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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




                                                                666


   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?




                                                                667


   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




                                                                668


   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




                                                                669


   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.




                                                                673


   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.




                                                                674


   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 --




                                                                682


   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.




                                                                683


   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.




                                                                684


   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




                                                                685


   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




                                                                686


   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




                                                                687


   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 &




                                                                689


   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 are least

  24    helpful are the cost per page.  The measure that is the best

  25    normalized measure from my perspective is the cost per some




                                                                752


   1    measure of character, one that allows us to bring all of

   2    those costs into some kind of normalized alignment.

   3         Q.    Dr. Kingma testified about the Barschall articles

   4    and he said that librarians would be misled because they

   5    only provide a snapshot of data and that data changes from

   6    year to year.

   7               Would you agree that librarians would be misled

   8    by a snapshot?

   9         A.    No.

  10         Q.    Why not?

  11         A.    Well, since we librarians know the Science

  12    Citation Index, the Social Science Index, the Arts and

  13    Humanity Citation Index, since we are familiar with the

  14    annual reports of numbers of citations in particular

  15    journals and the impact factors, the annual report of impact

  16    factors, we are very well aware and know how to extract that

  17    information for a particular discipline or a particular

  18    title over the course of many years.

  19               The Barschall methodology, the one which used the

  20    cost per character against the impact factor, was a new --

  21    slightly new wrinkle, but it was obvious from that source of

  22    the data, from the ISI reports, that that same methodology

  23    could be used over many years preceding or following the

  24    Barschall report.

  25         Q.    When did you first become familiar with citation




                                                                753


   1    analysis?

   2         A.    When I was in library school, 1972 and 1973.

   3         Q.    Dr. Kingma testified that a library should rely

   4    on other types of studies, on a patrons' use study and on a

   5    study of interlibrary loans.  Would you agree with that

   6    testimony?

   7         A.    Both of those are useful measures, whereas

   8    interlibrary loan can give us precise understanding of who

   9    is acquiring what through library departments, because we

  10    are in effect required by the agreements with the publishing

  11    community to track interlibrary borrowing.  Actually, it is

  12    interlibrary borrowing that we are talking about.  We do

  13    track those very specifically and precisely.

  14               With regard to patron use, we really enter now

  15    into the realm of population studies and there are various

  16    methodologies that are used in these population studies, but

  17    we have no really good way to get precise information.  We

  18    only can know, at best, what some people do with some of the

  19    journals that are present.  We know when they move it from

  20    one place to another.  If we put little pieces of tape

  21    around the journals, we know when they break the tape.  We

  22    don't actually know what they are reading.  We don't know

  23    actually what they do with the information that they extract

  24    or if they have extracted information at all.  So they are

  25    expensive to perform.  They come on top of other duties.




                                                                754


   1    They come at a time when we don't have a lot of money for a

   2    lot of people.  We use them sparingly.

   3         Q.    But you do use them?

   4         A.    Absolutely.

   5         Q.    Do you view them as more reliable than the

   6    Barschall survey?

   7         A.    Hardly more reliable than the Barschall survey.

   8    There are so many variables involved with the patron use

   9    studies -- with the exception of interlibrary borrowing.

  10               Document delivery is another matter because

  11    document delivery can occur quite outside of our realm of

  12    knowledge and we can't know all the incidences --

  13         Q.    I don't know what you mean when you say when

  14    document delivery occurs outside the realm of your

  15    knowledge.

  16         A.    It can occur outside the realm of knowledge.

  17    Document delivery is the process undertaken by a scientist

  18    or another scholar to obtain a copy of an article through a

  19    commercial document delivery service.  They may go directly

  20    to that service.  They may indeed have a contract through

  21    their lab or their department for such a service.  And it a

  22    may be something we know nothing about.  And, frankly, we

  23    don't use a lot of it because we depend on interlibrary

  24    borrowing as our mode of responding to faculty requests for

  25    materials that aren't on our shelves.




                                                                755


   1         Q.    So is document delivery a commercial substitute

   2    for interlibrary borrowing?

   3         A.    Yes, it is.  Essentially it is.

   4         Q.    How does the concept of monopoly apply to the

   5    journal market?

   6         A.    Each publisher, in effect, has a monopoly on the

   7    information they publish.  Those articles, until they are

   8    reprinted in an anthology or a Festschrift,

   9    f-e-s-t-s-c-h-r-i-f-t, these articles are the property of

  10    the publisher or licensed to the publisher and there are no

  11    other articles exactly like them.  There may be other

  12    articles on the same subject in the same or different

  13    journals, but each article is a unique product and

  14    whoever -- whatever publisher has published that article in

  15    effect has a monopoly on that article or on that collection

  16    of articles.

  17         Q.    Does that mean in some instances you would want

  18    to buy two specialty journals covering the same specialty?

  19         A.    Absolutely.  Multiple subscriptions to specialty

  20    journals and to general journals is absolutely commonplace.

  21         Q.    Do you have any notion as to how large this

  22    market is in terms of dollars?

  23               THE COURT:  Which market?

  24               MS. BURKE:  The market for journals, for

  25    scientific journals.




                                                                756


   1         A.    Yes, I do.  We had performed a study of the top

   2    500 journals, scientific, technical, medical journals, as

   3    listed by the ISI each year, and used published sources for

   4    their subscriptions, their institutional subscriptions, in

   5    very much the same way that Professor Barschall and many

   6    others have extracted that information.

   7               We have extracted circulation information from

   8    similar public sources and from the journals themselves, and

   9    multiplied out the numbers of subscribers, institutional

  10    subscribers, and those subscription rates, and for the top

  11    500 journals, which is probably only 10 percent of all the

  12    scientific and medical journals -- or, excuse me, not 10

  13    percent, it would be 1 percent of all the scientific and

  14    technical journals -- there is approximately $2.3 billion

  15    trading going from institutions to publishers in any given

  16    year.  It is a very large marketplace, and very much an

  17    international marketplace.

  18         Q.    And I take it from that that there is promotion

  19    in that marketplace?

  20         A.    Absolutely.

  21         Q.    How do publishers promote their journals to

  22    librarians?

  23         A.    There are numerous ways.  Most often the faculty

  24    members who are editors, advisers, members of boards of

  25    directors, authors will ask that their -- the journal with




                                                                757


   1    which they are associated be purchased.  It is not universal

   2    but frequent.

   3               Very often, publishers send us promotional

   4    materials, notifications, lists, catalogs, all kinds of

   5    things.  We see publishers at professional meetings,

   6    meetings of librarians and also meetings of the scholarly

   7    societies themselves, whether on the floor or whether by

   8    invitation to presentations.  For the last ten or 15 years

   9    there have been national and international SERIALIST

  10    interest groups which had been assembled to bring together

  11    the various middle people in this scholarly chain of

  12    information, scholarly chain of communication between the

  13    authors and the readers, the publishers, the jobbers and

  14    vendors, the libraries.

  15         Q.    What impact does the publisher's marketing have

  16    on the process that you described earlier in your testimony

  17    on the various factors of how you go about making a

  18    collection decision?

  19         A.    Those promotional items can be useful.  They

  20    frequently cite impact factors, for instance, or they will

  21    refer to impact as title terms -- significant, high,

  22    sometimes with a qualifier:  in this subdiscipline, in this

  23    topic.  They will stimulate us to undertake an analysis in

  24    the decision making process into which we will pour some or

  25    all of these other factors that I have been mentioning.




                                                                758


   1         Q.    Suppose that you attended the Frankfurt Book Fair

   2    or one of the large book fairs and you were given the

   3    Barschall articles by the defendants, to what extent would

   4    that have impacted your collection decisions?

   5         A.    I don't think it would have impacted it very

   6    much, if at all.  The survey and the various derivatives of

   7    the data that the reports are -- accord almost entirely with

   8    our understanding of the world today, and there is in a way

   9    no new news there.  We would not ever have considered

  10    canceling our last copy of the American Institute of Physics

  11    or the American Physical Society, which are huge physical

  12    research organizations and physics teaching organizations.

  13    For most of the large research libraries, that information

  14    would have been, in effect, redundant.  The methodology is

  15    interesting, and I would say that we haven't yet reached, as

  16    a community, a conclusion about the cost per character

  17    compared to impact factor as a measure of use, and there has

  18    only been the one article that I know of.

  19         Q.    What about a letter from the defendants that

  20    claimed that they were a great bargain or among the highest

  21    in quality and value?  Would such a letter, with the

  22    attachment of the Barschall article, cause -- to what extent

  23    would that influence your collection decisions as to their

  24    competitors?

  25         A.    I don't think it would have had any influence at




                                                                759


   1    all in that particular comparison.  I can't imagine that a

   2    place -- a kind of institution where that kind of

   3    information would have been useful in persuading an

   4    institution not to deselect, that that might have been some

   5    use in stanching the flow of subscribers away from a journal

   6    at some small percentage of institutions where the budgets

   7    were really tight and there was a -- getting down to the

   8    last journal of record and, you know, what are we going to

   9    do here, folks, and it might have been an useful as an

  10    argument to get more money or it might have been useful in

  11    choosing to do something else altogether.

  12         Q.    Mr. Keller, what was your reaction when you

  13    learned about the lawsuits that had been brought by Gordon &

  14    Breach?

  15               MR. LUPERT:  I'm sorry.  Could you repeat that

  16    question.

  17         Q.    Mr. Keller, what was your reaction when you

  18    learned about the lawsuits brought by Gordon & Breach

  19    against the defendants?

  20               MR. LUPERT:  Objection.  Irrelevant.  Beyond the

  21    scope of this.

  22               THE COURT:  What is the relevance?

  23               MS. BURKE:  Your Honor, it is the notion that --

  24    I will withdraw the question, actually.

  25               I have no further questions.




                                                                760


   1               THE COURT:  Do you want to start your cross now

   2    or break for lunch?

   3               MR. LUPERT:  Whatever you would like to.

   4               THE COURT:  How long do you think you will cross?

   5               MR. LUPERT:  The cross certainly will be

   6    obviously more than ten minutes.  It won't be terribly long,

   7    I hope, but it certainly will be more than ten minutes.

   8               THE COURT:  All right.  Well, why don't we break

   9    now until 10 of 2.

  10               (Luncheon recess)

  11

  12

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25




                                                                761


   1                 A F T E R N O O N   S E S S I O N

   2                             2:00 p.m.

   3    MICHAEL A. KELLER,

   4              Resumed, and testified as follows:

   5    CROSS-EXAMINATION

   6    BY MR. LUPERT:

   7         Q.    Mr. Keller, you have taken the position on a

   8    variety of occasions, have you not, that physics libraries

   9    need to have persons with knowledge of physics running them,

  10    correct?

  11         A.    Actually, I've taken a more general position that

  12    subject specialists are needed for most specialties in

  13    research university libraries.

  14         Q.    In fact, that's a word you used, a phrase you

  15    used, "subject specialist," in your testimony.

  16               By "subject specialist," do you mean, for

  17    example, that if you're running a chemistry library it helps

  18    to know a good deal about chemistry, right?

  19         A.    Yes.

  20         Q.    And obviously the same is true for physics?

  21         A.    Yes.

  22         Q.    A subject specialist, as you define it, the man

  23    or woman who runs the physics library is someone who

  24    presumably knows a good deal about physics and the esoterica

  25    of physics, correct?




                                                                762


   1         A.    That's correct.  But I'd like to qualify that if

   2    you would let me.

   3         Q.    Let me try to define it very carefully.  You, for

   4    example, are -- if I don't use the right word, correct me --

   5    a musicologist by subject training, correct?

   6         A.    That's correct.

   7         Q.    Do you have before you the Barschall studies?

   8               Yes, you do.  Those are Exhibits 1 and 2.

   9         A.    2 and 3, actually.

  10         Q.    Thank you.  2 and 3?

  11         A.    Yes, I do.

  12         Q.    Would you just take a look generally at the list

  13    of journals that are on Table 1 of the Physics Today

  14    article, please, Exhibit 3.  Can you find Table 1?  It says

  15    "Library subscription costs."

  16         A.    Yes.

  17         Q.    When I asked you at your deposition whether you

  18    could identify -- that is, whether you had any knowledge of

  19    any single one here, I think you were good enough to say

  20    that you couldn't differentiate between any of these.  You

  21    don't know anything about any of these journals, right?

  22         A.    I know something about those published by the APS

  23    and otherwise not much.

  24         Q.    In fact, you didn't know anything about Gordon &

  25    Breach's physical --




                                                                763


   1         A.    No, no.

   2         Q.    -- Physics of Chemistry and Liquid or its

   3    Particle Accelerators, or any of the other specialized

   4    journals; is that correct?

   5         A.    That is correct.

   6         Q.    It is not in your field?

   7         A.    That is correct.

   8         Q.    And I think I asked you at your deposition also

   9    whether you knew the difference in physics between review

  10    letters and research journals.

  11               I'm correct, am I not, that you don't know the

  12    difference between those general categories?

  13         A.    I'm sorry.  That's not correct.

  14         Q.    What is the Gordon & Breach Comments journal; do

  15    you know that?

  16         A.    I have no idea.

  17         Q.    In connection with review letters and research

  18    journals, do you have any understanding whether there may or

  19    may not be a difference, just generally speaking, in terms

  20    of their frequency of citation as that word "impact" is used

  21    by the ISI?  In other words, do you know whether review

  22    journals are cited frequently than letters journals, letters

  23    journals more frequently than research journals, or any

  24    other combination?

  25         A.    By "frequently," do you mean the total number of




                                                                764


   1    citations or the average article -- the average number of

   2    citations per article?

   3         Q.    The impact factor.

   4         A.    The impact factor.  I probably couldn't

   5    distinguish between the two by just looking at impact

   6    factors to tell whether one was a review article or one was

   7    a journal of record article.

   8         Q.    I don't think I'm asking you that.  I'm asking

   9    you whether there is a difference, to your knowledge,

  10    between the impact factor as it pertains to review journals

  11    in the physics world on the one hand, letters journals on

  12    the one hand, research journals on the other hand.

