Main Index: Trial Testimony June 16, 1997
851
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 16, 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
852
1 (Trial resumed)
2 MR. PLOTZ: Your Honor, there is one matter
3 before we resume Mr. Gordon's testimony that we have raised
4 with the other side. We have a very, very brief rebuttal
5 witness who is available only at this time. We have raised
6 with defense counsel putting him on for a very brief period
7 of time. I understand that they don't object to the timing
8 but to the testimony.
9 I just wanted to raise that with your Honor now.
10 THE COURT: I don't understand the concept of a
11 rebuttal witness called during the plaintiffs' direct case.
12 MR. PLOTZ: We have gotten a little procedurally
13 ahead of ourselves, I think, and it relates to a portion of
14 Dr. Jaco's testimony, which was taken out of order.
15 THE COURT: I see.
16 MR. PLOTZ: The witness is a German lawyer who we
17 would call for probably ten minutes of testimony on certain
18 aspects of German procedural law which relate directly to
19 Dr. Jaco's testimony relating to the German lawsuit against
20 the American Mathematical Society.
21 The witness who is here in court now is not
22 available again until after we expect the trial to conclude.
23 So we would like to put that testimony on now.
24 THE COURT: Mr. Meserve?
25 MR. MESERVE: Your Honor, our problem is not
853
1 accommodating witnesses' schedules. I believe Dr. Jaco had
2 testified and he was asked the question, was the
3 maintenance -- the obtaining of an ex parte injunction
4 consistent with German procedure, and his testimony was that
5 he presumed so since they had obtained a German injunction.
6 We had just raised the question of bringing a lawyer on --
7 THE COURT: What is it he is going to rebut?
8 MR. PLOTZ: The testimony essentially would be
9 that the speed required to apply to a German court for this
10 injunction would have required filing it within about ten
11 weeks of learning of the event. Dr. Jaco testified that he
12 was very surprised to learn of the lawsuit because of the
13 discussions that were ongoing.
14 THE COURT: Do you have an objection?
15 MR. MESERVE: No, your Honor.
16 THE COURT: Very well. Without objection.
17 MR. PLOTZ: The plaintiffs call in rebuttal
18 Thomas Verhoeven.
19 THOMAS VERHOEVEN,
20 called as a witness by the plaintiffs,
21 having been duly sworn, testified as follows:
22 DIRECT EXAMINATION
23 BY MR. PLOTZ:
24 Q. How are you employed?
25 A. By phone call on a Friday early afternoon when I
854
1 came back from briefing.
2 Q. Are you a lawyer?
3 A. Yes.
4 Q. Are you German?
5 A. Yes.
6 Q. Do you practice with a law firm?
7 A. Pardon me?
8 Q. Do you practice with a law firm?
9 A. Yes. I am a partner in the law firm of Oppenhoff
10 & Radler, R-a-d-l-e-r.
11 Q. Where is that firm located?
12 A. We have offices in Frankfurt, in Berlin, in
13 Cologne, in Munich, and Leipzig, and several cities outside
14 of Germany, including New York, where I am chairing the
15 office.
16 Q. How long have you been in the New York office?
17 A. Six and a half years now.
18 Q. I take it you have a law degree in Germany?
19 A. Yes. I am admitted to the bar in Cologne.
20 Q. Are you admitted in New York as well?
21 A. I am licensed legal consultant for German law.
22 Q. What is the practice that you conduct?
23 A. 80 percent, it's corporate M and A, merger and
24 acquisition, and finance, and about 20 percent still some
25 litigation. I have still some cases pending now in the
855
1 courts of Munich.
2 Q. Does your firm practice litigation in the courts
3 of Germany?
4 A. Yes. I would make a guess our firm is doing
5 about one-third on litigation.
6 Q. Have you testified either by live testimony or
7 affidavit as an expert on German law in the United States
8 courts before?
9 A. Yes, I did once in the federal court in Nassau,
10 and I have signed several affidavits about German law which
11 have been introduced into cases.
12 Q. Have you been shown the pleadings in a case
13 brought by Gordon & Breach against the American Mathematical
14 Society in Germany?
15 A. What I have seen was a filing for injunction by
16 the Pittener law firm of 1990 and the court order which had
17 granted the injunction, and I have seen also some language
18 of an English translation thereof.
19 Q. By the way, have you had any prior connection to
20 the litigation between Gordon & Breach and the American
21 Mathematical Society?
22 A. No.
23 THE COURT: So have you had no involvement in the
24 obtaining of the order against the American Music Society?
25 THE WITNESS: No. It was handled by another law
856
1 firm in Frankfurt.
2 THE COURT: So you have no information as to who
3 on behalf of Thomas Gordon authorized the filing?
4 THE WITNESS: Authorized what?
5 THE COURT: The commencement of the action in the
6 German court.
7 THE WITNESS: No. I had only seen the motion for
8 that -- which was signed by Mr. Kika, who was one of the
9 partners in unfair advertisement matters in that law firm.
