         A.    Well, the president of APS is also the chairman

   2    of the governing board --

   3         Q.    Chairman of the governing --

   4         A.    -- of the council of the American Physical

   5    Society.

   6         Q.    And with respect to the AIP, could you remind me

   7    what your position was?

   8         A.    My position, that was at a later period, and that

   9    was chairman of the governing board of the American --

  10         Q.    Chairman.  Thank you, I just had forgotten the

  11    title.  Chairman of the governing board, you had that

  12    position up until 1985, correct?

  13         A.    Correct.

  14         Q.    And we went over this in some detail at your

  15    deposition.  But is it an accurate statement to say that,

  16    since you left your position as chairman of the executive

  17    council of AIP, you have had nothing substantive to do with

  18    the business operations of either the AIP or APS?

  19         A.    Nothing major.

  20         Q.    And you have had nothing whatsoever to do with

  21    the marketing aspect of their journals?

  22         A.    No.

  23         Q.    Correct?  And I take it this is a fair statement.

  24    As you sit here today, you have no knowledge of what the

  25    current marketing program's goals are of either of the




                                                                542


   1    societies?  This isn't something you have kept from --

   2         A.    No, I think I could guess some, but I would not

   3    know.

   4         Q.    Do you know Dr. Harry Lustig, who is sitting in

   5    the second row?

   6         A.    Yes, I do.

   7         Q.    As I understand it -- correct me again if I'm

   8    wrong -- you did not overlap.  That is, he was not the

   9    treasurer --

  10         A.    No.

  11         Q.    -- of APS when you had a senior position with

  12    either AIP or APS?

  13         A.    He was not.  Joe Burton was then the treasurer.

  14         Q.    Is it fair to say that, since 1985, when you no

  15    longer --

  16         A.    Well, in '86, I --

  17         Q.    Was it 1986?  OK.  From 1986 forward, you don't

  18    know what efforts, if any, Dr. Lustig, for example, took

  19    with respect to a perception, if there were one, about a

  20    rising cancellation rate of APS journals?

  21         A.    No.

  22         Q.    And you don't know whether there grew a

  23    perception during the time frame that Dr. Lustig was

  24    involved of whether the ever increasing prices of APS

  25    journals actually would be causing cancellations by




                                                                543


   1    librarians?

   2               MR. MESERVE:  Your Honor, I object.  He has

   3    already said he doesn't know if marketing activities were

   4    prosperous in this period.

   5               THE COURT:  I will allow it.

   6         Q.    Do you remember my question?

   7         A.    No, I do not.

   8         Q.    Or you do not know?

   9         A.    No.

  10         Q.    Just one follow-up question.  Do you know one way

  11    or another whether Dr. Lustig and perhaps his colleagues at

  12    the APS actually sent out mass mailings of Professor

  13    Barschall's surveys to librarians?

  14         A.    No, although I've heard about it, but I do not

  15    know directly, no.

  16         Q.    You do not know directly?  And do you know

  17    whether that is in fact the kind of marketing effort that

  18    the APS or AIP is determined to do in the future?

  19         A.    No.

  20         Q.    With respect to Gordon & Breach's comments

  21    journals, you gave a little testimony about that when

  22    Mr. Meserve asked you.  I believe you either testified today

  23    or you told me at the deposition that one of your articles

  24    was in fact the subject of a comment.

  25         A.    Yes, correct.




                                                                544


   1         Q.    By that I mean in one of the comments journals of

   2    Gordon & Breach?

   3         A.    Yes.

   4         Q.    You thought that was fairly well written and you

   5    were pleased with it?

   6         A.    Yes.  That's the one I hope -- I should at

   7    least -- have given a reference to in one of my articles.  I

   8    think I probably did.

   9         Q.    Do you know whether the authors in the comments

  10    in the comments journals are paid or not?

  11         A.    I think they are paid.

  12         Q.    The comments is basically an overview, isn't it?

  13    Is that a fair statement?

  14         A.    It's usually a short summary.

  15         Q.    Right.  It's not a research -- it's not a basic

  16    research --

  17         A.    No.

  18         Q.    -- article?  Correct?

  19         A.    No.

  20         Q.    Bet yet you agree with me that the comments

  21    journals serve a useful purpose, don't they?

  22         A.    Yes.

  23         Q.    With respect to page charge revenue, during the

  24    time that you were familiar with the topic, 1986 and before,

  25    there was a general perception, at least by some of the




                                                                545


   1    people on the governing board of AIP and APS executives,

   2    that without page charge income, prices would have gone up

   3    significantly?

   4         A.    Yes.

   5         Q.    Did you share that?

   6         A.    Yes, I think significantly, yes.  I don't know

   7    the amount.

   8         Q.    But there would have been analyses that were made

   9    of the amounts back in that time frame, correct?

  10         A.    Correct.

  11         Q.    And there was also, was there not, discussion

  12    over a period of years, with some frequency, let's say,

  13    about what impact the elimination of page charges and the

  14    subsequent increase in prices would have with respect to the

  15    ability to attract authors to the APS journals, correct?

  16         A.    Yes.

  17         Q.    Indeed, there was a concern expressed by some

  18    that even Nobel Prize winners like yourself, and Nobel

  19    laureates, people of the highest levels of your profession,

  20    would or might go to publications not charging page charges

  21    to avoid having to pay them?

  22         A.    Well, it's certainly true that, under certain

  23    circumstances, Nobel Prize winners are good examples of one

  24    who might -- they are requested to write a great many

  25    invited articles, and they do tend to have a larger fraction




                                                                546


   1    of their things done elsewhere.  It's also, as they get old

   2    enough so they no longer have research grants, they either

   3    have to pay out of their own pocket for it or alternatively

   4    they are also entitled, as is anyone else, to say, no, he

   5    has no funds for paying for it, in which case the journals

   6    that do the page charges will publish the journal.  But

   7    that's always a little embarrassing for a Nobel Prize winner

   8    to say, look, I'll do it too.  So actually my last article

   9    for the -- in the Physical Review, I paid the page charges

  10    personally.  So I think it's a good thing.

  11         Q.    But you have actually -- I think you testified to

  12    this too -- you actually had articles or at least on

  13    occasion articles published in commercial journals, and one

  14    of your reasons for it was you really didn't want to pay the

  15    page charges?

  16         A.    Well, we did have one of the articles I did with

  17    the collaborators, some collaborators in England, France,

  18    and Germany, on an experiment we were doing at Grenoble, and

  19    they felt they would rather not pay -- have page charges,

  20    and we agreed, I'm very happy.

  21         Q.    And it was published --

  22         A.    It was published with Physics Letters they're

  23    than Physical Review Letters.

  24         Q.    Physics letters is published by one of the

  25    commercial publishers?




                                                                547


   1         A.    That's correct.  I think it's part of Elsevier.

   2         Q.    When I asked you a moment ago about whether they

   3    were executives of the APS -- and I will refer you to David

   4    Lazarus.  You know David Lazarus?

   5         A.    I know David Lazarus very well.

   6         Q.    David Lazarus was one of the senior executives at

   7    one point?

   8         A.    Yes.

   9         Q.    Do you recall that at one of the meetings you

  10    attended at the APS, Dr. Lazarus made the statement that

  11    Nobel laureates on occasion were not publishing with society

  12    journals as a result of page charges?

  13         A.    I don't remember him making that exact statement.

  14    At the time I was not a Nobel laureate.  I think it's

  15    undoubtedly a true statement and not totally due to page

  16    charges.  I think there is a tendency, since Nobel laureates

  17    tend, by definition, to be getting somewhat older, that

  18    probably they are invited to publish in many other journals

  19    as well.

  20         Q.    Let me put this before you.  It was quite some

  21    time ago.  This goes back to September 6, 1984.  It is

  22    Plaintiffs' Exhibit 13.  These are the executive committee

  23    meeting minutes of the American Institute of Physics, which

  24    indicates you were there as the chairman of the AIP.

  25         A.    Correct.




                                                                548


   1         Q.    I think I showed you these at the deposition.

   2         A.    Yes, that's correct.

   3         Q.    So if I might put this before you and ask you to

   4    take a look at the first paragraph of it, does that refresh

   5    your recollection specifically that David Lazarus was

   6    expressing a concern that Nobel laureates would not publish

   7    with society journals as a result of page charges?

   8         A.    I think it probably does.  I think the key is the

   9    sentence, "There was no consensus."  And that was, I think,

  10    how it was left, but I am not able to say whether Lazarus

  11    made that statement or someone else.

  12         Q.    You don't really remember whether it was Lazarus?

  13         A.    I don't really remember it, but I would certainly

  14    not disagree with it.

  15         Q.    I think you testified that generally speaking the

  16    minutes of the AIP committees were done accurately?

  17         A.    I think they were done accurately, yes.

  18         Q.    And they were done in the regular course?

  19         A.    Yes.

  20         Q.    And it was the regular course of the business to

  21    keep such minutes?

  22         A.    But you also need to bear in mind that they were

  23    very dispersed discussions.  There were people from many

  24    fields.  It was quite democratic.  There were many

  25    statements people -- individuals made there which I would




                                                                549


   1    not agree with.

   2         Q.    Whether you agree with it or not, though, the

   3    minutes themselves --

   4         A.    Those I think were accurate.

   5         Q.    -- are accurate?

   6         A.    Yes.  We were always given a chance to

   7    disapprove.

   8         Q.    So therefore the drafts of minutes were

   9    circulated?

  10         A.    They were circulated.

  11         Q.    And then the corrections were made?

  12         A.    Correct.

  13               MR. LUPERT:  I would like to introduce a variety

  14    of the minutes of the executive committee which were

  15    identified by Dr. Ramsey at his deposition which have been

  16    objected to.  And I think I have laid the foundation for

  17    this.

  18               THE COURT:  What issue are you now directing your

  19    questions to?

  20               MR. LUPERT:  Well, I was directing this towards

  21    the issue of page charges and the effect on the societies if

  22    page charges were eliminated.  It was a topic raised by

  23    Mr. Meserve.  If you wish me to state our opinion as to why

  24    page charge income is relevant, it is because Dr. Barschall

  25    failed to take it properly into account in his surveys.




                                                                550


   1    That's the issue.  That's why it is relevant.

   2               THE COURT:  Is there objection to the minutes?

   3               MR. MESERVE:  We did object to these on relevance

   4    grounds.  It is a large volume of materials, which I think

   5    appeared long before the case.

   6               THE COURT:  I take it that one of the objects of

   7    this case is not to have the record as voluminous as

   8    possible.  That is not a desirable goal in and of itself.

   9    And, you know, assuming that I'm not going to decide this

  10    case from the bench, you are going to leave me with

  11    thousands and thousands of pages, some of which you might

  12    even want me to read, and if there's something in there

  13    which is of particular relevance, why not bring that out.

  14               MR. LUPERT:  Judge, it might be an opportune time

  15    to say that counsel for both sides have spoken concerning

  16    the very point about how to somehow sort through all this

  17    material to reduce it to a tiny fraction of what is before

  18    you both in terms of those large volumes of exhibits and the

  19    deposition testimony, which you probably haven't even had a

  20    chance to take a look at.

  21               THE COURT:  I take it that the claim is that,

  22    since Gordon & Breach does not impose page charges and AIP

  23    and APS does impose page charges, that that is a factor

  24    which -- that is one of the factors which caused there to be

  25    a price differential between the Gordon & Breach




                                                                551


   1    publications and the AIP, APS publications.

   2               MR. LUPERT:  That is a point that we need to

   3    prove, but it seems to me that we have made our point.

   4               THE COURT:  Now having said that, is there a

   5    dispute as to that issue?  Mr. Meserve?

   6               MR. MESERVE:  It is clear, the page charges do

   7    affect the costs of journals.

   8               THE COURT:  There is a dispute?

   9               MR. MESERVE:  There is no dispute that page

  10    charges are something that does --

  11               THE COURT:  So how much testimony and how many

  12    thousands of pages do we have to have on that point?

  13               MR. MESERVE:  I mean in terms of costs of

  14    production of the journals, there are a variety of sources

  15    of revenues.  There are voluntary page charges for AIP and

  16    APS at one time.  And that was a source of revenue with

  17    cover journals.  That is not a disputed fact.

  18               THE COURT:  You know, I'm really struggling with

  19    this case, because, in all honesty, it seems to me so much

  20    time and effort is being spent belaboring points which are

  21    either self-evident or not disputed or of marginal

  22    relevance, except with respect to translation, I am under

  23    the impression that the Barschall articles contain no

  24    analysis of the reasons for the cost differentials.  Am I

  25    wrong, Mr. Meserve?




                                                                552


   1               MR. MESERVE:  That's correct.  The articles

   2    contain no analysis of the reasons for cost differentials,

   3    although one of them does recognize that page charges is

   4    something that is available to AIP and APS.

   5               THE WITNESS:  May I interject?  I think the page

   6    charges are available to all the journals if they want to

   7    ask for them.

   8               THE COURT:  I think you know my views.

   9               MR. LUPERT:  Yes, it's very helpful that you have

  10    stated this, frankly, and by stating that, I think that you

  11    will have accomplished the goal you have in mind of reducing

  12    further questioning, if not eliminating it, on this issue.

  13               Your Honor, because this witness was taken out of

  14    turn, I need a minute or two, if I might.  In fact, if I

  15    could impose upon the Court to take a five-minute recess or

  16    so, I would really appreciate it.

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

  18               MR. LUPERT:  Thank you.

  19               (Recess)

  20    BY MR. LUPERT:

  21         Q.    I just had one further question.  You read the

  22    Barschall article.  You have read it relatively recently.

  23         A.    Yes.

  24         Q.    Is it your understanding that the word "impact"

  25    in the formula that Barschall was using was the number of




                                                                553


   1    citations over the history of the citations in the citation

   2    index, that that was a component that he was using in the

   3    impact factor?

   4         A.    I don't remember now whether it was over the

   5    history of it or over the last couple of years.  I would

   6    have guessed over a couple of years.

   7         Q.    You would have guessed what?

   8         A.    Over a couple of years.

   9         Q.    When I asked you this question at your

  10    deposition, which was a month ago, I asked you a question,

  11    "Over what time frame, do you know?"  And you answered,

  12    "Over whatever time that they're reporting things, and I

  13    think they have probably done that since citation Index has

  14    been around."  Didn't you mean by that that it covered the

  15    gamut, or at least wasn't that your understanding when I

  16    asked you at the time of the deposition?

  17         A.    I don't think I knew too well at that time.

  18         Q.    Thank you, sir.  I have no further questions.

  19               THE COURT:  Anything further?

  20               MR. MESERVE:  I have no further questions.

  21               THE COURT:  Thank you.  You may step down.

  22               MR. LUPERT:  Thank you, Dr. Ramsey.

  23               THE WITNESS:  Thank you.

  24               (Witness excused)

  25               MR. LUPERT:  Shall I call my next witness?




                                                                554


   1               THE COURT:  Yes, please.

   2               MR. LUPERT:  I call Martin Gordon, please.

   3     MARTIN B. GORDON,

   4         called as a witness by the plaintiffs,

   5         having been duly sworn, testified as follows:

   6    DIRECT EXAMINATION

   7    BY MR. LUPERT:

   8         Q.    Mr. Gordon, could you tell the Court what your

   9    current position is.

  10         A.    I am the chief executive of the Gordon & Breach

  11    group.

  12         Q.    That would include the plaintiffs in this case,

  13    would it not?

  14         A.    Yes.

  15         Q.    Let me just briefly take you through your

  16    background before you became the chief executive of the

  17    Gordon & Breach publishing group.  Could you very briefly

  18    outline your education, with some focus, but brief, please,

  19    on your science background.

  20         A.    OK.  My science background began at Styverson

  21    High School in New York, which was a specialized school for

  22    people interested in science, and our senior courses were

  23    actually conducted by Columbia professors in many cases.

  24         Q.    And then moving on to college?

  25         A.    And then moving on to college, I went to Union




                                                                555


   1    College, then moved to Columbia, and NYU, and received my --

   2    and also studied at Julliard School of Music, some masters

   3    classes, and received my degree from NYU.

   4         Q.    And majoring in mathematics?

   5         A.    Yes.

   6         Q.    Did you also receive a graduate degree from NYU?

   7         A.    No, it wasn't a degree.  I did graduate studies

   8    in philosophy, and I -- but I never did a thesis.  I was

   9    busy working at that time.

  10         Q.    When did you graduate?  When did you receive your

  11    graduate -- your degree, excuse me -- from NYU?

  12         A.    In 1955, I think, '54, '55.

  13         Q.    And then from there what did you then do?

  14         A.    At the time I was still going to school.  I

  15    worked initially for a publishing company called Redex

  16    Microprint.  And they were doing microprint collections of

  17    works, and I was in charge of the -- they were trying to do

  18    at that time the collected works of Einstein and several

  19    other science projects.

  20               From there, I went to Interscience Publishers,

  21    who was a leading academic publisher at that time.  Academic

  22    publishing had not begun in this country until the prewar

  23    problem, and most of the -- commercial academic publishing,

  24    I'm referring to, of course.  Most of the people who came

  25    were German emigres, and this company was started by two




                                                                556


   1    fine emigres, and I worked for them in an editorial

   2    capacity.

   3         Q.    In the science areas?

   4         A.    Yes.

   5         Q.    At that time -- this is in the late 1950's,

   6    approximately?