  13         A.    I couldn't testify to that one way or the other.

  14         Q.    You don't know?  Because it's not in your field?

  15         A.    Correct.

  16               Excuse me, you're statement is correct but

  17    whether it's because it's not in my field is not correct.

  18         Q.    You use the letters STM in your writings.  What

  19    does that exactly stand for?

  20         A.    It's used in describing publishers and journals

  21    in the fields of science, technology and medicine.

  22         Q.    Do you agree with me that in the United States,

  23    more than half of the STM libraries don't have a subject

  24    specialist in their field?

  25         A.    I have no way of agreeing or disagreeing with




                                                                765


   1    you.

   2         Q.    Have you written on the subject of the need for

   3    librarians to -- libraries to have subject specialists?

   4         A.    Yes, I have.

   5         Q.    In fact, when you wrote about it, you were

   6    writing about it in the context of advocating the need for

   7    subject specialists?

   8         A.    Absolutely.

   9         Q.    And the reason that you were advocating the need

  10    for subject specialist librarians is because at that time

  11    not every library had a subject specialist in the STM area,

  12    correct?

  13         A.    No, that's not correct.

  14         Q.    Wasn't there a survey done that you wrote about

  15    that indicated that approximately 60 percent, perhaps even a

  16    little bit more than 60 percent, of the STM libraries in

  17    this country did not have subject specialists?

  18         A.    That may be, but you'd have to refresh my memory

  19    by showing me that citation.

  20         Q.    But does that accord with, whether you wrote

  21    about it or not, the fact that there are approximately --

  22    let's just say more than half so that I don't try to test

  23    you on -- I'm not trying to test you on a specific

  24    percentage.  But generally speaking, it is a fact that more

  25    than half of the libraries in this country do not have an




                                                                766


   1    STM specialist?

   2         A.    Mr. Lupert, you questioned me on this using the

   3    60 percent during my deposition.  I went along with it then,

   4    but I actually don't know what the percentage is.

   5         Q.    But at your deposition, you did go along with

   6    that number, didn't you?

   7         A.    Yes, I did.

   8         Q.    You said that sounds about right, yes?

   9         A.    Yes, I said that.

  10         Q.    And you wrote an article, did you not, with the

  11    title "Late Awakening:  Recruiting subject specialists to

  12    librarianship and collection development."

  13         A.    Correct.

  14         Q.    I don't see where this was published.  Do you

  15    recall?

  16         A.    It was published in a volume of articles by

  17    Greenwood Press, the title of which is something like,

  18    "Recruiting -- recruitment and retention in collection

  19    development in research libraries."

  20         Q.    This is in fact the article we were talking about

  21    a moment ago where you were advocating the need for subject

  22    specialists, correct?

  23         A.    That's one of the articles or papers.

  24         Q.    One of the articles.

  25         A.    Yes.




                                                                767


   1         Q.    And you wrote, among other things, that subject

   2    specialists are desired because they have the experience

   3    necessary to make qualified decisions to build research

   4    collections, correct?

   5         A.    That's correct.

   6         Q.    And you also took the position that, without a

   7    subject specialist, you would not have the requisite

   8    knowledge of the scholarship, literature, methodologies and

   9    ongoing trends and developments of the disciplines in

  10    subject areas for which librarians have to select materials?

  11    That's your position?

  12         A.    If you're quoting from my article, that's my

  13    position.

  14         Q.    I'll be happy to show it to you, but doesn't that

  15    accord with --

  16         A.    It's absolutely in line with what I said and what

  17    I believe.

  18         Q.    You were in fact, in this article, citing to a

  19    survey that had been published in the early 1980's by the

  20    Association of College and Research Libraries, which showed

  21    certain percentages of the -- within the librarian community

  22    as to who had the requisite subject specialty, correct?

  23         A.    Could be.  I -- you need to show me the article.

  24         Q.    That you don't remember?

  25         A.    No.




                                                                768


   1         Q.    I am referring to the article which has been

   2    marked as Exhibit 807, if I could show you this.

   3         A.    You bet.

   4         Q.    Just to refresh your recollection.  And if you

   5    could turn to page 47.

   6               MS. BURKE:  807?

   7               MR. MESERVE:  You said 807?

   8               MR. LUPERT:  Mr. Keller, what's the --

   9               THE WITNESS:  Plaintiffs' Exhibit 807.

  10               MR. LUPERT:  Thank you.  I am referring to the

  11    pagination, page 47.

  12         Q.    You could look at the first full paragraph on

  13    that page, referring to a survey in 1983 of the Association

  14    of College -- it was published in '83.

  15         A.    Yes.

  16               MS. BURKE:  Your Honor, I just wanted to point

  17    out that we had not received a copy of this exhibit.

  18               THE COURT:  All right.  You pointed it out.

  19               MR. LUPERT:  I think this was actually turned

  20    over to us by the defendants, your Honor.

  21         Q.    It shows, does it not, that that survey attempted

  22    to determine, using the statistics set forth, who was

  23    applying for jobs with the requisite -- in the particular

  24    subject specialties.  And it says, for example, that "A

  25    survey of advertisements for professional positions in




                                                                769


   1    academic libraries over a 20-year period showed that in

   2    1979, 27.6 percent of advertised positions required a

   3    subject matter degree."  Do you see that?

   4         A.    Actually it says "subject masters," and I might

   5    point out that that refers to all professional positions,

   6    not merely or solely to subject specialist positions.

   7         Q.    Now, I wonder if you could just jump up to the

   8    first full sentence.  You see a reference to "37.6 percent

   9    of the people were earning or already had a second masters

  10    degree."

  11               So if I used 37 percent and I say 37 percent of

  12    them were earning or already had a second masters degree, I

  13    just did the math and said a little bit more than 60 percent

  14    didn't seem to have the second degree.

  15         A.    Actually, that assumption that you have made is

  16    probably not correct.

  17         Q.    Well, how much am I off by?  2 percent?

  18         A.    No.  I think if you read that sentence you will

  19    see that there are varying references to degrees, and in

  20    fact the early part of that sentence reads, "93.5 percent of

  21    the members surveyed were earning or already had masters

  22    degrees," presuming the MLS or its equivalent.  So it might

  23    be some percentage there of that 93.5 that are subject

  24    specialists already.  I, for instance, entered the field

  25    with a masters degree in musicology and got my library




                                                                770


   1    degree well after the fact.  Indeed, that's what this whole

   2    article is about.

   3               THE COURT:  These statistics are about MLS's,

   4    aren't they?

   5               THE WITNESS:  No, sir, that is not what these

   6    statistics are about.  They lump masters degrees in library

   7    science and other subjects in that 93.5 percent.  And the

   8    article, the theme of this article, is recruiting subject

   9    specialists to librarianships, persons who already have

  10    subject specialties.

  11         Q.    Right.  Because there was a need, obviously you

  12    perceived a need, in the librarian community for that

  13    particular type of person.  Otherwise why would you have

  14    written a long article about this?

  15         A.    It's correct.

  16         Q.    What you're doing is you're debating with me

  17    whether it's 60 percent or some other percent?

  18         A.    I'm saying to you that your arithmetic in this,

  19    in the assumption that it's 60 percent that do or do not is

  20    something that we cannot conclude from the data at hand.

  21         Q.    Sir, were you asked the following question and

  22    did you give the following answer at your deposition?  This

  23    is at page 105, line 25.

  24               "Q.    Have you taken the position at any time in

  25    any written material that about 60 percent of the STM




                                                                771


   1    librarians do not have an educational background in the

   2    particular STM area that their library focuses on?

   3               "A.    I don't recall that I did.

   4               "Q.    Does that question sound about right to

   5    you?

   6               "A.    It sounds about right, yes."

   7               You gave that answer?

   8         A.    And I indicated that you led me to that, number

   9    one, and, number, two, you have taken these numbers out of

  10    the context, which context I have now attempted to describe

  11    in more detail.

  12         Q.    Is there any library in the United States, at an

  13    STM library, that doesn't have a subject specialist?

  14         A.    I have no idea.

  15         Q.    There obviously must be some, right?

  16         A.    I have no idea.

  17         Q.    Do you agree with me --

  18               THE COURT:  When you say -- I think I would like

  19    a definition from you of "subject specialist."

  20               THE WITNESS:  Yes, sir.

  21               THE COURT:  How are you using the term?

  22               THE WITNESS:  One may obtain a subject specialist

  23    in several different ways.  They are easily divided into

  24    three, of which the third is a combination of the first two.

  25    One may become a subject specialist by having an education




                                                                772


   1    in that subject.  And by that we usually mean, in the

   2    research libraries, a masters degree -- usually, but not

   3    always.

   4               Secondly, one may become a subject specialist by

   5    virtue of one's experience in a library or in the field.

   6               Thirdly, one may become a subject specialist by a

   7    combination of the two, some education and some experience.

   8               MR. LUPERT:  Shall I go on?

   9               THE COURT:  Yes.

  10         Q.    Stanford -- and this is -- this can't be

  11    debated -- Stanford is one of the great universities in the

  12    world.  You agree with that?

  13         A.    I'm happy to assert, sir.

  14         Q.    Yale is one the great universities in the world?

  15         A.    Without question.

  16         Q.    There are a lot of lesser universities in this

  17    country, right?

  18         A.    There are a lot of other universities in this

  19    country, yes.

  20         Q.    There are a lot of universities that don't come

  21    close to having the personnel in their libraries that you

  22    said Stanford is able to afford, correct?

  23         A.    Absolutely.

  24         Q.    Do you have -- you know also that the Barschall

  25    surveys reached beyond the United States, that is, they




                                                                773


   1    were -- that Physics Today and that magazine that you have

   2    there is sent to physicists in whatever countries AIP has

   3    and its member society has members?

   4         A.    Yes.

   5         Q.    That means there are a lot of countries out there

   6    with librarians who are getting this as well?

   7         A.    And physicists.

   8         Q.    And physicist, thank you.  I take it you are not

   9    familiar with the staffing of the libraries in Italy?

  10         A.    I'm much less familiar with staffing in any

  11    foreign institution than I am with America.

  12         Q.    I take it, too, there is a whole host of

  13    countries obviously outside of your knowledge base; some you

  14    might know enough about and some you might know a drop

  15    about, but you certainly aren't here to tell us about any

  16    foreign libraries?

  17         A.    Absolutely.

  18         Q.    Now, I take it, using again this concept of

  19    subject specialist, that if you don't have any knowledge of

  20    the field, it's going to be very difficult to keep up with

  21    future trends, correct?

  22         A.    You've got -- you're equating a number of things

  23    here.  One cannot be a subject specialist and not have some

  24    knowledge of the field.

  25         Q.    If you are not a subject specialist, isn't it an




                                                                774


   1    axiom that it's going to be harder for you to keep up with

   2    the field than someone who is?

   3         A.    It would be harder for you to keep up with the

   4    field than someone who is, yes.

   5         Q.    Are there approximately 500 universities in the

   6    United States?

   7         A.    Actually I don't believe that's correct.

   8         Q.    What's the number?

   9         A.    I believe there are about 1,000 degree-granting

  10    institutions in the U.S.

  11         Q.    Are there about 500 universities that have

  12    graduate programs?

  13         A.    I -- I can't --

  14         Q.    Or is it more than that?

  15         A.    I cannot testify to that.

  16         Q.    But it's a lot, right?  It's in the neighborhood

  17    of 500 to 1,000, at least in that neighborhood?

  18         A.    I'm sorry.  I can't testify to that.

  19               THE COURT:  Is somebody, a librarian who has

  20    acquisition authority, who has no expertise in the area -- I

  21    guess my question is this:  Doesn't the extent of reliance

  22    on faculty input vary in relationship to the extent of

  23    familiarity of the librarian?

  24               THE WITNESS:  Without question, but it also

  25    varies with the experience of the librarian dealing with




                                                                775


   1    scientific journals, whether -- you find many institutions

   2    that have science libraries where all sciences are covered,

   3    and the science library staff there may or may not be expert

   4    in all those disciplines.  They become more familiar and

   5    they approach subject specialist status as they deal with

   6    that literature over time, as they answer reference

   7    questions, as they interact with the faculty and the

   8    graduate students and so forth.

   9               THE COURT:  Just by coincidence, during the lunch

  10    break when I looked at the mail, one of the letters that I

  11    received was from New York University asking what books are

  12    required for the course next year.  Isn't that common?

  13               THE WITNESS:  Absolutely.  But for the purposes

  14    of creating a course reserve, so they wouldn't put up

  15    something on course reserve that you as a faculty member did

  16    not want on course reserve.  And in the case of subject

  17    specialists, as subject specialists are those with less than

  18    perfect knowledge or less than extensive knowledge of the

  19    subject, they might read those books in an effort to improve

  20    their knowledge.  They might even sit in on your course.

  21               THE COURT:  But if you take a very esoteric field

  22    of physics, ferroelectric -- did I pronounce that right?

  23               MR. LUPERT:  Ferroelectrics.

  24               THE COURT:  -- the likelihood of having a

  25    librarian who is a subject specialist who had a familiarity




                                                                776


   1    with ferroelectrics of a level which would permit

   2    distinctions in terms of quality or importance of journals

   3    in that field is very slight?

   4               THE WITNESS:  That likelihood increases

   5    dramatically with the likelihood that there is any research

   6    or teaching going on in that field at a given institution,

   7    so you would expect there to be, in those places that would

   8    be interested in ferroelectrics as a research topic or a

   9    topic for teaching, to have an engineering library, to have

  10    a physics library, and a computer sciences library, and

  11    therefore subject specialists qualified, as I have

  12    indicated, interested and knowledgeable to deal with that

  13    question.

  14               THE COURT:  So one of the first questions

  15    confronting the librarian who is looking to decide, what do

  16    I subscribe to next year, with respect to a specialized

  17    topic, is, is there somebody on our faculty who has

  18    sufficient interest in this field as to make it something we

  19    should consider?

  20               THE WITNESS:  That's one of the questions, yes,

  21    sir.

