Main Index: Trial Testimony June 13, 1997
665
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 13, 1997
12 10:05 a.m.
Before:
13
HON. LEONARD B. SAND
14
District Judge
15
16
17 APPEARANCES
18 ORANS, ELSEN & LUPERT, LLP
Attorneys for Plaintiffs
19 BY: LESLIE A. LUPERT
ROBERT L. PLOTZ
20 PETER E. SEIDMAN
21 COVINGTON & BURLING
Attorneys for Defendants
22 BY: RICHARD A. MESERVE
JEFFREY G. HUVELLE
23 SUSAN L. BURKE
24
25
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1 (Trial resumed)
2 THE COURT: Good morning. You may be seated.
3 The witness may resume the stand.
4 WILLIAM HOWARD JACO,
5 Resumed, and testified further as follows:
6 DIRECT EXAMINATION (Resumed)
7 BY MS. BURKE:
8 Q. Good morning.
9 A. Good morning.
10 Q. Dr. Jaco, when we stopped yesterday you had told
11 us that you were relieved when you received the verification
12 from G & B because you thought you could include them in the
13 survey without any problems, and I want to explore with you
14 now some of the reasons for that conclusion.
15 Do you have in front of you the verification
16 response that's marked as PX 513?
17 A. Yes, I do.
18 Q. How many journals was AMS verifying the data on?
19 A. This verifies data on the three Gordon & Breach
20 journals included in our survey.
21 Q. And what are the titles of those journals?
22 A. Applicable Analysis, Linear and Multilinear
23 Algebra, Complex Variables Theory and Applications.
24 Q. Dr. Jaco, do you consider those three journals
25 specialized journals?
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1 A. I think they would be classified as specialty
2 journals.
3 Q. Could you look at the survey itself and see
4 whether there are any other journals within that survey that
5 you view as comparable to the Linear and Multilinear Algebra
6 Journal?
7 A. I have a copy of the survey here which is
8 Defendant's Exhibit XXX. The selection of journals for our
9 survey was American publishers. All the journals were those
10 that were reviewed completely in their entirety by
11 mathematical review. So the inclusion is both specialty and
12 general journals.
13 So there are many specialty journals included.
14 We broke the analysis up into primary typeset journals. A
15 primary typeset journal is a journal where the publisher
16 generally has editorial and typesetting styles, and when
17 manuscripts come in, they often will even completely redo
18 the manuscript to have in their editorial and typesetting
19 style. So this requires a certain amount of cost to the
20 publisher.
21 The second was primary author-prepared journals.
22 These are ones where the author actually prepares a
23 camera-ready manuscript, submits it to the publisher and it
24 is published as author prepares it, and then translation
25 journals, which have additional cost because of translation
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1 and other scientific editorial things.
2 The American Mathematical Society has one
3 specialty journal which is included in the survey.
4 Q. Which journal is that, Dr. Jaco?
5 A. Mathematics of Computation.
6 All of the Society for Industrial and Applied
7 Mathematics journals are specialty journals, as most of the
8 specialty professional societies are, and then there are
9 many commercial publisher specialty journals.
10 Q. Dr. Jaco, either in the science specialty
11 journals or the commercial publisher specialty journals, are
12 there any that you view as directly comparable to the three
13 G & B journals?
14 MR. PLOTZ: I would object. Comparable in what
15 way? It is a very general question.
16 THE COURT: Suppose you restate your question
17 defining what you mean by "comparable."
18 Q. Dr. Jaco, do any of the specialty journals
19 included in the survey cover the same specialization as any
20 of the three Gordon & Breach journals?
21 A. Well, one of the SIAM journals is the Journal on
22 Matrix Analysis and Applications, which is the same as
23 Linear and Multilinear Algebra.
24 The SIAM journal on Mathematical Analysis is a, I
25 would assume, a competing journal, with one on complex
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1 analysis.
2 Q. Thank you Dr. Jaco.
3 The verification questionnaire, what other
4 information did it ask you to verify?
5 A. Our survey included collection of character
6 counts and price for the issues that were involved with the
7 character count, so that information as to what our survey
8 disclosed is provided, both the character count and the
9 price for the volumes that were considered in the character
10 count, or issues with which were considered. Then there
11 were other questions, circulation, which on none of these
12 was the information provided --
13 Q. Before we go on to circulation, Dr. Jaco, did you
14 provide any corrections to the prices?
15 A. Yes. On the 1988 issues in question, there were
16 corrections for each of the three journals that were in the
17 survey.
18 Q. Did the corrections raise or lower the price?
19 A. The corrections actually raised the price that we
20 had collected from the front matter of the journals.
21 Q. And what was the particular price that you were
22 seeking to verify with the publishers?
23 A. The way the price was obtained was that in the
24 front matter of the journals, because of mailing
25 requirements, a list price has to be provided. So, as a
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1 normalization, we use that as the price for the journals.
2 Many journals have discounting structures, have different
3 prices for different institutions, but it's quite complex,
4 so we had a question that said, do you have discounting
5 structures. For example, the American Mathematical Society
6 had a discounting structure for libraries. But we did not
7 use that. We used our, quote, list price. We had
8 individual price. We did not use that. We used our, quote,
9 list price. But this was the normalization for all the
10 journals. And so this information was actually published in
11 the survey. This is the price that we used.
12 And that way librarians could not only look at
13 the methodology that we did in counting characters that was
14 provided; the price that we used in arriving at the thousand
15 cents per character was provided, and therefore librarians
16 could look at this or anybody interested and say, I did or
17 did not pay that amount. They could calculate their own
18 values if they were so concerned, or they could see that the
19 publisher provided the discount and then they would be in a
20 position to either know that that was available or not
21 available to them and negotiate possible discounts.
22 Q. And specific to G & B, did you use the corrected
23 prices that G & B provided or did you use the prices that
24 your staff had obtained?
25 A. We used the corrected prices as well as the other
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1 information that they provided back in the questionnaire.
2 Q. Now, Dr. Jaco, I had interrupted you previously
3 when you were talking about circulation. Did the
4 questionnaire seek information on circulation?
5 A. The questionnaire asked for circulation
6 information, and the response from Gordon & Breach was that
7 the information was not available. Are back volumes
8 available? Are discounts available to institutions. It
9 asked for a description of the discount structure. Are page
10 charges requested? Are offprints available to authors? And
11 then it went into some detail. Describe that. And does
12 your journal receive support apart from page charges?
13 Q. And I'll get to the reasons why you asked for all
14 of that information, but specific to circulation, you
15 testified G & B did not include that -- did not provide you
16 that data.
17 Did other publishers provide you circulation
18 data?
19 A. Yes, a number of publishers did, and that's
20 included in the survey.
21 Q. What is the reason for including circulation data
22 in the survey?
23 A. Well, it particularly addresses the issue of, if
24 you have a small circulation, then you may need to have a
25 higher price. So this is a bit of information that anyone
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1 trying to make an analysis of the survey would at least have
2 available to him.
3 The intent of the survey was to organize
4 information so that people could have some type of an
5 overview of what was going on with journal prices, and this
6 is one of the factors that needs to be considered.
7 Q. Dr. Jaco, you had testified that AMS publishes
8 one specialty journal. Does it also publish general
9 journals?
10 A. Yes.
11 Q. How many journals does AMS publish?
12 A. At the time that I was at the AMS, they published
13 15 to 20 journals.
14 Q. Turning just to the AMS journals that are
15 included in the survey that we have here, is the circulation
16 data for those journals provided?
17 A. Yes, it is.
18 Q. There has been testimony previously in this case
19 that there is a great circulation difference between
20 specialty journals and general journals.
21 Did that hold true, in your experience?
22 MR. PLOTZ: Objection. Are we talking about a
23 mathematic survey in this case about a physics journal? I
24 don't know why we are going into this.
25 THE COURT: Restate your question.
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1 MS. BURKE: Pardon?
2 THE COURT: Restate your question.
3 Q. AMS publishes both specialty and nonspecialty --
4 and general journals, Dr. Jaco?
5 A. Yes. And the information in circulation is to
6 help people analyze the audience, the amount of subscribers,
7 and, therefore, be able to evaluate the cost. But it also
8 gives some idea of what the potential markets are for these
9 types of things and gives you an idea, and we have engaged
10 in the past in the issue of specialty journals versus
11 general journals as to what the potential audience is. And
12 while the arguments can be made in many ways, there is no a
13 priori reason why any should be higher or lower for one or
14 the other. In particular, for Mathematics of Computation,
15 the data provided here shows that it had a larger
16 circulation than our premier journal, Transactions, which is
17 a general journal.
18 Q. Just to make sure I understand, that journal that
19 you mentioned by name, is that a specialized journal?
20 A. Mathematics of Computation is a specialty
21 journals. Transactions of the AMS is a general journal.
22 Q. Did any commercial publishers provide you with
23 circulation data for your survey?
24 MR. PLOTZ: Objection.
25 THE COURT: Overruled.
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1 A. Yes, some do.
2 Q. Now, you had mentioned some other items that AMS
3 sought in the verification questionnaire. Why did AMS ask
4 for information on page charges?
5 A. Well, as in all of these things are -- is --
6 involve information that one needs to make, to make some
7 type of a learned decision about the information that they
8 are seeing on these pages. In particular, if a publisher
9 receives supplemental income to the subscription income --
10 revenue, I should say, supplemental revenue to the
11 subscription revenue, then that could impact the
12 subscription pricing for the journal.
13 So this was additional information to provide to
14 the readers so that they can make their own judgment on
15 that.
16 Q. Is that true, as well, for your question about
17 support, outside support?
18 A. Outside support page charges have been a
19 particular issue of contention, and so that was pulled out.
20 But page charges and possible grant or possible membership
21 dues support are all in one big category. But page charges
22 was particularly contentious and probably the only one that
23 has any really major involvement here because I don't know
24 of any journals that does support -- that's not true, I do
25 know of one journal that receives federal support.
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1 Q. Dr. Jaco, you referenced that page charges were
2 particularly contentious. What did you mean by that?
3 A. Well, I actually believe, I have not seen these
4 questionnaires that go back to the first survey in '83, but
5 I believe that many of these particularly refined items have
6 been in response to, particularly, Gordon & Breach
7 questioning the methodology, and so this was an effort to
8 try to bring in other factors that influence the pricing of
9 journals.
10 Q. Now, you mentioned that G & B provided
11 information on the discounts. Did they provide that
12 information for all three journals?
13 A. Yes.
14 Q. And how are those discounts described?
15 A. On the copies here, I believe that some of the
16 bottom parts are missing, but on the last one, "applicable
17 analysis," they have listed a price for libraries per volume
18 and an individual's price per volume.
19 Q. Did AMS consider using that library price given
20 that the survey -- that you knew the survey was going to be
21 read by librarians?
22 A. No, we did not use that. As I mentioned before,
23 we had a normalization which was what we referred to as list
24 price, because even ourselves discounted to libraries. We
25 did not use that price.
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1 Q. I'm sorry --
2 A. Even AMS discounted to libraries and individuals,
3 but we did not use those prices.
4 Q. Did the questionnaire seek any information from
5 publishers about the quality of their journals?
6 A. No.
7 Q. Does the survey contain any information about the
8 quality of the journals?
9 A. There was no comment to quality.
10 Q. When was this survey published, Dr. Jaco?
11 A. Well, the first survey, to my recollection, was
12 published in November of '83, the second in March of '86,
13 this particular one in November of '89.