   7         A.    And then after that I went on to Plenum

   8    Publishing --

   9         Q.    Just going back to Interscience Publishing, this

  10    is in the late 1950's?

  11         A.    Yes.

  12         Q.    How many commercial publishers in the academic

  13    science areas existed at that time, approximately?

  14         A.    Very few.  There were -- some were coming to this

  15    country because the war had ended.  Companies like Springer,

  16    etc., which had been dormant during the war, had revived and

  17    set up American bases, etc.

  18         Q.    And then you went to Plenum, you said?

  19         A.    Plenum Publishing, yes.

  20         Q.    Is Plenum a commercial publisher of science

  21    journals?

  22         A.    Yes.

  23         Q.    What position did you have there?

  24         A.    I was their chief editor.

  25         Q.    How long were you there for?




                                                                557


   1         A.    About a year.

   2         Q.    At that time did you form the decision to open up

   3    your own company?

   4         A.    Yes.

   5         Q.    With whom did you make that decision?

   6         A.    With the man who was head of administration at

   7    Plenum Publishers.  His name was Robert Breach.

   8         Q.    Then you formed a company, I take it, called

   9    Gordon & Breach?

  10         A.    Yes.

  11         Q.    What was its purpose?

  12         A.    Its purpose was the publication and dissemination

  13    of, at that time, scientific academic scientific

  14    information.

  15         Q.    Did you start with journals or books?

  16         A.    Well, we conceived of journals, but books were

  17    easier to acquire to begin with, so we started with books.

  18         Q.    When did you publish your first journal?

  19         A.    We started the company in 1961.  I think the

  20    first journal was published in about 1964.

  21         Q.    Today how many science journals does Gordon &

  22    Breach publish, approximately?

  23         A.    Approximately 250 to 300 -- well, it gets

  24    confused.  The size -- some are science, some social

  25    science.  Some are a mixture of social science.  It's a --




                                                                558


   1         Q.    Poorly phrased question.  If you stick to the

   2    sciences like physics and chemistry and the like,

   3    approximately how many?

   4         A.    Yes, I would say 200 to 300.

   5         Q.    What's the total number of journals,

   6    approximately, that Gordon & Breach publishes today?

   7         A.    Journals and magazines are in excess of 350.

   8         Q.    If I might just give you the topics, or I could

   9    ask you for them, but these include journals in music,

  10    correct?

  11         A.    Yes.

  12         Q.    Dance, theater, poetry, correct?

  13         A.    Yes.

  14         Q.    Literature?

  15         A.    Yes.

  16         Q.    Fine arts?

  17         A.    Yes.

  18         Q.    As well as the social sciences?

  19         A.    Yes.

  20         Q.    As well as the physical sciences?

  21         A.    Yes.

  22         Q.    In 1988, do you recall approximately how many

  23    physics journals Gordon & Breach published?

  24         A.    Yes.  I think it -- I searched and found it was

  25    about 24.




                                                                559


   1         Q.    And today, in 1997, how many does it publish?

   2         A.    Well, I don't know today, but in last year's

   3    catalogue listing, there were 46 titles, and I assume one or

   4    two have been started since then.

   5         Q.    Where are you personally based?

   6         A.    In Switzerland.

   7         Q.    That's the headquarters of the Gordon & Breach

   8    publishing group?

   9         A.    I hope so.

  10         Q.    Approximately -- what number of employees,

  11    globally, does Gordon & Breach have today?

  12         A.    I'm not sure, but I would say about 500 or more.

  13         Q.    Approximately how many offices does it have

  14    around the world?

  15         A.    Between the high 20's and the low 30's, 28 to 32.

  16         Q.    Is the printing done in the United States for the

  17    publications?

  18         A.    Not anymore, no.

  19         Q.    Where is that done?  In Asia?

  20         A.    It's -- most of it is -- it's done in other

  21    venues as well, but most of it is done in Asia, yes.

  22         Q.    Is your role basically coordinating all these

  23    various offices?

  24         A.    My role is basically coordinating the entire

  25    program.




                                                                560


   1         Q.    And in this do you travel throughout the --

   2         A.    Yes, incessantly, yes.

   3         Q.    I'm sorry, how?

   4         A.    Incessantly, yes.

   5         Q.    You basically travel from one office to another

   6    on a yearly basis?

   7         A.    Yes, more than -- more than on a yearly basis.

   8         Q.    That is, during the year you actually go around

   9    the entire world?

  10         A.    Exactly.

  11         Q.    I would like you to focus your attention on, just

  12    generally speaking, how science journals, that is, Gordon &

  13    Breach physical science journals -- if you want to focus

  14    just on physics, that would be even better -- generally

  15    speaking, is there a way these journals get created, if you

  16    could -- if that can be answered yes, could you tell us,

  17    please.

  18         A.    Yes.  I think Dr. Taylor gave the answer in his

  19    case, which is a very typical case.  I could refer you to

  20    the comments journals, which --

  21         Q.    Before we get to the comments journals --

  22         A.    Well, I haven't started.  Yes.

  23         Q.    We will get to that in just one moment.

  24         A.    Yes.

  25         Q.    Could you just give us your recollection of how




                                                                561


   1    journals are started -- I think Dr. Taylor testified about

   2    academics creating the project.  Is that a general way it's

   3    done?

   4         A.    That's generally -- either -- we rely on

   5    academic, either an academic will come to us and say, will

   6    you publish, and we feel there is a need for this journal in

   7    this area and will you publish it, or an academic advisor

   8    will come across and say, we think there's a need for a

   9    journal in this area, and, you know, we think this should be

  10    done and these are the people you should contact to see it

  11    done.

  12         Q.    Does the company also make efforts to search out

  13    and determine whether there is a need for specific journals?

  14         A.    Well, in this way, through the academic

  15    community, yes.

  16         Q.    What in your view is the value of these journals?

  17         A.    The value of these journals is that they -- the

  18    people who are coming to us are coming to us for -- or who

  19    are agreeing to publish are agreeing to publish for a very

  20    specific reason, and that is that they feel there is a need

  21    for publications which capture the information on a specific

  22    area, on the one hand, or that there may be need, for

  23    example, in a field which is already being covered, for a

  24    letters journal which doesn't exist, or a review journal

  25    which doesn't exist, etc., and they will feel that the




                                                                562


   1    community of their specialty is not being served, or, in

   2    other cases, they have come to us for general reasons of the

   3    effective existing publications.

   4               For a long time, and it still is true in many

   5    societies, there were great delays in publication because

   6    there were strict page limits on their budgets and they

   7    would come and say, your paper is accepted, it will be

   8    published next year.  And the people felt they wanted a

   9    vehicle to get their research out to the consumer, the niche

  10    consumer, in a much more -- in a much more rapid manner.

  11         Q.    Do these journals also provide a way for

  12    specialists in these areas to actually communicate with each

  13    other?

  14         A.    Well, that -- that's the main purpose, yes.

  15         Q.    The journals of Gordon & Breach, are they all

  16    focused on the United States market?

  17         A.    No.  Very few -- very few if any are focused on

  18    the United States market.  What we tended to do -- that was

  19    another change in our approach to, I think, what was

  20    happening at the time, is that we tried to ensure an

  21    international perspective.  For example, you may have a

  22    subject area which will be slightly differently defined in

  23    different societies, in Asia in one way, in Europe another

  24    way, and what is relevant to the subject.  The simplest

  25    example of that is medicine.  If I am an Asian, herbal




                                                                563


   1    medicine -- this has changed recently, but in the old days

   2    herbal medicine was a very integral part of our medicine.

   3    Now, if I submitted that paper to a United States-based

   4    journal like the New England Journal of Medicine, their

   5    viewpoint of it for review or acceptability was based upon

   6    their definition of what medicine included.  So we

   7    endeavored as much as possible to set up regional editors

   8    who would choose local editorial boards so that we could

   9    provide authors with both local publication facility and

  10    international publication facility.

  11         Q.    You heard Dr. Taylor talk about ferroelectrics as

  12    an example of that, and I think he went over the location of

  13    the various regional editors.  Without trying to say this is

  14    true of every single Gordon & Breach journal, but by and

  15    large is that the kind of international editing that you

  16    have tried to accomplish?

  17         A.    That's basically true, yes.

  18         Q.    Among the journals that Professor Barschall

  19    included in his sampling, you know there were five of Gordon

  20    & Breach so-called comments journals?

  21         A.    Yes.

  22         Q.    Correct?  You recall that of the eleven Gordon &

  23    Breach journals that he chose, five of the eleven were

  24    comments journals?

  25         A.    Yes.




                                                                564


   1         Q.    Would you be good enough to tell the Court what a

   2    comments journal is?

   3         A.    Comments journals were proposed to us as a

   4    publication venture by Dr. Leon Letterman, a Nobel laureate.

   5    And his -- and he is still with Dr. Joseph Winniser, the

   6    overall editor of the comments series.  His perspective at

   7    the time -- he came to us and said, there is a problem in

   8    the world today.  There is so much literature being

   9    published that it is impossible for us to get a perspective

  10    of what is happening, or to look everywhere and find

  11    everything and see what's going on and know which of the

  12    areas which are developing and which areas to market in, and

  13    he suggested the comments journals.  For the comments

  14    journals, which are broken up by dis -- first of all, a

  15    major discipline, because we do them not only in physics but

  16    in chemistry -- but then by subdiscipline, obviously, but

  17    within that, we invited and paid -- and at the beginning the

  18    rate was $125 an article, and we looked for short articles,

  19    we said four to six pages.  Now, of course, as anyone

  20    writing an article knows, when you agree to four, to

  21    actually get all the information into four becomes very

  22    difficult and you end up with greater than that.

  23               But it was really to get an overview perspective

  24    by eminent scientists working in that field of where the

  25    important research was being done and which areas would




                                                                565


   1    be -- looked like -- it's an opinion, of course -- which

   2    areas looked like -- that it -- we don't, or rarely, accept

   3    contributed papers, because -- only if they are, you know,

   4    very high value.  Because all of the authors are invited as

   5    leading experts in their field, and authors generally are

   6    not solicited to publish in comments.  We do get some,

   7    obviously, some people who say, I would like to write an

   8    article on it, and then they decide if they would be voted

   9    or not.

  10         Q.    Let me ask you, you said that the commentator or

  11    the author of the article is paid.  Is that generally true

  12    of research journals?

  13         A.    Never -- well, no, never, no -- it's generally

  14    not true.

  15         Q.    Is it generally true of review journals?

  16         A.    No.

  17         Q.    Is it generally true of letters journals?

  18         A.    No.

  19         Q.    What's the difference, and please try to be

  20    succinct, if you would, for us, what's the difference

  21    between a review journal of the type that the defendants

  22    publish and your comments journal?

  23         A.    The comments journal is not a research paper.

  24    It's an overview, and it is a commissioned article.  A

  25    similar case is in another one, which they included in this




                                                                566


   1    already on atomic and astrophysics, which was a spinoff of a

   2    handbook.  Now, these articles again --

   3         Q.    Let's go -- don't go into that yet.

   4         A.    I'm just trying to explain the kind of article.

   5         Q.    With respect to the review journal and the

   6    comments journal, and I think it's really relevant to the

   7    issues in this case, if you could just focus on that

   8    difference.

   9         A.    Yes.  The difference is, to get an overview

  10    perspective --

  11         Q.    And a review journal does what?

  12         A.    Is to get a general review of what research is

  13    being done with all the citations.  And here we are getting,

  14    with the comments, we are looking for an opinion, of the

  15    author, of where, of the overview, where the research is

  16    going.

  17         Q.    Is that generally why they are not cited much?

  18         A.    Well, the --

  19         Q.    Or as much, I should say.

  20         A.    First of all, the ISI refused to take them

  21    because they said they were not research journals.

  22         Q.    Let me just show you, just a sample, Plaintiffs'

  23    Exhibit 4A, and point you to -- and ask you, is this a

  24    copy -- is this an example of one of the comments on

  25    astrophysics?




                                                                567


   1         A.    Yes.

   2         Q.    This is from 1987?

   3         A.    Yes.

   4         Q.    Which is the year Barschall was looking at,

   5    correct?  That time frame?

   6         A.    I think so, yes.

   7         Q.    Would you look at the aim and scope on the very

   8    first page of it, on the cover?  Do you see it?

   9         A.    Yes.

  10         Q.    Aims and scope?  It says it's a bimonthly journal

  11    devoted to critical commentaries on significant current

  12    developments appearing in scientific literature, so the

  13    scope of it is set forth on the very page that contains all

  14    the other information, basic information, about it?

  15         A.    Yes.

  16         Q.    Including the subscription rate?

  17         A.    Including the subscription rate.  And if you will

  18    notice, there was no call for papers.

  19         Q.    Putting that to one side, I mean, someone opening

  20    up the first page and looking for the subscription rate also

  21    can see the aim and scope as well, correct?

  22         A.    Yes.

  23         Q.    I interrupted you and it's only because I'm just

  24    trying to keep it focused topic by topic, Mr. Gordon.  One

  25    of the other journals that Professor Barschall selected,




                                                                568


   1    five were comments -- this is five of eleven were comments,

   2    and one was called "Fundamentals," with the full title?

   3         A.    Of "Cosmic Physics and Astrophysics," I think.

   4         Q.    "Fundamentals of Cosmic Physics" is the title.

   5    Let me refresh your recollection.

   6         A.    "Fundamentals of Cosmic Physics," all right.

   7         Q.    Could you just tell us, sir, briefly again,

   8    briefly, what is the scope of that type of journal?

   9         A.    All right.  This was not set up as a journal at

  10    all in the beginning.  It was set up as a handbook of cosmic

  11    physics and astrophysics.  And the handbook -- the problem

  12    with handbook publishing -- again, all of the authors are

  13    invited, and paid, and for handbook articles.  You are

  14    not -- again, not talking about research articles.  You are

  15    talking about articles which have to be rewritten to explain

  16    to a new reader from the beginning where this subject comes

  17    from and where it is going, what the implementation of the

  18    current state of the art is in the field.  And all authors

  19    are invited.  There are no solicited -- there are no un

  20    solicited manuscripts.

  21               The problem with a handbook is that it tends to

  22    publish -- they are very large volumes, and you cannot get

  23    from the contributed authors a flow of material which allows

  24    you to publish the earlier submitted articles at the time of

  25    the -- you have to wait for the last article.  This may be a




                                                                569


   1    question of years.  And as a result, the first thing we did

   2    was to produce the individual articles as what we call

   3    tracts, just so that the author would get immediate

   4    publication, and then when the handbook volume was

   5    assembled, he would be asked to update, of course, his

   6    thing, and then it would go to press.

   7               Subsequently, we found that it was better to do

   8    it on a periodic basis, because the marketing of a handbook

   9    of an individual article was so costly that -- and many of

  10    the same people were picking up all of them --

  11         Q.    Fundamentally, is "Fundamentals of Cosmic

  12    Physics" different from review letters, archival journals?

  13         A.    It has no relationship whatsoever.

  14         Q.    And they are different from comments journals,

  15    your --

  16         A.    Yes.

  17         Q.    -- your comments journals?

  18         A.    Yes.

  19         Q.    To your knowledge, with respect to the comments

  20    journals which I showed you an example of, does anybody else

  21    publish them today?

  22         A.    We published something -- I'm not sure it's done

  23    in physics.

  24         Q.    No, but does anybody else publish a comments

  25    journal in physics?




                                                                570


   1         A.    Not a journal.  Elsevier, I believe, started in

   2    other fields a magazine called Perspectives which publishes

   3    the same kind of article.  And by the way, this was known by

   4    the society that this was not a compete -- our comments

   5    journals, just one point I would like -- was not a -- there

   6    was a letter to the society when the comments was started,

   7    started in Physics Today, saying we should be publishing

   8    comments, and the answer to that letter in Physics Today

   9    was, no, it's already being done.  There is no reason for us

  10    to do it.  So there was a recognition that this was a

  11    different kind of publication.

  12               I just wanted to make a point at the time.  Of

  13    the comments journals generally, I think Elsevier was the

  14    only one who publishes a similar kind of thing.  As a

  15    magazine, it takes advertising.  It is different.

  16         Q.    But the societies, the defendants in this case,

  17    they don't publish these types of journals at all, do they?

  18         A.    No, no.

  19         Q.    Now, in connection with other types of

  20    journals --

  21               THE COURT:  The difference between comments and

  22    letters?

  23               THE WITNESS:  No, a letter is a brief summary of

  24    someone's research.  A comment is from a guru, an overview

  25    of where the research generally is going.  They are not




                                                                571


   1    research papers of themselves.  They are just evaluating the

   2    direction of the total research -- it's an overview of the

   3    total research picture.

   4         Q.    Dr. Ramsey testified just a moment ago about the

   5    eminence of a lot of the authors of the APS journals.  I

   6    would just like to dwell for just a moment on some -- are

   7    eminent authors, Nobel laureates, people like that, who have

   8    published just in Gordon & Breach over the years, could you

   9    think of just a handful without giving us every single one,

  10    please?

  11         A.    Journals and/or books --

  12         Q.    Start with journals.

  13         A.    Books -- OK.  Because I can't differentiate.

  14    Some of them may be from books, some of them from journals.

  15         Q.    Do your best.  Just some of them.

  16         A.    We have Dr. Leon Letterman, who I mentioned

  17    previously.  Dr. T.B. Lee, Dr. Ceon Lang.