  22               THE COURT:  Indeed, I think the editor of

  23    Ferroelectrics testified earlier that if there were not such

  24    a person, there would be no point in subscribing to a

  25    particular --




                                                                777


   1               THE WITNESS:  But the contrary is true, as well.

   2    You might find someone who is very well able to answer that

   3    question in an institution who has decided not to get

   4    Ferroelectrics or decides to deselect it.

   5               THE COURT:  It would seem to me, just

   6    intuitively, which is often erroneously, but intuitively,

   7    that the greater degree of specialization of the

   8    publication, the more likely is the acquisition to be a

   9    function of a faculty decision?

  10               THE WITNESS:  It is, as I said, the degree of

  11    likelihood varies with the degree to which the institution

  12    would be interested in it.  But there are some examples, and

  13    actually I think the whole field of solid state physics is a

  14    good one -- the genomic research is another good one, where

  15    the decision to acquire a specialized journal would also

  16    depend upon the faith, belief, judgment of the faculty and

  17    the librarian as to the relevance of that subject for work

  18    in the future.

  19               And, indeed, we find ourselves making -- arriving

  20    at bad judgments and when, in a period after the research

  21    had begun, we fail to pick up a specialty journal, we have

  22    to go back and do remedial collection building to bring into

  23    the institution the information and resources that are

  24    needed for the teaching or the research in that field.

  25    Because the faculty changed and the people come and go,




                                                                778


   1    research moneys are suddenly available to this team, and so

   2    forth.  There are lots of different factors there.

   3    BY MR. LUPERT:

   4         Q.    Just picking up on this point, it seems to be a

   5    fact that for a very, very long time, including the 1990's,

   6    certainly the 1980's, maybe even earlier, there just hasn't

   7    been enough money for libraries to buy everything that their

   8    faculty would like them to buy, hence decisions have to be

   9    made, right?

  10         A.    It is true that the purchasing power has not been

  11    available to buy the things that we would desire, but by

  12    saying "we," I mean the entire academic community, which

  13    includes the librarians and especially the librarians,

  14    because we would rather buy, especially in the research

  15    universities, as much as for the future as for the present.

  16         Q.    Right.  And the problem is -- all I'm saying, and

  17    I think this was a given -- is there just simply isn't

  18    enough money around; some decisions have to be made?

  19         A.    Correct.

  20         Q.    You have to pick one product over another or

  21    several others because you can't buy all of them?

  22         A.    Correct.

  23         Q.    And I take it, it also, therefore, must be true

  24    that, within a physics department, for example, there would

  25    be certain specialists who would be advocating for




                                                                779


   1    ferroelectrics, if that's their area, and there would be

   2    another group of specialists who would be advocating for an

   3    APS journal, hypothetically, for whatever reason, and

   4    another faction advocating for another, and the three

   5    purchase prices add up to a figure, and there is just not

   6    enough money to buy all three.  That has to happen?

   7         A.    That's correct.  And the role of the librarian in

   8    all of those cases is to mediate among the various

   9    specialists, but also among the various other factors that I

  10    have mentioned.

  11         Q.    And if a librarian ultimately can't mediate it,

  12    he's going to make the choice.  Somebody has to.  It's his

  13    hard luck.  He has the bottom line decision to make, right?

  14         A.    Actually, "she" is much more likely to be the

  15    case.

  16         Q.    I have three daughters.  I should always be using

  17    "she" in every sentence, they tell me.

  18               THE COURT:  Is that the case, that the librarian

  19    will make that decision, or is it more likely to be made by

  20    the chairman of the department?

  21               THE WITNESS:  No, the librarian makes the

  22    decision.

  23         Q.    Thank you, Mr. Keller.

  24               Now, you have been good enough to, in both your

  25    report and in your testimony, to kind of -- I don't want to




                                                                780


   1    use the word "tick off" but be listed, that's what I'm

   2    searching for, the various factors, considerations a

   3    librarian has to take into account.  You have told us, for

   4    example, have you not, that a librarian has to talk to his

   5    faculty -- if the librarian is any good at what he's doing

   6    or she's doing, has to talk to the faculty, correct?

   7         A.    Yes, I indicated the librarian -- in most cases

   8    the scholarly bibliographer and the scholarly practitioner

   9    are in the same community.

  10         Q.    In fact, I think you have written that, among the

  11    other things you would expect a good librarian to do, is to

  12    bone up on the area and even attend conferences, subject

  13    matter conferences, if you will, not just librarian

  14    conferences but --

  15         A.    I just testified to that.

  16         Q.    And you agree with me that that --

  17         A.    Absolutely.

  18         Q.    -- it's a good idea for the librarian to even go

  19    out and attend conferences, correct?

  20         A.    Yes.

  21         Q.    The conferences as a physicist is what I'm

  22    talking about, correct?

  23         A.    Or other subject specialties.

  24         Q.    Let's just talk about physics because that's what

  25    this case is about.




                                                                781


   1               And the librarian should be talking to his

   2    brethren at other libraries; that's another good thing a

   3    librarian should do?

   4         A.    Yes.

   5         Q.    He should be talking not only with physicists at

   6    his own university but he should try to figure out what the

   7    national global trends are, as you testified, right?

   8         A.    Yes.

   9         Q.    This also assumes that the library has the budget

  10    to allow the librarian to attend the conference and do all

  11    these things.  But it is obvious, is it not, from all of

  12    these things that this librarian has to do, that you will

  13    ultimately make some decisions, hard decisions, that it

  14    takes a lot of time and effort; is that correct?

  15         A.    You know, it's very hard to do any kind of

  16    industrial work study of the thing.  I think we all do this,

  17    as we do many other things in the course of our work.

  18               THE COURT:  Well, I was going to ask you, you

  19    said that at Stanford you have 32 subject specialists.

  20               THE WITNESS:  Yes, sir.

  21               THE COURT:  Is a subject specialist's full-time

  22    assignment the acquisition decisions?

  23               THE WITNESS:  No, sir.  Only -- there is no

  24    subject specialist whose full-time work is collection

  25    development.




                                                                782


   1               THE COURT:  Could you venture an estimate of the

   2    percentage of time that the 32 subject specialists devote to

   3    acquisitions?

   4               THE WITNESS:  I could give you several ranges,

   5    with different parts of that population.  The humanities

   6    selectors and the rare book and special collections

   7    selectors tend to spend more time doing collection

   8    development work.  They probably spend 40 to 50 percent of

   9    their time directly on that work, and the other part of

  10    their time they would spend in liaison with the faculty and

  11    with the discipline at average at large and with answering

  12    reference questions, with research inquiries and helping

  13    students write papers.

  14               On the far end of that scale, ironically it would

  15    be the subject specialists in the sciences, because they

  16    make -- because of the pressure on our purchasing power,

  17    they tend to make most of their decisions at the time of

  18    renewal, and those decisions tend to be incremental, one way

  19    or the other.  So having made their decisions for the

  20    majority of their budget, they have to spend a lot of other

  21    time running subject libraries and answering reference

  22    questions, and they actually don't spend as much time in

  23    collection development as do the folks in the center.

  24               The social scientists fall somewhere in the

  25    middle, depending upon the degree of arcaneness of the




                                                                783


   1    subject, the dependence upon numeric data, how well our

   2    collections match the research du jour and that sort of

   3    thing.

   4         Q.    You had described -- I think this is your word --

   5    that the analysis that the librarian goes through, whatever

   6    amount of time it takes them, is a subjective analysis, is

   7    that a fair statement?

   8         A.    Absolutely.

   9         Q.    You have taken the position, as well, that the

  10    Barschall study is an objective analysis, correct?

  11         A.    The Barschall study uses objective data.

  12         Q.    It is an objective study in all its ways?  It is

  13    taking objective available information about character

  14    count, subscription price, and a figure called impact, and

  15    it's putting them into a ratio.  Each of those components is

  16    not subjective, correct?

  17         A.    To the degree that it's extracted from data that

  18    all the rest of us have and it's representative of

  19    objective data, that data is objective.  The whole article

  20    is certainly not objective.

  21         Q.    Would you agree with the statement that I'm about

  22    to make that -- take a look at the tables in the Bulletin

  23    article, Exhibit 2, for example.  Do you see them?

  24         A.    Which table?

  25         Q.    All of them, any of them.  All or any.




                                                                784


   1         A.    Yes.

   2         Q.    That if a librarian actually were going to use

   3    these tables and nothing else to make decisions and the

   4    journals among which he had to choose or she had to choose

   5    were listed, the whole analysis would take a few seconds?

   6         A.    I can't answer that hypothetical because it's out

   7    of this world.  It's unreal.

   8         Q.    If you look at Table I, Journal Name Publisher,

   9    you see all that information?

  10         A.    Yes, I do.

  11         Q.    Do you see the cost per impact?

  12         A.    Yes, I do.

  13         Q.    If you look at Table IV, the last table, IV -- do

  14    you see it?

  15         A.    Yes, I have it.

  16         Q.    Professor Barschall tells us that Table IV is a

  17    ranking of the order of increasing cost per impact of

  18    journals; do you see that's exactly what he's done here?

  19         A.    I see that is the order of that table, yes.

  20         Q.    So that if you wanted, for example, to make a

  21    decision as between two journals and you found this

  22    information relevant, it would take you a second to figure

  23    out which is better and which is worse, right?

  24         A.    As I testified before, the --

  25         Q.    Would it take you a second to figure that out,




                                                                785


   1    sir?

   2         A.    I would not --

   3         Q.    That's my only question.

   4         A.    I would not do it that way.  I cannot operate

   5    under that hypothetical because it's not in my world.

   6         Q.    You can't operate under the hypothetical that I'm

   7    asking you, which is, isn't it very simple to just simply

   8    flip through these tables and figure out which is better and

   9    which is worse according to this cost impact formula?

  10         A.    Better or worse for what?  There are so many

  11    questions that are unanswered with that hypothetical that it

  12    is not possible for me to answer.

  13         Q.    I want you to assume for me, as an expert in what

  14    you have been produced as, that you have a library somewhere

  15    in Montana, for example, that has limited staff available,

  16    and it has not a very good librarian, just doesn't have

  17    somebody who's really devoted to doing all these tasks that

  18    you have outlined, gets a copy of this Barschall set of

  19    tables, and it happens in his physics department he has to

  20    make a choice between five of them for renewal purposes.  Is

  21    it easy or is it hard to use these tables?

  22         A.    As the sole source of a decision?

  23         Q.    I didn't say as the "sole source of a decision."

  24    I said, is it easy or is it hard to use them?

  25         A.    I don't believe it's hard to use them, no.




                                                                786


   1         Q.    But you obviously are suggesting in all of these

   2    answers that under no circumstances whatsoever should a

   3    librarian solely use the Barschall tables, correct?

   4         A.    I can imagine only certain circumstances, and

   5    they are, I would say, incredibly obscure, where reliance on

   6    citation studies, impact, cost per character, or cost per

   7    character per impact would be a direct -- direct determinant

   8    in a decision to acquire or deselect a title.

   9         Q.    There has to be, just as a matter of human

  10    conduct, some risk that librarians aren't going to do the

  11    tasks, at least all of the tasks, you have outlined; is that

  12    not a generally acceptable proposition?

  13         A.    I would say there are some tasks that are

  14    relevant to a particular decision and some that aren't.

  15         Q.    Putting aside the relevance or not, isn't it just

  16    fundamentally accurate that with 1,000 universities in this

  17    country, with some very large number around the world

  18    receiving these Physics Today tables, that there are going

  19    to be some librarians somewhere that are going to not be

  20    willing or have the ability or training to go through all of

  21    the kinds of analyses that so obviously are appropriate to

  22    determine use, future trends, and the like?

  23         A.    For some, future trends are irrelevant.

  24         Q.    All right.  So for those that are just simply

  25    looking at what's going on in their university, or that's




                                                                787


   1    the only thing that you want to take into account, you will

   2    not give me this point?  You will not agree with this point?

   3         A.    I'm just trying to qualify the point so that it's

   4    not so general that it's useless.

   5         Q.    Will you agree with me that if you take a look at

   6    the tables in the Bulletin article again -- do you have that

   7    before you, Mr. Keller?

   8         A.    Yes, I do.

   9         Q.    -- that, looking through the tables themselves,

  10    and you are a librarian, that there is no way of telling

  11    just by looking at them whether a particular journal covers

  12    a large number of topics or just one specialized topic?

  13         A.    One would have to know something about the

  14    subject to do that.

  15         Q.    There is no way in looking at this to tell what

  16    the number of subscribers or potential readership is

  17    using -- looking at these tables, correct?

  18         A.    That is correct.

  19         Q.    There is no way of telling anything about the

  20    cost factors that might be relevant in the publication?

  21               THE COURT:  Cost to publish.

  22               MR. LUPERT:  Thank you, sir.

  23         Q.    In the publication is --

  24         A.    The cost of publication?

  25         Q.    -- what I'm stumbling to say.  Yes.




                                                                788


   1         A.    That's hardly relevant to the decision a

   2    librarian would make.

   3         Q.    There is no way of knowing, by looking at those

   4    tables, whether the impact factor itself, the number called

   5    "impact," for any particular journal, is going to fluctuate

   6    100 percent year to year, or any other fluctuation, correct?

   7         A.    That's correct.  But, as I testified, one would

   8    perform this exercise or use the data from my side to create

   9    a broader picture.

  10         Q.    Because you are a very good librarian, sir,

  11    correct?

  12         A.    Right.

  13         Q.    But the --

  14         A.    I think I'm testifying for the class of people

  15    called librarians.

  16         Q.    The data that's presented in these tables,

  17    however, certainly doesn't give you any more than this one

  18    year's figure, so there is no way to tell whether the next

  19    year or the year before there was a substantial difference

  20    in the impact factor for a particular journal, correct?

  21         A.    That is correct.

  22         Q.    Now, if you look at Table II in the Physics Today

  23    article -- do you have that before you?