14 Q. November of '89.
15 And what happened after the survey was published?
16 A. We publish the survey, and following that my
17 staff brought to me a paid advertisement sent to us by the
18 marketing department of Gordon & Breach and asked that it be
19 put in the notices on opposing pages. And the advertisement
20 was -- described briefly a diatribe of the survey and the
21 AMS. It questioned the intent and integrity of the AMS.
22 Q. Did the AMS publish the advertisement?
23 A. Yes.
24 Q. Was there any discussion about whether or not to
25 publish the advertisement?
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1 A. There was --
2 MR. PLOTZ: Objection.
3 THE COURT: He may answer that yes or no.
4 A. Yes.
5 Q. Did any other publisher take out an advertisement
6 about the survey?
7 A. No.
8 Q. Did any other publishers raise any issue about
9 the survey data?
10 A. At that time, no other information came to my
11 attention. However, during the deposition, information was
12 shown that another publisher had written in with a
13 correction, and that it was published in a later issue of
14 the notices.
15 Q. Other than receiving the paid advertisement, did
16 you receive any other communications from Gordon & Breach?
17 A. Following the advertisement, there was a letter
18 from Mr. Lupert, representing Gordon & Breach.
19 Q. Do you recall the details of that letter?
20 A. Not really. I mean, I could guess, but I don't
21 really recall the details.
22 Q. I am going to hand you what has been marked as PX
23 Exhibit 516.
24 Is that the letter that the AMS received from
25 Mr. Lupert?
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1 A. Yes, it is.
2 Q. And what was Gordon & Breach objecting to?
3 A. The first --
4 MR. PLOTZ: Objection, your Honor.
5 THE COURT: The letter speaks for itself.
6 THE WITNESS: Thank you.
7 Q. After AMS received this letter, what happened?
8 A. Well, we had an attorney, William Strong from
9 Boston, and I don't remember the name of the firm, who
10 represented us in publication matters. So we shared the
11 letter with Mr. Strong, and he then made a reply on our
12 behalf to Mr. Lupert.
13 Q. And do you recall the substance of the reply?
14 MR. PLOTZ: Objection.
15 THE COURT: Sustained.
16 Q. Did AMS retract the survey, as Gordon & Breach
17 had requested?
18 A. No --
19 Q. Why not?
20 A. Well, first, there was a procedure that was quite
21 standard with articles in the notices, a procedure for
22 grievance. This was to write a response in the form of a
23 letter to the editor to the notices, which we shared with
24 Gordon & Breach, that they certainly could do that, and we
25 welcomed them to do that. We certainly checked all of their
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1 contentions: the contention on agreement; the contention on
2 using the wrong price; the contention on the methodology,
3 the fact that they were claiming that theirs was a specialty
4 journal and other things were not applicable.
5 These things had been discussed before. They had
6 been discussed as early as '85 that the -- there was no --
7 MR. PLOTZ: I am going to object to the
8 discussions in 1985 before he was there.
9 MS. BURKE: Your Honor --
10 THE COURT: No. I didn't think that was the
11 objection.
12 Overruled.
13 A. OK. To just reorganize my thoughts on this, we
14 responded to the concerns of whether we had an agreement
15 with Gordon & Breach. We responded to the concerns about
16 the price. We responded that we had given due
17 consideration, in our opinion, to the concerns of
18 methodology.
19 I believe that Mr. Strong did not know whether
20 Mr. Lupert was aware that paid advertisement was sent nor
21 whether Mr. Lupert was aware of the fact that we used the
22 corrected or the verification forms as corrected by Gordon &
23 Breach. So we sent that type of information to Mr. Strong
24 at that time.
25 Q. You said that you resolved the concerns about the
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1 agreement. What did you mean by that?
2 A. The letter from Mr. Lupert raised an issue that
3 this violated the agreement you had with Gordon & Breach not
4 to include its publications in your surveys.
5 Prior to including Gordon & Breach in the survey,
6 I was familiar with some of the communications that had gone
7 earlier, but following this claim I went back and analyzed
8 the communications much more closely and with other people,
9 and so Mr. Strong responded to Mr. Lupert with our view of
10 the fact that we did not feel we had an agreement with
11 Gordon & Breach.
12 The so-called agreement that was mentioned in the
13 testimony yesterday pertaining, in our view, precisely to
14 the 1985 survey, even following the communication that we
15 would put a footnote only in the survey that said that
16 Gordon & Breach had been excluded at their request,
17 Dr. LeVeque was even at that time asking that they
18 reconsider and actually join and participate in the survey.
19 Following communication as to whether that footnote was OK,
20 his last response to them was, we hope that you will
21 reconsider and reparticipate in the survey.
22 As before my coming to the AMS, the trustees and
23 Dr. LeVeque decided that in the next survey all of Gordon &
24 Breach journals should be included, so I interpreted and I
25 sent this information back to Mr. Lupert that we had no
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1 agreement to not put them in the survey.
2 MR. PLOTZ: Your Honor, I object to the testimony
3 of what people did and decided before he was there. He
4 wasn't party to these discussions.
5 THE COURT: No, but he was apprised of them and
6 they form the basis of the response that was given to
7 plaintiff's counsel. I am accepting it not for the truth of
8 what was told to him but for the fact that it was told to
9 him and it was the basis of his response.
10 Q. After AMS informed Gordon & Breach that it did
11 not believe there was anything wrong with the survey and
12 that there was no agreement, did that end the matter?
13 A. No. I believe that -- I don't have the letter
14 from Mr. Strong here, but I believe the letter again
15 requested that the normal channels of grievance be pursued,
16 namely, a constructive response from Gordon & Breach to the
17 editors of the notices. I also don't know, but in my
18 recollection there must have been phone conversations
19 between Mr. Lupert and Mr. Strong, where Mr. Lupert proposed
20 that some form of arbitration over the disagreements be
21 undertaken.
22 At that time, Mr. Strong called me, and I don't
23 remember what any details of that was. I don't remember
24 whether he actually gave me a list of details. But
25 Mr. Strong --
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1 THE COURT: You can't tell us what Mr. Strong
2 told you. You can tell us what you did after you spoke to
3 him.
4 THE WITNESS: OK.
5 A. (Continuing) After speaking with him, I -- well,
6 while speaking with him, I told him that we were interested
7 in this but I could not make that decision alone, that I
8 would have to consult the trustees, and that we would get
9 back to him after consulting the trustees.
10 During that period of time there was an exchange
11 of mail between Mr. Lupert and Mr. Strong saying that we
12 must respond by the 1st of February, or maybe even it was
13 earlier, the 29th of January or something, that we must
14 respond by then or his clients would take any available
15 action, or any action that was available to them.
16 Q. Now, at this time, had the survey already been --
17 what was the status of the survey? Had it been sent out
18 yet?
19 A. The survey was published in the November '89
20 notices. That generally arrives to members in mid-November.
21 So it should have arrived to members in mid-November of '89.
22 Now we're talking about mid-January of '90.
23 Q. Now, would the survey have arrived to your
24 foreign members?
25 A. It should have.
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1 Q. What percentage of your membership is in the
2 United States, just roughly?
3 A. OK. We have 30,000 members, roughly 7,000
4 outside North America.
5 Q. Do you know how many in Germany?
6 A. Probably 3 to 500.
7 But, anyhow, to continue with the information: I
8 sent a reply back to Mr. Strong on the 31st of January from
9 the trustees. The conclusion of the trustees and myself,
10 and which we communicated back to Mr. Strong, was that there
11 were normal routes for grievances in the AMS if you
12 disagreed with something in the notices, and that these
13 avenues had not been pursued by Gordon & Breach, and
14 Mr. Strong wrote back that, indeed, if these avenues were
15 pursued and if the two parties still did not agree, then
16 maybe a third disinterested party or a panel of
17 disinterested parties could arbitrate.
18 Following, in early February, about the 9th of
19 February, if I recall correctly, Mr. Lupert responded to
20 this letter, answering many of the issues that Mr. Strong
21 had raised, but he ended his letter by saying that he hoped
22 that we could reach an amicable solution.
23 Q. I am going to hand you what is PX 526 and ask you
24 if that is the letter you are referring to.
25 A. Yes.
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1 Q. Dr. Jaco, you mentioned that you consulted with
2 the trustees.
3 How many trustees are there of AMS?
4 A. There are eight trustees.
5 BY THE COURT:
6 Q. Did any of the trustees have any relationships
7 with Gordon & Breach?
8 A. At that time one of the trustees was an editor
9 for Gordon & Breach, but this had nothing to do with -- I
10 mean, our trustees served as quite high on editorial boards
11 on many commercial publishers.
12 Q. And you testified that after consultation with
13 the trustees, you conveyed the AMS view to Mr. Strong?
14 A. I conveyed to Mr. Strong, who then wrote on the
15 1st of February to Mr. Lupert. In this letter that you
16 handed me, on the 9th of February, is Mr. Lupert's reply to
17 Mr. Strong's letter of February 1.
18 Q. And did Mr. Strong provide you a copy of that
19 letter?
20 A. Yes, he did.
21 Q. At that time, did you know that you had been sued
22 in Germany?
23 A. No.
24 Q. When did you learn that?
25 A. Later in February, we received, through
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1 Mr. Strong and over cover from Mr. Lupert, copies --
2 translated copies of litigation that were filed on the 1st
3 of February in Germany and acted upon the 2nd of February in
4 Germany.
5 Q. And do you recall what papers were provided to
6 you by Mr. Lupert?
7 A. There were translations of some kind of
8 statements by a Mr. Schneider, some type of a statement by
9 Mr. Lupert and the Court's order for an injunction on
10 distributing price surveys that included Gordon & Breach
11 journals in the Federal Republic of Germany.
12 Q. Dr. Jaco, I am going to hand you what has been
13 marked as Plaintiffs' Exhibit 527, 524 and Defendants'
14 Exhibit CCCC and DDDD and ask you if that is the package of
15 material that you received.
16 A. All of these documents were in the package. I am
17 not sure if there may not have been a German copy of the
18 thing in there but these were all in the package.
19 Q. What was AMS's reaction upon learning of the
20 German injunction?
21 A. Well, I think, first, the reaction was, for me,
22 deep concern for what it meant to the society being sued. I
23 think for people that aren't accustomed to this it is a
24 frightening experience.
25 I immediately shared it with the trustees, and
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1 the trustees, who are working mathematicians, were extremely
2 concerned by this, because it --
3 MR. PLOTZ: Your Honor, I object to what the
4 trustees said to him.
5 THE COURT: Well, the question is the response of
6 the Society, and the Society obviously is an abstract entity
7 and it exists only through counsel. Overruled.
8 Q. Dr. Jaco, you may continue.
9 A. This does not have all the information that I
10 recall in it, because there was a phrase right at the front
11 of it that said that action could be taken either in the
12 form of a fine or imprisonment to the directors of the
13 organization, and that particularly concerned the trustees,
14 because they didn't know what that meant, as many of them
15 travel to Germany --
16 Q. Dr. Jaco, just to help you out, if you look to
17 the number that has a Bates number on bottom, 011041, it is
18 the third page in your packet, is that the reference to the
19 fine that you recall?
20 A. I have 011042 as the first page in my packet.
21 Q. Here you go, sir.
22 A. Right. This is the -- where it says, "Each
23 contravention shall be punishable by imprisonment of up to
24 six months for contempt of court or an administrative fine
25 of up to Deutsch Mark 500,000, the alternative to the latter
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1 being also imprisonment for contempt of court, enforceable
2 against the directors of the respondent.