  18         Q.    Dr. T.B. Lee is a Nobel laureate?

  19         A.    These are all Nobel laureates that I am

  20    mentioning now.

  21         Q.    Has Neils Bohr?

  22         A.    Neils Bohr, but I don't know -- yes, Neils Bohr

  23    published with us, but that may have been in a book, or --

  24    other things of that -- other people like that, famous Nobel

  25    laureates, Sir Robert Pyles, etc.




                                                                572


   1         Q.    OK.

   2         A.    And also, obviously other people, because we

   3    publish in all kinds of areas.  For example, in music, we

   4    had people like Karl Stockhausen and Pierre Boulez and all

   5    famous contemporary --

   6         Q.    I don't know that you need to go on.  I just

   7    wanted to make that point, without belaboring it.

   8               How do you know, when you get a request to start

   9    up a journal from some academic group, whether it's worth

  10    doing or not?

  11         A.    Well, we obviously ask questions and ask other

  12    people in the field for their opinion, and try to get as

  13    much of the statistical information of what we're doing, why

  14    we're doing it, why it's necessary, what its market is,

  15    etc., what would be its publication costs, obviously to put

  16    together as much of a package as can be done.

  17               But the main point is, we try to ensure that

  18    there is an editorial need for it, that there is a need

  19    within the community, and that the quality of the

  20    publication is of high quality.

  21         Q.    In terms of that, putting aside the comments

  22    journals and fundamentals, focusing on the research journals

  23    in the physics area, are they all subjected to peer review?

  24         A.    Yes.

  25         Q.    Do they all have academic editors?




                                                                573


   1         A.    Yes.

   2         Q.    To your knowledge, is it the same -- you used the

   3    words "peer review."  Is it the same kind of peer review

   4    that society journals go through?

   5         A.    Yes.  Yes.

   6         Q.    Same kind of quality control?

   7         A.    It's quality control.  We send it to, normally,

   8    to two people in the field.  The one difference, I would

   9    say, what we do, our peer review tends to be a little more

  10    international because the publication is more international.

  11         Q.    Now, there is an issue in this case which has

  12    arisen which we will come back to later about the speed with

  13    which you publish.  In fact, you mentioned a moment ago that

  14    that's one of the pluses you see for the specialized

  15    journals of Gordon & Breach.  Does Gordon & Breach employ

  16    what has become known as the flow method of publication?

  17         A.    Yes.

  18         Q.    Could you explain for us again, as succinctly as

  19    you can, what it is?

  20         A.    All right.  We -- instead of scheduling a

  21    paper -- there are exceptions, of course, if we are doing a

  22    conference proceeding volume, but even there, there are

  23    exceptions to how long we will wait.

  24         Q.    If we could start without the exceptions, just

  25    generally speaking.




                                                                574


   1         A.    OK.  As soon as a paper is ready, it is

   2    published, excluding the exception.  And whether -- and we

   3    try to get the issue out -- and now the flow varies

   4    dramatically.

   5         Q.    Based on what?

   6         A.    Just based on vacation time, time of year when

   7    people are doing research, anything else.  The flow of

   8    material and the whole process of processing the papers,

   9    etc., itself.  But once the proof is returned from the

  10    author, and it is now accepted, publishable, the trick is

  11    for us to get it into the next issue.  Therefore, the number

  12    of -- the size of the issue, in terms of number of pages,

  13    varies; the number of volumes we intend to publish each year

  14    varies; and whether we meet those criteria each year or

  15    exceed those criteria each year varies by publication.

  16         Q.    Generally speaking, what is your perceived

  17    advantage of this?

  18         A.    That it gets the author's work out as quickly as

  19    possible to his peers.

  20         Q.    To your knowledge, sir, do other publishers or do

  21    most of the other publishers of journals in the physics area

  22    do it the same way?

  23         A.    I don't know anymore.  At one time the only one

  24    who was doing it similarly was Springer.

  25         Q.    Do the societies do it, to your knowledge?




                                                                575


   1         A.    This was many years ago, yes.

   2         Q.    Do the societies, to your knowledge, use this

   3    system?

   4         A.    I don't know.  I have no idea.  And of course

   5    there are so many societies, so some I know don't, but I

   6    cannot say they all don't.

   7         Q.    Approximately, if you can generalize, with

   8    respect to the physics journals, how many subscribers do

   9    they have, journals, what's the range?

  10         A.    It depends.

  11         Q.    What's the range?

  12         A.    The range could be -- it's very difficult to

  13    tell.  By the way, I'm going back two years because of the

  14    current market conditions and being able to even count

  15    subscriptions.  It would be about four, three, four, 100,

  16    200, 500, some of the comments sections are about 1,000.

  17               THE COURT:  What is the smallest number?

  18               THE WITNESS:  The small left number is, if I go

  19    to the smallest number of all of our journals, it would be

  20    under 100, it would be 70 or 80.  These would be new

  21    publications, which take some years to achieve.  But also,

  22    if we knew there were only 80 institutions out there, we

  23    would try to produce it and price it for those 80

  24    institutions out there.  That's why the pre-analysis, is the

  25    critical point of what the market is.




                                                                576


   1         Q.    When you said, in answer to the Judge's question,

   2    that in the beginning there might be under 100, is the point

   3    that, obviously, as time goes on, if the journal is

   4    successful there is going to be an increase in the number of

   5    subscribers; that's your obvious hope?

   6         A.    Well --

   7               MR. MESERVE:  Objection, leading, your Honor.

   8               THE COURT:  Well, this is a little --

   9               MR. LUPERT:  Withdrawn.  It's also not on point,

  10    I guess.

  11         Q.    I have one further question on this area, and

  12    then if that will be a convenient time to break.

  13               Approximately how many journals a year does

  14    Gordon & Breach start?

  15         A.    Journals and magazines, because now again that's

  16    a formatting -- is -- are about 20 to 30 a year, I think.

  17         Q.    Approximately how many journals -- and again I

  18    know you were talking in gross terms of the 350 that are out

  19    there, approximately how many are losing money at any one

  20    time?

  21         A.    I don't -- I couldn't give you that statistic.

  22    We get -- we don't analyze it --

  23         Q.    That way?

  24         A.    -- on a percentage basis.

  25         Q.    OK.  But are there a number of journals out there




                                                                577


   1    that are at all times losing money?

   2         A.    Oh, yes.

   3         Q.    In other words, not every one of these journals

   4    is profitable, correct?

   5         A.    Yes.  Yes, that's correct.

   6               THE COURT:  But the anticipation is that at some

   7    point they will become profitable?

   8               THE WITNESS:  The anticipation is that at some

   9    point the program will become profitable.  What we tend to

  10    do is, as we -- it is impossible for us to judge the

  11    differential.  As we reinvest our profits, if I could put it

  12    that way, in new publications which are showing losses,

  13    so --

  14               THE COURT:  You say 20 to 30 new journals and

  15    magazines a year?

  16               THE WITNESS:  Yes.

  17               THE COURT:  You abandon journals and magazines?

  18               THE WITNESS:  Yes.

  19               THE COURT:  What is the rate of attrition?

  20               THE WITNESS:  Small.  A few a year.  We abandon

  21    them only if they are editorially incorrect, in other words,

  22    if the quality has not been good or if the editor suddenly

  23    begins to accept poor papers and this affects the journal,

  24    obviously, very severely, and if -- or if the field of

  25    research has changed, where this is no longer a relevant




                                                                578


   1    niche to the research which is going on.

   2               MR. LUPERT:  Thank you, Judge.

   3               THE COURT:  We will break now and we will resume

   4    at 2 o'clock.

   5               (Luncheon recess)

   6

   7

   8

   9

  10

  11

  12

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25




                                                                579


   1                 A F T E R N O O N    S E S S I O N

   2                               2 p.m.

   3    MARTIN B. GORDON,

   4               Resumed, and testified further as follows:

   5    DIRECT EXAMINATION (Resumed)

   6         Q.    Mr. Gordon, we were talking about the different

   7    types of journals that Gordon & Breach publishes, and I want

   8    to ask you about just one more.  Does Gordon & Breach

   9    publish a journal called Combustion Science and Technology?

  10         A.    Yes.

  11         Q.    Does that contain from time to time articles from

  12    foreign authors?

  13         A.    Yes, more than from time to time, yes.

  14         Q.    Is there a translation issue that comes up from

  15    time to time?

  16         A.    Yes.  This is a case -- a special case.  We have

  17    others like it, where we -- as it is involved with science

  18    and technology, we set up a separate Asian section, for

  19    example, which is edited in Japan, and the papers for that

  20    section are published in a Japanese edition.  And then the

  21    papers -- on combustion engineering, it is a section on

  22    combustion engineering.  And then these papers are all

  23    translated for the English-language version.  In addition,

  24    the abstracts both -- appear in both sections.

  25         Q.    Is that the same thing as what we commonly call a




                                                                580


   1    translation journal?

   2         A.    No, because it is just part of the whole package.

   3    That same journal -- we just set up, for example, a French

   4    language section for the French society and in conjunction

   5    with the French society.  This will appear in French

   6    language and in English language as a European edition.

   7         Q.    I take it the translation cost that you just

   8    described is an extra cost in connection with these kinds of

   9    journals?

  10         A.    Yes.  Translation costs, we've always had

  11    translation costs, for example, with applied journals in,

  12    certainly, the Soviet Union where people, even if they would

  13    submit their paper in English, there was no way to determine

  14    the English unless you translated the Russian, and,

  15    similarly, even in the Japanese -- to go back to Japan for a

  16    minute.  If someone submitted a paper in English, he is

  17    working from an imprecise to a precise language, and

  18    sometimes it would be not understandable to the referee or

  19    to the editor what the message of it was.  So we would go

  20    back to Japan, meet with the author:  Did you mean this or

  21    this and actually --

  22               THE COURT:  Please.

  23               MR. LUPERT:  We could just --

  24               THE COURT:  I take it the thrust of this, indeed

  25    the thrust of a good deal of the case, is to demonstrate




                                                                581


   1    that Gordon & Breach has costs which are peculiar to its

   2    type of publication and its mode of operation as

   3    distinguished from the AIP and APS journals.  That is, for

   4    example, the payment of the page fees and the costs such as

   5    you described.

   6               MR. LUPERT:  Payment to the commentators and the

   7    like.  It produces an additional value.

   8               THE COURT:  Mr. Meserve, do the defendants

   9    dispute the fact --

  10               MR. MESERVE:  No, your Honor.

  11               THE COURT:  -- that there are costs peculiar to

  12    the commercial operation which are not true of AIP and APS?

  13               MR. MESERVE:  That is true, your Honor.  We agree

  14    with that.  We understand that.

  15               THE COURT:  Can we move on?

  16               MR. LUPERT:  Yes, Judge.  Judge, it is just --

  17               THE COURT:  Mr. Gordon, you were in court, I

  18    believe, yesterday --

  19               THE WITNESS:  Yes.

  20               THE COURT:  -- when I asked Mr. King whether he

  21    would have any quarrel with the Barschall article if they

  22    explicitly stated that cost is not the sole factor in making

  23    decisions with respect to publication and that there were

  24    special interests and purposes to be served by publications

  25    which dealt with areas of very specialized, limited




                                                                582


   1    interest.

   2               THE WITNESS:  Yes.

   3               THE COURT:  Did you hear that testimony?

   4               THE WITNESS:  Yes.

   5               THE COURT:  Do you agree with that?

   6               THE WITNESS:  I think more needs to be done

   7    because of the -- insofar as we are talking about non-like

   8    publications and in the sense of international publications

   9    as opposed to what I would call -- what are national

  10    publications, that the citation -- I think the citation

  11    factors, the way the citation index is compiled is also a

  12    fundamental error of the Barschall survey, and that, for

  13    example, if I take a European author, he will cite papers

  14    from American publications, etc., and all over the world,

  15    whereas American publications are more apt to cite, more

  16    predominantly cite, U.S. publications.  And ISI -- I know

  17    this very well because we dealt with them, they wanted to

  18    sell their business to us at one time -- has a very small

  19    window on publications and don't take -- take into account

  20    as little as possible the international publications,

  21    because it meant additional costs for them.  And they were

  22    not eager.  In fact, we were approached by the equivalent of

  23    the National Science Foundation in Japan to set up such a

  24    thing for them because the Japanese English-language

  25    publications were not accepted at all by ISI --




                                                                583


   1               THE COURT:  You are talking about citations

   2    contained in foreign-language journals?

   3               THE WITNESS:  In English-language journals but

   4    which are based abroad.  The citations in English are not --

   5    ISI picks up now -- and it is much better than it was when

   6    they tried to sell it to us -- about five percent of all the

   7    publications that are published.  And these are mostly --

   8    they do take some that are based abroad, as well, general

   9    publications.  But these are mostly international -- these

  10    are mostly, you know, American-audience publications.

  11               THE COURT:  But the Gordon & Breach journals

  12    which are listed in the Barschall articles are journals

  13    which ISI covers?

  14               THE WITNESS:  I don't believe they cover -- they

  15    certainly don't cover the six that I mentioned before, and

  16    they certainly don't cover -- I believe they don't cover --

  17    I'm sorry --

  18               MR. LUPERT:  Maybe I could highlight this for

  19    your Honor.  If you take a look at table 1, for example, in

  20    Physics Today, you see particle accelerators, and which

  21    Dr. Ramsey testified about this morning Gordon & Breach

  22    bears no impact number.  If I could direct your attention to

  23    the tables, the bulletin article, you will see that the

  24    comments journals bear no impact number and the fundamentals

  25    handbook bears no impact number.




                                                                584


   1               THE COURT:  Where the dash appears.

   2               MR. LUPERT:  That means that ISI does not cover

   3    it.  That's what that means.

   4               THE WITNESS:  So most of the articles they chose

   5    for their sample were not -- most of the journals they chose

   6    for their sample were not covered by ISI, and -- the sample

   7    of our publications.

   8               MR. LUPERT:  Shall I move on, Judge?

   9               THE COURT:  Well --

  10               MR. LUPERT:  I believe that it is more important

  11    for you to ask than for me.

  12               THE COURT:  What my thought is, and these two

  13    publications are history.

  14               THE WITNESS:  Yes.

  15               THE COURT:  The defendant have said that they are

  16    outdated, there is no intent to use them any more, no one in

  17    1997 is interested in '86 and in '88.  And so, the focus on

  18    this case is future publications.

  19               THE WITNESS:  Right.

  20               THE COURT:  Now it seems to me that you said

  21    there are three factors.  One is, cost is not the sole

  22    criterion.

  23               THE WITNESS:  Yes.  And it may vary --

  24               THE COURT:  And one of the factors one looks to

  25    is the audience, the reader.




                                                                585


   1               THE WITNESS:  But also the editorial structure of

   2    the publication.

   3               THE COURT:  Yes.  But to tell librarians, for a

   4    scientific library, and to tell authors seeking publication

   5    that cost is not the sole criterion is something which some

   6    people may think of as a truism, but in any event, cost is

   7    not the sole criterion.

   8               The second consideration is that small, that what

   9    we call niche -- can we agree "niche publications" means a

  10    commercial publication geared to meeting a limited,

  11    specialized audience, that niche publications serve a

  12    special need and have unique cost considerations?  Yes?

  13               THE WITNESS:  Yes.

  14               THE COURT:  And now the third thing that you tell

  15    me is that publications not monitored by ISI create special

  16    problems if compared to publications which are monitored by

  17    ISI.

  18               THE WITNESS:  Yes.  I --

  19               THE COURT:  Now my question to you is this:

  20    Sometime in the future --

  21               THE WITNESS:  Yes.

  22               THE COURT:  -- the defendants want to do another

  23    cost analysis, and they say these three things:  Cost is not

  24    a sole criterion, niche publications have a special need and

  25    have unique consideration, publications not monitored by ISI




                                                                586


   1    create special problems of comparison to be publications

   2    which are monitored by ISI.  They say those three things.

   3               THE WITNESS:  I think there is a further defect

   4    in the methodology.

   5               THE COURT:  Yes.

   6               THE WITNESS:  That is the snapshot, the ISI

   7    snapshot for those that are monitored, the two-year

   8    snapshot.  We know one of the most cited papers -- in fact,

   9    I think there was a list of the 100 most cited papers.  Only

  10    one was a physics paper, and it was not cited for almost

  11    three or four years, for the first time.  So that the

  12    snapshot, one- or two-years snapshot, you are only dealing

  13    with a -- you are dealing with a flawed methodology.

  14               THE COURT:  But if the question is, to the

  15    librarian, what are the current needs and uses for my

  16    library, and if the question to the author seeking

  17    publication is, where will I get the optimum exposure for my

  18    work today, isn't the recent past of greater significance

  19    than ten years ago?

  20               THE WITNESS:  No, because of this time lag for

  21    citation that I'm citing in this particular case.  This

  22    turned out to be the most-cited ISI physics paper of 100.

  23    There were 100 papers.  Only one was physics, and it was not

  24    cited for one and a half years.  It was cited eventually, if

  25    you got -- three and a half years.  It was cited eventually,




                                                                587


   1    and cited enormously to make it -- so the librarian in that

   2    sense cannot judge by a snapshot that large what the total

   3    impact of this publication is going to be.

   4               THE COURT:  Well, if we are dealing here with

   5    generalities and the norm, isn't what I said the case?