  24         A.    Yes, I do.

  25         Q.    Isn't it a true statement that it is




                                                                789


   1    inappropriate, in your opinion, to substitute the Barschall

   2    formula for the other factors you have listed in your

   3    report -- strike that.  Strike the whole question.  Excuse

   4    me.

   5               Isn't it inappropriate, in your view, to ever use

   6    a ranking of publishers to decide which publisher to buy

   7    from?  And I'm talking about this ranking of publishers.

   8    That's what this case is about, sir.  This table.  Isn't it

   9    your opinion that it is inappropriate to use this table to

  10    decide --

  11         A.    You're talking about Table II in the Bulletin

  12    article or Table II in the Physics Today article?

  13         Q.    I'm talking about Table II in the Physics Today

  14    article.

  15         A.    Sure.

  16         Q.    Why don't you take a glance at that.  That's that

  17    ranking of publishers, you remember?

  18         A.    Got it.

  19         Q.    You have that in front of you?

  20         A.    I do, indeed.

  21         Q.    Focusing on that, am I not correct that it is

  22    your opinion that it would never be appropriate to make a

  23    purchase decision based on ranking of publishers?  And I'm

  24    talking about that ranking in Table II.

  25         A.    I think that's a fair statement, yes.




                                                                790


   1         Q.    Because it's the journal that counts, not who

   2    publishes it?

   3         A.    It does matter who publishes it, of course, and

   4    it is the journal that counts, but, as I said before, these

   5    decisions are not made in isolation.  They are made with

   6    lots of other information.

   7         Q.    The Barschall formula, this ratio comparing

   8    cost -- I don't have to repeat it.  Everybody knows what it

   9    is.  But it's the ratio.  I want you to focus on the ratio,

  10    not just on its components but the ratio.  That is, it

  11    compares cost, on the one hand, with impact, on the other.

  12    You have that in mind, sir?  That's unprecedented as far as

  13    you know, correct?

  14         A.    As far as I know it is unprecedented.

  15         Q.    And is unprecedented.  You don't have any

  16    knowledge of any --

  17         A.    As far as I know, this litigation has

  18    successfully chilled any attempt to use this --

  19               MR. LUPERT:  Judge, I really object and move to

  20    strike.  I find that to be offensive, frankly.

  21               THE COURT:  It is stricken.  Just answer the

  22    question.

  23               THE WITNESS:  Yes, sir.

  24         Q.    It is an unprecedented formula.  Let's forget

  25    from 1988 on.  At the time Barschall did it, it was totally




                                                                791


   1    unprecedented, right?

   2         A.    That's correct.

   3         Q.    Now, in your report and in your examination this

   4    morning --

   5               THE COURT:  Just a moment.

   6               MR. LUPERT:  I'm sorry.

   7               THE COURT:  What was totally unprecedented?

   8               THE WITNESS:  The utilization of a cost per

   9    character count to the impact factor.

  10               THE COURT:  That ratio?

  11               THE WITNESS:  As far as I know, that was

  12    unprecedented.  That was new; in effect, a new aspect of

  13    information science.

  14         Q.    Now, in your report as an expert on this case for

  15    the defendants, you said that "The Barschall studies of the

  16    cost of physics journals are among a continuum" -- you used

  17    the word "continuum" -- "of bibliometric studies that have

  18    developed on applied citation analysis and value analysis."

  19    That's the word that you used?

  20         A.    That is correct.

  21         Q.    Do you recall at the deposition -- I will show

  22    you the testimony if you need it -- you said that, where we

  23    asked you about what you were referring to in this

  24    continuum, you said:  "ISI had issued a large number of

  25    studies.  Garfield has done a number of studies.  There have




                                                                792


   1    been a number of other ones in a variety of fields.  I would

   2    have to do literature search to give you all those names."

   3               Do you remember saying that?

   4         A.    I do indeed.

   5         Q.    And then I asked you the question:

   6               "Q.    Before you wrote the sentence in your

   7    report about this being a continuum, didn't you do such a

   8    list?"

   9               And you answered:

  10               "No, I just know they exist."

  11               And I asked you:

  12               "What did you mean by the word 'continuum'?

  13               You answered:

  14               "That means they started before Barschall and

  15    they kept going after Barschall.

  16               "Q.    Give me a single example of a study before

  17    Barschall's that applied either citation analysis or

  18    counting of characters?

  19               "A.    Citation analysis has been done by Gene

  20    Garfield in the publications of the ISI itself before and

  21    after Barschall.

  22               "Q.    Anybody else?

  23               "A.    I'd have to look them up."

  24               That was your testimony, and that was not too

  25    long ago, April 22, 1997?




                                                                793


   1         A.    That is correct.

   2         Q.    And is what happened that, after you gave your

   3    testimony, sir, you had conversations with the defense

   4    attorneys and you came up with Exhibit KKK?

   5         A.    No, actually I didn't have any conversations with

   6    them about that exhibit.

   7         Q.    You came up with this yourself, sir?

   8         A.    No, they came up with it.

   9         Q.    Oh, they came up with it.

  10               And then KKK, which is these so-called

  11    continuums, continuum studies, is this what you are

  12    referring to, as well?

  13         A.    I testified to the fact that there was a

  14    continuum of studies using citations and citation analysis

  15    before Barschall and after Barschall.

  16         Q.    Is this the continuum you know about?

  17         A.    That is part of the continuum I know about.

  18         Q.    How do you know about them?

  19         A.    Because I have used them over the years, but I

  20    don't remember every last one of them.

  21         Q.    Sir, KKK is a 1933 Industrial and Engineering

  22    Chemistry journal --

  23         A.    No, excuse me.  I think KKK is a suite of

  24    journals.  There is a host of them here.

  25               MR. LUPERT:  Judge, these were delivered to us in




                                                                794


   1    a stack with no cover letter after this deposition, no

   2    reference to them, and I move to strike them.

   3               THE COURT:  What was delivered?

   4               MR. LUPERT:  Delivered.  I'm talking about this

   5    Exhibit KKK.  It is what we were objecting to before.

   6               THE COURT:  What would be accomplished by my

   7    striking it?

   8               MR. LUPERT:  I could answer that if I might, but,

   9    please.

  10               THE COURT:  This is not an instance where the

  11    content of the exhibits themselves -- there are 193 pages --

  12    is of moment.  Nobody intends that I read word for word the

  13    193 pages which comprise Exhibit KKK, and if they do, they

  14    are sadly mistaken.

  15               What is significant is the validity of the

  16    witness's testimony that citation analysis compilations are

  17    a process or a procedure that didn't originate with

  18    Barschall.  Isn't that --

  19               MR. LUPERT:  I think I would go one step further,

  20    because this is a commercial case involving use of those for

  21    commercial purposes.  The issue becomes, I think, more

  22    focused on that than on whether in fact there has been

  23    citation analysis.  Our objection is only to the extent that

  24    the Court might rely on these or think -- or an argument

  25    would be made that the Court should rely on these to prove




                                                                795


   1    anything as to the -- that's relevant to this case.

   2               THE COURT:  I take it that the proffer is

   3    corroboration for the witness's testimony that, to his

   4    knowledge and experience, citation analysis is not a new

   5    phenomenon in the field of library science.

   6               MR. LUPERT:  If that's all this is, Judge, then I

   7    don't --

   8               MS. BURKE:  They were also offered into evidence

   9    because under Castrol there is reference to the state of art

  10    in the scholarly literature, and it is offered for that

  11    purpose.

  12               THE COURT:  That's a nuance that -- all right.

  13    Let's move on.

  14    BY MR. LUPERT:

  15         Q.    I have very little more, just a couple of details

  16    I wanted to go over with you.

  17               The issue of what is important to a librarian,

  18    obviously the subscription price is very important to the

  19    librarian in this analysis, correct?

  20         A.    Yes, it is.

  21         Q.    But the subscription price is not the only

  22    relevant factor on the price side, correct?

  23         A.    That is correct.

  24         Q.    And you agree, do you not, that the cost of

  25    identifying -- that the costs associated with the




                                                                796


   1    librarian's identification of the material is something that

   2    has to be factored in, correct?

   3         A.    That is correct.

   4         Q.    Locating the vendor, cost of bringing it to the

   5    library, those are other factors that the librarian must

   6    take into account, correct?

   7         A.    Yes, sir.

   8         Q.    That would also include, for example, whether or

   9    not one publisher includes air mail delivery as part of its

  10    price while other publishers may not; that's a factor the

  11    library should consider?  And among everything else.

  12         A.    That is a factor it may not -- may or may not be

  13    a factor of cost.

  14         Q.    Well, it may be, if the air mail has to be -- if

  15    it's necessary to get the journal quickly and the library

  16    has to pay it, then that's not as good as if it's already in

  17    the price and is always sent by air mail, right?

  18         A.    That's correct.

  19         Q.    And the cost of copying, whether or not -- if

  20    there's a differential between what one publisher charges

  21    for copying and another, that's another factor?

  22         A.    I don't believe so.

  23         Q.    Preservation costs, you agree with me on that

  24    one, don't you?

  25         A.    In the long run.




                                                                797


   1         Q.    That's a factor?

   2         A.    In the long run those are factors, yes.

   3         Q.    Storage costs, that's a factor?

   4         A.    Yes, sir.

   5         Q.    Need for an interpreter, if it's in a foreign

   6    language, that would be another factor, and the library

   7    should take that into account in buying a journal?

   8         A.    No, we don't take that into account.

   9         Q.    When you were asked the question concerning what

  10    other cost factors should be taken into account -- and it's

  11    quite a long answer and I don't want to burden the Court

  12    with it, but you testified, did you not -- and this is on

  13    page 117 to 118 in the middle of this fairly long answer:

  14               "You ask yourself as a librarian, are the

  15    journals in foreign languages and therefore do we have to

  16    have someone around who's got the language capability to

  17    interpret for those that don't have that particular

  18    language.  All these are costs to the library."

  19               Does that refresh your recollection now that

  20    that's one of them?

  21         A.    Yes, but the cost for an interpreter is different

  22    than having someone on staff who knows the languages.

  23         Q.    That's correct, but that is a factor that should

  24    be taken into account.

  25               I want you to put -- you published a lot of




                                                                798


   1    articles, in a variety of fields.

   2         A.    Yes, I have.

   3         Q.    Do you think it's an advantage in the sciences,

   4    ever, to be able to get your article published quickly and

   5    into the hands of the particular readership quickly?

   6         A.    Yes, absolutely.

   7         Q.    You heard Doctor -- you have been here a lot this

   8    week.  Were you here when Dr. Taylor testified?

   9         A.    Yes, I was.

  10         Q.    And you heard him testify about the advantage he

  11    perceived for his journal in Gordon & Breach's flow system,

  12    from the office point of view, in getting his work out to

  13    the research readership more quickly.  Do you remember that

  14    testimony?

  15         A.    I do remember that testimony.

  16         Q.    You don't have any reason to disagree with that

  17    as a proposition, do you?

  18         A.    Actually, there are many publishers, many other

  19    publishers, who without the flow system produce the reports

  20    of research on a much more timely basis than does the

  21    particular journal that he was testifying about.

  22         Q.    But you don't disagree with me, generally

  23    speaking, that, assuming Gordon & Breach is able, through

  24    the flow system, to get material out, that that is a bad

  25    thing?




                                                                799


   1         A.    The publishing of scientific reports is not a bad

   2    thing, no, sir.

   3         Q.    Getting material out quickly into the hands of

   4    the readership of it when you're dealing with fast-moving,

   5    important technology is a good thing?

   6         A.    Actually, in that particular case, six months is

   7    a very short period of time, so that a period of refereeing

   8    and publication time after submission of a manuscript of six

   9    to twelve months is in fact fairly slow.

  10         Q.    You know that to be true within the physics area?

  11         A.    I know that to be true within the information

  12    technology industry in general, yes.

  13         Q.    You made a study of this in the physics area?

  14         A.    I'm not talking about physics.  I'm talking about

  15    solid state electronics and those other aspects which feed

  16    silicon valley industries, where we are very close.

  17         Q.    Ferroelectrics, that's what you think

  18    ferroelectrics is all about?

  19         A.    Ferroelectrics is partly about that, yes, by the

  20    testimony of your witness.

  21         Q.    I'm having a fight with you about this.

  22               Is it your testimony, so that we have this

  23    straight, that Taylor was just wrong in his view that the

  24    flow system is a good thing because he's able to get this,

  25    what he considers important ferroelectrics research out




                                                                800


   1    quickly?

   2         A.    He was qualifying his answer with what I know to

   3    be the state of the half-life of the literature of many of

   4    the aspects of the information technology industry next door

   5    to Stanford university.

   6         Q.    Did you hear Dr. Taylor testify that

   7    ferroelectrics is publishing approximately 25 percent of all

   8    the research in the world in this area?

   9         A.    I did.

  10         Q.    That makes that journal of some significance,

  11    don't you think?

  12         A.    Actually I can't testify to that at all.

  13         Q.    Because you don't know anything about the area?

  14         A.    No, actually, we subscribed to Ferroelectrics and

  15    canceled it a number of years ago, and I have had very few

  16    requests for any articles from it.

  17         Q.    Because you obviously don't have any faculty in

  18    that area?

  19         A.    Oh, no, thank goodness.

  20               MR. LUPERT:  I have no further questions.

  21               THE COURT:  Anything further of this witness?

  22               MS. BURKE:  No, your Honor.

  23               THE COURT:  Thank you.  You may step down.

  24               (Witness excused)

  25               THE COURT:  Before we take a recess, on




                                                                801


   1    Tuesday -- I take it we will still be on trial on Tuesday?

   2               MR. LUPERT:  Yes, I fear so.

   3               THE COURT:  -- we will start at 11 a.m.  I have

   4    another matter.

   5               MR. MESERVE:  11 a.m. on Tuesday?

   6               THE COURT:  11 a.m.

   7               The next order of business is the

   8    cross-examination of --

   9               MR. MESERVE:  Mr. Gordon.

  10               THE COURT:  All right.  We will take a

  11    five-minute recess.