3 THE COURT: Now, where are you reading from?
4 Where is this?
5 MS. BURKE: It is the second page in the exhibit,
6 the first page.
7 THE COURT: Which exhibit?
8 MS. BURKE: 524.
9 THE COURT: 524 page --
10 THE WITNESS: It is 011041 on this thing but it
11 doesn't appear on my 524.
12 THE COURT: I don't have it. I have 524 in which
13 the first Bates is --
14 THE WITNESS: 011042.
15 THE COURT: 042.
16 THE WITNESS: The same as mine was.
17 MS. BURKE: I am sorry, your Honor. Could you
18 give me a moment?
19 (Pause)
20 MS. BURKE: I'm sorry, sir.
21 (Handing to the Court)
22 Q. Dr. Jaco, why was it that the trustees were
23 particularly concerned about that language in the petition?
24 A. Well, it addressed the directors as being
25 potentially involved in this personally. I think that --
688
1 OK, I don't think -- I know that my particular concern was
2 what did this imply for the Society, and also I could not
3 quite understand the fact that the injunction was brought
4 without any representation from the AMS and it had words
5 that this was issued without a prior oral hearing in view of
6 the urgency of the matter.
7 And so I was quite shocked by the fact that the
8 Court had actually taken this as such an urgent matter, so
9 urgent that we were not even represented in the bringing of
10 this injunction.
11 Q. At that time, did the AMS intend to publish
12 another survey immediately?
13 A. No. As I mentioned yesterday, we publish surveys
14 every two years, and the next one that would have been due
15 would have been due in 1991.
16 Q. At that time, had the survey -- do you know -- to
17 what extent had the survey been distributed in Germany?
18 A. I would assume that the membership of the society
19 in Germany hopefully had received it by then.
20 Q. When had it been mailed?
21 A. It would have -- it should have been to U.S.
22 members by mid-November, but we had a mailer in Europe that
23 took care of that, so it shouldn't have lagged more than a
24 week.
25 Q. Turning to the pleadings filed by Gordon &
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1 Breach, the petition and the affidavits, to what extent did
2 those statements fully reflect the facts?
3 MR. PLOTZ: Objection.
4 THE COURT: To what extent did what reflect the
5 facts?
6 MS. BURKE: Did those statements.
7 THE COURT: Which statements?
8 MS. BURKE: The Gordon & Breach petition for an
9 injunction and the affidavits filed in support thereof.
10 THE COURT: Overruled.
11 Q. You may answer, Dr. Jaco.
12 A. I think that there are -- I think the main thing
13 that is missing is that one of the objections and one of the
14 reasons for the petition was that we were misrepresenting
15 the prices of Gordon & Breach, but nowhere does it say that
16 we actually used the verification that they sent to us. So
17 I think that's probably a major omission in this.
18 Q. To what extent did the fact of the German
19 injunction affect AMS operations?
20 A. Well, from that point on, we were very involved
21 in concerns of litigation and all of our trustees from AMS
22 from that point on had an item that was concerned with this.
23 We immediately retained counsel in both the United States
24 and in Germany. By that time, we were aware that litigation
25 had been filed also in Germany as well as Switzerland
690
1 against AIP, APS and Dr. Barschall, so we contacted their
2 counsel at that time for advice. Our counsel met with
3 Mr. Meserve at that time.
4 Since their -- the case with AIP, APS and
5 Dr. Barschall was already proceeding in Germany, we made the
6 decision to wait and observe the outcome of that case before
7 responding to the injunction.
8 Q. Did you later -- did AMS later decide to
9 challenge the injunction?
10 A. AMS later discussed challenging the injunction,
11 but made a decision not to.
12 Q. What led up to that decision?
13 A. Well, as I said, that we were watching the court
14 proceedings involved by AIP, APS and Dr. Barschall in
15 Europe, and the German case had actually been resolved. And
16 so we decided the ball was then in our court to make some
17 type of a response to this.
18 So the trustees appointed a task force, including
19 the then president, the then treasurer and myself, to advise
20 the trustees on a course of action. This --
21 Q. What did the task force do?
22 A. This task force asked both counsel in Germany and
23 counsel in the United States to make an evaluation of the
24 proceedings against AIP and APS. They advised us on all of
25 our options, and then we had a meeting with them in order to
691
1 discuss this after they had collected this information for
2 us.
3 Following that meeting, the task force made a
4 proposal to the trustees. That proposal was to not fight
5 the injunction in West Germany. We believed that our case
6 was with merit. We believed that we would win the case.
7 But we were advised that we would have possibly a minimal
8 cost, in the neighborhood of $100,000. We did not feel that
9 it was worth spending the $100,000, because our revenue came
10 from increasing journal prices.
11 The other thing was that I think that following
12 the German litigation, Gordon & Breach filed litigation in
13 both Switzerland and France, and it appeared to us that we
14 could possibly be exposing ourselves to a long term of
15 litigation, and so we chose to back out of the fight.
16 Q. Just for clarity, Dr. Jaco, when you say that
17 Gordon & Breach filed litigations in France and Switzerland,
18 was that litigation against AMS?
19 A. No, it was against AIP, APS and I think
20 Dr. Barschall was involved certainly in Switzerland but I
21 don't know about France.
22 Q. Well, if the task force did not recommend having
23 the injunction lifted, what did the task force recommend?
24 A. Well, we had avoided doing the 1991 survey. This
25 particular litigation and threat of additional litigation --
692
1 this litigation had prevented us from moving forward with
2 the '91 survey, but we had decided that, since we were not
3 going to fight, that we would proceed with the '93 survey,
4 and this was the time to start organizing that. And so the
5 decision was made that we would do a '93 survey, that we
6 would leave Gordon & Breach out of the survey.
7 However, we felt that our membership needed to
8 know a couple of things. One, they needed to know what had
9 happened in the issues with Gordon & Breach, and we felt
10 that they needed to know why we were not fighting the
11 injunction in Germany.
12 So, the trustees recommended that we do the new
13 journal survey, that it try to get out as close as possible
14 to November of 1993, that I write an editorial in my
15 editorial column, stating why we felt that it was in the
16 best interest of the Society to not fight Gordon & Breach,
17 and our staff writer was to write a news story that informed
18 our membership of the situations with AIP, APS and the AMS
19 regarding litigation with Gordon & Breach.
20 Q. Is that what happened, Dr. Jaco?
21 A. Yes, except that the journal didn't come out
22 until December of 1993.
23 Q. I am going to hand you what has been marked as PX
24 528 and ask if that is the editorial you wrote.
25 A. Yes, it is.
693
1 Q. And where was this editorial published?
2 A. It was published on the second page of The
3 Notices.
4 Q. And what is The Notices, Dr. Jaco?
5 A. The Notices is our membership magazine. It is,
6 quote, a privilege of the AMS, so it has information about
7 the AMS in it.
8 Q. Did this editorial, as well as the '93 survey,
9 get sent to Germany?
10 A. Yes.
11 Q. And after the --
12 A. The injunction was only for surveys that included
13 Gordon & Breach.
14 Q. After the editorial was published, what happened?
15 A. I don't remember exactly how long after the
16 editorial was published, but I received a letter from a firm
17 called Clintons in the United Kingdom challenging the
18 editorial and threatening a suit of libel personally against
19 me on behalf of Gordon & Breach.
20 Q. Dr. Jaco, when you made a reference to "you
21 received," you personally or the AMS received?
22 A. It was directed to me personally, if I remember
23 right.
24 Q. I am going to hand you what has been marked as PX
25 Exhibit 530 and ask if that is the letter that you received?
694
1 A. Yes, it is.
2 Q. And what claims did Gordon & Breach make about
3 your editorial?
4 THE COURT: Are those set forth in this letter?
5 THE WITNESS: Yes.
6 THE COURT: OK.
7 Q. And what was your response to that, to the claims
8 that were made?
9 A. I mean, you asked me first what claims were made.
10 Do I say what claims were made or --
11 THE COURT: No. No. It is in the letter.
12 THE WITNESS: OK.
13 A. I'm sorry. Now go back to the question.
14 Q. What was your response to the claims?
15 A. Well, my first response was complete surprise,
16 because, first, I felt that we had given up the fight. I
17 was not happy with this, but I felt that we had made a
18 decision so that we would no longer be engaged in threats of
19 litigation from Gordon & Breach. So I was quite surprised
20 with this.
21 I was deeply concerned because it was directed to
22 me and saying that I personally had potentially caused
23 damage or injuries to Gordon & Breach. So this was
24 delivered to me, and not to our attorney. So I immediately
25 sent it to Mr. Strong for advice, and after -- I waited
695
1 until he responded back to me before I notified the
2 trustees, because I knew the first thing they would say was,
3 what advice did you receive.
4 Q. What had you said in your editorial that prompted
5 the Gordon & Breach reaction?
6 MR. PLOTZ: Objection.
7 THE COURT: Sustained.
8 Q. What happened next after -- did you consult with
9 the trustees?
10 A. I consulted with the trustees. I was deeply
11 concerned with what this meant to me personally, so I
12 consulted with attorneys.
13 We went back through the by-laws of the AMS and
14 found that the appointed officers were not indemnified by
15 the AMS but the elected officers were. So I requested that
16 our trustees indemnify me in this particular instance, and I
17 responded directly to the letter from Clintons rather than
18 going through a counsel, since the letter had been sent
19 directly to me.
20 Q. Do you recall what it is that you said in your
21 letter?
22 MR. PLOTZ: I am going to object.
23 THE COURT: Do you have the letter?
24 MS. BURKE: Yes. I will hand up what has been
25 marked as Defendants' Exhibit KKK.
696
1 MR. PLOTZ: I'm sorry. What is the exhibit?
2 MS. BURKE: KKKK.
3 Q. Is KKKK your response, Dr. Jaco?
4 A. Yes, it is.
5 Q. And did you write that letter?
6 A. I wrote the letter, but it was reviewed by our
7 counsel and by the trustees.
8 Q. What did you suggest to Gordon & Breach?
9 MR. PLOTZ: Objection.
10 THE COURT: Is it contained in this letter?
11 MS. BURKE: It is contained in the letter, your
12 Honor.
13 THE COURT: Sustained.
14 Q. What happened after you suggested to Gordon &
15 Breach that they write an editorial?
16 A. We responded with this. Clintons responded back
17 that since I had mentioned attorneys in Boston, they would
18 communicate with them and not with me in the future.
19 Following that, Mr. Strong received a letter from
20 Mr. Lupert advising him that --
21 MR. PLOTZ: Again, your Honor, there is a letter
22 and I think it speaks for itself.
23 THE WITNESS: Is it in the --
24 BY MS. BURKE:
25 Q. I will hand you the letter. It is Exhibit PX
697
1 532.
2 Go ahead, Dr. Jaco.
3 A. I don't -- do I tell you what is in the letter or
4 do I not tell you what is in the letter?
5 THE COURT: No, you don't. The theory is if it
6 is all in the document, you don't need an oral explanation.
7 THE WITNESS: I understand the theory.
8 Q. Looking at PX 532, what was your reaction to that
9 letter?
10 A. Well, of course, as I mentioned before, I was
11 extremely anxious and concerned about the potential of
12 litigation against the society, and, quite honestly, against
13 myself personally. I was very concerned as to what this
14 meant.