   6    There may be exceptions.  Einstein's paper may have been

   7    ignored for many years, but for the purposes of the

   8    Barschall type of analysis, isn't that the exception?

   9               THE WITNESS:  No -- I don't think so.  And I also

  10    think the fact that they don't tend to, you know, cite the

  11    foreign -- pick up foreign citations.  They also don't pick

  12    up book citations, by the way, at all.  There are no book

  13    citations, and there are only citations vis-a-vis, if I can

  14    put it that way, and I think the snapshot area is much too

  15    small for that, and that's why this study was done by the

  16    director of ISI, former director, Mr. Garfield, in this

  17    article to show -- and 95 percent of them, of course, were

  18    outside of physics altogether.

  19               But this is really the key area, that the

  20    citation methodology, because of the limitations of ISI --

  21    ISI, as I now understand it, is in fact cutting the number

  22    of journals because they can't afford the cost, cutting the

  23    number of journals it is including in its citation because

  24    they can't afford the cost.  This doesn't mean that the

  25    articles are not cited, and even in relevant -- even




                                                                588


   1    face-to-face journals, if I can put it that way.  If we have

   2    a competing journal to Combustion Science and Technology,

   3    and it is not cited, then we are not getting the citation --

   4    you know, our papers will be cited in that publication.

   5               I think there is a fundamental flaw with the ISI.

   6    Now, I know it has been relied on here but I don't think

   7    people are aware of the limitations of what they could do.

   8    When they came to us they had, I think, about 5,000 or so

   9    publications, and the number of publications was over

  10    50,000.  And this -- this is -- and then to take even a

  11    smaller window on that and say, unless it's immediately

  12    cited -- and of course it may be immediately cited, but the

  13    same author writing in another article -- unless it is

  14    immediately cited it is of no value, I think that that is

  15    false and misleading information.

  16               MR. LUPERT:  Judge, if I could pick up on that?

  17    I appreciate exactly where Court is heading on this.

  18    BY MR. LUPERT:

  19         Q.    Is one of the other fundamental problems that you

  20    saw, Mr. Gordon, if I could lead you for just one second,

  21    that table 2 in Physics Today, which is the ranking of

  22    publishers?

  23         A.    Yes, of course.  Here they took journals which

  24    were noncompetitive and then ranked by publisher, and

  25    even -- ranked by publisher where at least six of -- I




                                                                589


   1    believe seven of the journals were to the -- they were not

   2    comparing like to like.  And of course to take the -- even

   3    if they are, to take eleven journals and say this publisher

   4    is more expensive is an overextension even of the

   5    conclusion.  And the others were not, you know, not relevant

   6    at all.

   7               The purpose of it, when I saw it appear, or

   8    because of that last line, I thought was promotional and --

   9         Q.    Mr. Gordon, if I can interrupt you.  When you say

  10    "the last line," you mean the last line of what?

  11         A.    Of the article which says, publish with us, we

  12    are a better bargain.

  13         Q.    The Physics Today article?

  14         A.    The Physics Today article.

  15         Q.    The 1988 Physics Today article?

  16         A.    And so the point was, it was not really meant to

  17    give libraries useful statistical information, because all

  18    of these tables, the translation journals, for example, many

  19    journals contain translation factors and multiple factors --

  20    the whole presentation, if I may state it that way, is put

  21    in a competitive framework rather than in a statistical

  22    framework.

  23               If you want to compare the cost in citation to

  24    journal A this year and last year, that's one kind of

  25    statistic.  But if you are taking the whole list, some of




                                                                590


   1    which are completely irrelevant and others of which have

   2    completely no -- forgetting the page charge problem,

   3    cost-covering and everything else, and making an

   4    ascertainment of where people should publish or what they

   5    should buy on the basis of that, it is really the format

   6    that is promotional, if I can present it that way.

   7               THE COURT:  All right.

   8               MR. LUPERT:  I should move on?  Judge, I would

   9    like to just deal with this very, very briefly.

  10         Q.    Mr. Gordon, there has been a very significant

  11    amount of testimony about page charges.  Don't talk about

  12    page charges, please.

  13               Gordon & Breach's policy with respect to page

  14    charges is something it calls negative page charges.  Can

  15    you in just a second or two explain what that policy is

  16    today?

  17         A.    We now have a policy, and this is something that

  18    would have to be taken into a future survey.  We provide --

  19    since we are talking to an intermixed, linear community, we

  20    provide something called a negative page charge to the

  21    author.  So that those people who are participating and

  22    working back and forth can take this voucher and either use

  23    it to purchase something or pass it on to the library to

  24    reduce the subscription price.  In addition, we now have and

  25    are receiving positive, what I would call voluntary page




                                                                591


   1    charges.  We now have a voluntary, where people can pay up

   2    to $25 a page --

   3         Q.    What then happens to that money?

   4         A.    That money is re -- totally refunded to them in

   5    the form of a voucher.  And this voucher can be used by

   6    them, by a library, or by their librarian.  Now, one --

   7         Q.    What is the purpose of that concept?  Why do you

   8    take the money and then give it back?

   9         A.    Because the purpose -- the page charge idea is a

  10    supplement to the publication.  And what we're saying is we

  11    are giving this supplement back to the person who paid it.

  12         Q.    The page charge, rather than when it is paid on a

  13    voluntary basis, comes from the research grant to the

  14    individual, correct?

  15         A.    I assume so.

  16         Q.    What this concept of yours is, is that it goes to

  17    the individual who can give it to his library as a way of

  18    reducing the price?

  19         A.    That is right.

  20         Q.    To your knowledge, is that a unique Gordon &

  21    Breach program?

  22         A.    To my knowledge, it is unique but it does get

  23    into the whole -- no library, because of the negative and

  24    positive page charges, all libraries are now paying

  25    different prices.  Those institutions which are more




                                                                592


   1    involved in the publication are obviously receiving it for a

   2    lower price than --

   3         Q.    Now, in connection with the different prices, did

   4    there come a time when you learned that Physics Today had

   5    published a survey by Barschall that compared cost and

   6    character?  That is the 1986 survey, correct?

   7         A.    Yes.

   8         Q.    You learned about that?

   9         A.    Yes.

  10         Q.    And did you then send a letter to the APS -- may

  11    I have PX21, please -- setting forth certain concerns you

  12    had about the data?

  13         A.    Yes.

  14         Q.    Do you recall that?

  15         A.    Yes.

  16         Q.    In that letter, which I am going to show you, did

  17    you ask the APS and Professor Barschall and another

  18    recipient that if they were going to do another survey,

  19    because there were some unique aspects of your pricing and

  20    your flow system, to please check the data first with you?

  21         A.    Yes.

  22         Q.    And this letter, PX21, is this the letter that

  23    you sent to the American Physical Society of Professor

  24    Barschall on East 35th Street -- I'm sorry, East 45th

  25    Street, 345 East 45th Street, New York?




                                                                593


   1         A.    Yes.

   2         Q.    To your knowledge, was that where APS was located

   3    at that time?

   4         A.    Yes.

   5               MR. LUPERT:  I offer this in evidence, your

   6    Honor.

   7               MR. MESERVE:  No objection.

   8               THE COURT:  Received.

   9               (Plaintiff's Exhibit 21 received in evidence)

  10         A.    Yes, there are other points and versions --

  11         Q.    I am not going to take you through the points.

  12               Did it then come to your attention -- obviously

  13    it came to your attention that Barschall had done another

  14    survey that had been published in Physics Today in 1988?

  15         A.    Yes.

  16         Q.    With a companion piece in the bulletin?

  17         A.    Yes.

  18         Q.    Did you learn about that shortly after it was

  19    published?

  20         A.    I learned about it when people brought it to my

  21    attention.

  22         Q.    Before you learned of it, did anyone at APS, AIP

  23    or Professor Barschall, make any effort to check anything in

  24    connection --

  25         A.    They checked the --




                                                                594


   1         Q.    Did they make any effort to check anything?

   2         A.    No.

   3         Q.    Now, obviously you brought lawsuits in connection

   4    with this second survey, correct?  This is the one that is

   5    at issue in this case?

   6         A.    Yes.

   7         Q.    And you've testified, and I was going to ask you

   8    why you brought the lawsuit, but did that last paragraph,

   9    the last paragraph of Physics Today, that statement about

  10    authors publishing, did they have -- was that a significant

  11    element in your thinking, and, if so, why?

  12               MR. MESERVE:  Objection, your Honor.  That is a

  13    leading question.

  14               THE COURT:  Overruled.

  15         Q.    Tell us the most important reason --

  16         A.    The first thing I noticed was that statement,

  17    that this was a promotional piece.

  18         Q.    You mean that last paragraph?

  19         A.    That last paragraph, yes, that this was a

  20    promotional piece.  We then -- I then went through the data

  21    and said that the methodology was rather silly, as well.

  22    And we didn't at that time decide to bring a lawsuit, but we

  23    wanted them -- that is why it eventually ended up as a

  24    lawsuit.  I believe it was purely a promotional activity.

  25         Q.    Did it come to your attention, after you learned




                                                                595


   1    of the publication but before this lawsuit was brought, that

   2    there had been a distribution of a preprint of this?

   3         A.    Yes.

   4         Q.    Let me show you Exhibit 42, which is one of the

   5    documents in evidence, and ask you if this is the preprint

   6    that came to your attention shortly after the publication,

   7    or before?  I don't know when it came to your attention, but

   8    before you brought the lawsuit did you learn about this?

   9         A.    Oh, yes.

  10         Q.    And this is the preprint that contained the

  11    bulletin tables plus the ranking of publishers?

  12         A.    That's right.

  13         Q.    What did you learn about it?  Where had it been

  14    distributed?

  15         A.    I forget the society meeting that it had been

  16    distributed at --

  17         Q.    Was it a library convention?

  18         A.    I believe so, yes.

  19               THE COURT:  The injunction which you are

  20    seeking -- you understand that in this suit, you are not

  21    seeking monetary damages.

  22               THE WITNESS:  No.  No.

  23               THE COURT:  And I think you have already said the

  24    '86 and '88 articles are outdated.

  25               You are seeking an injunction based on the




                                                                596


   1    methodology employed by Henry Barschall in his article?

   2               THE WITNESS:  That's right.

   3               THE COURT:  Would you define for me what you mean

   4    by "methodology employed by Henry Barschall"?

   5               THE WITNESS:  It was the data that was assembled

   6    and the way the data was used.

   7               THE COURT:  Now, "data assembled," that is

   8    history.  That is what he did there.

   9               THE WITNESS:  I mean "data" in a different

  10    context.  The journals -- of the 24 journals, these six

  11    journals which I mentioned to you were, by definition, on a

  12    per character basis the most expensive, because they were --

  13    the authors were paid and edited and -- anyway.  And we

  14    believe that when we brought this up and said -- we believe

  15    that that was intentional.  Forget the fact that they

  16    didn't --

  17               THE COURT:  You don't accept the statement that

  18    Barschall used what he had available in the library --

  19               THE WITNESS:  In fact, that was one of the things

  20    that was brought up to us at one of the meetings with him

  21    and we checked our subscription records and it was not what

  22    he had available to him at the library.  And we found that

  23    there were other journals of ours that he did have available

  24    and some of those in this survey were not subscribed to by

  25    his library.




                                                                597


   1               THE COURT:  All right.  So the first item is that

   2    the selection of the data has to be objective.

   3               THE WITNESS:  Exactly.

   4               THE COURT:  What else --

   5    BY MR. LUPERT:

   6         Q.    The Judge is trying to flush out for you,

   7    Mr. Gordon, exactly what it is about the methodology that

   8    you think should be --

   9               THE WITNESS:  And then, of course, the pricing

  10    was -- comparative pricing was completely wrong in that we

  11    offered certain things as part of our prices that the

  12    societies and others charged for on the same invoice but

  13    separately.  And these differences in pricing -- that's why

  14    I've not brought up positive or negative page charge, which

  15    would make it more complicated.  These differences in price,

  16    they must check -- verify the data with us.

  17               Even -- if I can go just a small example further:

  18    Our base price is in ECU, all right.  The dollar price

  19    listed in the journal is subject to fluctuation according to

  20    the relationship of the ECU to the dollar.

  21               And even the price printed there may have changed

  22    by the time he has -- forgetting the other elements of

  23    internal.  So the data must be verified for the pricing as

  24    being correct.

  25               Now, in today's world, your Honor -- do you mind




                                                                598


   1    if I go on or am I --

   2               THE COURT:  What I am trying to separate are the

   3    objections you have which are peculiar to these articles --

   4               THE WITNESS:  OK.

   5               THE COURT:  -- which are history.

   6               THE WITNESS:  OK.

   7               THE COURT:  Because I'm being asked, by you,

   8    through your counsel, to enjoin an implementation of a

   9    methodology.

  10               Now, what I have so far from you is, the data

  11    selected had to be done in an objective, non-biased fashion,

  12    and that the prices utilized have to be, you say verified,

  13    but that's a means to having accurate comparable --

  14               THE WITNESS:  That's right, exactly.

  15               THE COURT:  Now, what else is in the methodology?

  16               THE WITNESS:  OK --

  17               MR. LUPERT:  Could I be helpful, because we

  18    actually, in line with what your Honor mentioned yesterday,

  19    we have actually spent some time with Mr. Gordon going over

  20    this.  I could ask him, if your Honor would permit --

  21               THE COURT:  Yes.

  22               MR. LUPERT:  -- each of these points and bring

  23    this out to your Honor's attention with Mr. Gordon's help in

  24    a matter of a few minutes.

  25               THE COURT:  I am injecting myself, I'm sure, too




                                                                599


   1    much.  I know I did not enjoy it when judges did it to me.

   2    But I do have a sense -- I've said this too many times, but

   3    perhaps not to sufficient avail -- that a lot of this trial

   4    is with respect to undisputed items and items which really

   5    don't focus on the remedy being sought and so on.

   6               MR. LUPERT:  May I --

   7               THE COURT:  Yes, I will step back.

   8               MR. LUPERT:  I don't mean to interrupt at all.

   9    It is just that -- I think this might be helpful.  If not,

  10    I'm sure your Honor will tell me it is not helpful.

  11               THE COURT:  All right.

  12    BY MR. LUPERT:

  13         Q.    Is one of the problems that you see, just as a

  14    general proposition, before we get into the specifics, that

  15    the presentation of the material in these two articles

  16    creates a problem --

  17         A.    Yes.

  18         Q.    Is one of the problems that, whatever caveats or

  19    limitations we all work out here or don't work out here,

  20    that you can't really find them, they are not prominently

  21    set forth?

  22         A.    That's right.

  23               MR. MESERVE:  Objection, your Honor.  This is

  24    leading.

  25               THE COURT:  Yes.




                                                                600


   1               MR. MESERVE:  We are dealing with an issue that

   2    has already been resolved by the Court that the articles

   3    themselves are protected speech and we are dealing with a

   4    commercial use of this.  Somebody may say they are more cost

   5    effective and they are the greatest barring APS, and this is

   6    completely irrelevant.

   7         Q.    Is one of the caveats or limitations, in answer

   8    to the Judge's question -- and I'll just tick these off very

   9    quickly --

  10               THE COURT:  I haven't answered on the ruling in

  11    answer to that objection, because -- there are two issues.

  12               One issue is whether the utilization by the

  13    defendants of the articles in their commercial activities is

  14    a violation of the Lanham Act.  That's one issue.  That's

  15    not the issue that I was presently addressing.

  16               The issue that I was presently addressing was

  17    another issue.  It was a remedy issue.  The fact that I am

  18    addressing it, of course, is no indication of whether I

  19    think I will ever reach a remedy issue.

  20               But it occurred to me that a good deal of the

  21    testimony which went perhaps to the first issue really did

  22    not give me very much guidance with respect to the remedy

  23    being sought, where the key phrase is based upon the

  24    methodology employed by Henry Barschall.

  25               Now I understand that, for example, using a




                                                                601


   1    two-year time period rather than a longer period, that might

   2    be said to be methodology.

   3               MR. LUPERT:  I think comparing journals that are

   4    not alike would be considered to be methodology.

   5               THE COURT:  In any event, that is what I was

   6    seeking to ascertain.

   7               MR. LUPERT:  Yes.  Let me focus just on that.

   8               THE COURT:  Yes.

   9    BY MR. LUPERT:

  10         Q.    You have mentioned what you saw as the flaw in

  11    the impact number.  We've mentioned the flaw that you saw in

  12    the ranking of publishers as a general proposition.

  13               You've mentioned the flaw --

  14               THE COURT:  What does that mean?  Ranking of

  15    publishers as a general -- are you saying that it is

  16    impermissible for somebody who is writing on cost

  17    effectiveness in journals to make any comparison?

  18               THE WITNESS:  No.  But to take a comparison

  19    between publishers -- let's assume the journals are all

  20    relevant, on the basis of ten journals out of a list of 350

  21    journals, or even in the subject area, ten journals out of

  22    50 journals, or with other publishers it is even -- may be

  23    greater, and say these are the most expensive publishers,

  24    that it's too -- again, too small a window.  In this case,

  25    it was further distorted by the fact of what he chose, but




                                                                602


   1    I'm just saying, even if he had chosen proper journals and

   2    then did this ranking, it doesn't necessarily -- that's not

   3    necessarily the conclusion about the publisher.  Some things

   4    are very inexpensive, some things are much more expensive,

   5    for all kinds of reasons.  And to say this publisher is more

   6    expensive than this, which is the conclusion -- now, you can

   7    say for these ten journals this publisher appears to be more

   8    expensive than this, but you cannot put that kind of

   9    extrapolation, because it is totally false and misleading, I

  10    think.