  12               (Recess)

  13               THE COURT:  Mr. Gordon, you may resume --

  14               MS. BURKE:  Your Honor, just before we begin,

  15    Mr. Keller was reading off the machine his testimony, and

  16    has noticed that there is a transcription error that leaves

  17    the misimpression that there are no ferroelectricians at

  18    Stanford because there was an inadvertent "thank" put in.

  19    And we would just request --

  20               MR. LUPERT:  No, he said that there are

  21    ferroelectricians at Stanford.  There is no dispute about

  22    that.

  23               THE COURT:  Yes.  It justifies the cost of the --

  24               MR. LUPERT:  That should be the first question to

  25    Mr. Gordon.




                                                                802


   1     MARTIN B. GORDON,

   2               Having been previously sworn, resumed, and

   3    testified further as follows:

   4    CROSS-EXAMINATION

   5    BY MR. MESERVE:

   6         Q.    Good afternoon, Mr. Gordon.

   7         A.    Good afternoon.

   8         Q.    Mr. Gordon, you agree, don't you, that the

   9    journals of the APS and AIP are the premier journals in

  10    physics?

  11         A.    I think that they are some of the premier

  12    journals in physics.

  13         Q.    They are among the most respected journals?

  14         A.    Among -- among the most respected general

  15    journals, yes.

  16         Q.    And among the most cited journals?

  17         A.    Yes.

  18         Q.    And they offer good value for the money, don't

  19    they?

  20         A.    That gets into the question of what people feel

  21    they need.

  22         Q.    Do you think they offer good value for the money?

  23         A.    Do I think they offer good value for the money?

  24    I think they are premier journals.  To equate that with a

  25    money question is frankly -- I think they are very good




                                                                803


   1    journal -- they are a very good journal.  There are several

   2    general journals which are also cited, and some which are

   3    not, which are overall journals, which are fundamentally

   4    excellent publications, and the AIP Physical Review -- for

   5    example, it's always AIP, APS, is my confusion.  Physical

   6    Review, for example, is one of the leading standard journals

   7    at this time in the world.

   8         Q.    Mr. Gordon, I realize that you have disagreements

   9    with the Barschall methodology, but you do agree, don't you,

  10    that the G & B physics journals are expensive on a price per

  11    character basis; isn't that right?

  12         A.    I also have a disagreement in the -- on the whole

  13    concept of character, because of the variation of cost in

  14    setting different kinds of characters.

  15               THE COURT:  Well, but the cost of setting is cost

  16    to the publisher.

  17               THE WITNESS:  Well, but it --

  18               THE COURT:  And I think that Mr. Meserve's

  19    question is cost to the acquirer.

  20               THE WITNESS:  Yes, but the cost to the acquirer

  21    obviously depends upon the cost to the consumer.

  22               We're getting into the cost per character

  23    question, I assume.

  24         Q.    The question I was actually requesting, the

  25    question I asked had to do with the price per character.




                                                                804


   1    The price paid by the library for a Gordon & Breach journal,

   2    isn't it in fact the case that the Gordon & Breach physics

   3    journals are expensive on a price per character basis?

   4         A.    It depends how you define "character."  That's a

   5    point I wish to contest.

   6         Q.    "Character" is the confusion, is that it?

   7         A.    Yes.  If I set a full page of display mathematics

   8    and I set just straight text, I have then on a

   9    per-character -- this is not a valid measurement of the

  10    character to character.

  11         Q.    Let's assume that all the journals are just full

  12    of full text, which is the assumption in the Barschall

  13    methodology.

  14         A.    Yes.  That's a false assumption.

  15         Q.    That's an assumption?

  16               MR. LUPERT:  I think the witness says it's a

  17    false assumption, which makes the question improper.

  18         Q.    It's an aspect of the methodology, and I

  19    understand that I'm trying to set aside the issues having to

  20    do with the methodological questions, and I'm just trying to

  21    see if we can agree on the fact that -- I realize you have

  22    criticisms of the methodology.  Don't you agree that if one

  23    applies the methodology, the Gordon & Breach journals are

  24    expensive on a price per character basis?

  25         A.    I don't -- I couldn't -- I couldn't say.




                                                                805


   1         Q.    Well --

   2         A.    Because what does "expensive" mean?  More than

   3    the library can afford?  Because of other budget factors?

   4               THE COURT:  No.

   5               THE WITNESS:  Here -- I'm --

   6               THE COURT:  Please, "expensive" means if you have

   7    to write a check to one publisher for one journal or write a

   8    check to another publisher, another journal, which check is

   9    larger?  "Expensive" --

  10               THE WITNESS:  What?  I'm sorry, your Honor.

  11               THE COURT:  Obviously, in the realm --

  12               THE WITNESS:  Relatively expensive is what you're

  13    saying?

  14               THE COURT:  Well, I think the question was a

  15    comparison, and that entails a relevant concept.

  16               THE WITNESS:  "Relatively expensive" are the

  17    words --

  18         Q.    Would you agree with that proposition?

  19         A.    Yes.

  20         Q.    Now, in their pretrial memorandum, your attorney

  21    stated, "Like most other commercial publishers of physics

  22    journals, G & B has focused on developing specialized

  23    journals for a small audience."  You agree with that

  24    proposition, right?

  25         A.    Yes --




                                                                806


   1         Q.    In physics?

   2         A.    Yes.  But, unlike other commercial publishers,

   3    such as Elsevier or Springer, we don't have standard

   4    journals which really are competitors to what I would

   5    call -- or comparable to Physical Review, as well as the

   6    more niche journals.  These are old established journals, as

   7    old as Zeitschrifter fur Physike is one I mentioned, the

   8    Elsevier journal, several other general journals, which are

   9    produced by commercial publishers, and that is not part of

  10    our list.

  11         Q.    But commercial publishers like Gordon & Breach

  12    have journals that are specialized journals for small

  13    audiences?

  14         A.    Yes.

  15         Q.    In fact, your strategy is, I believe you

  16    testified yesterday, is to fill niches that other publishers

  17    don't accommodate; isn't that right?

  18         A.    That the community needs.

  19         Q.    That's right.  And you try to fill niches that

  20    are not being otherwise met by other journals?

  21         A.    If the community feels they need them.  They may

  22    be met by other journals, but the community may feel it's

  23    insufficient.

  24         Q.    You also agree, don't you, that -- and again I am

  25    referring to the Plaintiffs' pretrial memorandum -- that in




                                                                807


   1    most instances, these journals have worldwide subscriptions

   2    numbering in only the hundreds; isn't that right?

   3         A.    Yes.

   4         Q.    And some of them in fact have subscriptions

   5    numbering as low as about 200?  Some of the ones in the

   6    Barschall survey?

   7         A.    The ones in the Barschall -- I would have to

   8    refresh my memory on that.

   9         Q.    I am going to hand you an exhibit that has been

  10    marked as Defendants' Exhibit DDDDDD, six D's.  This is a

  11    document that was produced to us in the course of discovery

  12    in this case.  It doesn't actually set out the circulation

  13    information.  It does set out information as to the print --

  14    what are called print runs.

  15               Your actual subscriptions have to be less than

  16    the print runs; isn't that right?

  17         A.    Not in all cases.  Some of these may have been

  18    second printings.

  19         Q.    Well, it says, "New print run, old print run."

  20    You do multiple --

  21         A.    No, no.  "New print run" in this case refers to

  22    the old basic print run, not to the first printing,

  23    necessarily.  There was -- if I could put it this way, there

  24    was a fundamental change in policy, I should explain this,

  25    which involved the development of digital electronic storage




                                                                808


   1    and print-on-demand capability, which was -- what we did in

   2    the past was archive journals, because we would get orders

   3    20, 30, 40 years later, not 40 years yet because they're not

   4    40 years old, but the new print run was partially based on

   5    the lack of necessity to store that kind of information.

   6         Q.    When did you adopt this technology where you

   7    stored the information electronically?

   8         A.    I don't recall --

   9         Q.    It's within the last few years, isn't it?

  10         A.    No, it's -- it goes back a little further where

  11    we started scanning older material and material which was

  12    going out of print.  But it became the policy for new

  13    material, not to print the -- not to print as much as we

  14    needed -- if I can back up even further?

  15               Before that, there was available to us -- we

  16    found suppliers in Asia that could economically print as few

  17    as 25 or 50 copies on a reprint.  And therefore, the need

  18    for the storage for the length of time was no longer

  19    necessary.  And that was one of the factors in the old print

  20    run, new print run.

  21         Q.    Well, let's take an example.  Let's look at

  22    Fundamentals of Cosmic Physics, which is what you talked

  23    about on your direct testimony.

  24         A.    Yes.

  25         Q.    That's at the top of the page that's




                                                                809


   1    Bates-numbered 10711.  That has a new print run of 300;

   2    isn't that correct?

   3         A.    Yes.

   4         Q.    If you will turn to the first page of that

   5    exhibit, doesn't it state in the second sentence, "The new

   6    totals allow for 50 to 100 stock copies after dispatch and

   7    takes into account quantities for tract journals."  Isn't

   8    that right?  Did I read that correctly?

   9         A.    Yes.

  10         Q.    Doesn't that suggest that in fact the number of

  11    subscriptions that you had for Fundamentals of Cosmic

  12    Physics in 1988 was about 200 copies?

  13         A.    No.  We are talking about a specific issue of

  14    Fundamentals of Cosmic Physics, and the tract sale was

  15    highly variable.  In some cases a single tract would sell

  16    1,000 or 1500 copies.  In some cases it would sell 50 or 100

  17    copies.  This was -- this -- these were made essentially to

  18    give us the base stock that we needed for subscriptions and

  19    then to deal -- except for a few copies -- with the tract

  20    sales when we saw the flow of orders.

  21         Q.    But you would at least print enough copies to

  22    meet your current subscriptions; isn't that right?

  23         A.    Well, here we get to current subscriptions.

  24         Q.    The subscriptions that existed at the time you

  25    were doing the printing of the journal?  If you have orders




                                                                810


   1    for 300 -- if you're printing 300, you must print at least

   2    as many as you need --

   3         A.    Oh, yes.

   4         Q.    Isn't that right?

   5         A.    To the dispatcher.

   6         Q.    You don't agree with the pretrial memorandum, do

   7    you, that says for your physics journals, these journals

   8    have worldwide subscriptions numbering in only the hundreds,

   9    is that correct, isn't it?

  10         A.    That's right.  I absolutely agree.

  11         Q.    Now, Mr. Gordon, there are substantial costs

  12    associated with printing the very first copy --

  13         A.    Yes.

  14         Q.    -- of any of your journals; isn't that right?

  15         A.    Yes.

  16         Q.    Those are the costs of the editorial and the

  17    typesetting and all the things that are involved that you

  18    know much better than I?

  19         A.    Yes.

  20         Q.    Those costs occur if you sell only one copy of a

  21    journal; isn't that right?

  22         A.    That's correct.

  23         Q.    For some of your journals, isn't it in fact the

  24    case that typesetting can be 60 to 80 percent of the total

  25    cost?




                                                                811


   1         A.    Oh, yes.

   2         Q.    If your physics journals have larger circulation,

   3    isn't it in fact the case that you could spread the fixed

   4    costs over more copies?

   5         A.    Absolutely.

   6         Q.    And the fixed costs per copy would be less; isn't

   7    that right?

   8         A.    Yes.

   9         Q.    Now, when you set the price of a journal, you set

  10    the price in order to cover your costs; isn't that right?

  11         A.    Initially when we set the price, we set the price

  12    to cover the expected size of the market for that journal.

  13    And we realized there was going to be a three- to five-year

  14    period before, at minimum, before we achieved that market

  15    size.  And that is the basis of our cost setting policy.

  16         Q.    You hope that within three to five years at least

  17    that you will be selling enough subscriptions at whatever

  18    price you set so that you will at least cover your costs,

  19    right?

  20         A.    So that price times quantity will equal cost,

  21    yes?

  22         Q.    Well, it will equal more than cost, won't it?

  23    Isn't there a profit element involved?

  24         A.    Yes.

  25         Q.    And Gordon & Breach is a for-profit enterprise,




                                                                812


   1    isn't it?

   2         A.    Yes.

   3         Q.    So your subscription prices are meant not only to

   4    cover your costs but to provide a profit to the enterprise?

   5         A.    Yes.

   6         Q.    What is the margin of profit that Gordon & Breach

   7    seeks after three to five years for its physics journals?

   8               MR. LUPERT:  Objection, your Honor.  This is

   9    proprietary information which the Court has already ruled is

  10    irrelevant.

  11               MR. MESERVE:  Your Honor, if I may respond?

  12               THE COURT:  Yes.

  13               MR. MESERVE:  Their brief and their testimony has

  14    been replete with the fact that they set their prices to

  15    cover their costs.  And Mr. Gordon's in testimony yesterday,

  16    he was asked about when journals would become profitable,

  17    and he talked about the profit of the operations.  So this

  18    is something that has been not only introduced by his direct

  19    testimony in this case, but is also something that has been

  20    explicitly raised here.

  21               THE COURT:  What issue in this case is it

  22    relevant to?

  23               MR. MESERVE:  Pardon me?

  24               THE COURT:  What issue in this case is it

  25    relevant to?




                                                                813


   1               MR. MESERVE:  Well, your Honor, much of their

   2    argument has been that, because their prices are set in

   3    order to cover the substantial costs that they incur and

   4    that we should feel sorry for them because of that, I

   5    believe that the evidence that I will be able to elicit is

   6    that scientific publishing is in fact a very, very

   7    profitable enterprise.

   8               We have not been allowed to go into this in

   9    discovery.  I was quite surprised to see in the brief and in

  10    the testimony we have heard so far in this case that the

  11    cost is the justification for the prices that they provide.

  12               I would like to inquire of this witness as to the

  13    profitability of this enterprise.

  14               THE COURT:  What is the relevance of the

  15    quantity?  The witness has just testified to the fact that

  16    it is a for-profit organization and that, in making cost

  17    price -- in setting a price, he considers cost times

  18    quantity -- he wants price times quantity to equal cost plus

  19    price.