10 Q. Let me just ask generally whether injunctive
11 relief is available in commercial cases in Germany.
12 A. Yes.
13 Q. Specifically, in reference to unfair comparative
14 advertising cases, is injunctive relief available?
15 A. It makes it about -- I would make a guess 90 to
16 95 percent of all our cases.
17 Q. Is there a period of time within which an
18 application for an injunction in an unfair comparative
19 advertising case must be filed in order to have a hope of
20 obtaining relief?
21 A. Well, there is no specific period of time under
22 the law. It is in the discretion of the judge in a charge,
23 but as a rule of thumb, the court will accept a filing for
24 an injunction only if it is established there is some
25 urgency. And specifically if you ask for an ex parte in
857
1 injunction, you have to argue that there is urgency, and
2 usually as a rule of thumb, depending on the court and the
3 judge, you have to do it within between six and ten weeks
4 from learning about the specific incident.
5 Q. The pleadings referred to a statutory presumption
6 of urgency. Could you explain that?
7 A. There is in the unfair advertisement law a
8 presumption that it is urgent. But you can rebut it as
9 defendant.
10 Q. Is that presumption an exception to regular
11 German civil procedure?
12 A. Yes.
13 Q. If an ex parte injunction in an unfair
14 advertising case is obtained by a plaintiff, is the
15 defendant able to take steps to seek to lift that
16 injunction?
17 A. The defendant can file an objection, and usually,
18 again, depending on the workload, the docket of the court,
19 you get between one week and one month a hearing.
20 Q. Is that typically an evidentiary hearing?
21 A. No, it is a hearing about the facts, because the
22 defendant can rebut and can come in with prima facie
23 evidence as well as the plaintiff is doing, and that is
24 usually done by affidavits.
25 Q. Let me just go back one step. When the plaintiff
858
1 files a petition seeking an injunction, what does the
2 plaintiff have to establish for the Court to issue the
3 injunction?
4 A. Well, the facts so that, in these cases as a
5 violation, either Section 1 or Section 3 of the unfair
6 advertisement law, then they have to establish -- still,
7 although there is an assumption of the law, it is usual to
8 establish there is some kind of urgency, specifically if you
9 took some time that you are close to the six weeks, then you
10 are arguing to some extent.
11 THE COURT: "Urgency" refers to the risk of
12 further publication of the offending material?
13 THE WITNESS: No. Urgency is the injunction, and
14 specifically in an ex parte injunction where you do not
15 appear first. Also, the defendant is deemed only to be
16 acceptable if there is urgency for that.
17 THE COURT: I'm trying to find out what "urgency"
18 means.
19 THE WITNESS: It -- one of the reasons, going
20 back to your question, is that, if you file for an ex parte
21 injunction, you want to prevent that something happens.
22 That's exactly what happens with an injunction; here, the
23 publication and the distribution of the publication.
24 THE COURT: If the publication and the
25 distribution has already occurred, I take it urgency would
859
1 refer to the risk of further publication or further
2 distribution?
3 THE WITNESS: Yes.
4 THE COURT: And if there is no basis for
5 injunctive relief, German law would permit suit for --
6 THE WITNESS: Yes.
7 THE COURT: -- money damages?
8 THE WITNESS: Not only for money damages. Still
9 you can go into court and ask for the same, but in the
10 ordinary, then proceedings make take some six months.
11 Because one has to keep in mind, the injunction is only a
12 preliminary decision of the court, which has to be covered
13 by a final one in normal proceedings if the defendants
14 object.
15 Q. Is Germany a fee-shifting country?
16 A. A what?
17 Q. In Germany, does the loser pay fees to the
18 winning side?
19 A. Yes.
20 Q. Could you explain that?
21 A. Well, each party, of course, has first to pay for
22 their own lawyers, and the plaintiff has to make a
23 downpayment for the court fees, and then after the
24 proceedings the court will decide who has to bear the cost
25 of the court fees and of the fees for the plaintiff or the
860
1 defendant respectively, and the principle is loser pays all,
2 so the losing party has to reimburse the plaintiff for the
3 court fees -- downpayment, and for the lawyers' fees.
4 Q. Finally, Dr. Verhoeven, the injunction made
5 reference to the possibility of criminal penalties for its
6 violation. Could you explain that?
7 A. First of all, it is discussed in the legal
8 literature, but the majority of the opinion is saying it is
9 not a criminal penalty. It is a means how to achieve the
10 result that the defendant is doing what he has been ordered
11 to do, because in almost all these matters, the order is
12 going not to do something, and not to do something you can
13 only enforce, not physically, but by a penalty.
14 And this is what happens here and the language in
15 the filing and the motion and the court order is a standard:
16 You are asking for an enforcement if there is a further
17 violation of the court order by money and a penalty, and if
18 this cannot be collected, then theoretically, also
19 imprisonment.