  11    BY MR. LUPERT:

  12         Q.    It is not just more expensive.  He is using the

  13    concept of cost effectiveness.  So it is the consent of

  14    taking journals from different subspecialties and pretending

  15    that they are all the same, pretending that general

  16    journals --

  17               MR. MESERVE:  I am wondering who is testifying,

  18    your Honor.

  19               THE COURT:  Yes.

  20               MR. LUPERT:  Judge, if I could just interject.  I

  21    think this is an extremely helpful colloquy.  We are hoping

  22    this evening, if I could pursue this colloquy with the

  23    defendants -- I am alerting the Court to the fact that,

  24    while we still have fundamental problems with cost

  25    effectiveness with Barschall to find it, there may be a way,




                                                                603


   1    based on these kinds of questions, to steer our way through

   2    this.  I think to the extent the Court helps us on this,

   3    frankly -- we've been trying to settle this case for nine

   4    years.  Some help is needed.

   5               MR. MESERVE:  Your Honor, I can't resist

   6    commenting on this.  My clients have been sued in four

   7    different countries, twice in Switzerland, and this is being

   8    reduced down.  But the kind of issues that we had, that

   9    Mr. Gordon raises over and over again, is the kind of

  10    irrelevancies that we have had to deal with in four

  11    different countries and in this country as well.

  12               We've gotten a large number of documents, and it

  13    is only after we've gotten to trial after all of these years

  14    that we've heard from the plaintiffs about a methodology

  15    issue, that they don't like the impact factor and the cost

  16    per thousand characters ratio.  We've heard about all of

  17    these issues that Mr. Gordon has raised as being big issues

  18    and they withdrew the witness at the last minute that was

  19    supposed to testify on it.  This notion about the fact that

  20    we've gotten where we are is, to my clients, is an outrage

  21    that all of these years later and this is reduced down to

  22    such a small thing.

  23               MR. LUPERT:  We obviously don't agree about the

  24    smallness of it.

  25               THE COURT:  Maybe that is one of the purposes of




                                                                604


   1    a trial, and maybe that is one of the purposes of the judge,

   2    and I understand the factors which led you to make that

   3    statement.

   4               MR. MESERVE:  Excuse me, your Honor.

   5               THE COURT:  Yes.

   6               MR. LUPERT:  Shall I move on?

   7               THE COURT:  To wherever you want.

   8               MR. LUPERT:  Plaintiff's Exhibit 61.

   9         Q.    After having read the Barschall articles, the

  10    1988 articles, did you seek legal counsel?

  11         A.    Not initially.

  12         Q.    But by August 26, 1988 --

  13         A.    Yes.

  14         Q.    I think the publications were in July.  You

  15    contacted my law firm, did you not?

  16         A.    I believe so, yes.

  17         Q.    In particular, my partner, Sheldon Elsen?

  18         A.    Yes.

  19         Q.    Did you authorize him to send a letter to the

  20    AIP, which is Exhibit 61, alerting the AIP to the concerns

  21    you had with the second survey?

  22         A.    Yes.

  23               MR. LUPERT:  I offer this.

  24               THE COURT:  101?

  25               MR. LUPERT:  61.




                                                                605


   1               THE COURT:  161?

   2               THE WITNESS:  Just 61, just six-one.

   3               THE COURT:  Oh, 61.

   4               MR. LUPERT:  I offer this.

   5               MR. MESERVE:  No objection, your Honor.

   6               THE COURT:  Received.

   7               (Plaintiff's Exhibit 61 received in evidence)

   8         Q.    Without telling us, it is impermissible to go

   9    into settlement discussions, Mr. Gordon, but did there then

  10    take place over a period of several months discussions

  11    between counsel for you and the other side in which you

  12    participated and in which an effort was made to resolve this

  13    before a lawsuit was brought?

  14         A.    Yes.

  15         Q.    Have you, as a publisher, has Gordon & Breach as

  16    a publisher ever done any joint projects with societies?

  17         A.    Yes.

  18         Q.    Have you done it with the American Chemical

  19    Society?

  20         A.    We have an arrangement with the American Chemical

  21    Society now where their members -- we are publishing some

  22    material for them.  They have a link to our web site.  Their

  23    members get a discount on our publications, and they have

  24    asked us to engage in some publishing activities for them.

  25         Q.    Now, there has been a series of accusations made




                                                                606


   1    by the defendants concerning episodes that Gordon & Breach

   2    had, some of which you participated in, one of which was the

   3    dispute with the American Mathematical Society.  Do you

   4    recall that?

   5         A.    Oh, yes.

   6               MR. LUPERT:  Now, Judge, in the break, I had the

   7    court clerk pull out the sequence of documents so that it

   8    would all be together and your Honor could go through these

   9    with us to show exactly what happened.  It is all related in

  10    our documents.

  11         Q.    I am going to put before Mr. Gordon Exhibit 500.

  12               This dispute with the American Mathematical

  13    Society spanned more than a decade, didn't it?

  14         A.    It -- well, the decade was not all spent in

  15    dispute.  It reoccurred at the end of a certain period of

  16    time, yes.

  17         Q.    I didn't mean to say -- and I appreciate your

  18    correction -- it wasn't a day-to-day thing?

  19         A.    No.

  20         Q.    There were disputes with them that spanned a very

  21    long period of time?

  22         A.    Yes.

  23         Q.    And Exhibit 500, is this a survey that they

  24    published?

  25         A.    I'm trying to find the date.




                                                                607


   1         Q.    I think it is dated in 1983.

   2         A.    OK.  Yes.

   3         Q.    And it included a couple of Gordon & Breach

   4    journals, correct?

   5         A.    Yes.

   6         Q.    And it used the cost per character concept?

   7         A.    That's right.

   8         Q.    Let me show you Exhibit 502.

   9               As a result, after you learned it, did you

  10    authorize counsel to write a letter to the AMS?

  11         A.    Yes?

  12         Q.    And that is this Exhibit 502?

  13         A.    Yes.

  14         Q.    Do you recall generally what your objections

  15    were?

  16         A.    Well, the objections were several-fold, in that

  17    again they compared niche with more general publications,

  18    the page charge issue, and members' dues, of course, which

  19    were -- and then there was another point.  They had

  20    compared, at cost per thousand characters, journals which

  21    had a different basic cost rate per thousand characters, not

  22    involving the printing costs in this case, the composition

  23    costs.

  24         Q.    So you had concerns about certain of their

  25    computational errors?




                                                                608


   1         A.    Yes.

   2         Q.    I don't want to take you through every one of

   3    these.  It is really not relevant to the substance of this.

   4               The last paragraph, would you take a look at

   5    that?

   6         A.    Yes.

   7         Q.    Is this what you told counsel to bring to their

   8    attention, that this was the remedy that you wanted at that

   9    point in time?

  10         A.    Yes.

  11         Q.    If you publish similar surveys in the future,

  12    you'll take account of them and make the reader aware of the

  13    limits of your survey, do you see that?

  14         A.    Yes.

  15         Q.    And that if they didn't, you wanted them to drop

  16    their journals from your survey?

  17         A.    Yes.  By the way, there were other -- yes.  There

  18    were several mistakes which aren't mentioned.

  19         Q.    Several other mistakes?

  20         A.    Errors.

  21         Q.    As a result of that, do you recall receiving a

  22    letter from the then head of the AMS, named William LeVeque?

  23    Maybe I can show you the letter.  It is Exhibit 503,

  24    addressed to your counsel, at the Vladeck Waldman firm here

  25    in New York.  Do you see that?




                                                                609


   1               I would like to address your attention to the

   2    third paragraph.  This letter from Mr. LeVeque of the AMS

   3    says, "If you instruct me to do so, I will of course see to

   4    it that G&B journals are not listed."  And in the last

   5    paragraph it says, "In any case, be assured that we will

   6    proceed as he specifies."

   7               Do you see that?

   8         A.    Yes.

   9         Q.    You did you get a copy of this letter or were you

  10    told about it?

  11         A.    I was told about it, at least.

  12         Q.    Did you then direct your counsel to accept their

  13    offer?

  14         A.    Yes.

  15         Q.    And let me show you what is Exhibit 504.  It is a

  16    copy to you.  Is this a letter to Mr. LeVeque saying that,

  17    "We accept -- and we wish to be omitted from all surveys

  18    made by you in the future"?

  19         A.    Yes, that was one of the options they gave us.

  20         Q.    And then did you receive another letter marked

  21    505, again from Mr. LeVeque of the American Mathematical

  22    Society to your counsel, or were you told about this,

  23    stating that your journals would in fact be excluded?

  24         A.    Yes.

  25         Q.    And that they assumed this would be correct?




                                                                610


   1         A.    Yes.

   2         Q.    Then did you instruct your counsel to tell them,

   3    that's exactly the agreement that we want?

   4         A.    Yes.

   5         Q.    And that's 506.

   6               Did you conclude from this that the AMS had

   7    agreed to drop Gordon & Breach from all future surveys they

   8    did?

   9         A.    That's what it says, yes.

  10         Q.    Now, in fact, did it come to your attention in

  11    1985 that the AMS did another survey and in fact omitted

  12    Gordon & Breach journals?

  13         A.    Yes.

  14         Q.    May I show you what is Exhibit 501 --

  15               (Pause)

  16         Q.    Let me show you Exhibit 501.  Just identify this

  17    as the survey which omitted Gordon & Breach journals?

  18         A.    I believe so, yes.

  19         Q.    I represent to you that it did.

  20               Did it then come to your attention that in

  21    November of '86 the European Mathematical Council had done a

  22    survey which in fact included Gordon & Breach journals?

  23         A.    Well, it not only included the Gordon & Breach

  24    journals, it included the same data that the American

  25    Mathematical Society said they weren't, that they had




                                                                611


   1    published the first time.

   2         Q.    This is Exhibit 507?

   3         A.    The same data in reference to our journal.

   4         Q.    Did you conclude, or did you believe that there

   5    was a likelihood that the European Mathematical Council and

   6    the American Mathematical Council were working together or

   7    were somehow in cooperation?

   8         A.    I think somewhere it says that they obtained --

   9    were grateful to the American Mathematical Society for much

  10    value and help in gathering data.

  11         Q.    I show you now Exhibit 508.

  12               Did you then write a letter to the -- what you

  13    call the Mathematical Institute but was in fact the group

  14    that published the European survey in which you mentioned,

  15    among other things, the agreement with the AMS?

  16         A.    Yes.

  17         Q.    And it says, "We've had previous correspondence

  18    about this as a result of which they agreed to discontinue

  19    listing our publications in this survey," and you enclosed a

  20    copy of a letter --

  21         A.    That's right.

  22         Q.    -- that your counsel had sent.

  23         A.    Yes.

  24         Q.    Did you then receive, do you recall, a letter

  25    from the head of the European Mathematical Council, Sir




                                                                612


   1    Michael A-t-y-a-h?

   2         A.    Yes.

   3         Q.    Let me show you what has been marked as Exhibit

   4    509.  I direct you in particular to the last paragraph.

   5               Does this confirm to you that there was an

   6    agreement both with the AMS and with the European

   7    Mathematical Council?

   8         A.    Yes.  "You referred to your correspondence to the

   9    American Mathematical Society" --

  10         Q.    Slow down.

  11         A.    "I have been in touch with their executive

  12    director, William LeVeque, and we see eye to eye on this

  13    matter.  Accordingly, the EMC will cooperate with the AMS

  14    and take a similar line in respect to" our objections --

  15    "your objections."  I'm sorry.  "In other words, future

  16    versions of our survey will indicate which publishers have

  17    been omitted from the survey at their own request."

  18         Q.    Does this indicate to you, as you testified, with

  19    respect to prior correspondence with the AMS, that the

  20    agreement pertained to all future surveys?

  21         A.    Yes.

  22         Q.    Then did it come to your attention -- remember,

  23    this is 1987, this letter -- that in November 1989, the

  24    American Mathematical Society did yet another survey but

  25    included Gordon & Breach journals?




                                                                613


   1         A.    Yes.

   2         Q.    May I show you what has been marked as Exhibit

   3    515 and ask you, is this the survey -- and I apologize for

   4    the person in my office who a long, long time ago put arrows

   5    on this original exhibit, but in fact those arrows are to

   6    the Gordon & Breach journal.  Do you see it there?

   7         A.    Yes.

   8         Q.    Did that, in your mind, did you conclude that

   9    there was a breach of an agreement?

  10         A.    Yes.

  11               MR. LUPERT:  May I have Exhibit 520?

  12         Q.    Did it also come to your attention that a man

  13    named William Jaco had taken over as executive director for

  14    Mr. LeVeque and had written an editorial in connection with

  15    the 1989 survey?

  16         A.    Yes.

  17         Q.    And is this the editorial, Exhibit 520?

  18         A.    Yes.

  19         Q.    Do you see, in the body of it, the paragraph

  20    beginning "at the height of these exchanges"?  Do you see

  21    that paragraph?

  22         A.    In the beginning --

  23         Q.    The first page, the paragraph beginning "at the

  24    height of these exchanges."

  25         A.    Yes.




                                                                614


   1         Q.    Do you see the sentence, "There was, however, no

   2    agreement to refrain from ever including G & B journals"?

   3    Do you see that?

   4         A.    And any future survey, yes.

   5         Q.    Did you agree with that or disagree with that?

   6         A.    That is not what we had agreed with them.

   7         Q.    What did you conclude in your mind as to whether

   8    or not there was a breach of an agreement by the inclusion

   9    of G & B journals in this 1989 survey?

  10         A.    That it was a breach of an agreement.

  11         Q.    Did you then authorize counsel, namely my firm,

  12    again, to write the AMS about this matter?

  13         A.    Yes.

  14         Q.    And I would like to show you Exhibit 516.

  15               MR. LUPERT:  Judge, there may be one that is

  16    slightly out of order, 513, that I will come back to in just

  17    one second.

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

  19    516.  This is a letter I signed, or someone I guess signed

  20    for me but I wrote it.

  21               This is a letter that you authorized be sent?

  22         A.    Yes.

  23         Q.    And in it, it says this violated the agreement

  24    you had with G & B not to include its publications?

  25         A.    Yes.




                                                                615


   1         Q.    And it contains erroneous information?

   2         A.    Why he.

   3         Q.    That's your belief?

   4         A.    Yes.

   5         Q.    You asked that they publish a retraction?

   6         A.    Yes.

   7         Q.    In addition, did you simultaneously, or during

   8    the same time frame, authorize my firm to send a letter to

   9    Sir Michael Atiyah to put him on notice?

  10         A.    Yes.

  11         Q.    Is that Exhibit 517?

  12         A.    Yes, because we had no idea how far this had

  13    spread, yes.

  14         Q.    Then did you write a letter personally to Sir

  15    Michael Atiyah?

  16               Let me show you 521.

  17               Is this a letter that you drafted?

  18         A.    Yes.

  19         Q.    And in it, you say that you want to know whether

  20    they were still honoring the agreement, which is the first

  21    paragraph?

  22         A.    Yes.

  23         Q.    And you then reference survey forms.  Had the AMS

  24    in fact, as you sit here today, to your knowledge, sent a

  25    questionnaire to a Gordon & Breach employee in connection




                                                                616


   1    with the 1989 survey?

   2         A.    It was sent to Gordon & Breach, and it was picked

   3    up by a Gordon & Breach employee.  I don't think it was

   4    addressed to him.  I'm not sure.

   5         Q.    It is addressed to a Mr. Philip Manor?

   6         A.    Yes, I'm sorry.

   7         Q.    Who is Mr. Philip Manor?

   8         A.    He was the editorial employee at the time.

   9         Q.    Did you learn about this at the time?

  10         A.    I learned about it only when the -- when this

  11    came up after the survey was published.

  12         Q.    After the survey was published --

  13         A.    Yes.

  14         Q.    -- did you learn that Mr. Manor, or someone on

  15    his staff at the West 23rd Street office, had actually

  16    filled out a questionnaire sent by the AMS?

  17         A.    Yes.

  18         Q.    Had the AMS sent it to the headquarters, as far

  19    as you know, this questionnaire?

  20         A.    That was the only place it was received.

  21         Q.    I want to show you what's been marked --

  22         A.    As far as I know.

  23         Q.    I show you what has been marked as Exhibit 513.

  24    After the publication of this latest survey by the AMS, did

  25    you have a chance to -- strike that.




                                                                617


   1               Did you actually get a copy of it, of this

   2    survey, that had been sent to Mr. Manor?

   3         A.    Yes.

   4         Q.    And did you reach any conclusion first about

   5    whether it had been proper for AMS, in light of the

   6    agreement you thought you had, to send such a letter, or

   7    questionnaire?

   8         A.    Well, the basis of the questionnaire, in effect,

   9    gave us nine days to answer or they would use the data that

  10    they had.  This wasn't answered by Mr. Manor, by the way,

  11    but by somebody else.

  12         Q.    Someone a junior to Mr. Manor?

  13         A.    A junior or senior, I can't say.

  14         Q.    You are not at the --

  15         A.    I don't recall.

  16         Q.    At this time in September of '89, were you

  17    headquartered on West 23rd Street, New York?