  20               MR. MESERVE:  That's right.

  21               THE COURT:  What's the difference if it's 5

  22    percent or 10 percent or 20 percent, what issue in this case

  23    is impacted by that?

  24               MR. MESERVE:  Your Honor, the plaintiffs in this

  25    case have asserted, and perhaps as suggested even by your




                                                                814


   1    Honor in some of your remarks, is that it would be

   2    appropriate for some kind of a representation to be made

   3    that the specialized cost basis of small journals justifies

   4    special considerations.

   5               THE COURT:  I know you were upset by my line of

   6    inquiry, but --

   7               MR. MESERVE:  No, no, your Honor.

   8               THE COURT:  What I was trying to do is to focus

   9    the issues and what the objections are.  Now, one of the

  10    objections is that it is unfair to rank publications based

  11    on their criteria utilized by Barschall, and that

  12    recognition should be given to the fact that there is a

  13    benefit to the scientific community by their being the niche

  14    journals.

  15               All right.  That's one of their claims.  Now, I

  16    just don't see how any of the issues change with respect to

  17    whether their profit margin is 5 percent or 10 percent.  The

  18    defendant isn't saying -- the defendant has an unclean hands

  19    defense, but it isn't predicated on any claim that I'm aware

  20    of that Gordon & Breach has unclean hands because its prices

  21    are exorbitant.

  22               Am I wrong, Mr. Meserve?

  23               MR. MESERVE:  You are quite correct, your Honor.

  24    The unclean hands element of this case is not related to the

  25    possibility that Gordon & Breach has undue profits.  What I




                                                                815


   1    am trying to address is an issue which is heavily

   2    emphasized, that specialized journals should be treated in

   3    some special way in the survey because of the fact that they

   4    have these unusual costs, and they certainly, at least on a

   5    per-unit basis, do have unusual costs.  That may not be the

   6    whole story with regard to Gordon & Breach's journals,

   7    however, your Honor.

   8               THE COURT:  You asked the question whether Gordon

   9    & Breach when it creates a niche journal envisions making a

  10    profit after a startup period and calculates that in the

  11    price.  And the answer is yes.  The answer has been yes.

  12               MR. MESERVE:  I will move on, your Honor.  I can

  13    get at this indirectly in a way that I think that Mr. Gordon

  14    will be comfortable with.

  15    BY MR. MESERVE:

  16         Q.    Mr. Gordon, you could make a profit on your

  17    scientific journals if you have sales of only 50 copies;

  18    isn't that right?

  19         A.    If we feel the market is going to be 50 copies --

  20    if we feel the market is only going to be 50 copies, we

  21    price and produce the journal so that it could be done on a

  22    lower cost basis in the manner of typesetting, for example,

  23    or whether we ask authors to submit camera copy, etc., etc.,

  24    or in some cases --

  25               THE COURT:  So they can be copied, right?




                                                                816


   1               THE WITNESS:  Yes.  But it's the same --

   2               THE COURT:  You do not --

   3               THE WITNESS:  -- calculation, yes.

   4               THE COURT:  You do not engage in any publication

   5    unless there is an anticipation of, at some reasonably

   6    foreseeable time, it being profitable?

   7               THE WITNESS:  There are publications which we do

   8    engage in which we don't see to be profitable but we feel

   9    the long-term spinoff effects may be profitable, for

  10    example.

  11               MR. LUPERT:  Judge, would it help if we just

  12    stipulated that Gordon & Breach is a for-profit entity and

  13    wants to make money on every journal, ultimately?

  14               THE WITNESS:  In some way, yes.

  15               MR. LUPERT:  There is no dispute on that point.

  16               MR. MESERVE:  I think Mr. Gordon had said they

  17    found a way to operate in which they could make a profit if

  18    they only sell 50 copies of their journals.

  19               THE WITNESS:  We feel that's our job as a

  20    publisher not to say we can only do this 20,000 copies or we

  21    can't do it.  Our job is to determine the market and see how

  22    it can be reached.

  23         Q.    You agree, don't you, as well, with the pretrial

  24    memorandum that was filed by your counsel, that, "Basic

  25    principles of economics dictate that the journals directed




                                                                817


   1    at a smaller audience will be more expensive on a

   2    per-subscription basis."  You agree with that, don't you?

   3         A.    Oh, yes.

   4         Q.    Now, most of the subscribers to your journals are

   5    libraries, isn't that right?

   6         A.    Many journals, yes.  Not all.

   7         Q.    I'm talking about your physics journals.

   8         A.    Not all.  Physics journals, yes.

   9         Q.    And you're not sure --

  10         A.    No --

  11         Q.    -- whether you have more copies sold to academic

  12    libraries or to industrial libraries with regard to your

  13    physics journals, are you?

  14         A.    It depends upon the subject, and it is not

  15    something we review.

  16         Q.    So you don't know?

  17         A.    We tend to review the gross income when we're

  18    assessing the validity of the journal.

  19         Q.    But the question I asked was -- the question is

  20    the allocation of subscriptions between industrial or

  21    corporate libraries and academic libraries, and you don't

  22    know how that split works for physics journals; isn't that

  23    right?

  24         A.    It depends upon the subject area.

  25         Q.    Well, for the physics journals that were covered




                                                                818


   1    by the Barschall survey, do you know what the allocation is

   2    between --

   3         A.    No, I don't --

   4         Q.    -- academic and corporate?

   5         A.    I don't know the allocations of other journals at

   6    this time, no.

   7         Q.    Well, we have heard testimony in this case about

   8    the Ferroelectrics journal, and I'm going to hand you a copy

   9    of one issue of Volume 75.  I will hand you No. 3, which is

  10    Defendants' Exhibit VVVVV, five V's.  And if you will look

  11    inside, this is, as you will see, Mr. Gordon, is a volume

  12    from 1975?

  13         A.    It's an issue, yes.

  14         Q.    It's one issue?

  15         A.    Yes.

  16         Q.    Excuse me.  It's one issue from Volume 75.  I

  17    would ask you to look on the inside page, the inside cover.

  18    It states, does it not, "The corporate subscription rate per

  19    volume is $472, including air mail postage; individual

  20    subscription rate, $145, including air mail postage; and the

  21    university and academic library subscription rate per volume

  22    is $290, including air mail postage."

  23         A.    That's right.

  24         Q.    Did I read that correctly?

  25         A.    Yes.




                                                                819


   1         Q.    So you charge significantly more for corporate

   2    subscriptions than you do for academic subscriptions, right?

   3         A.    Yes.

   4         Q.    And the Barschall survey covered your prices for

   5    academic libraries; isn't that right?

   6         A.    Yes.

   7         Q.    Now, the volume I have handed you, you said, is

   8    one issue, and in the case of Ferroelectrics and for your

   9    other physics journals, you aimed to have an issue that is

  10    about 350 pages --

  11         A.    No.

  12         Q.    A volume, excuse me.

  13         A.    A volume, a volume.

  14         Q.    And this issue is about 80 pages?

  15         A.    Between 50 and -- obviously, if it goes to 450,

  16    that's fine too.

  17         Q.    But you're hitting a volume as around 350 --

  18         A.    Yes.

  19         Q.    And one issue is about a fourth of the volume?

  20         A.    Yes.

  21         Q.    And this is typical, is that the pamphlet I

  22    handed you is about 80 or so pages long?

  23         A.    That's right.

  24         Q.    $75, one fourth of a subscription price for an

  25    academic library?




                                                                820


   1         A.    But if you notice the last page of this issue 3,

   2    not counting the author index now, is page 404, and that

   3    would be the number of pages already published in this

   4    volume, so the two previous issues would have contained a

   5    greater number than the average.

   6         Q.    I understand.  But if it's four issues -- I'm

   7    trying to get the point not so much the number of pages, but

   8    if it's four issues, it's about the fourth of a subscription

   9    price per issue?

  10         A.    Yes.  Well, in this case, for example, the total

  11    number of pages published for this volume -- do you have the

  12    next issue?

  13         Q.    No. 4, 490 for this one.

  14         A.    490 for this volume, not 350.

  15         Q.    But you aim in general to hit about 350, and you

  16    go plus and minus for that; isn't that right?

  17         A.    We aim within 100 pages.  It's just a target --

  18         Q.    I understand.

  19         A.    The target is about 400, 380, something like

  20    that, because --

  21         Q.    Now, you understand as well, don't you, that

  22    there is a gap, a gap that has widened over time, between

  23    what the libraries would like to be able to purchase and the

  24    funds that they have available for purchasing, right?

  25         A.    You're talking about U.S. libraries?




                                                                821


   1         Q.    U.S. libraries.

   2         A.    Yes.

   3         Q.    And the libraries are very worried about that,

   4    and appropriately so, right?

   5         A.    Yes.

   6         Q.    And the prices of journals have gone up over

   7    time, isn't that right?

   8         A.    Yes, but that's partly due to the method of

   9    distribution has changed.

  10         Q.    It could be.  And many journals are now

  11    publishing more pages than they published in the past?

  12         A.    Yes.

  13         Q.    And the number of new journals has increased?  In

  14    fact, Gordon & Breach has, I think you testified, something

  15    on the order of 20 to 40 journals per year in all fields?

  16         A.    Yes.

  17         Q.    And the libraries you hope at least would like to

  18    acquire some of those journals?

  19         A.    Yes.

  20         Q.    And the libraries don't have the funds to do it,

  21    do they, in all cases?

  22         A.    Obviously they never had in all cases.

  23         Q.    You agree, don't you, that the library crisis,

  24    which I will call this gap, is a legitimate problem to

  25    discuss and analyze; isn't that right?




                                                                822


   1         A.    The problem is a difficult problem to discuss,

   2    but, yes.

   3         Q.    And you agree as well, don't you, that it is not

   4    improper for a library to consider the price of a journal,

   5    among other factors, in making decisions as to what to

   6    purchase?

   7         A.    Among other factors?

   8         Q.    Among other factors?

   9         A.    Obviously.

  10         Q.    In fact, it's necessary for a librarian to

  11    consider price, right?

  12         A.    Yes.

  13         Q.    Now, you have testified about the flow system.

  14    As I understand it, you testified that basically you publish

  15    the papers when they are ready, and that can mean that you

  16    publish more volumes than you anticipate in a year and

  17    sometimes fewer volumes?

  18         A.    Yes.

  19         Q.    Isn't that right?  You set your prices on a

  20    volume basis.

  21         A.    Not in all cases.  In some cases --

  22         Q.    But in the case of the physics journals, you set

  23    the prices per volume?

  24         A.    In some cases we set it on a 12-monthly-issue

  25    basis, but --




                                                                823


   1         Q.    In 1988?

   2         A.    The physics journals is set on a volume basis.

   3               MR. LUPERT:  Mr. Meserve, I think you just have

   4    to give him a chance to answer some questions.

   5               MR. MESERVE:  I apologize, Mr. Gordon, if I'm

   6    stepping on you.

   7         Q.    In some years you publish more volumes, other

   8    years you publish fewer volumes; it just depends on the

   9    material that's available; isn't that right?

  10         A.    Yes, and in some years we publish the respective

  11    number of volumes, but they contain more pages or less pages

  12    than our average.

  13         Q.    You don't tell the consumer, meaning the

  14    purchaser, what the estimated number of pages per volume is,

  15    do you?

  16         A.    No.

  17         Q.    If you have a lot more material than you

  18    expected, you close up one volume and you start a new

  19    volume; isn't that right?

  20         A.    Sometimes.  Sometimes we will just increase the

  21    number of pages per volume.

  22         Q.    If you have a lot more material you just --

  23    you've got your 350 page target?

  24         A.    Or 450, whatever.

  25         Q.    And you will start a new volume?




                                                                824


   1               THE COURT:  One at a time.

   2               THE WITNESS:  Yes.

   3         Q.    And when you do that, you charge the librarians

   4    for more volumes, don't you?

   5         A.    First we try to anticipate it in the renewal, by

   6    getting a window on the expected flow from the academic

   7    editor and so -- where the information basically what his

   8    current flow is.  And if he is expecting, for example, a

   9    two-volume special conference issue rather than a one-issue

  10    special conference issue, etc., etc., during the year, and

  11    this is -- we try as much as possible to include this in the

  12    renewal -- the anticipation in the renewal price.  And where

  13    we are -- where we have the adjustments to make are in those

  14    cases where the anticipation has been incorrect, and if we

  15    then suddenly come up with two more volumes than we thought,

  16    we don't hold the material until the next renewal period.

  17    We invoice for another two volumes and publish immediately.

  18         Q.    Well, we have just heard from the librarians.

  19    The librarians have complained about that flow system,

  20    haven't they?

  21         A.    Some have.  We are dealing with the authors.  We

  22    feel it is a service to the authors.

  23         Q.    But you agree, don't you, that it creates

  24    problems for librarians?

  25         A.    For some librarians it creates problems.




                                                                825


   1         Q.    In fact, I think you just testified a moment ago

   2    that for some of your journals, you've gone to an annual

   3    basis for subscriptions, isn't that right?

   4         A.    No, an annual basis for all of the journals,

   5    we've gone to an annual basis of subscription.  All right.

   6    And the basic difference, as I say, is we try and anticipate

   7    the differential that will be coming in the following year.

   8               THE COURT:  Now I'm confused.  Lawyers subscribe

   9    to various publications on an annual basis.  No one knows,

  10    for example, how many opinions the Supreme Court will render

  11    next year, so one subscribes.  Then it's the publisher's

  12    economic risk whether there will be many more than

  13    anticipated or less than anticipated because the annual

  14    subscription rate is fixed.

  15               Now, with Gordon & Breach, when you say you've

  16    gone to an annual basis --

  17               THE WITNESS:  Annual billing basis is what I --

  18               THE COURT:  Annual billing basis.

  19               THE WITNESS:  Yes.

  20               THE COURT:  Does that mean a fixed annual price?

  21               THE WITNESS:  No.  It means that in -- before

  22    Gordon & Breach, other publishers would publish and invoice

  23    each volume throughout the year as it was ready.  For the

  24    beginning of the flow system, when we did it, we didn't use

  25    the calendar-year basis at all.  Whenever the volume was




                                                                826


   1    finished, that's when we did the renewal.  We then decided

   2    it would be a lot easier if we could regularize as much of

   3    this as possible by anticipation, and --

   4               THE COURT:  But just to cut through:  If, in

   5    fact, the number of volumes in a particular year are greater

   6    than anticipated, the librarian pays the additional cost?