15 I think in this letter I did not find it as
16 particularly any different. I think that my interpretation
17 of this letter was that it was intended to scare me and
18 intimidate me. And it did that.
19 So, I did not respond to it. I don't remember if
20 Mr. Strong responded to that letter or not.
21 Q. And what happened after that?
22 A. We had offered -- I mean, the normal path for
23 grievance, which I had mentioned but I am not sure that I
24 made clear, was that if someone had a grievance with
25 something that was published in the notices, they would then
698
1 write a letter to the editor. The normal procedure is
2 whoever had done the first article which caused the
3 grievance would then respond to that, and sometimes that
4 could carry on for quite a while until sometimes even the
5 counsel of the society got involved in arbitrating these
6 types of things.
7 So we suggested that this happen. However, we
8 modified that grievance procedure for Gordon & Breach to say
9 that if they wrote their objections, then I would write a
10 response but before it were published we would share that
11 response with Gordon & Breach and that if they wanted to at
12 that time, they could pull out. If not, publish it, but we
13 would modify the grievance for at that time.
14 What we did receive back was a correspondence
15 from Mr. Lupert. I do not know if he or someone else wrote
16 this. But the correspondence had only in it what Gordon &
17 Breach wanted me to reply. It was not -- they did not
18 provide what I would be replying to, but only what I would
19 reply. And we could not accept that, because, basically, it
20 was a reply that everything we did was wrong.
21 Q. Did you sign any statement that what you did was
22 wrong?
23 A. No.
24 Q. To what extent did Gordon & Breach's personal
25 threat against you have any impact on AMS?
699
1 A. Well, as I mentioned before, the trustees had a
2 meeting where they made special indemnification of me. I
3 think that this whole procedure greatly affected a role that
4 AMS had played and enjoyed in the community. We often were
5 major participants in the library community meetings. We
6 often organized panel discussions on current issues. This
7 greatly prevented us from sticking our neck out on any
8 controversial issue. So I think that it affected the --
9 AMS's major responsibility they had of serving the
10 mathematics profession in an open and forthright way.
11 Q. Dr. Jaco, what did you do when you were asked to
12 testify in this case?
13 MR. PLOTZ: Objection.
14 THE COURT: Overruled.
15 A. I was telephoned by you, and the first thing that
16 I felt is I needed to consult with the AMS to make sure that
17 they approved my participating in this, and also to consult
18 with AMS attorneys to see if indeed the indemnification was
19 still applicable. It turned out that they did not feel it
20 was because it was directed to the executive director and
21 the actions of the executive director, so the trustees had
22 another meeting where they made the indemnification specific
23 to me, and so I think that I've appeared here with the good
24 wishes of the AMS, but I think all of us are a little
25 anxious that again stepping forward publicly, no matter what
700
1 our intent is -- and which I think is good intent -- we
2 subject ourselves to potential litigation again. So it
3 worries me.
4 MS. BURKE: Thank you, Dr. Jaco. I have no
5 further questions.
6 THE COURT: Mr. Plotz, you may inquire.
7 MR. PLOTZ: Thank you.
8 CROSS-EXAMINATION
9 BY MR. PLOTZ:
10 Q. Dr. Jaco, when you decided to do the 1989 survey
11 shortly after you became the executive director, you didn't
12 know that there was any issue at that time concerning Gordon
13 & Breach's inclusion, did you?
14 A. First, I did not make that decision. The
15 decision to do surveys had been regularly made. But prior
16 to my coming to the AMS, the trustees had said that one
17 thing they really wanted to happen was to redo the surveys.
18 So when I came, one of the discussions was that I would
19 quickly respond and get a survey out.
20 Q. But at that time, when you did that, you at that
21 time didn't know there was any issue one way or the other
22 about Gordon & Breach's inclusion, correct?
23 A. I don't remember being consciously aware. I may
24 have read the footnote in 1985, but I don't remember it.
25 Q. Well, I think you testified that you learned that
701
1 there was an issue because Mary Lane, your director of
2 publications, came to you and raised it with you, isn't that
3 right?
4 A. I think that in the deposition I said that I
5 learned of the thing and it was asked as to whether I knew
6 who told me. And I said I would assume it was Mary Lane
7 because that's with whom I was discussing the survey at that
8 time.
9 Q. Well, when you learned that there was an issue,
10 you reviewed documents in the AMS file to learn more about
11 it, right?
12 A. Yes, I did.
13 Q. And at that time, the extent of your knowledge of
14 what had happened in the past was based on your review of
15 those documents in the AMS files, correct?
16 A. And staff who were there.
17 Q. One of the documents that you reviewed was a
18 letter from Gordon & Breach's attorney in 1985 raising
19 issues about the first survey, correct?
20 A. It was in the files. I'm sure I reviewed that
21 letter. If it's the one to Dr. Maxwell. Is that the one
22 that you are referring to?
23 MR. PLOTZ: Just a moment. I'll get it for you.
24 Q. Let me show you Plaintiff's Exhibit 502 and ask
25 you if that is one of the letters that you referred to at
702
1 that time.
2 A. I, of course, don't remember actually seeing
3 this. But if it was in the file, I read the files, so I'm
4 sure I read this letter at that time.
5 Q. And that was the letter from Gordon & Breach's
6 attorney, June 5, 1985, raising objections that Gordon &
7 Breach had to the 1983 survey, correct?
8 A. Yes, it is.
9 Q. And in that letter, in the last paragraph, Gordon
10 & Breach requested either that AMS take these objections
11 into account in any future surveys or that AMS eliminate
12 Gordon & Breach from any future surveys, correct?
13 A. The last paragraph says that, yes.
14 Q. And this is one of the letters that you reviewed
15 back in 1989, in the fall of 1989, correct?
16 A. Again, I say I'm sure I reviewed it. And, as I
17 stated earlier, I believe that -- at least in my
18 understanding, I would believe that this letter prompted a
19 number of the inclusions in our verification statement and
20 inclusions of some of the issues of page charges, outside
21 support, and those things which are now included in the
22 survey.
23 Q. Now, in response to that letter, your
24 predecessor, Dr. LeVeque, wrote back, correct?
25 A. Yes.
703
1 Q. Let me show you Exhibit 503, and also hand you
2 504, because I am going to ask you about that shortly.
3 Exhibit 503 is the response of Dr. LeVeque to
4 Gordon & Breach's letter, correct?
5 A. Yes.
6 Q. And in that letter, in the third paragraph,
7 Dr. LeVeque said that, "If you instruct me to do so, I will,
8 of course, see to it that Gordon & Breach journals are not
9 listed." He was referring to another survey that was being
10 conducted, correct?
11 A. Yes. This is out of context, that part with the
12 longer sentence.
13 Q. I will read the whole sentence, if that helps.
14 A. Yes.
15 Q. "In collaboration with the European Mathematics
16 Council we are now preparing and updating an extended
17 version for survey covering both the American and European
18 journals. If you instruct me to do so, I will of course see
19 to it that Gordon & Breach journals are not listed."
20 A. Yes, that's the full exhibit.
21 Q. And Dr. LeVeque also stated, in the last
22 paragraph of this letter, "I would hope that these
23 considerations would persuade your client to agree, once
24 again, to participate in the survey. In any case, be
25 assured that we will proceed as he specifies in this
704
1 regard."
2 A. Yes.
3 Q. Dr. LeVeque said that?
4 A. Yes.
5 Q. And you reviewed this letter back in the fall of
6 1989?
7 A. I'm sure I did. I again, don't --
8 Q. And you understand that Dr. LeVeque was making an
9 offer to Gordon & Breach to proceed as Gordon & Breach
10 specifies?
11 A. Yes, and I believe Dr. LeVeque did, on that
12 survey.
13 Q. Now, take a look at Exhibit 504. This exhibit is
14 Gordon & Breach's response to that offer, isn't it?
15 A. Yes, it is a response to the letter of June 30.
16 Q. And in that response, Gordon & Breach took up the
17 offer that Dr. LeVeque had made in his letter, didn't they?
18 A. It says that, "There remains a large area of
19 misunderstanding, and be that as it may we have requested to
20 inform you on behalf of our client that it wishes to be
21 omitted from all surveys made by you in the future."
22 Q. And you read this letter also in the fall of
23 1989, didn't you?
24 A. I'm sure I did, yes.
25 Q. You understood that in this letter Gordon &
705
1 Breach was accepting the offer made by Dr. LeVeque, didn't
2 you?
3 A. No, I interpreted this that Gordon & Breach
4 wished to be omitted from surveys, but Dr. LeVeque's offer
5 is very specific to the '85 survey.
6 Q. Now, who is Michael Atiyah?
7 A. Sir Michael Atiyah is a well-known mathematician.
8 At that time he was serving as president of the European
9 Mathematical Council.
10 Q. That is the organization which was doing
11 companion surveys with AMS?
12 A. They were organizing a survey of European
13 journals.
14 Q. And they were doing it in collaboration with you,
15 weren't they?
16 A. It certainly was collaboration in the sense, I
17 believe -- I don't know exactly to what extent it was as far
18 as methodology. By the time I came in, another organization
19 had taken it over in Europe which used their own
20 methodology. But I would assume at this time that the
21 methodology was probably similar, so it would have
22 comparable results, and certainly in communication with what
23 one was doing. I don't know how extensive the, quote,
24 collaboration may have been.
25 Q. You understood also that the European
706
1 Mathematical Council had also agreed with Gordon & Breach
2 not to include Gordon & Breach journals in its survey,
3 didn't you?
4 A. There were letters introduced yesterday -- I'm
5 not sure that I had access to those letters at that time
6 from the European Math Council, but from testimony yesterday
7 that was introduced, I understood that they had agreed not
8 to include Gordon & Breach in the '85 survey.
9 Q. Let me show you Plaintiffs' Exhibit 509.
10 A. I'm not sure whether they had agreed. I would
11 have to see it.
12 Thank you.
13 Q. Let me direct your attention specifically --
14 well, first, this is a letter from Michael Atiyah to Martin
15 Gordon, is it not?
16 A. To M. B. Gordon, yes.
17 Q. And the letter shows that there was a cc to
18 Dr. LeVeque?
19 A. Yes.
20 MS. BURKE: Your Honor, I just object that this
21 is being asked of a witness that said he was not aware of
22 these letters at the time. I don't see the relevance.
23 THE COURT: The point is well taken. Let's move
24 on.
25 Q. Let me ask you, Dr. Jaco, leaving aside -- did
707
1 there come a time after approximately September of 1989 when
2 you reviewed the file relating to Gordon & Breach maintained
3 by the AMS in greater detail.
4 A. I think certainly after the paid advertisement
5 was sent accusing us of not opening up to an agreement, that
6 I pulled everything out again, reviewed it in great detail,
7 shared it with counsel, and discussed it again with staff
8 and trustees.
9 Q. And Plaintiff's Exhibit 509 is one of the letters
10 that you reviewed, at least on that occasion, isn't it?
11 A. I'm not sure I had this letter. I had
12 communication from Sir Michael, but I am not sure I had this
13 letter. Because this Mr. -- well, it was cc'd to LeVeque.
14 It may have been in the file. If it were in the file then I
15 reviewed it.
16 Q. I can represent to you that this was produced in
17 this litigation from the files of AMS.
18 A. OK. Then I probably --
19 Q. Does that help you as to whether or not you
20 reviewed this document?