  18         A.    Headquartered, no.

  19         Q.    You had 20-odd offices around the world?

  20         A.    Yes, I was in Switzerland at that time and our

  21    publications were in --

  22         Q.    So did you consider this, sending out the

  23    questionnaire, to be consistent or inconsistent with the

  24    agreement that you had?

  25         A.    Obviously inconsistent.




                                                                618


   1         Q.    Did it also come to your attention that there

   2    were any data points, that is, points with respect to the

   3    information filled out, that was relevant to your mind set

   4    about the 1989 survey?

   5               I point you specifically to the corporate and

   6    library prices.

   7         A.    Oh, yes.  Yes.  That --

   8         Q.    What is it about that that caused you some

   9    concern?

  10         A.    Well, again, we had a corporate price and a

  11    library price.  In all of their surveys, they, I believe,

  12    they have said this is for librarians.

  13         Q.    But the AMS purported to send this survey of

  14    theirs published in the notices as for librarians?

  15         A.    For librarians.  This information --

  16         Q.    And which price did they use for Gordon & Breach?

  17         A.    The corporate price.

  18         Q.    So if you take a look at Exhibit 515, you are

  19    going to find the Gordon & Breach corporate prices despite

  20    what the questionnaire --

  21         A.    The questionnaire does list all prices,

  22    individual, corporate and --

  23         Q.    Library?

  24         A.    And library.

  25         Q.    The questionnaire says, library price 386,




                                                                619


   1    corporate 540, and if you look at the survey you see they

   2    used the 540 price?

   3         A.    540, exactly.

   4         Q.    I would like to show you now Exhibit 522.  I

   5    think there is a general understanding that this letter is a

   6    letter from Michael Atiyah.  It is an un-objected-to

   7    document.

   8               Does it in your mind confirm the agreement that

   9    you thought you had?

  10         A.    Yes.

  11         Q.    What is it in the language that gives you that

  12    sense?

  13         A.    It said, "I'll be happy to cooperate with you on

  14    this basis.  Continue to see that your publications are not

  15    included in our surveys" --

  16         Q.    Is it the phrase "continue to see"?

  17         A.    "Continue to see," yes.  And an appropriate

  18    footnote is inserted.

  19         Q.    As the record will show, and I'll get to it in

  20    just one second, you actually brought a lawsuit in Germany

  21    in connection with the dispute with AMS, correct?

  22         A.    Yes.

  23         Q.    Prior to that time, did you authorize counsel --

  24    again, my firm -- to offer to arbitrate the dispute so that

  25    the expense would be kept way down?




                                                                620


   1         A.    And would focus on the issue, yes.

   2         Q.    I'll get to that in a second.

   3               Was one of the issues to keep the expense to the

   4    AMS, as well as to Gordon & Breach, down?

   5         A.    Yes.  Yes.

   6         Q.    Let me show you what has been marked as Exhibit

   7    526, and ask you:  Is this the letter that you specifically

   8    authorized my firm to send to William Strong, who I

   9    represent is counsel to the American Mathematical Society?

  10         A.    Yes.

  11         Q.    And in this letter, you authorize counsel to

  12    state both that you are willing to arbitrate with the only

  13    remedy, the only remedy, being in order to figure out what

  14    the correct methodology is, correct?

  15         A.    That's right.

  16         Q.    In fact, you specifically agree to arbitrate

  17    without regard to fault, correct?

  18         A.    That's right.

  19               MR. MESERVE:  Objection, your Honor.  This is

  20    getting to the point of argument rather than questioning.

  21               THE COURT:  Yes, sustained.

  22               MR. LUPERT:  The whole issue here, Judge, is the

  23    mind set of the witness.

  24               THE COURT:  I understand.

  25               MR. LUPERT:  I don't have to belabor the point.




                                                                621


   1         Q.    The offer to arbitrate was made.

   2               To your knowledge, was it accepted or rejected?

   3         A.    It was rejected.

   4         Q.    And was it after it was rejected that the lawsuit

   5    was brought?

   6         A.    Yes.

   7         Q.    And was the lawsuit successful?

   8         A.    Yes.

   9         Q.    And did you rely on German counsel with respect

  10    to the procedure that was followed?

  11         A.    Yes.

  12               MR. LUPERT:  Judge, there is no reason to go into

  13    this, but Exhibits 524 and 525 represent the petition, which

  14    was done on an ex parte basis, according to German

  15    procedure, and the order.

  16         Q.    Did it then come to your attention that in 1994,

  17    Mr. Jaco wrote yet another statement concerning the dispute

  18    with Gordon & Breach?

  19         A.    Yes.

  20         Q.    Let me show you Exhibit 528.

  21               In this, he is, do you recall, complaining --

  22    fairly bitterly -- about the enormous expense that defending

  23    the German case would have entailed?

  24         A.    Yes.

  25         Q.    Do you remember that?




                                                                622


   1         A.    Yes.

   2         Q.    Do you recall whether he mentioned in this, or

   3    any other publication of his, the offer to arbitrate?

   4         A.    He did not in this or in any one that I'm aware

   5    of.

   6         Q.    Did he mention the agreement that he thought not

   7    not to include G & B journals?

   8         A.    No.

   9         Q.    As a result of that Exhibit, did you yet again

  10    have to retain counsel to look at this, and did you retain

  11    the firm in England of Clintons?

  12         A.    Yes.

  13         Q.    That is a firm of solicitors in England?

  14         A.    Yes.

  15         Q.    And did they give you legal advice as to what

  16    your rights were?

  17         A.    Yes.

  18         Q.    And as a result, to your knowledge, did they send

  19    a letter to Mr. Jaco?  And I'll show you Exhibit 530.

  20               Is this letter a letter that they --

  21         A.    This is basically --

  22         Q.    Is this a letter they drafted?

  23         A.    I think they drafted it.

  24         Q.    I will represent to you, for the sake of the

  25    chronology of this, that it was the summer of 1994 that




                                                                623


   1    Judge Sand ruled initially, his initial decision in this

   2    case, that there was a difference, as a legal matter,

   3    between publication of the survey and secondary use.

   4         A.    Yes.

   5         Q.    In March of '95 -- I would like to show you, if I

   6    might, Exhibit 533 -- did you authorize a letter to be sent

   7    to counsel for AMS to inquire whether there had been any

   8    so-called secondary use, and is that Exhibit 533?

   9         A.    Yes, this letter was authorized by me, yes.

  10         Q.    Prior to that letter, had you authorized another

  11    letter signed, to be sent from my firm, that was dated in

  12    mid-August 1994, which refers again to the agreement?  Do

  13    you see it?  This was untrue and unfair, he knew G --

  14         A.    Yes.

  15         Q.    And then another letter went that was Exhibit

  16    533, which inquired about whether there had been any

  17    secondary use, correct?  And as a result of a response from

  18    AMS saying there hadn't been, was that the end of the

  19    matter?

  20         A.    That was the end of the matter as far as the --

  21    as far as your involvement, yes.

  22         Q.    Yes.

  23               THE WITNESS:  Judge, that is the AMS episode.

  24               THE COURT:  Are you going to move on to anything

  25    else?




                                                                624


   1               MR. LUPERT:  I am going to move on to the next

   2    item that was put into issue.

   3               THE COURT:  Let's take five minutes.

   4               (Recess)

   5               THE COURT:  Resume.

   6               MR. LUPERT:  I wish to go through an incident

   7    that the defendants are relying on in connection with a

   8    journal called Phosphorus, Sulfur and Silicon.  It is an

   9    Exhibits bearing the 620 sequence, 621 and et cetera.

  10               MR. MESERVE:  Your Honor, to the extent that

  11    Mr. Lupert is trying to get these exhibits into evidence, we

  12    have not objected to any of these.

  13               THE COURT:  The testimony has really consisted of

  14    a running out on your part and the introduction of the

  15    exhibits.  If there is no objection to them, I can read the

  16    exhibits.

  17               MR. LUPERT:  I know, Judge, but I think with an

  18    unclean hands defense, it is dependent completely on

  19    unconscionability as well as a nexus, and you should have

  20    the flavor from the witness, although of course if it is

  21    unnecessary.  It is unnecessary.

  22               THE COURT:  Counsel rather than the witness, but

  23    go ahead.

  24               MR. LUPERT:  I think on the AMS one it was over

  25    such a long period of time that I felt it necessary to do it




                                                                625


   1    that way.  This one I think the witness can explain a little

   2    bit on his own.

   3               If I could show the witness 620.

   4               THE COURT:  Six-two O.

   5               MR. LUPERT:  620, Judge, being a letter from Joe

   6    Vaughn -- Joseph.  It is signed Joe Vaughn.

   7         Q.    I show you a letter marked 620.  Did this letter

   8    come to your attention?

   9         A.    Yes.

  10         Q.    Did you object to any statements in it?

  11         A.    Yes.

  12         Q.    What was it specifically that upset you?

  13         A.    That they got the price completely wrong.

  14         Q.    And was there anything else in the letter --

  15         A.    Yes.

  16         Q.    -- concerning action they were proposing?

  17         A.    Yes.

  18         Q.    What was that?

  19         A.    They sent this letter to several hundred

  20    chemists, instructing them to cancel the periodical -- had

  21    their libraries cancel the periodical.

  22         Q.    And that is the word precipitate a massive

  23    cancellation?

  24         A.    That's right.

  25         Q.    I show you Exhibit 621.  Who is Robert Holmes?




                                                                626


   1         A.    Robert Holmes was the academic editor of

   2    Phosphorus, Sulfur and Silicon.

   3         Q.    Did this note come to your attention?

   4         A.    Yes.

   5         Q.    Did that put you on notice that the Vaughn letter

   6    was sent to every Ph.D. granting department in all

   7    universities in the U.S.?

   8         A.    Yes.

   9         Q.    As a result of this, did it come to your

  10    attention that Mr. Holmes, the academic editor, responded to

  11    Mr. Vaughn?  I put before you Exhibit 622.

  12         A.    Yes.

  13         Q.    And is this a letter he put together?

  14         A.    I believe he put it together in consultation with

  15    us, obviously.

  16         Q.    And at the beginning of it, it says that, it was

  17    aimed -- it was responding to a letter that was aimed at a

  18    mass cancellation of the journal, do you see that?

  19         A.    Yes.

  20         Q.    In the letter, does he attempt to set forth the

  21    correct pricing information?

  22         A.    Yes, he does.

  23         Q.    To your knowledge, as best you know, is this in

  24    fact what the correct information was?

  25         A.    Yes.




                                                                627


   1         Q.    And can you highlight what the difference was

   2    between what Mr. Vaughn was saying and what Mr. Holmes, your

   3    editor, was saying with respect to the price?

   4         A.    Well, he was explaining the price differential,

   5    first in terms of the dollar exchange rate against the ECU;

   6    second, the other discounts that the libraries who were

   7    renewing received, that the price was not -- the fixed price

   8    he had discussed was not the price that was exactly charged

   9    to the renewing libraries.

  10         Q.    Is that the reference that the price actually

  11    increased by only 25 percent and not 61 percent?

  12         A.    That's right.

  13         Q.    And that the number of volumes actually also

  14    increased from nine to ten?

  15         A.    Yes, the number of volumes also increased by ten

  16    percent.

  17         Q.    As a result of Mr. Holmes' letter, did it become

  18    necessary to retain counsel?  Let me show you Exhibit 623.

  19               (Pause)

  20               I take it you were concerned enough about the

  21    threat of a mass cancellation to seek --

  22         A.    Yes, we did, as a result of the total

  23    information, retain legal advice, yes.

  24         Q.    And as a result, this letter was sent?

  25         A.    Yes.




                                                                628


   1         Q.    And, as a result -- was the end of this

   2    controversy, to your knowledge -- strike that.

   3               What was the end of this controversy, to your

   4    knowledge?

   5         A.    All right.  End of this controversy was that

   6    they -- they said they had mailed the retraction --

   7         Q.    Let me show you what as been marked as Exhibit

   8    624 --

   9         A.    -- to the people that they had mailed the

  10    original letter to.

  11         Q.    And 624 is a one-page letter with an attachment

  12    of addressees.

  13               Is this the letter, to your knowledge, that was

  14    sent?

  15         A.    To my knowledge, yes.

  16         Q.    And this was a statement by these two professors

  17    setting forth whatever it sets forth, correct?

  18         A.    That's right.

  19         Q.    Was this the end of the controversy?

  20         A.    Yes.

  21         Q.    Did you have a series -- strike that.

  22               Did you have a problem at one point with people

  23    understanding the price and flow system concepts of a

  24    journal that Gordon & Breach called Early Child Development

  25    and Care?




                                                                629


   1         A.    Yes.

   2               MR. LUPERT:  And if I could ask the Court, do you

   3    have the exhibits that begin with the 570 sequence?

   4               THE COURT:  570?

   5               MR. LUPERT:  570, Judge, and other numbers in

   6    that 570 sequence.

   7         Q.    Do you recall that Gordon & Breach, in or around

   8    1986, sent out a description to all librarians of its then

   9    flow system?

  10         A.    Yes.

  11         Q.    Let me show you Exhibit 570 and ask you if this

  12    is a description that Gordon & Breach sent out to all its

  13    subscribers?

  14         A.    I believe so.

  15               MR. LUPERT:  I offer this, Judge.  This was not

  16    a --

  17               THE WITNESS:  Obviously I didn't send it out.

  18         Q.    But you believe this was --

  19         A.    I believe this was --

  20               MR. LUPERT:  I offer this.  This was not an

  21    objected-to document.

  22               MR. MESERVE:  No objection.

  23               THE COURT:  Received.

  24               (Plaintiff's Exhibit 570 received in evidence)

  25         Q.    Now, did there come a time where -- I show you




                                                                630


   1    Exhibit 571 -- you learned of a letter from a Joel S.

   2    Rutstein, who appears to be an assistant librarian at

   3    Colorado State.

   4         A.    Yes.

   5         Q.    And what about this letter upset you?

   6         A.    Well, again, that they -- that they didn't

   7    understand that the additional pricing had been a function

   8    of the additional amount of volumes that were published in

   9    the year, and, in fact, they explain it by saying

  10    "arbitration and exponential price increases which have been

  11    adopted by Gordon & Breach under the guise of merging

  12    articles as issues, and issues as volumes."  In fact, we

  13    were publishing more volumes.

  14         Q.    Is there anything about the second sentence in

  15    the second paragraph that caused you concern as a commercial

  16    publisher?

  17         A.    Yes, that they were wrong.  We hadn't increased

  18    the price on that basis.

  19         Q.    The second --

  20               THE COURT:  Excuse me just a moment.

  21               MR. LUPERT:  Yes, sir.

  22               (Pause)

  23               THE COURT:  I apologize for the interruption.

  24    You may be seated.

  25    BY MR. LUPERT:




                                                                631


   1         Q.    I was asking you about a letter that came to your

   2    attention -- in fact it is copied to Gordon & Breach in

   3    London, from Joel Rutstein, Exhibit 571.  Do you have it at

   4    your attention, Mr. Gordon?

   5         A.    Yes.

   6         Q.    The first page, the second paragraph, says, "We

   7    have also decided to use this journal as a blatant example

   8    of price gouging for our library networks and funding

   9    agencies."

  10               Is that an indication of --

  11               THE COURT:  That is an indication of what he says

  12    there, right.

  13               THE WITNESS:  Yes.

  14               THE COURT:  This witness doesn't know anything

  15    more about his state of mind other than what is said in the

  16    letter.

  17               MR. LUPERT:  I think it is relevant what the

  18    witness concluded, and I'll ask that question, Judge.

  19               MR. MESERVE:  Your Honor, it calls for

  20    speculation by this witness as to what Mr. Rutstein intended

  21    and all of that.

  22               THE COURT:  Let's move on.

  23         Q.    As a result of this letter coming to your

  24    attention, did you write a letter to the president of

  25    Colorado State University, Exhibit 572, in which you asked




                                                                632


   1    for a retraction?

   2         A.    Yes, it was an explanation of what they had done

   3    wrong, and we asked for them to retract what they had done.

   4         Q.    You talked about the flow system before.  Can you

   5    explain very, very briefly for us --

   6               THE COURT:  No.  Really, I understand it.

   7         Q.    -- how it works with pricing.  It has an element

   8    of pricing.

   9               MR. LUPERT:  May I direct the Court's attention

  10    to the attachment and the second paragraph and the second

  11    sentence which explains what the problem was?  And Exhibit

  12    575.

  13               This is just completely responsive to an unclean

  14    hands defense.

  15               THE COURT:  I understand what this is.

  16               MR. LUPERT:  OK.

  17         Q.    Let me show you Exhibit 575.

  18               Did you write this letter?

  19         A.    Yes.

  20         Q.    I point to the third paragraph of that letter.

  21    Does that reflect your thinking at the time?

  22         A.    Yes.

  23         Q.    Did you then, do you recall, receive word from

  24    Colorado State university that they had no intention of

  25    republishing the letter?




                                                                633


   1         A.    Yes.

   2         Q.    And as a result, did that end the matter?

   3         A.    Yes.

   4               MR. LUPERT:  Judge, I would now refer to the

   5    documents, the PX 574, 577 pile.