20 Q. Are you aware whether imprisonment is a common
21 remedy for violations of this kind of an injunction?
22 A. I have never seen it in 19 years.
23 Q. Thank you. I have nothing further.
24 CROSS-EXAMINATION
25 BY MR. MESERVE:
861
1 Q. Mr. Verhoeven, I have just a few questions.
2 You indicated in your direct testimony that you
3 spent 80 percent of your time on financial matters and
4 another 20 percent of your time on litigation matters. You
5 are not an expert on unfair competition law, are you?
6 A. I'm not. I have done over the years maybe three
7 our four, and directly, but during my time as associate in
8 Germany, you are doing also some litigation, so I assisted
9 one of the partners who did unfair litigation.
10 Q. In one other litigation?
11 A. Yes.
12 Q. In one other litigation.
13 You indicated that you needed to establish
14 urgency in an ex parte proceeding. Is it in fact the case
15 that, if the proceeding had not been ex parte, if you had
16 informed the other side and they had been represented, that
17 you would not have to establish the urgency?
18 A. Still you have to, because, as I mentioned
19 before, the injunction is only a preliminary decision of the
20 court to secure specific status, and there must be a need
21 for that. So the court could only grant an injunction if
22 you establish that need. And that means also urgency.
23 Q. Well, you are not required, in Germany, are you,
24 to establish a procedure or use a procedure in which the
25 other side isn't represented at the hearing, are you?
862
1 A. Not legally, a requirement.
2 Q. Are you permitted to disclose to the other side
3 that you are seeking an injunction?
4 A. Yes, because it's almost never done.
5 Q. Never done?
6 A. Because what happens normally is, not in all
7 cases but it's in 80 percent of the cases, as a plaintiff
8 you are sending first a letter of demand to the defendant or
9 to the counsel of the defendant where you ask the defendant
10 to give a written undertaking against penalty not to do
11 that, what you are asking for. And only if you don't get
12 it, then you are going to the court and ask for the same
13 injunction.
14 So the other side is usually warned by having
15 received the letter of demand. And then they can even file
16 the so-called protection letter, so the defendant can do the
17 first shot and can put in a defense letter to the court to
18 ask the court not to give an injunction without a prior
19 hearing.
20 Q. Is it customary in Germany to obtain an ex parte
21 injunction while at the same time you are telling the other
22 side that you are interested in seeking an amicable
23 resolution?
24 A. At the same time would be not very usual.
25 Depends on the circumstances.
863
1 Q. Would it be customary to continue discussions
2 about arbitration after you have obtained an injunction and
3 have the injunction in your pocket?
4 A. Yes. Sometimes you are trying even to have the
5 injunction in the pocket before you are starting discussion
6 about a settlement and only if the settlement doesn't work
7 out you serve the injunction.
8 Q. You realize that these procedures are very
9 unusual in the United States, don't you?
10 MR. LUPERT: Objection to the form. There is no
11 foundation for that.
12 THE COURT: Sustained.
13 Q. You have experience with American law in light of
14 your employment here in New York now; isn't that right?
15 A. Some.
16 Q. So you understand, don't you, how these sorts of
17 matters are negotiated in the United States?
18 A. Yes.
19 Q. Are you aware that ex parte proceedings in the
20 United States are very unusual?
21 A. I got one in my six years here, which was an
22 attachment order, which was also granted ex parte.
23 Q. But you understand that they are very unusual
24 here?
25 A. It is also unusual in Germany outside of unfair
864
1 advertisement. So that's the only area where it works that
2 way. I have just pending an application for an ex parte
3 injunction in the courts in Munich, and as it looks like, I
4 will not get it, because it's not unfair advertisement, so
5 we have to go first to a hearing.
6 Q. Can you think of any reason why Gordon & Breach
7 brought its lawsuit against an American scientific society
8 about U.S. prices for journals in Germany?
9 A. If the journal has been published in Germany --
10 in that forum.
11 Q. I understand that you can go to Germany, but can
12 you think of any reason why Germany might be the preferred
13 forum in which to file suit?
14 MR. PLOTZ: Objection.
15 THE COURT: Overruled.
16 A. In the unfair advertisement matters, you get easy
17 an injunction, if you can establish the facts, but similar,
18 easily you get it lifted if the facts were wrong.
19 Q. So you suppose that one of the reasons why they
20 filed it in Germany was to get the benefit of some special
21 procedures under German law?
22 A. Under German unfair advertisement laws, yes.
23 Q. You have heard of the term "forum shopping"?
24 A. Yes.
25 Q. Would the idea of going to Germany to get the
865
1 benefit of special procedures, would you deem that to be
2 forum shopping?
3 A. In unfair advertisement matters, you are doing
4 even forum shopping within Germany, because you are looking
5 for where a court is more easy than other courts in giving
6 ex parte injunctions. So if you go, for example, to Munich,
7 it's very difficult. If you go to Cologne, where I'm coming
8 from, it's very easy.