21 A. Just like the other letters, if it were in the
22 file then I probably read it.
23 Q. We'll come back to that in a few minutes.
24 Now, at the time you were preparing to do the
25 1989 survey, having reviewed this file, you understood that
708
1 there was an issue relating to including Gordon & Breach in
2 the survey, didn't you?
3 A. Yes, I did.
4 Q. But you still wanted to include Gordon & Breach,
5 correct?
6 A. I felt that it was very important to, not only
7 that survey but all our surveys, that they be complete. So,
8 yes, I wanted to include all American publishers under
9 the -- whose journals were reviewed in their entirety by
10 math referees.
11 Q. So you consulted an attorney about this, correct?
12 MS. BURKE: Your Honor --
13 THE COURT: You may answer.
14 A. I didn't. It was -- I want to make sure about
15 "this."
16 What do you mean by "this"?
17 Q. About including Gordon & Breach in the 1989
18 survey.
19 A. As I've said before, for both reasons of
20 reporting to the trustees and what I thought was just wise
21 practice, I consulted the attorneys on issues where I didn't
22 understand what might be involved.
23 In this particular case, I really could not
24 understand where we had any legal exposure, since we were
25 taking publicly-available information, collecting it,
709
1 collating it, and putting it in our member magazine. So we
2 did consult the attorney, as, are we missing something here,
3 do we have to be concerned.
4 Q. And let me show you Plaintiff's Exhibit 512 and
5 ask you if that is the letter to your attorney requesting
6 such advice?
7 A. Yes. This is from the director of publications.
8 Q. That is from Mary Lane?
9 A. Yes.
10 Q. And, among other things, Ms. Lane enclosed with
11 this letter to your attorney copies of the correspondence
12 between AMS and Gordon & Breach in 1985, correct?
13 (Pause)
14 A. Yes. "I am sending you a copy of the original
15 correspondence relating to the threatened suit along with a
16 copy of the most recent survey published."
17 Q. So the answer is yes?
18 A. If that's the information you think -- I don't
19 know how extensive. It says, "the original correspondence
20 related to the threatened suit."
21 Q. And Ms. Lane asked AMS's attorney whether it
22 would be risky to include Gordon & Breach in this 1989
23 survey, correct?
24 A. I don't see the word "risky," but I assume that
25 it is in there, if you say it.
710
1 Q. Let me direct your attention to --
2 A. Oh, how risky is it to include Gordon & Breach.
3 Q. So the answer is yes, correct?
4 A. Yes.
5 Q. And the risk to which Ms. Lane was referring was
6 whether or not there was an agreement that would be breached
7 if Gordon & Breach were included in the 1989 survey, isn't
8 it?
9 A. I absolutely don't think that. I think the risk
10 is, are we doing anything that they possibly could sue us
11 over.
12 Q. Well, at that time you had had no communication
13 with Gordon & Breach concerning including them in the 1989
14 survey, had you?
15 A. But, if you recall, in the '85 letter there was a
16 threat to sue, and that was prior to any discussion about
17 any agreement or anything. That was just over a survey.
18 So I think --
19 Q. Well, did you at the time that you were
20 collecting information in 1989, and that this letter was
21 sent to your attorney, did you fear that Gordon & Breach was
22 going to sue you in connection with this survey?
23 A. No, I didn't. I didn't believe that they would.
24 Q. So you didn't fear that Gordon & Breach would sue
25 you, did you?
711
1 A. I really saw nothing that they could sue us over.
2 But the reason for the letter was advice: Am I
3 missing something?
4 Q. Now, this letter, this letter of September 11,
5 1989, also states, does it not -- and I'll quote from it:
6 "We have sent letters to each publisher, sample enclosed,
7 explaining what we have found and plan to publish."
8 Is that correct?
9 MS. BURKE: Your Honor, I would just suggest the
10 letter speaks for itself.
11 THE COURT: Yes. Sustained.
12 Q. Let me direct your attention to that part of the
13 letter.
14 A. I see it.
15 Q. Now, at that point you had not sent a
16 questionnaire to Gordon & Breach, however, correct?
17 A. I assume that we had not, because this letter was
18 sent to get advice about sending that.
19 Q. Were there any publishers other than Gordon &
20 Breach who, as of September 11, 1989, had not received a
21 questionnaire?
22 A. I, as I said in the deposition, I don't know
23 whether that's true, but if one wants to interpret the
24 letter literally, you would assume that other publishers had
25 been sent. Whether that actually had been mailed or not, I
712
1 don't know.
2 THE COURT: Is there a difference between the
3 questionnaire and intent to publish?
4 THE WITNESS: I'm sorry, I don't --
5 THE COURT: Your question was about the
6 questionnaire.
7 MR. PLOTZ: Correct.
8 THE COURT: And this letter is talking about,
9 have not yet sent the intent to publish letter.
10 MR. PLOTZ: I believe the questionnaire and
11 intent to publish letter are one and the same.
12 THE WITNESS: Yes, they are the same, yes.
13 Q. Gordon & Breach -- withdrawn.
14 You eventually did send the questionnaire and
15 intent to publish letter to Gordon & Breach, correct?
16 A. Yes, the publication department did.
17 Q. And that's Exhibit 513, right? Do you have that
18 in front of you?
19 A. It was here. Yes, I have it.
20 Q. And that letter to Gordon & Breach is dated
21 September 26, 1989, is it not?
22 A. Yes, it is.
23 Q. And it called for a response by October 5, did it
24 not?
25 A. Yes.
713
1 Q. About eight or nine days later?
2 A. Yes.
3 Q. This survey was sent out over -- at least over
4 two weeks after the surveys to the other publishers, was it
5 not?
6 A. This questionnaire was delayed because we were
7 getting counsel advice --
8 Q. So --
9 A. -- regarding the --
10 Q. So it was sent out late, correct?
11 A. As far as I know, yes.
12 Q. In fact, it contains an apology for being sent
13 out late, does it not?
14 A. Yes.
15 Q. And AMS intended to -- let me start over.
16 In general, AMS intended to include information
17 as to the publishers whether or not the publishers responded
18 to these questionnaires, isn't that right?
19 A. The letter says that if you -- I mean, the
20 question was -- the issue was, yes, it intended to put the
21 publishers in. And the questionnaire stated that if you do
22 not reply, then we will -- we'll assume that the information
23 you have received from us that we're going to publish is
24 correct --
25 Q. It says that in capital letters, doesn't it?
714
1 THE COURT: Yes, it does.
2 A. Yes, it does.
3 THE COURT: We will take our mid-morning recess.
4 (Recess)
5 THE COURT: Try not to ask questions which are
6 not designed to elicit a response from the witness but,
7 rather, simply to call the Court's attention to something
8 like whether something is capitalized or not capitalized.
9 You will have an opportunity to make closing argument, file
10 briefs. Try to use the proceedings to elicit testimony from
11 the witnesses.
12 MR. PLOTZ: Yes, your Honor.
13 BY MR. PLOTZ:
14 Q. The AMS, in preparing the 1989 survey, actually
15 typeset two different versions of the survey, didn't you?
16 A. Yes.
17 Q. And the difference between the two versions was
18 that one excluded Gordon & Breach?
19 A. There was an inclusion and an exclusion version.
20 Q. You did that because you understood that there
21 was an issue about whether or not Gordon & Breach was going
22 to be included in the survey, right.
23 A. I had not made a decision at that point, and the
24 trustees were going to be meeting that fall and they would
25 be involved in making the decision. We were very much
715
1 waiting for a response from Gordon & Breach to our
2 verification questionnaire. And so, we were prepared to,
3 depending on what kind of a response we got from Gordon &
4 Breach, to have to make a hard decision or an easy decision
5 as to whether to include them or not.
6 Q. Now, going back to the 1985 correspondence that
7 you reviewed, you understood, didn't you, that Gordon &
8 Breach's response had stated their desire to be excluded
9 from all surveys in the future, didn't you?
10 A. I understood that, yes. But I would like to
11 point out that Dr. LeVeque never responded to that.
12 Q. I'm not asking about Dr. LeVeque. I am asking
13 about Gordon & Breach.
14 You understood that, from Gordon & Breach's point
15 of view, they expected to be excluded from all future
16 surveys, correct?
17 A. They said that they wished to be excluded from
18 all future surveys.
19 Q. Now, when the 1989 survey was published, Gordon &
20 Breach protested its inclusion, correct?
21 A. Yes.
22 Q. And one of the reasons stated was because, in
23 Gordon & Breach's view, the prior agreement had been
24 breached, right?
25 A. The advertisement had that we had not lived up to
716
1 an agreement that they felt we had.
2 Q. You did not agree with that, right?
3 A. I did not agree with that.
4 Q. That was a dispute between the two of you, right?
5 A. Yes.
6 Q. Now, you wrote an editorial in the notices
7 about -- that you considered that there was a threat to
8 conducting price surveys, do you recall that?
9 A. Yes.
10 Q. Let me just show you Exhibit 520, which is the
11 editorial.
12 I want to direct your attention to about the
13 middle of the editorial, where you wrote "at the height of
14 these exchanges." Do you see where I am directing your
15 attention to?
16 A. Yes.
17 Q. Now, your view of it was that the AMS had yielded
18 to pressure to exclude Gordon & Breach back in 1985,
19 correct?
20 A. Yes.
21 Q. What exchanges were you referring to when you
22 stated that "the society yielded to pressure at the height
23 of these exchanges," which are your words?
24 A. I would assume it was the letter to Dr. Maxwell
25 where it was stated that if we include them in the survey,
717
1 then they would resort to any actions that were available to
2 them.
3 Q. In the editorial, you also referred to
4 correspondence with the European council, correct?
5 A. Yes, that's the '83 survey.
6 I believe that was the '83 --
7 THE COURT: Is the advertisement in --
8 THE WITNESS: The advertisement was in --
9 THE COURT: Excuse me. Is that an exhibit that
10 has been received?
11 MS. BURKE: It is an attachment, your Honor, to
12 one of the exhibits.
13 THE COURT: Which?
14 MR. PLOTZ: I'm not sure, Judge.
15 (Pause)
16 MS. BURKE: It is PX 518.
17 THE COURT: 518. Thank you.
18 OK. I'm sorry to have interrupted you.
19 Q. I am going to show you some correspondence with
20 the European council and ask you if that is the
21 correspondence that you were referring to in the editorial.
22 I am going to show you Plaintiffs' Exhibit 507A, 508, and
23 509.
24 I believe you have 509, do you not?
25 A. I may. Yes, I have 509.
718
1 Q. So you have before you now 507A, 508 and 509?
2 A. Yes.
3 Q. And let me ask you if that is the correspondence
4 that you were referring to in this editorial --
5 correspondence relating to the European Mathematics Council.
6 A. I don't know if this specifically -- there were
7 other correspondences, too. This was written in '87, so
8 they had to do with an earlier survey. They would have had
9 to do with the '85 survey.
10 Q. So these would have referred to the same survey?
11 A. These, I think, refer to the European Math
12 Council survey of European mathematical journals, which
13 appeared in the November 1986 notices.
14 Q. Just to be clear, your testimony is that you are
15 not certain whether you were referring to this exchange of
16 correspondence when you wrote the editorial?
17 A. There were a number of letters, and I'm not sure
18 if these were precisely, but this was probably part of the
19 correspondence that I was referring to.