   6               THE COURT:  574 --

   7               MR. LUPERT:  574 and that sequence.

   8         Q.    With respect to this journal, ECDC, did it come

   9    to your attention that a man named BoissÇ, Joseph A. BoissÇ,

  10    B-o-i-s-s-e, had written a letter that had been published?

  11               I refer you to the fourth paragraph, "Another

  12    culprit is" --

  13         A.    Yes, I did see this.

  14         Q.    And in the third paragraph, do you see the charge

  15    that price gouging by publishers --

  16         A.    Yes.

  17         Q.    As a result of reading this, did you send a

  18    letter to Mr. BoissÇ?  I show you Exhibit 577, in which you

  19    attempted to explain the flow system to him.

  20         A.    Yes.  We -- yes, we sent this letter, yes.

  21         Q.    Would you look at the last page, where it says,

  22    "It would be most helpful in the future, if you saw an

  23    anomaly like this, that you verify the facts"?

  24         A.    The facts, yes.

  25         Q.    Did it become necessary to retain counsel with




                                                                634


   1    respect to this dispute?  I'll show you Exhibit 579.

   2         A.    Yes.

   3         Q.    From the Thelen Marrin firm, in San Francisco?

   4         A.    Yes.

   5         Q.    And did you authorize Exhibit 579 to be sent by

   6    that firm, stating, in essence, that you hadn't received any

   7    response?

   8         A.    Yes.

   9         Q.    And as a result, was there then correspondence

  10    back and forth between the Thelen Marrin firm, on the one

  11    hand, and BoissÇ and his attorneys, on the other?

  12         A.    Apparently.

  13               MR. LUPERT:  Judge, those are 581 and 583, which

  14    are not objected to.

  15               THE COURT:  All right.

  16         Q.    And, finally, did the matter end with a statement

  17    by Mr. BoissÇ that was published, which is Exhibit 586, in

  18    which Mr. BoissÇ basically simply sets forth Gordon &

  19    Breach's position, without agreeing with it or not.  Do you

  20    see it?

  21         A.    Oh, yes.

  22         Q.    And did that end the matter?

  23         A.    Yes.

  24         Q.    Defendants had mentioned a man named Octave

  25    Levenspiel?




                                                                635


   1         A.    Yes.

   2         Q.    Am I pronouncing it right?

   3               MR. LUPERT:  Judge, these are the Exhibits 600

   4    through -- in the 600 range, 601, etc.

   5               THE COURT:  I have it.

   6               MR. LUPERT:  Thank you.

   7         Q.    I show you what has been marked as Exhibit 600,

   8    which is a document that was published, a letter from Octave

   9    Levenspiel.  Do you see that?

  10         A.    Yes.

  11         Q.    Now, there is a short little table in the middle

  12    that says "CES and CEC"?

  13         A.    Yes.

  14         Q.    Is CEC a Gordon & Breach journal?

  15         A.    Yes.

  16         Q.    And in the next paragraph, right under the table,

  17    it says, quote, A rogue operation like CEC acts as an

  18    insidious cancer on our profession, looking healthy at first

  19    but then strangling its host, etc.  Do you see that?

  20         A.    Yes.

  21         Q.    And at the last sentence, it says, "I think I

  22    know how to do this in chemical engineering by eliminating

  23    just one percent of our journals."

  24               Is that an indication to you that he was

  25    recommending cancellation of that journal?




                                                                636


   1         A.    Yes.

   2         Q.    And as a result of those statements that are

   3    reflected in Exhibit 601 -- in 600, I apologize, did you

   4    write a letter, 601, dated August 24, 1988, in which you

   5    asked that a reply be published?

   6         A.    Yes.

   7         Q.    And is that reply Exhibit 602?

   8         A.    I believe so.

   9         Q.    And in this letter, if I could refer you

  10    specifically to the second page, the paragraph beginning "we

  11    have always published on a flow basis."

  12         A.    Yes.

  13         Q.    You see that?  And towards the end of it, it

  14    says, "Accordingly, the subscription price rate was reduced

  15    by 38 percent"?

  16         A.    Yes.

  17         Q.    Is that an error that you thought Mr. Levenspiel

  18    had made, that he had not understood the flow system and

  19    that this was an attempt to have a reply published that

  20    explained it?

  21         A.    Mr. Levenspiel was apparently, we learned at the

  22    time, also directly involved in an editorial capacity with a

  23    journal which he was promoting as a competitor.

  24         Q.    In other words, is that the other journal, CES?

  25         A.    CES, yes.




                                                                637


   1         Q.    If we go back to 600, CES, is that a Pergamon

   2    journal?

   3         A.    Yes.

   4         Q.    Did you consider that Mr. Levenspiel was

   5    connected directly with CES, the other publication of the

   6    table?

   7         A.    Yes.  And that this was a promotion of A against

   8    B by the editor.

   9         Q.    A being CES?

  10         A.    Yes, against CEC.

  11         Q.    But nonetheless, the action which you took was to

  12    write a letter, Exhibit 602, which went through a lengthy

  13    explanation of the flow system, pointing out that there had

  14    been a 38 percent change, correct?

  15         A.    Yes.

  16         Q.    And that had been caused by the fact that the

  17    first year, there had been, what?  An underestimation of the

  18    number of pages or an overestimation?

  19         A.    That the price had dropped 38 percent, I believe.

  20    That there had been an overestimation or that the pages for

  21    the next year were estimated at a lower rate for either --

  22         Q.    Failing to take into account that for two years

  23    he had made a mistake as much as 38 percent?

  24         A.    That's right.

  25         Q.    When you didn't receive any response, did you




                                                                638


   1    authorize Exhibit 603 to be sent by counsel?

   2         A.    Yes.

   3         Q.    And as a result of this -- I would like to show

   4    you Exhibit 605.

   5               What happened on this occasion, is it not true,

   6    is that Levenspiel just went ahead and republished his

   7    original position, correct?

   8         A.    Yes.

   9         Q.    Is it fair to say that the response that you took

  10    was then to ask on this occasion for the right to just

  11    simply publish your own reply, correct?

  12         A.    Yes.

  13         Q.    And that's Exhibit 606, in which the publication

  14    involved was good enough to let you put in a response?

  15         A.    Yes.

  16         Q.    And is 606 the response?

  17         A.    Yes.

  18         Q.    Was that the end of this incident?

  19         A.    Yes.

  20         Q.    Now, the -- I don't know if you were involved

  21    much on this one, and if you weren't, just tell me, but let

  22    me show you Exhibit 640.

  23               This is a statement that appeared on a web site

  24    called the SERIALIST from a Simone Jerome in Liege, Belgium?

  25         A.    Yes.




                                                                639


   1         Q.    Did it come to your attention what she had

   2    written?

   3         A.    Yes.

   4         Q.    Do you know approximately how many people

   5    subscribe to the SERIALIST?

   6         A.    To the best of my recollection, it is about

   7    2,000.

   8         Q.    And what was it about this short statement that

   9    she made that -- strike that.

  10               Were you upset by anything in this?

  11         A.    Oh, yes.

  12         Q.    And what was it about this that you were upset

  13    about?

  14         A.    "G & B publications, although they are so

  15    expensive, have very poor SCI impact factors and are often a

  16    shelter for authors who have not found their way to more

  17    selective journals."

  18         Q.    Could you tell the judge in just a few words what

  19    it was that caused you to be upset about that?

  20         A.    The attack on the quality of the paper that we

  21    were publishing, and of course they were incorrect about

  22    the -- and the authors, it was really a protection of our

  23    authors, and of course they are incorrect about the pricing

  24    information.

  25         Q.    I think that you delegated the responsibility for




                                                                640


   1    this one to Roger Green?

   2         A.    Yes.

   3         Q.    Do you know the bottom line of what happened

   4    here?  Did you sue Simon Jerome?

   5         A.    No.

   6         Q.    Did the matter just drop?

   7         A.    The matter just dropped basically because the

   8    university, you know, put a lid on it, as well, the

   9    university, so that was the end.

  10         Q.    That was the end.

  11               Now, the defendants have taken some time with an

  12    issue pertaining to the Foundation for International Science

  13    Cooperation, which we called FISC.  The Judge is tired of

  14    hearing about FISC.

  15               Is that a foundation with which you have some

  16    connection?

  17         A.    Yes.

  18         Q.    What is that connection?

  19         A.    We established it in England.  It is a nonprofit

  20    foundation.  It was established in -- I don't remember the

  21    year, I'm sorry.

  22         Q.    It is it not important.

  23               And does the foundation from time to time engage

  24    in projects?

  25         A.    More than from time to time.  It continuously




                                                                641


   1    engages.

   2         Q.    How is it structured?  Is it structured that you

   3    are always involved in each of these projects or does it

   4    work in some other way?

   5         A.    No, it works so that each project has its own set

   6    of directors, and the directors for the project -- these

   7    are, again, primarily outside academic people.  And these

   8    projects are then controlled by these people.

   9         Q.    OK.  When you use the word "director," that is a

  10    word that also has legal meaning.  Do you mean the word

  11    "director" in the sense that that is the legally appointed

  12    foundation or that that is the synonym for the person that

  13    manages the project?

  14         A.    That is a synonym.

  15               THE COURT:  How is that person appointed?

  16               THE WITNESS:  Well, they will come with the

  17    project.  For example, there is something there called the

  18    Earth Space Institute and the people involved there came to

  19    us and we set that up through the foundation and we funded

  20    it.

  21         Q.    Gordon & Breach --

  22         A.    But they control the actual implementation of

  23    what they are intending to do.

  24         Q.    Gordon & Breach puts up the money, correct?

  25         A.    Yes.




                                                                642


   1         Q.    And with respect to the --

   2         A.    Not always exclusively.  There are other sponsors

   3    depending on project.

   4         Q.    Now, there was a time, was there not, where a

   5    questionnaire was issued under the name of FISC to various

   6    librarians?

   7         A.    Yes.

   8         Q.    And whose idea -- strike that.

   9               Did there also come a time when, to your

  10    knowledge, a project was contemplated, a study of comparison

  11    surveys, which would include the kind that Professor

  12    Barschall had issued?

  13         A.    Yes.

  14         Q.    With respect to a project concerning looking at

  15    the report, looking at the Barschall survey and looking at

  16    those kinds of surveys, whose idea was it to have FISC

  17    undertake such a project?

  18         A.    It was jointly my idea and Dr. Klein's idea.

  19         Q.    Ultimately, did Dr. Klein share the panel?

  20         A.    Yes.

  21         Q.    And in fact -- strike that.

  22               Is Dr. Klein a friend of yours?

  23         A.    Yes.

  24         Q.    Now, what was the purpose -- I don't want to get

  25    into study.  The study has actually been ruled to be




                                                                643


   1    basically out of bounds.

   2               What was the purpose to do this, in your mind?

   3         A.    There was so much publicity about the -- we

   4    believe -- we knew the societies were spreading about the

   5    Barschall survey and how we were attacking it and etc.,

   6    etc., that we felt -- and why it was so good -- that we felt

   7    that one way to respond to this would be to have an

   8    independent analysis -- we didn't want to respond ourselves

   9    because then it's -- obviously, our view is going to be

  10    different -- an independent analysis of the library pricing

  11    and acquisition problem to be done.

  12               Now, Dr. Klein had another reason, in that he was

  13    facing severe problems at Howard University, at his library,

  14    and he felt it would be very useful to have such a study so

  15    that the librarians could, you know, could get an objective

  16    view in general.

  17         Q.    And this questionnaire that was sent out to

  18    librarians that I started with --

  19               MR. LUPERT:  Maybe I can bring it to the Court's

  20    attention, it is PX 211.  I hadn't pulled it out.  Here it

  21    is.  Can I just speed it up?  Here is another copy.

  22    BY MR. LUPERT:

  23         Q.    We put before you what has been marked as PX 211.

  24    This is a questionnaire that was sent out.

  25               Is that the questionnaire, to the best you




                                                                644


   1    recall?

   2         A.    It appears to be, yes.

   3         Q.    Did you have any input into drafting any of the

   4    questions?

   5         A.    Yes, the questionnaire draft was passed by me,

   6    and I made some suggestions and changes.

   7         Q.    What was the purpose of the questionnaire, 211?

   8         A.    The purpose of the questionnaire was to gather --

   9    was to gather information for the panel to be able to see,

  10    you know, how libraries were perceiving different things,

  11    and then what they should -- you know, and then to discuss

  12    these, whether these were reasonable -- what were the real

  13    problems.  It gets into almost everything.

  14         Q.    And I don't know that there is any mystery about

  15    what happened to this questionnaire, but had there been

  16    enough responses and had they been positive, would you have

  17    contemplated using them in any of the litigations?

  18         A.    It had been.  This was not the purpose in sending

  19    them out.  But I might have contemplated obviously if they

  20    had all been positive or been negative --

  21         Q.    Negative in what sense?

  22         A.    Negative in the sense that we said, no, we were

  23    not affected -- we don't believe this business, basically,

  24    we were not affected by it.  It also would obviously have

  25    had an effect on my perception of the kind of damage that we




                                                                645


   1    were being caused.

   2         Q.    Maybe you could expand on that for just one

   3    second.

   4               When you say it might have had some effect, what

   5    do you mean?

   6         A.    If everybody said yes, I followed the list and I

   7    canceled the most expensive impact factor publications, then

   8    clearly that information would be.  But, on the other hand,

   9    if almost no -- everybody said, I didn't care and we use

  10    other criteria -- that's why we asked for all kinds of other

  11    criteria in the fall -- then we would have not made a fuss

  12    of it basically on the whole issue of correction and

  13    retraction and methodology.

  14         Q.    I think Mr. Meserve has stipulated at one point

  15    in this case that he discovered, either personally or with

  16    the help of others, that a Gordon & Breach postage meter had

  17    been used to send out this questionnaire that resulted in

  18    substantial publicity.

  19               As a result of that, do you know how many

  20    responses came in?  Was it just a handful basically?

  21         A.    Basically 30 or 40, something like that.

  22         Q.    And there were about 300 or so that were sent

  23    out?

  24         A.    Yes, by the way, this was a test questionnaire

  25    that we were preparing -- Dr. Klein was preparing a more




                                                                646


   1    elaborate version, because he wanted other questions

   2    answered.

   3         Q.    Did there actually come a time when the results,

   4    sparse as they were, were introduced in one of the European

   5    litigations?

   6         A.    Yes.

   7         Q.    And do you know the circumstances that led to

   8    that?

   9         A.    Yes.  Of course I know this only as a

  10    third-party.

  11               In the French litigation --

  12               MR. MESERVE:  Objection, your Honor.

  13               THE COURT:  Yes, sustained.

  14               MR. LUPERT:  I think what he says, as a

  15    third-party, that may have confused the point.

  16         Q.    There came a point, did there not, where the test

  17    results were submitted in the French litigation?

  18         A.    Yes.

  19         Q.    And was that as a response, to your knowledge, to

  20    statements made in the defendants, that is, these

  21    defendants' briefs?

  22         A.    Yes.

  23         Q.    And did you?

  24               MR. MESERVE:  Objection, your Honor.  He has

  25    already said that he has testified here as a third-party.




                                                                647


   1    This is clearly hearsay.

   2               THE WITNESS:  I got the information but I didn't

   3    get it -- I didn't obviously participate in it directly is

   4    what I meant by "third-party."

   5               MR. LUPERT:  He's the client.  They're accusing

   6    him.

   7               THE WITNESS:  I'm the client.  I'm not the

   8    person --

   9               THE COURT:  I have to tell you, this doesn't

  10    carry much weight with the Court.

  11               MR. LUPERT:  It is, like we say, I'm the lawyer.

  12               THE COURT:  It makes a great deal of impression

  13    on your attorney, but --

  14               (Laughter)

  15               THE COURT:  All right.

  16               MR. LUPERT:  Judge, could we stipulate to a fact?

  17               THE COURT:  Let me say, these are all public

  18    records somewhere?

  19               MR. MESERVE:  We have not objected to nearly all

  20    of the exhibits that we spent the last hour on.

  21               MR. LUPERT:  Are you objecting to PX 213, with

  22    the translation of two tiny little sentences in two briefs

  23    that were filed in France?

  24               MR. MESERVE:  No, we are not.

  25               MR. LUPERT:  Judge, I would hand up PX 213.  It




                                                                648


   1    is a translation by my partner, who manages to speak fluent

   2    French, Mr. Elsen.  If I can point the Court's attention,

   3    not to the affidavit, but if I can just point the Judge's

   4    attention to the fourth page, which is two paragraphs from

   5    the AIP, APS brief in France.

   6               THE COURT:  Oh.

   7               MR. LUPERT:  To the translation, "considering

   8    finally and above all."

   9               THE COURT:  The translation, "considering finally

  10    and above all"?

  11               MR. LUPERT:  Right.  This was the argument made

  12    by the AIP, APS.  If I can turn your attention to the

  13    translation on the very last page, which was the response of

  14    Gordon & Breach's French attorney, which explains why these

  15    were introduced in the French litigation.

  16               MR. MESERVE:  I wonder who is testifying here,

  17    your Honor, but we have no objection to the entry of this

  18    information.

  19               THE COURT:  213 received.

  20               (Plaintiffs' Exhibit 213 received in evidence)

  21               MR. LUPERT:  Thank you, Judge.  If you would bear

  22    with me for literally one minute.

  23               THE COURT:  I'm sure you realize my comments

  24    about the standing of the client were facetious.

  25               THE WITNESS:  (Laughter)




                                                                649


   1               MR. LUPERT:  Judge, I have no further questions.

   2    Thank you.

   3               MR. MESERVE:  Judge, we have the following

   4    problem:  Mr. Lupert, before the lunch, had informed me that

   5    he thought his additional examination would be about an

   6    hour, and as it has turned out it is over two hours.