9 Q. Where was the ex parte injunction sought in this
10 case, if you know?
11 A. In Frankfurt, which I would put in so far, a
12 little bit into the middle.
13 Q. When you filed for an ex parte injunction -- the
14 other side obviously is not represented -- are there
15 obligations to be fully forthcoming to the court about the
16 facts and circumstances of the case?
17 A. Yes.
18 Q. In this case, you saw the pleadings and you saw
19 that there were certain affidavits that were submitted;
20 isn't that right?
21 A. Yes. I glanced through the affidavits.
22 Q. Did you see any reference in those affidavits to
23 the fact that the American Mathematical Society had been
24 provided the prices of the Gordon & Breach journals that had
25 published in this survey?
866
1 A. I didn't look to these details. I focused on the
2 procedural issues here.
3 Q. Let's suppose for the moment that they did not
4 disclose that fact and in fact Gordon & Breach had provided
5 information as to the prices for its journals to the
6 American Mathematical Society. Would the affidavits have
7 been misleading?
8 MR. PLOTZ: I mean, I --
9 Q. They failed --
10 MR. PLOTZ: Sorry.
11 Q. -- to disclose that to the court in seeking an
12 ex parte injunction?
13 A. I have not --
14 MR. PLOTZ: I'm going to object to the question.
15 It mischaracterizes the testimony.
16 THE COURT: Sustained.
17 What is the exhibit number of the affidavit that
18 was filed? Is that an affidavit by Christopher Schneider?
19 MR. MESERVE: Yes, your Honor. I believe it's
20 DDDD or EEEE.
21 THE COURT: Yes. I have it in front of me.
22 What I'm looking for, and perhaps you can help
23 me, I'm looking for a representation as to urgency. Is
24 there an obligation to advise the court of the circumstances
25 with respect to urgency?
867
1 THE WITNESS: As the unfair advertisement law is
2 assuming urgency, you are doing it usually if you are coming
3 close to the six weeks I have mentioned, to avoid that the
4 court is stumbling over that issue.
5 Q. Do you recall anything in the affidavits that
6 were submitted having to do with the urgency of obtaining an
7 ex parte injunction?
8 A. I recall that I have seen the arguments of the
9 lawyer for the plaintiff where he made reference to
10 negotiations about settlement, because that's an argument
11 where you are going through the end of the six weeks or even
12 beyond that period of time.
13 THE COURT: Was there anything other than
14 Mr. Lupert's affidavit and Mr. Schneider's affidavit? Have
15 you seen anything other than those two affidavits?
16 THE WITNESS: I've seen only what was attached to
17 the court order. Usually when you are serving a court order
18 for an injunction, you attach four filing motion with
19 exhibits, and these I have seen.
20 Q. The question, I believe, was, have you --
21 A. I have not read it in detail.
22 Q. Have you seen any affidavits other than the
23 affidavits submitted by Mr. Lupert and Mr. Schneider --
24 MR. MESERVE: Which, your Honor, are Defendants'
25 Exhibits DDDD and CCCC.
868
1 A. If I would have to answer that, I need what I
2 have seen, because I think it were only these two, but I'm
3 not a hundred percent sure if there was anything else plus
4 translations of these affidavits.
5 Q. You think that there were no others?
6 A. I think so, yes.
7 Q. Let's suppose that we have a situation in which
8 the offending distribution has occurred in the past. It's
9 in a magazine that has already been distributed. It's not
10 going to be distributed again because it has already
11 happened. Would that constitute an urgent situation to
12 prevent -- for an ex parte injunction to prevent future
13 distribution?
14 A. No. What the issue at stake is here, but that is
15 also part of the assumption by the unfair advertisement law,
16 it assumes that the defendant will repeat the violation of
17 the law. And this is necessary. You have to normally show
18 evidence in an injunction application that there is a danger
19 that the defendant will either continue the violation of the
20 law or will repeat it. But this is assumed in the unfair
21 advertisement law that this happens.
22 THE COURT: That refers to advertising of the
23 sort of paid insertion in a newspaper or a magazine or
24 anywhere?
25 THE WITNESS: Any kind of publications.
869
1 THE COURT: Any kind of a publication. But the
2 assumption of repetition --
3 THE WITNESS: If I may explain, your Honor, I'm
4 using the term "unfair advertisement law" because this is
5 the main part of the law. A real translation of the law
6 would be unfair competition law, but to my understanding
7 that would be misleading to American ears, because it is not
8 antitrust.
9 That's why I'm using this term "unfair
10 advertisement law." It is broader, because what the law is
11 saying, you should not do with Section 1 what is against
12 good morals, and in business, whatever the business is.