   7               THE WITNESS:  That's right.  If they are less

   8    than the volume, than the number anticipated, then he gets a

   9    credit against it, or renews for a smaller number of volumes

  10    in the next year.

  11         Q.    So it catches up on the number of volumes?

  12         A.    Exactly.  And the same is true for the page

  13    differentials there.

  14         Q.    Yesterday -- you know that Barschall included 11

  15    of the Gordon & Breach journals in his survey?

  16         A.    Yes.

  17         Q.    You know that?  You were asked how many physics

  18    journals Gordon & Breach published in 1988 --

  19         A.    Yes.

  20         Q.    And you claimed in your direct testimony

  21    yesterday that you had searched and found it was about 24?

  22         A.    I think -- I -- I was told it was 24.  I'm sorry.

  23         Q.    You testified yesterday that you searched and

  24    found it was 24.

  25         A.    I didn't -- I didn't look for the 24 figure.  I




                                                                827


   1    was told it was about 24.

   2         Q.    Can you list the physics journals that you allege

   3    should have been included?

   4         A.    Not here.  I could.  I could go back.  In fact,

   5    we presented this, I think --

   6         Q.    Yes.  That was to be presented by a witness who

   7    was withdrawn.  I'm asking the question.

   8               MR. LUPERT:  Objection to the characterization.

   9               THE WITNESS:  No, we presented this --

  10               MR. LUPERT:  Mr. Meserve hasn't any idea about

  11    any of this.  He is testifying.

  12               THE WITNESS:  We presented this --

  13               MR. LUPERT:  Mr. Gordon.  Please, excuse me.  I

  14    object to the characterization.

  15               THE COURT:  It is a quarter to 4.  We are not

  16    going to be finished by 4:30.

  17               Do you want the defendants to furnish Monday

  18    morning the list of 13 G&B physics journals not included in

  19    the Barschall survey?

  20               MR. LUPERT:  I would be happy to do that.

  21               MR. MESERVE:  We are trying to determine whether

  22    this is one of these issues that is still in the case or

  23    not, your Honor.

  24               THE COURT:  I see.

  25               MR. LUPERT:  We will be happy to produce it.




                                                                828


   1               MR. MESERVE:  If Mr. Lupert is going to no longer

   2    pursue this issue, then I don't need to pursue the question.

   3               MR. LUPERT:  No, no, it's not that, it's just

   4    that I objected to your characterization that I somehow need

   5    another witness to do this.

   6               THE COURT:  Will you --

   7               MR. LUPERT:  Absolutely.

   8               THE COURT:  Will the witness have those available

   9    here on Monday morning?

  10               MR. LUPERT:  Yes, certainly.

  11               THE COURT:  Very well.

  12    BY MR. MESERVE:

  13         Q.    In discussing the comments journals yesterday,

  14    you testified that the comments journals were more expensive

  15    because the authors are paid?

  16         A.    Yes.

  17         Q.    How much are the authors paid?

  18         A.    The authors were -- the initial arrangement was

  19    that they were paid the equivalent of a half a day's

  20    consulting fee, which at that time was $125.  Now, remember,

  21    they were also asked to write short articles, four to six

  22    pages.  Subsequently, with inflation and time, that was

  23    raised to -- and demand -- that was raised to $175.  But the

  24    reason that payment was inserted was that the idea was --

  25    which we were asking for -- was an overview as you would ask




                                                                829


   1    a consultant on a research area.

   2         Q.    In 1988 the price was $125 for --

   3         A.    In 1988 it was -- it may be at $175.

   4         Q.    The author was paid $175?

   5         A.    $175 per article.

   6         Q.    And in a typical volume of a comments journal, do

   7    you have any idea how many authors would typically appear?

   8         A.    I would have to go back and check.  I have no

   9    rec --

  10         Q.    Do you have any idea, an order of magnitude

  11    estimate?

  12         A.    Not any longer, no.  This is a very old journal.

  13         Q.    You testified yesterday, as well, that your

  14    comments journals provide a -- I think you used the words "a

  15    general overview of the field;" is that right?

  16         A.    That's what they're set up to provide, yes.

  17         Q.    Let's take an example.  "Comments on condensed

  18    matter physics," which is one of the ones that was included

  19    in the Barschall survey.

  20         A.    Yes.

  21         Q.    You agree, do you not, that, in the way you have

  22    used the terms, that condensed matter physics is not a

  23    specialized area, that's a broad area, isn't it?

  24         A.    In those terms, yes.

  25         Q.    In fact, Physical Review B, the subject area of




                                                                830


   1    Physical Review B, is condensed matter physics?

   2         A.    Yes.

   3         Q.    So your comments journals aren't limited to

   4    highly specialized areas at all, are they?

   5         A.    No.  They are listed -- they are not limited to

   6    highly specialized -- it's exactly that they're limited --

   7    they're not limited to highly specialized areas.  What they

   8    do is deal with research in subsections, but generally

   9    what's going on in condensed matter physics.

  10         Q.    Let me make sure I understand your argument.  On

  11    the one hand, some of your journals are so specialized that

  12    they shouldn't be included in the survey, and on the other

  13    hand some of your other journals are so general that they

  14    shouldn't be included?

  15         A.    No, that's not my argument.

  16               MR. LUPERT:  Objection, Judge --

  17         A.    My argument was that these were not research

  18    papers.  These were overviews.  And therefore they were not

  19    comparable to anything else in the survey.

  20         Q.    I see.  The general theme is that your journals

  21    are just different from everybody else's.

  22         A.    Those six that were included were completely

  23    different.  Those six were not research publications.  And

  24    this was comparing, especially with citation, research

  25    publications with non-research publications.




                                                                831


   1         Q.    So your testimony --

   2         A.    That focus.

   3         Q.    -- is that some of your journals are so

   4    specialized and they are therefore different and some of

   5    your other journals, your comments journals, are just

   6    different because they are not research papers; is that

   7    right?

   8         A.    And some are different for other reasons.  There

   9    are many -- many --

  10         Q.    But they are all different?

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

  12    question.

  13         Q.    Right?

  14         A.    They are not all different, no.

  15               MR. LUPERT:  I think --

  16               THE COURT:  Yes.  There is no need for argument.

  17               MR. MESERVE:  I'm sorry, your Honor.

  18         Q.    Yesterday you testified about the incident

  19    involving a librarian in Belgium by the name of Simone

  20    Jerome.

  21         A.    Yes.

  22         Q.    Do you remember that?  I'm going to hand you

  23    cluster of exhibits.  These are Plaintiffs' Exhibits 640,

  24    641, and 643.

  25               Your testimony yesterday is that you got upset




                                                                832


   1    when you saw an Internet posting, which is Plaintiffs'

   2    Exhibit 640, and you testified that after that you dropped

   3    the matter.

   4               MR. LUPERT:  I don't believe --

   5         A.    No, no, that was not my testimony.

   6               MR. LUPERT:  Judge, I hesitate to object so

   7    frequently, but that is hardly what his testimony was.  I

   8    mean, there's a long -- he said he delegated the

   9    responsibility to someone else in his organization and then

  10    ultimately this matter was dropped, but it was after some

  11    correspondence between the parties and a whole host of other

  12    things.

  13               THE COURT:  Objection sustained.

  14               MR. LUPERT:  Thank you.

  15    BY MR. MESERVE:

  16         Q.    Mr. Gordon, in fact, after the posting by the

  17    librarian of Exhibit 640 on the Internet on November 28, in

  18    fact, isn't it the case on November 29, the very next day, a

  19    law firm by the name of Ashurst Morris & Crisp sent a letter

  20    to the rector of the university at which the librarian was

  21    employed?

  22               That's Exhibit 641.

  23         A.    Yes.  I see the exhibit, but I had nothing to do

  24    with this or any part of this, as I've testified, and the --

  25    my guess is that this was not -- this is not the first




                                                                833


   1    letter in the series.

   2               MR. LUPERT:  I object to that.  I'm going to move

   3    to -- I hate to move to strike my own witness's testimony,

   4    but he --

   5               THE COURT:  Your move to strike -- your

   6    attorney --

   7               You did not individually authorize the sending of

   8    the --

   9               THE WITNESS:  No, no.

  10               THE COURT:  -- that --

  11               THE WITNESS:  No, I had no --

  12               THE COURT:  Now, tell me, your organization, how

  13    is it structured?  Who runs the show?

  14               THE WITNESS:  My firm.  I in this run the show

  15    because I'm overall director.  But we have obviously local

  16    administrators and local editors and workers all over the

  17    world.  I operate from a relatively small office in

  18    Switzerland.

  19               THE COURT:  Let's take this letter.

  20               THE WITNESS:  May I answer --

  21               THE COURT:  Well, no.  Who would have the

  22    authority to authorize the sending of this letter?

  23               THE WITNESS:  I passed the authority to the

  24    director of one of our British operations, Mr. Roger Green,

  25    who is in the court today, to handle the matter.




                                                                834


   1               THE COURT:  This particular matter?

   2               THE WITNESS:  Not this particular letter.  This

   3    whole matter came up --

   4               THE COURT:  Define "matter."

   5               THE WITNESS:  Well, that's why I want to get into

   6    this first letter, which in some way comes back to your

   7    question, as I read it now.

   8               MR. MESERVE:  In some way?

   9               THE COURT:  There are certain prerogatives that

  10    the Judge has and I'm exercising them.

  11               THE WITNESS:  That's all right.

  12               THE COURT:  What is the matter that you directed

  13    Mr. Green to handle?

  14               THE WITNESS:  A prior publication by this Simone

  15    Jerome, over the Web, I believe, not this one.

  16    BY MR. MESERVE:

  17         Q.    Mr. Gordon, I will represent to you that there

  18    was no prior -- we asked for this kind of material in

  19    discovery, and this particular exhibit was produced to us in

  20    discovery by the plaintiffs, and there was no prior posting

  21    by this librarian that was produced to us.

  22         A.    It seems --

  23         Q.    This was a response to a prior --

  24         A.    This is the response to something.  It says, "The

  25    spokesman of Gordon & Breach gives us a long explanation of




                                                                835


   1    their publishing policy, but he did not explain why the

   2    policy" -- that sounds like a response to a prior letter, or

   3    a prior posting.  That's why I noticed it now.

   4               THE COURT:  Let me ask you this.  If you have a

   5    trademark, Polo, you will have a group or an individual who

   6    polices the mark, you will give instructions to persons or

   7    organizations to say, be on the alert for any infringement

   8    on the mark, and if there is any infringement on the mark

   9    take whatever is necessary to stop it, to enforce our

  10    rights, because unless we do we'll lose the mark.  OK?

  11               Now, does Gordon & Breach have any policy or

  12    direction with respect to comments made with respect to

  13    Gordon & Breach in the press?  Is there some service or

  14    some --

  15               THE WITNESS:  No, there is not.

  16               THE COURT:  Is there somebody in your

  17    organization who has responsibilities with respect to this

  18    type of matter?

  19               THE WITNESS:  No.  Most of the items -- this was

  20    an exception because it was over the Web and it was seen by

  21    Mr. Green in the organization.  But most of the matters

  22    which come up come up through the outside academic editors,

  23    who phone us and say this has been done.  Even the Barschall

  24    survey we did not, or I did not, find out about directly.

  25    It was only after we had the complaints from the academic




                                                                836


   1    editors about it that we became involved at all.

   2         Q.    Mr. Gordon, you do not dispute, do you, that

   3    Plaintiffs' Exhibit 641 --

   4         A.    Yes.

   5         Q.    -- is in fact a letter that was sent to the

   6    rector of the University of Liege?

   7         A.    I am just -- I -- I take your word for it, yes.

   8         Q.    This was produced to us by your counsel?

   9         A.    Yes.

  10         Q.    You do not dispute, do you, that Plaintiffs'

  11    Exhibit 43 was a subsequent letter to that rector?

  12         A.    Yes.

  13         Q.    Both of those letters are seeking a retraction?

  14         A.    Yes.

  15         Q.    The second letter includes, as an attachment, a

  16    letter from Mr. Lupert, does it not?

  17               MR. LUPERT:  Judge, I really object to, not just

  18    the use of my name, but the fact that this witness has no

  19    knowledge of it and these documents, they haven't taken the

  20    deposition of any relevant witness about it, and they are

  21    just trying to prove something through a witness who has

  22    been candid about his involvement in all those other

  23    incidents and it just happens this is one of the few -- he

  24    had nothing to do with it.  It took place in England where

  25    Mr. Green was and you've just got the wrong witness up there




                                                                837


   1    for this one.

   2               THE COURT:  Overruled.

   3         Q.    Attached to Exhibit 643 there is a letter from

   4    Mr. Lupert, is there not?  It's that double-spaced --

   5         A.    Yes.

   6         Q.    -- document dated February 12?

   7         A.    Seems to be signed by him.

   8         Q.    Mr. Lupert says on the top of the second page in

   9    the first full paragraph, the one that begins "moreover," it

  10    has to do with a requested retraction:  "Moreover, should

  11    the statement Ms. Jerome now proposes be issued, she and the

  12    university that employs her may well become enmeshed in

  13    various litigations in Europe and the United States that

  14    deal with the issue of the appropriate way to compare the

  15    costs of scientific journals."

  16         A.    I'm sorry.  I --

  17         Q.    It's on page 2 of Mr. Lupert's letter.

  18               THE COURT:  Third paragraph.

  19         A.    Oh, the very top, yes.  Yes.

  20         Q.    Do you understand that this librarian in Belgium

  21    was threatened to become enmeshed in the litigations not

  22    only in Europe but in the United States?