20 Q. And you understood that part of that
21 correspondence, that in part of that correspondence, Sir
22 Michael Atiyah of the European council indicated that the
23 European council would be omitting Gordon & Breach from all
24 two fewer surveys, didn't you?
25 A. I heard you say that yesterday. I'm not sure
719
1 that I had that particular part at that time. But my
2 editorial does not refer to that type of thing there. It is
3 referring to the -- I think the March 19 letter. If
4 anything, it is the one that is just referring to the fact
5 that there was threatened litigation.
6 Q. I won't quibble the point, Dr. Jaco, and I'll
7 heed the Judge's instruction --
8 A. OK.
9 Q. -- not to simply direct your attention to
10 portions of the documents. We know that we have an
11 opportunity to do that at another time.
12 In this editorial, you didn't disclose that there
13 had been an exchange of correspondence in 1985 relating to
14 Gordon & Breach's wish not to be included in the survey, did
15 you?
16 A. I thought that I had something in here that --
17 where I said that I did not believe that we had an
18 agreement, but I would have to read through it.
19 Q. Now, you wrote that the Gordon & Breach had
20 collected -- that the information, rather, as to Gordon &
21 Breach had been collected by AMS in the same way as for
22 other publishers. You wrote that in the editorial, did you
23 not?
24 A. Yes.
25 Q. That is not exactly true, is it?
720
1 A. Yes, I think it is true. The information on
2 Gordon & Breach, we took the information from the front
3 matter of the journals, we counted characters exactly as we
4 counted for everybody else. The only exception would have
5 been in the delivery of the verification document, which was
6 delayed for them, but, as we've stated before, they were the
7 only publisher that was threatening some type of action, and
8 so I think it's very analogous that you are in a schoolyard
9 and there is a thousand kids in the schoolyard, if one is
10 threatening you, you behave differently in that regard.
11 Q. Gordon & Breach hadn't threatened you in
12 connection with this survey, had they?
13 A. They had threatened us in connection with this
14 survey before.
15 Q. And what was -- and where was the threat
16 contained with respect to the --
17 A. In the letter to Dr. Maxwell.
18 Q. -- with respect to the prior survey?
19 A. In the letter to Dr. Maxwell.
20 Q. Now, in your questionnaire to Gordon & Breach,
21 you asked for different kinds of price information and
22 verification, correct?
23 A. Yes. Well, we asked for discounting structure,
24 and then we asked for a description of your discounting
25 structure. And we asked for verification of the prices that
721
1 we had in there, yes.
2 Q. And you got certain information from Gordon &
3 Breach, didn't you?
4 A. Yes, we did.
5 Q. You got specific information as to the specific
6 prices charged to libraries, didn't you?
7 A. Yes.
8 Q. Did that information -- was that information --
9 withdrawn.
10 Did that information find its way into the 1989
11 survey?
12 A. If you look under the column of whether discounts
13 are allowed to institutions, that is indicated, as, yes,
14 discounts are allowed to institutions.
15 Q. You asked in the questionnaire for more than
16 whether discounts were available, didn't you?
17 A. We asked for discount structures, yes.
18 Q. And you were given the discount structure,
19 weren't you?
20 A. We were given the discount prices and the
21 discounts were allowed to institutions, the same as our own
22 organization.
23 Q. You were given specific subscription information
24 as to Gordon & Breach prices charged to libraries, weren't
25 you?
722
1 A. Oh, yes, yes.
2 Q. You did not include that information in your
3 survey, did you?
4 A. That was not included for anybody, so we treated
5 Gordon & Breach the same as we did everybody else, including
6 ourselves.
7 Q. So the answer is no, right, you didn't include
8 the information?
9 A. No, it wasn't included for anybody, that type of
10 information.
11 Q. Is there a reason you asked for the information?
12 A. I think the reason that we asked for information
13 was that there were subscripts put on various discounting
14 things, because the column said "Discounting to
15 institution," and then I think if you look at -- there are
16 subscripts, I don't remember some of them, but some people
17 discounted only for second things, not for first issue, and
18 some discount to -- societies discount to members only,
19 those types of things. So that type of generic discounting
20 structure was pointed out, not dollars. Dollars were not
21 pointed out in anything because they are quite complex.
22 Q. Now, you testified on direct examination that
23 Gordon & Breach did not provide circulation information in
24 response to the questionnaire, correct?
25 A. It's not on the particular document I had. It
723
1 had information not available.
2 Q. Gordon & Breach was not unique in that respect,
3 was it?
4 A. No.
5 Q. In fact, many publishers did not provide
6 circulation information?
7 A. Yeah, I don't -- the columns are left blank and
8 did not -- are not available or something in there and so --
9 Q. In fact, not only commercial publishers in some
10 instances did not disclose subscription information, is that
11 correct?
12 A. We could go through and look. I know some
13 commercial publishers did. I do not know if noncommercial
14 publishers did not.
15 Q. Now, you understood that Gordon & Breach
16 requested an arbitration of this dispute, correct?
17 A. Yes. I testified to that, I think.
18 Q. And you understand that an arbitration would have
19 involved, generally speaking, both sides presenting their
20 version to a neutral?
21 A. Yes, I think I testified that Mr. Strong wrote to
22 Mr. Lupert that if the disagreement continued, or if Gordon
23 & Breach did write and they were not satisfied with their
24 writing and took the normal route of grievances, then we
25 certainly would be interested in having arbitration with
724
1 either a disinterested person or a panel of disinterested
2 persons. So we responded that if they tried the normal
3 route of a grievance and they were still not satisfied,
4 then, indeed, yes, we would sit down with something like
5 this.
6 Q. So the answer to my question is you understood
7 basically what an arbitration would involve?
8 A. I think I understand that, yes.
9 Q. You understand that arbitration, generally
10 speaking, moves more quickly than litigation?
11 A. We did not bring the litigation. In fact --
12 THE COURT: No, try to answer the question.
13 THE WITNESS: Well, I don't know.
14 We were actually progressing on a path where we
15 offered Gordon & Breach an opportunity to use the normal
16 path of grievances. If they were not satisfied with that,
17 then we wrote, we will sit down with a panel or a
18 disinterested individual. So I think that we knew what
19 arbitration meant, and I would -- I can honestly say, we
20 wanted an amicable settlement to this. We had no argument
21 with Gordon & Breach.
22 Q. You understood -- well, you refer to a normal --
23 the normal path. You don't contend, do you, that it is the
24 normal path in commerce to have a review process that you
25 described?
725
1 A. I think we conducted our organization as a
2 business, and I think that we did have normal procedures of
3 paths for grievances that we followed.
4 Q. You understand, don't you, that when two entities
5 have a dispute that they can't resolve privately, that some
6 form of dispute resolution is involved?
7 A. I would hope so.
8 Q. And it could be litigation?
9 A. It could be.
10 Q. It could be arbitration?
11 A. It could be.
12 Q. It could be some form of alternative dispute
13 resolution?
14 A. I'm sure, yes.
15 Q. You understood that Gordon & Breach was offering
16 to arbitrate, correct?
17 A. Yes.
18 I mean, I did not have -- Mr. Lupert called
19 Mr. Strong.
20 Q. But you understood, didn't you?
21 A. Yes, we discussed arbitration. I said that.
22 Q. And you declined to arbitrate --
23 A. No.
24 Q. -- at that time?
25 A. No, we did not. In fact, you can look right in
726
1 that letter, that if they are not satisfied with writing --
2 THE COURT: You are going around in a circle.
3 THE WITNESS: OK.
4 MR. PLOTZ: I will move on.
5 THE COURT: You made your position clear.
6 Q. But you understood at that time that if you did
7 not agree to arbitrate at that time, that Gordon & Breach
8 might file a lawsuit, didn't you?
9 A. I think that Mr. Lupert made it clear that if we
10 did not come to arbitration, then other means may be taken.
11 Q. And, in fact, that's what happened, Gordon &
12 Breach filed a lawsuit after Mr. Strong's response?
13 A. No, Mr. Lupert responded to Mr. Strong on
14 February the 9th, and in that letter he still was discussing
15 with us arbitration and said that we hope that we can have
16 an amicable solution. But the litigation was filed prior to
17 the February the 9th letter.
18 Q. You hadn't been served at that point, had you?
19 A. No. But as far as we knew, on February the 9th,
20 we were still traveling down an amicable path.
21 Q. Well, you understood that there had been
22 discussions between the lawyers for the two sides relating
23 in part to arbitration, right?
24 A. Yes.
25 Q. You understood that, as part of those
727
1 discussions, the attorneys for Gordon & Breach asked for a
2 response from your side by January 29, correct?
3 A. Yes.
4 Q. You understood that the response came a few days
5 late, on February 1st?
6 A. Yes.
7 Q. And that response was not to agree to arbitration
8 at that time, right?
9 A. Under the circumstances that were given, is what
10 I think it said, not "at that time," but under these
11 circumstances, we don't want to.
12 Q. And the lawsuit was after that, correct?
13 A. It was filed, as far as I know, on February 1 is
14 the date and it was put in effect on February 2.
15 Q. Now, you don't contend, do you, that in
16 connection with the costs of defending a lawsuit, that AMS
17 is in any different position from any other defendant, do
18 you?
19 A. No.
20 THE COURT: Any other?
21 MR. PLOTZ: Defendant in any lawsuit.
22 A. I don't know exactly about insurances and
23 whatnot, but I would assume the point you are trying to make
24 is, anybody, if they are sued, they have to defend
25 themselves.
728
1 Q. And you don't contend, do you, that Germany does
2 not offer a fair and impartial system of justice, do you?
3 A. I would assume they do.
4 Q. You don't contend that German procedure did not
5 allow the filing of this lawsuit, do you?
6 A. It obviously allowed it.
7 Q. You don't contend the German court didn't have
8 jurisdiction over this lawsuit, do you?
9 MS. BURKE: Your Honor, I think we are getting
10 beyond the scope of the witness's knowledge.
11 MR. PLOTZ: Your Honor, the witness has testified
12 a lot about how he felt about this lawsuit.
13 THE COURT: Did you have any inkling, prior to
14 notification of the German suit, that you would be sued in
15 Germany?
16 THE WITNESS: No, but I think at that time we
17 knew that AIP and APS had been sued in Germany.
18 Q. And you understood that German procedure
19 permitted AMS to litigate the issue and seek to have the
20 preliminary injunction lifted, don't you?
21 A. Yes, I understood that we could have proceeded to
22 lift the injunction.
23 Q. And that was a -- and AMS subsequently decided
24 not to do so, correct?
25 A. Yes. I testified earlier as to that.
729
1 THE COURT: Do you have regularly-retained
2 counsel in Germany?
3 THE WITNESS: No, we retained counsel upon the
4 suit, and then -- as far as I know, that counsel is not
5 retained today, but I don't know that for a fact.
6 Q. Do you know anything about the relative costs of
7 defending a lawsuit in Germany versus, say, the United
8 States?
9 A. No. As I think I testified earlier, that we
10 asked amongst, as part of the information, for the task
11 force to make a decision, and they informed us that it would
12 be in the neighborhood of $100,000 to start the litigation
13 at the bottom end of it.
14 Q. Do you know anything about the relative costs of
15 defending a lawsuit in Germany --
16 A. No.
17 Q. -- compared to the United States?
18 A. I have no idea.
19 MR. PLOTZ: May I have just one moment?
20 (Pause)
21 Q. Now, you were asked some questions with respect
22 to the 1993 editorial that you wrote. You were asked some
23 questions on direct examination, correct?