13 THE COURT: Assume that there is a publication
14 which takes place every two years, and assume that the
15 publication has just been distributed, so that in the
16 ordinary course of events the probably is that there is no
17 risk of a republication for a period of two years. Is that
18 a factor which should be brought to the attention of the
19 Court in an application for an ex parte injunction?
20 THE WITNESS: That is in fact more normal. The
21 defendant would come in.
22 THE COURT: No, I'm talking about the obligation
23 of the plaintiff. You said there's an obligation on the
24 part of the plaintiff to be forthright with the court.
25 THE WITNESS: Right.
870
1 THE COURT: Is that a fact of circumstance which
2 should be brought to the attention of the court?
3 THE WITNESS: The main issue is here, if two
4 years is something that you can say there is no risk that
5 the violation of the law will be repeated. Even if it
6 happens in two years, it's a repetition of the violation of
7 the law. If I would have done it, I don't think that I
8 would have brought it to the attention of the court, as long
9 as I know that there is, out in the period of time, risk
10 that it will be done again.
11 Furthermore, besides this, as a plaintiff, you
12 never know if all, hundred percent, of the publications has
13 been sent to the distributor. You never know that as a
14 plaintiff, because there could still be 10 pieces, 15
15 pieces, 100 pieces in the warehouse of the publisher, so you
16 are coming at least with the assumption that not everything
17 has been sent out down to the last piece.
18 BY MR. MESERVE:
19 Q. Should the court have been informed that the
20 prices in the survey for the Gordon & Breach journals had in
21 fact been provided by Gordon & Breach?
22 MR. PLOTZ: Objection.
23 THE COURT: Yes. I think I have already
24 sustained the objection.
25 MR. MESERVE: I'm sorry, your Honor. I didn't
871
1 appreciate that. I didn't mean to re-ask the question.
2 Q. You indicated that, in Germany, there is a
3 fee-shifting principle in which the loser pays.
4 Does the reimbursement that one obtains from the
5 court in fact cover the entirety of the attorneys fees or is
6 it instead a court-set schedule for fees?
7 A. No, what you are getting is, Germany has a
8 stipulatory fee schedule for lawyers fees and for court
9 fees, and all these unfair advertisement matters are done
10 under that, as a matter of fact, simply as practice, are
11 done under the fee schedule, and what you get is what is in
12 the fee schedule. If -- and I've never seen it -- there was
13 an agreement, let's say, between the lawyer of the plaintiff
14 and the plaintiff to be paid hourly and if the fees are
15 higher, the difference you would not get, at least not by
16 direct order by the court. You can still sue as part of
17 your damages for that.
18 Q. But isn't it in fact the case that your right to
19 recover fees on this stipulated fee schedule may in fact be
20 less than the amount of the actual fees?
21 A. I have never seen that.
22 Q. But you do agree that that could happen, don't
23 you?
24 A. It could theoretically happen, yes.
25 MR. MESERVE: I have no further questions, your
872
1 Honor.
2 THE COURT: Any redirect?
3 MR. PLOTZ: No.
4 THE COURT: Thank you.
5 (Witness excused)
6 MARTIN B. GORDON,
7 Recalled, and testified further as follows:
8 CROSS-EXAMINATION (Continued)
9 BY MR. MESERVE:
10 Q. Good morning, Mr. Gordon.
11 A. Good morning.
12 Q. In your testimony, you asserted that five of the
13 11 Gordon & Breach journals that were encompassed by the
14 Barschall survey were highly specialized journals.
15 A. No. That was not my testimony.
16 Q. Pardon me?
17 A. That was not my testimony.
18 Q. I am referring to that you mentioned that there
19 were the comments journals which were broad-overview
20 journals, and you had this Cosmic Physics journal which was
21 related to your handbook activity, and I believe your
22 testimony was that the other five journals were in fact
23 specialized journals?
24 A. The comments journals include five journals
25 alone, just to clarify.
873
1 THE COURT: You know what, maybe the simplest
2 thing would be, there are 11 --
3 THE WITNESS: Journals.
4 THE COURT: -- journals that Barschall included.
5 THE WITNESS: That's right.
6 THE COURT: Why don't we go down the 11 and why
7 don't you characterize each one of them.
8 THE WITNESS: All right. May I have the list --
9 Q. If you will look at Plaintiffs' Exhibit 2, which
10 I know is up there, it's from the Bulletin of the American
11 Physical Society.
12 Perhaps the easiest thing is if you turn to Table
13 3, which is found -- starts on page 1442, but, in fact, for
14 the Gordon & Breach journals we can turn to 1444, because
15 the Gordon & Breach journals are at the bottom of that
16 table.
17 A. I think I saw some -- OK.
18 Q. You will see among the bottom 14 or so journals
19 there are 11 Gordon & Breach journals.
20 A. Beginning where? Crystal Lattice Defects?
21 Q. Crystal lattice defects. Do you view that as a
22 specialized journal?
23 A. Yes.
24 Q. Comments on Molecular Physics, that's a comments
25 journal?