  23         A.    I --

  24         Q.    You don't know.

  25         A.    I have no comment on why it was written that way.




                                                                838


   1         Q.    Well, you don't dispute that this --

   2         A.    I have no -- no, I assume if we said it was sent

   3    out it was sent out.

   4               THE COURT:  But even though it was not sent with

   5    your -- you were not intimately involved in this, what was

   6    done and said here was consistent with your policy and your

   7    practice?

   8               THE WITNESS:  No.  Our practice, your Honor, was

   9    to, when people made false statements -- and this was one of

  10    the worst because it attacks the people who publish in the

  11    journal saying we publish only bad material.  But to attack

  12    the -- to make an error, we ask for -- we show the facts and

  13    ask for a correction.

  14               THE COURT:  The error was what?

  15               THE WITNESS:  The first -- apparently the first

  16    letter was the first error, with wasn't -- which isn't here.

  17    This was the second -- or the first posting.  The error was

  18    the slur and attack on the -- and we felt --

  19               THE COURT:  Slur and attack -- finish your

  20    sentence.

  21               THE WITNESS:  On our authors, saying, in effect,

  22    only people -- their offer to shelter for authors who have

  23    not found their way to more selective journals.

  24               THE COURT:  That's a criticism.

  25               THE WITNESS:  But that is attacking their




                                                                839


   1    integrity as authors.

   2               THE COURT:  That is saying that the authors who

   3    appear in your publications are authors who have not been

   4    able to be published in other journals.  That's --

   5               THE WITNESS:  That's how -- no, it's because they

   6    have very poor SCI factors.

   7               THE COURT:  Your policy is that that type of

   8    criticism directed to a Gordon & Breach publication --

   9               THE WITNESS:  To publication in general --

  10               THE COURT:  It makes as an appropriate response a

  11    letter which says that unless the library and the university

  12    take certain actions they will be enmeshed in various

  13    litigations in Europe and the United States?

  14               THE WITNESS:  That was not the first response.

  15               THE COURT:  Did you hear my question?

  16               THE WITNESS:  Yes.  No, I'm saying, that was not

  17    the first response.  That was an ultimate response.  But

  18    that was -- that was the response that was worked on by the

  19    people.  Is it appropriate?

  20               THE COURT:  I'm just trying to find the

  21    criterion.  What you're saying here is that what was most

  22    offensive was the disparagement of your authors.

  23               THE WITNESS:  Authors and the publications, yes.

  24    And we felt because it was talking about SCI, blah, blah,

  25    blah, and there -- might be a, you know, some tie with the




                                                                840


   1    existing -- with the survey that had been published, etc.

   2    BY MR. MESERVE:

   3         Q.    You thought an author, a librarian in Belgium,

   4    enjoyed some association with the defendants?

   5         A.    No, no, no, I'm not making that statement.  With

   6    the publication of the defendants, that this information

   7    that she refers to about SCI factor came from the --

   8         Q.    You understand SCI is a reference to the Science

   9    Citation Index?

  10         A.    Yes.

  11         Q.    The Science Citation Index is in every library,

  12    isn't it?

  13         A.    Yes, but they are talking about the juxtaposition

  14    of the price and the SCI.  That was the key.

  15               THE COURT:  SERIALIST refers to?

  16               MR. MESERVE:  It's the name of, I guess, of what

  17    they call a bulletin board on the Internet, and it's a place

  18    where people can make comment, and evidently this librarian

  19    had the misfortune of making a comment about Gordon &

  20    Breach.

  21               THE WITNESS:  Which in the first instance we just

  22    responded to.

  23         Q.    By threatening?

  24         A.    No.  The first instance was a response which this

  25    one is a response to.




                                                                841


   1         Q.    Well, Exhibit 641, which was sent --

   2         A.    Exhibit 640 is not the first -- is not the first

   3    posting, is what I'm saying.

   4         Q.    Well --

   5         A.    It may be the first posting that we have, but I

   6    think, as I read it, as I said, it appeared to be a response

   7    to our response to the first posting.

   8               MR. MESERVE:  Your Honor, we had in fact proposed

   9    to enter -- proposed as an exhibit in this case the prior

  10    postings in this case.  And I'll provide them.

  11               MR. LUPERT:  What is the exhibit number on it?

  12               MR. MESERVE:  It's Exhibit No. UUUUU, five U's.

  13               Your Honor, this is the full sequence.

  14               THE WITNESS:  OK.  Why didn't we start with that

  15    at the beginning?

  16               MR. MESERVE:  Because your counsel had opposed

  17    the first two items as exhibits.

  18    BY MR. MESERVE:

  19         Q.    If you will look at Exhibit UUUU, which I have

  20    just handed you, Mr. Gordon, that is, is it not, a note on

  21    Mr. Schneider's letterhead?  Mr. Schneider is a person who

  22    is employed in the Gordon & Breach enterprise, right?

  23         A.    That's right.

  24         Q.    It includes two messages, does it not, one by a

  25    Donna Lively, and one from an L. Hunter Kevil; is that




                                                                842


   1    right?

   2         A.    Yes.

   3         Q.    And then if you will turn to the second page,

   4    which is the second exhibit, that is a Gordon & Breach

   5    response, is it not, having to do with a response to the

   6    prior postings?  The prior postings were not by Simone

   7    Jerome?

   8         A.    I don't know.  I think -- from what I understood,

   9    all the postings were by -- I had no direct knowledge of

  10    this.  So I'm saying all of -- as far as I understood, the

  11    postings were by Simone Jerome.

  12         Q.    So far as the --

  13         A.    That was my understanding.  That's all.

  14         Q.    Now you understand that the very first posting by

  15    Simone Jerome was the posting that I handed you as

  16    Plaintiffs' Exhibit 640, which is page 4 of Exhibit UUUUU,

  17    right?

  18         A.    I'm not sure that that was the first -- I'm still

  19    not sure that that was the first posting.

  20         Q.    Well, I could represent to you, Mr. Gordon, that

  21    this is the first document by Simone Jerome that we were

  22    provided in discovery in this case.

  23         A.    Well, I'm sure that may be true, but what -- the

  24    reason is, there is no way a posting of the 28th of November

  25    would be followed by a legal letter on the 29th -- of this




                                                                843


   1    magnitude -- on the 29th of November.

   2         Q.    Well, if you'll look on the second paragraph of

   3    Plaintiffs' Exhibit 641, which is the letter from Ashurst

   4    Morris & Crisp?

   5         A.    I'm sorry.  This is 641, I'm sorry.

   6         Q.    641?

   7         A.    Yes.

   8         Q.    If you will look in the second paragraph of that

   9    letter, it makes a reference to only one posting, isn't that

  10    right?  A posting on November 28, the very day before, isn't

  11    that right?

  12         A.    Yes.  But the first letter would not have gone

  13    out in response to that.  It's impossible.  When this matter

  14    came to my attention, it came to my attention through a

  15    telephone call from Mr. Green, and this was days after it

  16    happened.  So it would not have been in reference -- there

  17    does appear to be something missing from this.  It is not

  18    possible for one day to take place.

  19               THE COURT:  No, it is possible.  That was my

  20    question to you.  The first thing that appears on this, I

  21    guess, Internet or whatever it is, is on November 21.  There

  22    were two publications.

  23               THE WITNESS:  That's right.

  24               THE COURT:  And then there is a response in the

  25    same medium, right, Rita Church?




                                                                844


   1               THE WITNESS:  That's right.

   2               THE COURT:  Then this librarian sends what is --

   3               THE WITNESS:  A response.

   4               THE COURT:  -- an exhibit -- no, not a -- she

   5    makes another comment -- on November 28.  It is Exhibit 640.

   6    And the very next day, there is a lawyer's letter.

   7               THE WITNESS:  To her.

   8               THE COURT:  To her employer.

   9               THE WITNESS:  To her employer, yes.

  10               THE COURT:  Now, the way that could happen, and

  11    that's why I'm asking, is whether there is a prearranged

  12    mechanism or policy, such as the trademark copies have or --

  13               THE WITNESS:  No, my point, your Honor, is that

  14    there was no prearranged policy, and that's why it took

  15    contact.  It even took, you know, the authorization -- this

  16    is not something that's normally part of Mr. Green's job,

  17    but because he had proximity to it and everything else, and

  18    even to contact the lawyer --

  19               THE COURT:  So you don't -- so you have no

  20    explanation for why something is on the Internet on the 28th

  21    and on the 29th there is a lawyer's letter making specific

  22    reference to the communication on the 28th?

  23               THE WITNESS:  I have no explanation, unless there

  24    was a previous -- the lawyer's letter was originally planned

  25    for a previous or a different, you know, or there was --




                                                                845


   1    I --

   2               THE COURT:  If you look at the second page, it is

   3    all with reference to Ms. Simone Jerome.

   4               THE WITNESS:  There appears to be something prior

   5    to that missing, which was a prior posting of Ms. Jerome.  I

   6    don't see how -- I could ask Mr. Green -- but I don't see

   7    how this could have been -- this could have been done in

   8    that time.  That's the part that -- it's not the nature of

   9    the response or anything else.  It just seems impossible

  10    that this is the full sequence of events.

  11               THE COURT:  All right.

  12    BY MR. MESERVE:

  13         Q.    I would like to turn to another element of your

  14    testimony yesterday.  You were asked by counsel about a

  15    letter that you had sent to the American Physical Society

  16    and Professor Barschall on January 6, 1987.  That was

  17    Plaintiffs' Exhibit 21?

  18         A.    Yes, sir.

  19         Q.    Do you have it there?  It may have disappeared?

  20               THE COURT:  21?

  21               MR. MESERVE:  It was one of the exhibits used

  22    by -- I have a copy.  It's not there.

  23               THE WITNESS:  No.

  24               MR. MESERVE:  Your Honor, I have an additional

  25    copy.




                                                                846


   1         A.    Yes.

   2         Q.    You testified yesterday that, in this letter,

   3    that you had effectively put Barschall and the American

   4    Physical Society on notice of your grievances with the

   5    survey methodology.  I would like to ask you a few questions

   6    about this letter.  You understand, don't you, that Physics

   7    Today is a publication of the American Institute of Physics

   8    and not of the American Physical Society?

   9         A.    Yes.  I -- I -- I --

  10         Q.    You now understand it.

  11         A.    I understand it many times and I get it confused

  12    many times.

  13         Q.    Sure.  I think that sometimes the members of the

  14    APS get confused about that.  But you have no reason to

  15    dispute that the American Physical Society doesn't serve as

  16    a mail drop for the American Institute of Physics, does it?

  17         A.    It does, in our --

  18         Q.    How do you know that?

  19         A.    In our experience.

  20               OK.  After our talk at the deposition, I did

  21    verify with my office that this kind of error was made often

  22    in our office with the address and which society it was, and

  23    for ads, for example, which we advertised in, which we took

  24    in Physics Today, the ads, the mailing -- the checks were

  25    mailed the same way, and none of them were marked not




                                                                847


   1    received nor came back.

   2         Q.    So your testimony is that in other instances

   3    you --

   4         A.    With the same confusion.

   5         Q.    You had transmitted mail to the American --

   6    intended to have mail go to the American Institute of

   7    Physics and you sent it to the American Physical Society?

   8         A.    That's right.

   9         Q.    And it was ultimately received by the American

  10    Institute of Physics?

  11         A.    The checks we're sure of.

  12         Q.    The checks because they cleared?

  13         A.    Because they cleared, yes.

  14         Q.    You understand, don't you, that American Physical

  15    Society and the American Institute of Physics, although

  16    related entities, had different offices in the same

  17    building?

  18         A.    Yes.

  19         Q.    Do you know that they have different mail rooms?

  20         A.    You explained that to me.

  21         Q.    You have no reason to dispute that, do you?

  22               I mean, you have no reason to dispute that they

  23    have different mail rooms as well; isn't that right?

  24         A.    I would have no way --

  25         Q.    This is also addressed to professor Henry




                                                                848


   1    Barschall and apparently was sent to him at the New York

   2    address; is that right?

   3         A.    I believe so.

   4         Q.    You understand now that Professor Barschall in

   5    fact lived at the university where he was a professor, which

   6    is the University of Wisconsin in Madison, right?

   7         A.    Well, this was put care of, and basically we --

   8         Q.    You hope it's forwarded.

   9         A.    No -- we assume it will be forwarded, yes.

  10         Q.    You didn't send this letter with a return

  11    receipt?

  12         A.    No.  It wasn't that kind of letter.

  13         Q.    And you have no reason to dispute the testimony,

  14    do you, of the various APS and AIP officials who were

  15    deposed in this case that this letter was never received in

  16    1987?

  17         A.    Well, the only --

  18         Q.    You have no reason to dispute that, do you?

  19         A.    The only question I have is that this appears to

  20    be the only document where this mixup occurred, where that

  21    happened.  And why it would be limited to two copies of this

  22    and for nothing else is the one thing that -- that surprised

  23    me.

  24         Q.    So you surmised from the fact that other

  25    misaddressed mail got through that perhaps this letter also




                                                                849


   1    got through?

   2         A.    One copy should have gotten through at least.

   3               I'm not surmising.  Obviously I can't come to a

   4    conclusion about it.

   5         Q.    You can't come to a conclusion.

   6         A.    No.

   7               MR. MESERVE:  Your Honor, I am about to turn to

   8    another subject that may take a little while.  I am prepared

   9    to go into it or --

  10               MR. LUPERT:  Actually, it would be very useful --

  11    we have joint plans that might be served, frankly, if we had

  12    a few extra minutes this afternoon.

  13               THE COURT:  We are adjourned until Monday at 10

  14    a.m.

  15               (Adjourned to 10:00 a.m., Monday, June 13, 1997)

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25




                                                                850


   1

   2                        INDEX OF EXAMINATION

   3

   4    Witness                    D      X      RD     RX

   5    WILLIAM HOWARD JACO......666    700

   6    MICHAEL A. KELLER........732    761

   7    MARTIN B. GORDON.........802    802

   8

   9

  10

  11

  12

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

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  25