   7               THE COURT:  Yes.

   8               MR. MESERVE:  We have two witnesses that I had

   9    told the Court and I had told Mr. Lupert, that he had

  10    rearranged his schedule to be here --

  11               THE COURT:  You want to call them now?

  12               MR. MESERVE:  Yes, sir.

  13               THE COURT:  You want to defer cross-examination

  14    and you want to call two witnesses?

  15               MR. MESERVE:  Two witnesses, and we have to get

  16    through them.

  17               THE COURT:  How long do you think?

  18               MR. MESERVE:  We have to get through them by the

  19    end of tomorrow.

  20               THE COURT:  By the end of tomorrow.  OK.  Any

  21    objection?

  22               MR. LUPERT:  Who are the witnesses?

  23               MR. MESERVE:  These would be Jaco and Keller, who

  24    I informed the Court the other day were available this week

  25    and were not available next week.  Dr. Jaco is --




                                                                650


   1               MR. LUPERT:  I don't have any objection.

   2               THE COURT:  Very well.  All right.  We will defer

   3    cross-examination and the defendants may call a witness out

   4    of turn.

   5               (Witness excused)

   6               MR. MESERVE:  Your Honor, even though we are

   7    deferred on the cross-examination of Mr. Gordon, I think

   8    this is an appropriate occasion, since this was the last

   9    witness for the plaintiffs, for me to move for judgment in

  10    this case.

  11               THE COURT:  I think you really ought to wait

  12    until his testimony is completed.  There may be redirect.

  13               MS. BURKE:  Your Honor, we call Dr. William Jaco.

  14               THE COURT:  Yes.

  15     WILLIAM HOWARD JACO,

  16         called as a witness by the defendants,

  17         having been duly sworn, testified as follows:

  18    DIRECT EXAMINATION

  19    BY MS. BURKE:

  20         Q.    Dr. Jaco, what do you do for a living?

  21         A.    Currently, I am the Grayce B. Kerr professor of

  22    mathematics at Oklahoma State University.  This is an

  23    endowed research chair, so I am a research mathematician in

  24    academia.

  25         Q.    How long have you held that endowed chair?




                                                                651


   1         A.    I was appointed to the endowed chair in 1993.  I

   2    went on leave for two years from that chair as I continued

   3    as executive director of the American Mathematical Society,

   4    and assumed the chair in 1995.

   5         Q.    When was it that you were the executive director

   6    of the American Mathematical Society, for what period of

   7    time?

   8         A.    I was executive director from 1988 through 1995,

   9    seven years.

  10         Q.    And what were your responsibilities as executive

  11    director?

  12         A.    The Society is a professional membership

  13    organization, and its purpose is to promote mathematical

  14    research in scholarship.  It is basically targeted at

  15    supporting research mathematics.  It has a large

  16    international membership, and it promotes mathematical

  17    research and scholarship through several activities and

  18    programs, particularly publications, meetings, conferences,

  19    making comment on the status of the profession, mathematics

  20    education, particularly at the graduate level and advocacy

  21    for mathematics through federal policy and that type of

  22    thing.

  23         Q.    Is the European Mathematical Society part of the

  24    American Mathematical Society?

  25         A.    No, it's not.




                                                                652


   1         Q.    What is the relationship, if any, between the two

   2    societies?

   3         A.    Well, there are two entities.  One is the

   4    European Mathematical Council, which has been brought up in

   5    this testimony previously.  The European Mathematical

   6    Council is an organization that has particular interest in

   7    the collective representation of European mathematics.

   8               Since that time, in the last few years, there has

   9    actually been a foundation of European Mathematical Society,

  10    and neither of these organizations are a part of the

  11    American Mathematical Society, but organizations do have

  12    interests that are the same and we do cooperate within a

  13    number of activities.

  14         Q.    You have already heard prior testimony from

  15    another witness about the cost survey.  Setting that aside,

  16    does the AMS conduct any other type of surveys?

  17         A.    AMS conducts a number of surveys.  I don't know

  18    whether I'll remember all of these, but they conduct surveys

  19    on the production of Ph.D. students, on first year

  20    employment, salary of faculty, number of courses taken in

  21    academia by undergraduate students, the general price survey

  22    and a general backlog survey, and then, as issues occur that

  23    are of interest to the profession, then the Society often

  24    conducts a survey to inform the profession about this.

  25         Q.    Is it the paid staff of the Society that conduct




                                                                653


   1    these surveys?

   2         A.    It's mixed.  The Society has a data committee,

   3    which is made up of volunteer membership, and the data

   4    committee generally sets up and determines the survey, the

   5    staff action, that acts generally on the staff function,

   6    that they do the clerical work in this type of thing, but

   7    they do not design the surveys.

   8         Q.    I do want to move on quickly to the cost survey.

   9    But first, could you briefly describe for us how the AMS is

  10    governed.  Were you the final decision maker as executive

  11    director?

  12         A.    The AMS is governed by a board of trustees, and

  13    then for scientific issues they have a council, the

  14    executive director, the chief executive officer, who is

  15    basically responsible for the daily operations and

  16    management, administration of the Society, but not in

  17    setting the policy of the Society.

  18         Q.    Are the trustees paid positions?

  19         A.    No, the trustees are volunteer.  There are eight

  20    trustees.  Three are ex-officio.  The president, the

  21    treasurer and the associate treasurer.  Five are elected

  22    members at large from the community.

  23         Q.    Now, turning to the cost surveys, how often does

  24    the AMS conduct the cost survey?

  25         A.    In 1982, the board of trustees recommended and




                                                                654


   1    authorized that the Society undertake surveys -- well, cost

   2    and general cost surveys.  It was decided then that they

   3    should be conducted every two years in odd years, using the

   4    information from the preceding even-year publications.

   5         Q.    And is that in fact how often they were

   6    conducted?

   7         A.    They were conducted in '83 and in '85.  In '87,

   8    there was not one, and then we conducted another one in '89.

   9    There was not one in '91, and there was another one in '93.

  10         Q.    So when you took over as executive director,

  11    there had been two prior surveys?

  12         A.    Yes, that's correct.

  13         Q.    Did those two surveys include information on

  14    Gordon & Breach?

  15         A.    The survey published in November 1983 included

  16    Gordon & Breach journals.  The survey published in March of

  17    1986, which was actually the '85 survey, did not include

  18    Gordon & Breach journals.

  19         Q.    Did it have any reference at all to Gordon &

  20    Breach?

  21         A.    There was a footnote -- I will probably not quote

  22    it precisely, but it was to the effect that, at the request

  23    of the publisher, Gordon & Breach journals were not included

  24    in this survey.

  25         Q.    And what was your understanding as to why AMS




                                                                655


   1    excluded G & B from that survey?

   2               MR. PLOTZ:  Your Honor, I am going to object to

   3    this question.  This witness was not at AMS at the time of

   4    the agreement not to include Gordon & Breach.  There are

   5    documents in evidence, but this witness has no personal

   6    knowledge.

   7               THE COURT:  Do you have any personal knowledge?

   8               THE WITNESS:  I have information that I read

   9    after I became executive director.

  10               MR. PLOTZ:  I believe the witness is referring to

  11    the documents that are in evidence.

  12               THE COURT:  Yes.  I will sustain the objection.

  13         Q.    Did the 1983 and the '86 surveys use a

  14    normalization of prices?

  15         A.    The surveys were based on the cents per character

  16    as the basic issue.  There were other factors involved, but

  17    cents per character was the primary factor involved.

  18         Q.    And now, when you --

  19         A.    Cents per thousand character, I should correct.

  20         Q.    Cents per thousand character?

  21         A.    Yes.

  22         Q.    And did the surveys have any -- did the surveys

  23    use the impact factor in any way?

  24         A.    No.

  25         Q.    And now, when you took over as executive




                                                                656


   1    director, you also supervised the -- did you -- did AMS

   2    publish a survey during your tenure?

   3         A.    Yes.  The survey that was published in November

   4    1989 was organized and published during my tenure as

   5    executive director, and the survey done in 1993 and

   6    published in December 1993 was done under my tenure as

   7    executive director.

   8         Q.    I am going to hand you what is marked as

   9    Defendant's XXX and ask you if that was the survey that AMS

  10    published in 1989?

  11         A.    Yes, it is.

  12         Q.    And how are prices normalized in this survey?

  13         A.    Well, the survey is based on '84, '86, and '88

  14    journals that were published during those years, U.S.

  15    journals, and the survey is done on cents per one thousand

  16    character.

  17               The survey describes, in the first page, quite

  18    extensively the way the survey was done.  The journals were

  19    selected as journals published in the United States and

  20    reviewed in their entirety by mathematical reviews.  So it

  21    was a rather objective way of selecting the journals.  The

  22    count --

  23               THE COURT:  What does it mean, "reviewed in their

  24    entirety"?

  25               THE WITNESS:  Well, Mathematical Reviews is the




                                                                657


   1    major reviewing journal of research mathematics articles,

   2    and there are about 2300 journals that they look at and

   3    review, but some are not reviewed in their entirety.  Some

   4    are engineering, some are physical journals, but they have a

   5    large content of mathematics.  And the editors make a

   6    selection of what parts of those journals are relevant to

   7    the mathematic community.

   8               And then -- so that was the selection process for

   9    the journals.  And then there was a method that is described

  10    of the counting of characters.  This method was done in such

  11    a way that I think it could be duplicated by anyone.

  12               Then there was a questionnaire with this

  13    information that was sent to all publishers who, quote,

  14    participated in the survey, and asking if they agreed with

  15    the information that we had on their journals and asking for

  16    additional information regarding whether they had page cost,

  17    whether they had discounts, whether they had off-grants,

  18    different types of benefits to the community.

  19         Q.    Were the surveys sent to verify the data that was

  20    used in the survey?  Were the questionnaires sent?

  21         A.    The questionnaires were sent to the publishers.

  22    And then following this survey, copies of the survey were

  23    sent to all publishers who participated.

  24         Q.    Did the survey itself tell the readers anything

  25    about how to use the cost per character information?




                                                                658


   1         A.    It cautioned readers that this was only one

   2    particular method that was used to have a systematic basis

   3    for looking at journals.  It cautioned that it was just one

   4    of the factors that might be considered.

   5         Q.    Did this survey use the impact factor?

   6         A.    No, it did not.

   7         Q.    So it's simply a cost survey -- a survey of

   8    journal prices?

   9         A.    Yes.  I think that at this time there was, like

  10    with many things, there was a deep concern in the community

  11    about the increasing cost of serials, and so this was a

  12    method for the organization to try to get a picture of what

  13    was happening.  It was just one picture of what was

  14    happening.

  15               And so there was this caution in it.  However, I

  16    think that we felt that it gave a nice basis for looking at

  17    what was going on with the journals.

  18         Q.    Did the survey include specialized journals?

  19         A.    It included all journals reviewed by their

  20    entirety in math reviews, which included many specialized

  21    journals as well as journal publications.

  22         Q.    The specialized journals that are included in

  23    this survey, who publishes those?

  24         A.    Well, a number of organizations published:  The

  25    American Mathematical Society had one specialized journal




                                                                659


   1    which was included in the survey.  A number of commercial

   2    publishers have specialized journals.  The Society for

   3    Industrial and Applied Mathematics, all of their journals

   4    are specialized.  And of course the Statistical Society and

   5    some of the other specialized societies have specialized

   6    journals.

   7         Q.    Now, Mr. Gordon has testified about the document

   8    that was sent -- the questionnaire that was sent to Gordon &

   9    Breach?

  10         A.    Yes.

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

  12    Defendants' Exhibit WWW and ask if you have seen this

  13    before.

  14               MR. PLOTZ:  Your Honor, this is the same document

  15    as Plaintiff's Exhibit 513, which has already been received.

  16    The prior exhibit is the same as Plaintiff's 515.  We are

  17    just duplicating exhibits right now.

  18               MS. BURKE:  Excuse me, your Honor.  I tried to go

  19    through and use the PX numbers but I did not catch that one.

  20               THE COURT:  All right.  Go ahead.

  21         Q.    What is this document, Dr. Jaco?

  22         A.    This is a copy of the questionnaire that was sent

  23    out.  It is the particular one that was sent to -- addressed

  24    to Philip C. Manor, editorial director at Gordon & Breach

  25    publishers.




                                                                660


   1         Q.    Why was it sent to Mr. Manor?

   2         A.    He was the editorial director, and our office

   3    kept the individuals who had primary responsibility or at

   4    least that we believed had primary responsibility for the

   5    journals that we were interested in, and his name was the

   6    last editorial director of Gordon & Breach.

   7         Q.    Mr. Gordon has testified that in his view the

   8    survey should not have been sent to Gordon & Breach.

   9               Did AMS consider not sending this questionnaire?

  10               THE COURT:  To your knowledge.

  11               You may answer.

  12               THE WITNESS:  OK.

  13         A.    There was consideration of this questionnaire.  I

  14    was familiar, through documentation, that Gordon & Breach

  15    had raised objections and threatened particular actions or

  16    whatever was at their disposal in the previous letters.

  17    When the director of publications, who was directly

  18    responsible for putting the survey together, came to me with

  19    this particular issue, then there was concern.  I went back

  20    and reviewed all the previous correspondence, and at this

  21    time we were closely approaching a board of trustees

  22    meeting.  I reported to them on different events, and I

  23    would be reporting to them that the journal survey was being

  24    prepared.  So I wanted to make sure that I understood the

  25    issue.




                                                                661


   1               And so at that time I -- not me directly, but our

   2    director of publications -- queried the counsel that we had

   3    for publication manager -- publication issues as to whether

   4    there was any problem with us sending this to Gordon &

   5    Breach and including Gordon & Breach in the survey, the

   6    reason being, quite frankly, that I didn't understand what

   7    the legal implications might be, and when we didn't

   8    understand what the legal implications might be, we went to

   9    our counsel to ask for advice.

  10         Q.    After that, did the AMS decide to send the

  11    questionnaire to Gordon & Breach?

  12         A.    Yes.  Counsel said that they saw no problems

  13    with --

  14               MR. PLOTZ:  Objection to what counsel said.

  15               THE COURT:  Sustained.

  16         A.    Yes, we sent it.

  17         Q.    At the time you sent the questionnaire seeking

  18    verification, had you decided to include G & B in the

  19    survey?

  20         A.    No, we had not decided to include G & B in the

  21    survey necessarily at that time.  I wanted to include G & B.

  22    I wanted a complete survey.  I felt that the particular

  23    surveys that we did were very important to the community.  I

  24    felt that if we did not have a complete survey, then it set

  25    a precedent; it set a precedent that would be I think




                                                                662


   1    implicating as if we did a Ph.D. survey and then decided

   2    that we were going to exclude some of the institutions that

   3    had Ph.D.'s from that survey.  So we have actually did not

   4    make the decision.

   5               I felt that I would make a decision either with

   6    the trustees, since they were planning to meet, or we would

   7    see what happened when we sent the questionnaire to Gordon &

   8    Breach, see what their response was, and make a decision at

   9    that time.

  10         Q.    And what did happen?

  11         A.    The response came back, not from Mr. Manor, but

  12    from a Thomas Siolek, S-i-o-l-e-k, it looks like, who

  13    replied on behalf of Gordon & Breach, and made some

  14    corrections to our numbers, and added checkmarks and other

  15    information that was requested in the questionnaire.

  16               Based on that, I felt that -- quite a relief that

  17    a hard decision would not have to be made, and we decided

  18    then to include Gordon & Breach in the survey.

  19         Q.    And when you say "hard decision," what was the

  20    hard decision?

  21         A.    Well, I felt that we should have a complete

  22    survey.  We were very sensitive to litigation, and I think

  23    that we were -- the organization was somewhat intimidated by

  24    these threats, and so it would be, with that hovering in the

  25    background, whether you wanted to make a decision to include




                                                                663


   1    Gordon & Breach because you thought it was important to the

   2    survey, or whether you wanted to amend the survey a bit and

   3    not take any risk.

   4         Q.    When you received the Gordon & Breach response,

   5    did you believe that that eliminated the risk?

   6               MR. PLOTZ:  I am going to object.  It is

   7    irrelevant.

   8               THE COURT:  Yes, sustained to the form.

   9               What conclusion did you reach when you got the

  10    response?

  11               THE WITNESS:  I was very satisfied -- I mean, I

  12    was very relieved, I guess, that we could go on with this

  13    survey, it could be done the way I have thought it should be

  14    done, and we were not going to have any problems with it.

  15               THE COURT:  All right.  On that note, we'll end

  16    the day.

  17               Adjourned until 10 a.m. tomorrow.

  18               (Adjourned to 10 a.m., Friday, June 13, 1997)

  19

  20

  21

  22

  23

  24

  25




                                                                664


   1

   2                        INDEX OF EXAMINATION

   3    Witness                    D      X      RD     RX

   4    DONALD W. KING...........463    463     484    498

   5                                            499

   6    NORMAN F. RAMSEY.........501    533

   7    MARTIN B. GORDON.........554

   8    WILLIAM HOWARD JACO......650

   9                         PLAINTIFF EXHIBITS

  10    Exhibit No.                                     Received

  11     21 ..........................................593

  12     61 ..........................................605

  13     570 .........................................629

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25