874
1 A. That's a comments journal, right.
2 Q. It's an overview journal?
3 Ferroelectrics is a specialized journal, is it
4 not?
5 A. Yes.
6 Q. Comments on Nuclear and Particle Physics, that's
7 a comments journal?
8 A. Yes.
9 Q. And therefore a general journal?
10 Comments on Astrophysics is a comments journals?
11 A. Yes.
12 Q. Comments on Condensed Matter Physics is one of
13 your comments journals, therefore a general journal?
14 A. Yes. These are non-researching journals.
15 Q. I understand. Plasma Physics is general journal?
16 A. That is a non-research general journal.
17 Q. Meaning it's your overview journal on that
18 subject?
19 A. That's right.
20 Q. Radiation Effects is a specialized journal?
21 A. Radiation Effects on Solids, yes -- I think
22 that's the full title.
23 Q. And Particle Accelerators, that's a --
24 A. Particle Accelerators is also not a research,
25 fundamental research publication journal at all.
875
1 Q. But you agree that is a specialized journal?
2 A. It is not a -- it really fits very closely, more
3 closely with the other six. It does not publish primary
4 research papers.
5 Q. All right. So then the bottom one on the table
6 here is the Physics and Chemistry of Liquids. That's a
7 specialized journal in your view, or is that a more general
8 journal?
9 A. Physics and Chemistry of Liquids is specialized.
10 The nature of the specialization of all of these are
11 different.
12 Q. Well, the Physics and Chemistry of Liquids --
13 A. Yes.
14 Q. -- there are three states of matter, are there
15 not, solids, gases, and liquids?
16 A. That's right.
17 Q. This covers the physics and the chemistry of one
18 of the three states of matter; isn't that what the subject
19 matter is?
20 A. The physical and chemical interaction. It's
21 not -- if I'm writing an article on physics, on physics
22 alone, I would tend to publish it in a physics journal, so
23 my peers could see it and I could get acknowledgement. If
24 it's on chemistry alone it would tend to be in a chemistry
25 journal. If it's on the interaction, it might go to this
876
1 publication.
2 Q. So you would agree that this journal in fact
3 might at least in part be a chemistry journal?
4 A. Yes -- well, yes, it has chemical information.
5 Q. You agree, don't you, that it does cover a fairly
6 broad area, doesn't it?
7 A. Yes. I would say of all the journals that covers
8 more --
9 MR. LUPERT: Could you --
10 A. But that's only my opinion, I'm not -- of all the
11 journals, that covers perhaps the broadest area, but not --
12 this is only my opinion. I'm not that level expert, but not
13 in relationship to physics.
14 Q. Now, you agree, don't you, that other publishers
15 also offer specialized journals, right?
16 A. Oh, yes.
17 Q. And you don't claim, do you, that Gordon &
18 Breach's specialized journals are more specialized than the
19 journals, the specialized journals, offered by other
20 publishers, do you?
21 A. Some are.
22 Q. Some are but some aren't, right?
23 A. Some are unique, yes.
24 Q. And some aren't unique?
25 A. Well, when we get back to the first six titles,
877
1 those are unique, and these are other --
2 Q. We're talking about your specialized journals
3 now?
4 A. You're not talking about the first six, seven
5 titles, actually.
6 Q. I'm not talking about the comments journals.
7 A. And I think I would like to add, Condensed Matter
8 Physics -- I'm sorry, Particle Accelerators for that list.
9 These do not publish research papers at all.
10 Q. They are broader journals. I understand.
11 A. Broader or narrower.
12 Q. Well, you agree, don't you, that the Gordon &
13 Breach journal The Physics and Chemistry of Liquids is
14 broader in its specialization than, for example, Classical
15 and Quantum Gravity, which is another journal?
16 A. I could not comment on that.
17 Q. Well, you would agree that it is broader in its
18 specialization than the Journal of Non-Newtonian Fluids,
19 which is another --
20 A. Please, you're asking me in an area in which I am
21 not an expert. I cannot make that kind of differentiation.
22 Q. You similarly can't tell us that Hyperfine
23 Interactions, which is another journal, is not more
24 specialized than Physics and Chemistry of Liquids?
25 A. I have no idea of the level of research and what
878
1 subdiscipline it would encompass.
2 Q. I would like to turn to another subject now. I
3 am going to hand you an exhibit that has been previously
4 marked as Defendants' Exhibit HHHHH, five H's.
5 This is a document that was entitled "The Cost
6 Effectiveness of Science Journals," and it states
7 immediately under the title, "Advisory Panel for Scientific
8 Publications." Are you familiar with this document?
9 A. Yes.
10 Q. Can we agree that we will call this the FISC
11 report?
12 A. At that time, yes.
13 Q. I would like to have you turn to the text in
14 small print at the bottom of the page. It states, "This
15 report was prepared" -- do you see that text?