24 A. Yes.
25 Q. The upshot of that was that Gordon & Breach did
730
1 not file a lawsuit, correct?
2 A. They did not.
3 Q. They didn't file a lawsuit against AMS, right?
4 A. No.
5 Q. Or against you?
6 A. No.
7 Q. You testified about concerns that you had about
8 testifying in this case, correct?
9 A. Yes.
10 Q. Now, Gordon & Breach hasn't called you to testify
11 in this case, right?
12 A. No.
13 Q. The defendants called you to testify?
14 A. Yes.
15 Q. Gordon & Breach hasn't threatened you in
16 connection with testifying in this case?
17 A. No.
18 Q. Have you had any contact other than at your
19 deposition with Gordon & Breach in connection with this
20 litigation?
21 A. No.
22 Q. In fact, you gave a deposition in this case,
23 didn't you?
24 A. Yes, I did.
25 Q. And the deposition was taken initially by counsel
731
1 for the defendants in this case, isn't that right?
2 A. That was in your office. Is that the one you are
3 talking about?
4 Q. You were questioned by counsel for the
5 defendants, weren't you, at the deposition?
6 A. Yeah, OK, but then you, too.
7 Q. And then I cross-examined you, right?
8 A. Yes.
9 Q. Both sides examined you, correct?
10 A. Yes.
11 Q. Were any threats made in that connection?
12 A. No.
13 MR. PLOTZ: I have nothing further.
14 THE COURT: Any redirect?
15 MS. BURKE: I have no further questions, your
16 Honor.
17 THE COURT: Thank you.
18 Thank you, you may step down.
19 (Witness excused)
20 THE COURT: Mr. Meserve, do you still wish to
21 call a witness out of turn?
22 MR. MESERVE: Yes, we do, your Honor.
23 THE COURT: Yes, you may.
24 MR. MESERVE: Our next witness is Michael Keller.
25 Ms. Burke is going to do the exam.
732
1 THE COURT: Ms. Burke, if you could tell us what
2 exhibits you anticipate using, it would help.
3 MS. BURKE: Your Honor, we would introduce
4 Defendants' Exhibit BB.
5 THE COURT: BB?
6 MS. BURKE: BB.
7 MICHAEL A. KELLER,
8 called as a witness by the defendants,
9 having been duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MS. BURKE:
12 Q. Mr. Keller, where do you work?
13 A. I work at Stanford University.
14 Q. And what position do you hold there, sir?
15 A. I'm the university librarian. I'm the director
16 of academic information resources, which in other places
17 might be called the director of academic computing. And I
18 am the publisher of something called The High Wire Press.
19 Q. What is The High Wire Press?
20 A. The High Wire Press is a co-publishing enterprise
21 inside my operation at Stanford which is intended to assist
22 publishers of scholarly journals create Internet editions of
23 their journals.
24 Q. How long have you held that position, Mr. Keller?
25 A. I have been in that position since the fall of
733
1 1994.
2 Q. And what did you do prior to 1994?
3 A. Prior to that, I was for one year called the
4 director of university library at Stanford. Before that,
5 for seven years I was the associate university librarian and
6 director of collection development at Yale University.
7 Before that, I was five years at Berkeley, UC Berkeley, as
8 the head of the music library. Before that, I was eight
9 years at Cornell University where I had had a number of
10 positions. Basically, I was the head of the music library
11 there and a senior lecturer in musicology, and for a period
12 of time I was also the head of the undergraduate library.
13 Before that I was three years at the State University of New
14 York at Buffalo as a referencing cataloging librarian in the
15 music library there.
16 Q. So putting them all together, Mr. Keller, how
17 long have you been a librarian?
18 A. 27 years.
19 Q. What degrees do you have that pertain to being a
20 librarian?
21 A. I have an undergraduate degree with majors in
22 biology and music, a graduate degree in historical
23 musicology, another graduate degree on library science with
24 a emphasis in academic librarianship, and I have an
25 uncompleted Ph.D. I have not completed my thesis in
734
1 historical musicology.
2 Q. What are your responsibilities at Stanford?
3 A. I am the senior-most university officer
4 responsible for the university libraries, which means that I
5 provide leadership, policy direction. I manage, through a
6 very large and complex organization, approximately 18
7 library units, and an overall budget on the order of $36
8 million a year. In academic computing I have similar
9 responsibilities, and then I have The High Wire Press, which
10 is a subset of those, too.
11 Q. Of that $36 million budget, Mr. Keller, what
12 percentage goes to scientific journals?
13 A. Let me break that down in a little different way
14 for you. There is a ten and a half million dollars library
15 materials budget of which approximately one quarter goes to
16 scientific, technical and medical journals.
17 Q. Do you know how many physics journals are in
18 Stanford's collection?
19 A. There are approximately 950 journals, although
20 only about 500 of them are active ones. That is, ones that
21 are still publishing.
22 Q. What about the nonactive journals? Do they
23 remain on the shelves?
24 A. They remain on the shelves, although some of them
25 are not on the shelves of the physics library. They are in
735
1 the storage library.
2 Q. Is the storage library used at all?
3 A. Absolutely.
4 Q. Are you familiar with the articles that Professor
5 Barschall wrote?
6 A. Yes, I am.
7 Q. Have you ever served on any committee of the
8 American Physical Society or the American Institute of
9 Physics?
10 A. I have served on a subcommittee of the American
11 Physical Society, that for journal pricing.
12 Q. How long did you serve on that committee?
13 A. I served on that committee from approximately
14 January of -- or February of '92, until January of 1996.
15 Q. What did you do?
16 A. I was asked to be the librarian on a committee of
17 several persons to make recommendations -- help make
18 recommendations to the publications oversight committee of
19 the American Physical Society regarding the pricing of their
20 journals.
21 Q. Were you paid for your services?
22 A. No, I was not. I was, however, reimbursed for my
23 expenses.
24 Q. How about in connection with your work on this
25 case, have you been paid for your services?
736
1 A. No, I have not.
2 Q. Have you ever provided any services similar to
3 those that you provided to the APS committee to any other
4 scholarly societies?
5 A. Yes, I have. With regard to the science
6 societies, the ones that I've worked most closely with are
7 the American Society for Biochemistry and Molecular Biology
8 and the American Association for the Advancement of Science.
9 I have worked less closely with many of the other
10 societies with whom we co-publish Internet editions.
11 Q. Mr. Keller, I want to direct your attention back
12 to some testimony that has come in the case before. We
13 heard Dr. Kingma, the expert for Gordon & Breach, testify
14 that libraries should look at only two factors when making
15 acquisition decisions: subscription price and the patrons'
16 use, patrons at the particular library.
17 Do you agree with that?
18 A. No, I do not.
19 Q. Based on your experience, how do librarians
20 actually decide what journals to buy?
21 A. There are numerous factors. Certainly,
22 subscription price and patron use are among those factors.
23 But, in addition, we consider what I call the local practice
24 of the discipline. We consider the global practice of the
25 discipline. We consider also the nature of the information
737
1 trade which allows us to acquire the information resources
2 for the practice of the discipline.
3 We are concerned also with timeliness of
4 reporting, timeliness of delivery. We're concerned with the
5 budgets of our libraries and how the marketplace of ideas in
6 a given discipline can be accommodated in the budgetary
7 marketplace in our institution for that discipline.
8 We consider not just the present users, we
9 consider also those who will come in the future. And in a
10 funny way we also consider the use of this information by
11 the historians of science and technology.
12 Q. Now, turning to one of the first factors that you
13 mentioned, you mentioned the local practice of the
14 discipline. Is that the same thing as Dr. Kingma's
15 reference to the patrons?
16 A. It is a larger examination than what I believe
17 Dr. Kingma was referring to. Specifically, we looked -- we
18 do talk to the patrons, of course. We do talk to the
19 faculty. We talk to them not just about what they think
20 they are doing but what they think is going to happen in the
21 future. We like to follow research trends from their
22 perspective as much as from the perspective of the global
23 practice of science, or a science.
24 We consider also the use of scientific
25 literature -- the actual use of scientific literature by our
738
1 faculty and by our students. In the case of students, we
2 can look, for instance, at the reserve reading lists and
3 required reading lists for any given course. With regard to
4 the faculty, we discover that the faculty, when they talk to
5 us about what journals they use, remember the journals that
6 they use most often and most frequently. And those are of
7 course the ones that are most frequently cited in their
8 literature.
9 But we perform individual analysis of ISI data of
10 our scientists, our faculties' citations of other science,
11 other publications. We abstract information from the ISI
12 databases to understand with some precision what our faculty
13 are citing. And we often find that there is a difference
14 between what they are saying to us and what they are
15 actually doing.
16 Q. You also mentioned that the discipline at
17 large -- I think you used the global discipline, and, again,
18 directing your attention to Dr. Kingma's testimony, he said
19 that it's just not helpful for librarians to look beyond
20 their particular patrons, in that they should not be
21 concerned with patrons elsewhere.
22 Would you agree with that?
23 MR. LUPERT: I think I am going to object to
24 these characterizations of the testimony.
25 MS. BURKE: I have the transcript cites if your
739
1 Honor would like them.
2 THE COURT: Well, assume that's what he said, but
3 the record will indicate what he actually said. But for
4 purposes of this question, assume that is what he said.
5 A. The fact is that we do look at the global
6 practice of the science. Whatever Dr. Kingma's perception
7 and whatever the basis for that perception, at the kind of
8 institutions where I have worked, the practice of the
9 science at large is of great concern to the faculty, for
10 several reasons. One is they desire to know who their
11 colleagues are working on a particular topic, a particular
12 theme, those who have created an instrument or have used a
13 methodology which could be adapted to their uses and their
14 purposes.
15 Secondly, they are in competition with these
16 other practitioners around the world for money, for research
17 grants.
18 Thirdly, especially in those fields where there
19 is some commercial application for a discovery or a
20 potential application for a discovery, there is a desire on
21 the part of scientists and engineers and physicians,
22 physician scholars, to document their primacy in the
23 discovery of a method, of an instrument, of a compound, in
24 order to protect their interests in such a discovery.
25 So the global view is a rather important one for
740
1 those institutions -- and there are many of them -- who are
2 very actively engaged in the research aspects of these
3 sciences.
4 Q. Mr. Keller, you also used the term of art
5 "information trade."
6 First, are you including within that term
7 consideration of price?
8 A. Yes, absolutely.
9 Q. What other elements are there in "information
10 trade"?
11 A. Librarians are concerned with subscription price,
12 with publishing practices, with the means by which they can
13 obtain journals are publishers. They are concerned with
14 their relationships with other middle people called jobbers,
15 or book sellers, or vendors who are between the library
16 decision makers and the publishers.
17 We are concerned with -- I think I'll stop there.
18 Q. If Dr. Kingma testified that it is inappropriate
19 to look at the identity of who is publishing a journal when
20 making the acquisition decision, would you agree with that?
21 A. I do not agree with that.
22 Q. Why not?
23 A. We come to understand, in the course of our
24 careers, and especially as we are subject specialists, which
25 publishers are responsible for what kind of information and
741
1 what quality of information. We come to associate with some
2 publishers various kinds of marketing practices and pricing
3 practices.