16 A. Yes.
17 Q. "For." And it says, "for the Foundation for
18 International Scientific Cooperation in London." That's
19 FISC, right, and then it goes on to say --
20 A. It changes. And the Association for the -- I'm
21 sorry. It's in French. Another association, a French
22 association.
23 Q. Can we agree that we will call the other
24 association AVRIST, A-V-R-I-S-T --
25 A. All right.
879
1 Q. -- for an acronym.
2 There is no mention of Gordon & Breach in that
3 footnote, is there?
4 MR. LUPERT: Your Honor, I'm going to object.
5 You have thrice times ruled in connection with this report
6 that questions of this sort are improper, in line with the
7 Court's First Amendment ruling.
8 THE COURT: On issues of this sort?
9 MR. LUPERT: That go to the issues of the Gordon
10 & Breach involvement and the preparation of his report. The
11 question is going to lead to, why isn't Gordon & Breach
12 mentioned in this. The following questions will be what
13 input Gordon & Breach, if any, had into this. This was the
14 subject of three rulings by this Court, each of which said
15 that these types of questions were inappropriate in line
16 with the Court's First Amendment ruling, that held that the
17 preparation of reports like this was not a proper subject of
18 inquiry.
19 MR. MESERVE: Your Honor, in the context of
20 discovery disputes, you have ruled that we could not engage
21 in discovery that had to do with the editorial process that
22 relates to this report. But you did allow us to undertake
23 discovery as to Gordon & Breach's involvement, more general
24 involvement. I don't intend to ask this witness questions
25 that go into any editorially-related issues.
880
1 MR. LUPERT: Your Honor's ruling is limiting it
2 to the financing and instigating of the article itself.
3 THE COURT: Financing and instigating of an
4 article itself.
5 MR. LUPERT: Yes. That was your ruling.
6 MR. MESERVE: That's what I'm asking.
7 MR. LUPERT: I would ask to the extent that the
8 question would go beyond that, I would object. And that
9 first seemed to me to be going beyond it.
10 THE COURT: Is this document in evidence?
11 MR. LUPERT: We objected to it.
12 MR. MESERVE: They objected, your Honor, but we
13 will --
14 MR. LUPERT: There is no dispute as to what it
15 is. We objected to it on these same grounds.
16 THE COURT: Obviously, if it had been in
17 evidence, what is stated in that footnote or is not stated
18 in that footnote is obvious from the document itself.
19 My prior ruling was that the defendant could
20 inquire as to financing and instigation but not as to the
21 editorial content?
22 MR. LUPERT: Precisely. Indeed, we stipulated,
23 there is an admission here on the part of my clients, that
24 Gordon & Breach in fact provided all of the financing for
25 this project.
881
1 THE WITNESS: Almost all.
2 MR. LUPERT: And Mr. Gordon can testify about
3 this himself, if your Honor wishes. He was certainly one of
4 the people who came up with the idea for doing this report.
5 We had hoped that stipulation would eliminate the need to
6 get into this inquiry at all, but --
7 THE COURT: What is it beyond that stipulation
8 that you would seek to explore?
9 MR. MESERVE: Your prior ruling had to do with
10 the actual drafting of the report having to do with the
11 editorial process. We believe that, through this witness,
12 we will be able to establish that there was far more
13 extensive Gordon & Breach involvement in this project than
14 the stipulation covers and, in fact, that this particular
15 report was then subsequently palmed off as if it was an
16 activity truly independent of Gordon & Breach, which in fact
17 is not the case.
18 THE COURT: We begin with the stipulation that
19 Gordon & Breach financed it and initiated the suggestion.
20 MR. MESERVE: I intend to go beyond that, your
21 Honor.
22 THE COURT: Go beyond that within the scope of
23 the Court's ruling that you could inquire as to financing,
24 instigation, but not editorial content?
25 MR. MESERVE: That's what we intend to do.
882
1 MR. LUPERT: I would ask the Court to refer to
2 Exhibit 260, which is in fact the stipulation.
3 THE COURT: 260A?
4 MR. LUPERT: 260A, if I could hand it up. The
5 stipulation is an attachment to a letter we sent to the
6 Court about this matter.
7 MR. MESERVE: That stipulation, your Honor, does
8 state as Mr. Lupert said, that there was Gordon & Breach
9 involvement in the financing and in suggesting this
10 particular activity.
11 THE COURT: Within the parameters that have just
12 been stated, you may inquire.
13 BY MR. MESERVE:
14 Q. Mr. Gordon, you do agree, of course, that the
15 footnote we have just been talking about on the first page
16 includes no mention of Gordon & Breach, does it?
17 A. No, we had no -- no -- no input into the actual
18 preparation of the report whatsoever.
19 Q. There is no mention of Gordon & Breach in the
20 first footnote on the first page, is there?