4 We sometimes order materials by publisher. We
5 establish standing orders with our middle people for
6 materials, perhaps on a single subject from a single
7 publisher, or perhaps all the materials coming from a single
8 publisher. So there are times, of course, when knowledge of
9 a publisher are specifically interesting, but in general
10 they are interesting because they help us inform the choices
11 that we make, both for selection and deselection.
12 Q. G & B prices its science journals, its physics
13 journals, on a flow system. From the librarian's point of
14 view, is that a plus or a minus?
15 A. That is a minus.
16 Q. Why is that?
17 A. It is very difficult for us to understand how
18 much we will pay for a specific relationship with that
19 particular publisher in a given year. So what -- this is an
20 extreme example of what we call supplementary invoicing,
21 where we agree to a purchase in a given year and, because
22 the publisher has extra material to publish, we get an extra
23 invoice. And we then have the difficult decision to make
24 whether we will accept the material and thus pay the extra
25 money or not accept the material and have an incomplete set
742
1 of that year's record of that particular science.
2 So the practice of flow -- what is the term
3 again?
4 Q. Flow -- flow pricing.
5 A. Flow pricing.
6 MR. LUPERT: I think it is called flow system.
7 A. -- flow system is one that is confusing to us.
8 Q. Mr. Keller, you also referenced the need to
9 consider future generations of scholars. How do you predict
10 those needs?
11 A. We predict them partly on the performance of the
12 past, partly through conversations with the local faculty,
13 partly by reading the journals themselves, partly by
14 watching the investments made by the funding agencies to
15 understand where they are making their investments in
16 research.
17 We use that information to select or deselect
18 journals, as the budgetary pressures on us are tight or
19 loose.
20 Q. Who do you encompass within the term "funding
21 agencies"?
22 A. They range from a government agency such as the
23 NSF and the NIH to private foundations, national and
24 international. So occasionally corporations are involved in
25 funding research.
743
1 Q. Mr. Keller, you also mentioned consultation with
2 faculty. What is the role that the faculty play in the
3 collection/acquisition decisions?
4 A. The role of the faculty is to keep us informed of
5 what they are up to, and we work very hard to liaise with
6 them on a more or less constant basis through our subject
7 specialists to understand what they are up to. The
8 relationship between the subject specialist, the scholarly
9 biographer and the scholar practitioner is really quite
10 intimate, and oftentimes our subject specialists are in
11 effect members of the department. They sit in the
12 department meets. They may even go to meetings of
13 laboratory groups. They certainly go to meetings of the
14 disciplinary societies and listen to the papers that are
15 being presented by not only their own faculty but faculty
16 from other institutions.
17 THE COURT: How large is your staff?
18 THE WITNESS: My staff is 500 people, full-time.
19 I have some part-timers.
20 Q. Mr. Keller --
21 THE COURT: All of whom are full-time engaged in
22 acquisition of --
23 THE WITNESS: No, sir. There are 32 subject
24 specialists and who are responsible for collection
25 development decisions, and there is a staff of approximately
744
1 25 or 30 people engaged in the business of acquisitions.
2 THE COURT: Meaning?
3 THE WITNESS: Meaning taking the decisions made
4 by the subject specialists and turning them into orders or
5 claims for missing journals. There are, additionally,
6 another 50 or 60 people who serve on the reference desk at
7 least some of the time -- some of them are full-time in the
8 network and some of them are part-time in the network --
9 who, through the questions that come to the reference desk,
10 keep the subject specialists informed, if they haven't been
11 informed already, of what they have heard in the way of
12 interesting questions. Of course those questions indicate
13 some of the directions that some of the faculty will be
14 taking.
15 BY MS. BURKE:
16 Q. Mr. Keller, you have been talking about Stanford
17 and Yale. Are you also familiar with how smaller
18 institutions make their collection acquisition decisions?
19 A. I am familiar but obviously less familiar.
20 Q. And the same -- to what extent do they rely on
21 the same type of factors that you have described for us
22 here?
23 A. To the extent that smaller institutions are not
24 research institutions but are teaching institutions -- you
25 are talking now about colleges and small universities -- the
745
1 decisions are different, because they do not have the same
2 responsibility to the faculty, who are not in effect in the
3 game of research and the acquisition of support for research
4 and the reporting of the results of research.
5 Their concerns then go to providing an adequate
6 base of reliable information about whatever science it is
7 that they are mainly teaching. Their decisions, therefore,
8 go in the direction of the journals of record, the review
9 journals, that sort of thing.
10 Q. Mr. Keller, what are you including in the term
11 "journals of record"?
12 A. For me, a journal of record is one that is a
13 large journal typically, one that is heavily cited, one that
14 has the intention and realizes the intention of reporting a
15 very large swath of the research through peer review reports
16 to the readership, readership being the other practitioners
17 of the discipline, the teachers of the discipline and the
18 general public at large.
19 Q. Now, we've heard a lot about specialized niche
20 journals. Who are the primary consumers of those journals?
21 Is it the large research institutions or the smaller,
22 nonresearch institutions?
23 A. Well, certainly the large research institutions,
24 whether they are universities or institutes, academies or
25 corporations, are the more fervent consumers of niche
746
1 journal articles.
2 Q. And why is that?
3 A. Because they need that information to work in
4 whatever subject the niche is treating. Certainly, small
5 colleges are less frequently consumers of niche journal
6 articles.
7 Q. Mr. Keller, we've been talking about acquisition
8 decisions. What factors do you look to when making a
9 decision to cancel a journal?
10 A. Well, cancellation is essentially an acquisition
11 decision, too.
12 First, it is of interest to us whether there are
13 any consumers on the faculty of that information -- of that
14 journal source -- those journal articles at the moment. We
15 are concerned with whether there are active -- there is
16 active research in other places, because we wouldn't want to
17 disadvantage those who come behind, those who just don't
18 happen to be doing this work at the moment at a place like
19 Stanford and Yale. We concern ourselves with the price of
20 the information. We concern ourselves with the importance
21 of the information -- numerous factors. They are very much
22 related to all the ones that I have already mentioned.
23 Q. I would like to draw your attention now
24 particularly to price. Dr. Kingma says that it's
25 inappropriate to normalize journal prices because that
747
1 assumes that you're purchasing paper and ink. And he drew
2 the analogy to cars, buying a car by tonnage.
3 Would you agree with his conclusions?
4 A. I do not agree with his conclusion.
5 Q. Do librarians normalize journal price?
6 A. Librarians do normalize journal prices.
7 Q. How do they do that?
8 A. They do it by the means already discussed here.
9 They do it on the basis of cost per article, cost per page,
10 and cost per some measure of characters, frequently
11 kilocharacters or megacharacters. They use the information
12 sources that they already have. If they are very assiduous.
13 They will go into the invoices and check the prices that
14 were actually paid at the individual institution.
15 Q. Now, you've included the costs per character
16 measure. Did Professor Barschall invent that measure?
17 A. No, he did not.
18 MS. BURKE: Your Honor, I'm sorry. I actually
19 need to mark Defendants' Exhibit KKK, as well.
20 Q. Mr. Keller, I am going to hand you what will be
21 marked as Defendants' Exhibit KKK.
22 Mr. Keller, are you familiar with this exhibit.
23 MR. LUPERT: I object, your Honor. This is
24 nowhere mentioned in Mr. Keller's report. It is not
25 mentioned in the report.
748
1 THE COURT: I will allow that question. I don't
2 know where it is going, but, overruled, without prejudice to
3 renewal.
4 Are you familiar with it?
5 THE WITNESS: Yes, sir.
6 Q. What is it, Mr. Keller?
7 MR. LUPERT: I think that my objection now
8 becomes the appropriate objection, at least in terms of the
9 one that I am making.
10 THE WITNESS: Actually, there is a reference in
11 my report to these articles.
12 MR. LUPERT: But there has been no production of
13 any of this.
14 MS. BURKE: Actually, your Honor, this has been
15 produced. We provided to counsel, we informed them that it
16 was marked as an exhibit and we provided them copies a few
17 weeks before trial, according to the agreed-upon procedure
18 of the parties.
19 MR. LUPERT: This was produced after the
20 deposition. It was produced after the report was issued --
21 THE COURT: You say this is referred to in your
22 report?
23 THE WITNESS: Yes, sir.
24 MR. LUPERT: Could you show me where?
25 THE WITNESS: Absolutely. May I have my
749
1 deposition?
2 MR. LUPERT: Well -- I have a standing objection
3 and I don't want to interrupt any more.
4 THE COURT: Overruled.
5 BY MS. BURKE:
6 Q. Mr. Keller, what is the exhibit that you have
7 before you? What is the Defendants' Exhibit KKK?
8 A. This is a selected set of the continuum of
9 documents relating to citation analysis, citation studies,
10 costs per character and kilocharacter, costs per page and
11 costs per article, to which I refer in my deposition as a
12 continuum of articles preceding, before Dr. Barschall's
13 study and following Dr. Barschall's study.
14 Q. I would like to direct your attention just to the
15 first page, the top page of the exhibit, and ask you what
16 cost minimization measures are used in that article?
17 A. In this article, the -- they provide an
18 approximate cost in cents per 10,000 words.
19 Q. What is the date of this article?
20 A. May 10, 1933.
21 Q. Now, you have mentioned four different ways to
22 normalize price in the literature and you have identified
23 those as well. Which do you view as the least reliable way
24 of normalizing prices?
25 A. From my perspective, the least reliable way to
750
1 normalize prices is costs per page, because the pages are
2 made up in so many different ways and sometimes even in
3 different ways even in individual journals.
4 The second least desirable means to normalize
5 costs is costs per article, because articles vary in length.
6 Q. Mr. Keller, back to the cost per page, and you
7 referenced differences. Could you explain that for me
8 further?
9 A. Excuse me.
10 Q. You referenced the differences in the pages.
11 What do you mean by that?
12 A. One can find journal pages that are small, versus
13 other journal pages which are large. For instance, those
14 are -- those look like 8 and a half by 11 pages, and I think
15 the pages to which testimony was given from Ferroelectrics,
16 the pages look like 5 and a half by 8 and a half. There are
17 problems -- there are differences in margins. There are
18 differences in size of type. There are differences in
19 numbers of equations, numbers and size of charts, diagrams
20 and other illustrations.
21 There are differences in the use of empty space,
22 blank pages, half pages, and so forth. So comparing
23 pages -- cost per page is inherently unfair in a way. It
24 allows you -- it allows one to compare a 5 and a half by 8
25 page with one size type to an 8 and a half by 11 page with
751
1 another size type. It really isn't a fair measure.
2 Q. Is that measure ever used by scholars?
3 A. Well, yes. There is continuing reference to
4 these -- to these character -- to these page costs, but
5 they, as all the other measures that we were just assessing
6 in these last few minutes, were contributory to the decision
7 making and in a way contributory to the understanding.
8 If I could digress a little bit?
9 This whole consideration of cost per some
10 measure, some normalized cost, I think, has become very
11 important in the last 15 years, because publishers whose
12 prices were increasing at greater than inflation rates,
13 multiple of inflation rates in this country, sought to
14 explain those price increases, and what they sought to do
15 with the normalizing measures was to convince librarians
16 that they weren't actually increasing the price at that
17 level, they were increasing the price because they had more
18 pages to print, there was more science to bring in. It was
19 an attempt to provide a context and hopefully one that
20 helped librarians make decisions to stay with -- to keep a
21 particular journal or a particular publisher's journals.
22 Q. And is it helpful?
23 A. Well, as I say, the measures which ar |