21 A. I just explained why. We had no input.
22 Q. You agreed that there isn't.
23 A. No.
24 Q. It goes on to identify the members of the panel,
25 and they are, are they not, Lewis Klein. I'm going to
883
1 fracture the French pronunciation of the next name, Jean
2 Cantecuzene?
3 A. Cantecuzene.
4 Q. Cantecuzene. I did better than I expected.
5 Jacques Revel?
6 A. Jacques Revel.
7 Q. Clare Jenkins?
8 A. Yes.
9 Q. And Albert Henderson; is that right?
10 A. Yes.
11 Q. I'm going to ask you about a passage in this
12 report, and I'm not going to ask you who wrote it. I'm
13 going to ask you a factual question about it. And I have
14 taken the liberty of putting a flag on the page. It's on --
15 in a magic marker in a passage. It's on page 89. It is
16 part of footnote 42.
17 This is a footnote that deals with surveys,
18 including in particular the surveys of, among others, the
19 surveys that are at issue in this case. After listing those
20 surveys, the footnote says, and I quote, "The surveys suffer
21 from inappropriately small samples, biased samples,
22 inconsistent comparisons, inadequate presentation of data,
23 discussions of examples not found in the data, lapses in
24 logic, confusing statements of purpose, and other evidence
25 of bias, such as testimony of type, statements, and
884
1 deliberately promotional language. Publication dates May
2 through July are clearly timed to coincide with the annual
3 review of subscription renewals made in every science
4 research library. Finally, the surveys uncritically cite
5 each other in support of the desired findings. In a letter
6 to chronicle of higher education," it gives a date and page,
7 "Christopher Schneider points out a number of errors in the
8 representation of data made by the American Institute of
9 Physics, which were repeated in its second survey in spite
10 of complaints made of similar errors in its first survey."
11 Now, that passage makes a reference to somebody
12 by the name of Christopher Schneider. He is in fact the
13 president of a Gordon & Breach Company, isn't he?
14 A. He is an officer of the Gordon & Breach Company.
15 Q. In fact, he is responsible for the marketing of
16 Gordon & Breach journals in the United States; isn't that
17 right?
18 A. No. Not particular -- well, partially, yes.
19 THE COURT: Well, we know, in the affidavit,
20 which is D4, assuming that it is the same Christopher
21 Schneider, he describes his role at Gordon & Breach. There
22 is only one Christopher Schneider?
23 THE WITNESS: I assume so.
24 Q. Perhaps after that affidavit he became a
25 president of one of the companies; isn't that right?
885
1 A. I'm not sure even today of his title, and he is
2 now involved in many other matters, but he was not
3 particularly involved in marketing journals in the United
4 States. That was the question you --
5 Q. Yes.
6 A. -- you -- yes.
7 Q. Is the company of which he is the president or is
8 an officer, isn't that the company that has responsibilities
9 for at least the distribution of Gordon & Breach's journals
10 in the United States?
11 A. No.
12 Q. What is the name of the company in which he is an
13 officer?
14 A. International Publishers Distributor, IPD.
15 Q. What is its role --
16 A. Its role are --
17 Q. -- in the United States?
18 A. In the United States, in the -- this is today.
19 This was not necessarily true at the time, by the way.
20 Today its role is only marketing -- marketing services, not
21 distribution services.
22 Q. Only marketing services?
23 A. Services, period. There is no distribution
24 involved.
25 Q. You understand, do you not, that Albert
886
1 Henderson, who was a member of this committee, was in fact
2 the principal author of this report?
3 A. Yes.
4 Q. And he was also the editor of the journal in
5 which the FISC report was published; isn't that right?
6 A. Yes.
7 Q. Now, you are very familiar with FISC, I know. It
8 is registered in the United Kingdom, isn't it?
9 A. And other venues as well, yes.
10 Q. At your deposition you weren't sure whether you
11 were still a director. Have you verified that since?
12 A. Apparently I still am.
13 Q. I'm going to hand you a document that has been
14 marked as Defendants' Exhibit ZZZZZ, five Z's.
15 Mr. Gordon, I will represent to you that this
16 document is a document that we obtained from London with
17 certain filings in the registration of this foundation. I
18 would ask you, I put a flag on a page that is paragraph 33.
19 It has your name there. Can I help you?
20 That's not it. There is another one.
21 Paragraph 3 says, does it not, that you are a
22 member of the council and the council chairman and shall
23 remain so for as long as you shall live. Isn't that right?
24 A. Yes. I'm just curious what this is -- what year
25 this is referring to.
887
1 Q. Well, I believe that you will see at the very top
2 of the page there are dashes that suggest July 10, 1996.
3 A. Yes, but what year do the articles refer to?
4 Because there were times I was chairman; there were times I
5 was not.
6 Q. Well, when we had the deposition, I asked you if
7 you were a director of FISC, and I believe you said you
8 weren't sure.
9 A. I wasn't sure.
10 Q. In fact, in 1996 you were a member for life,
11 weren't you?
12 A. No. No. No, sorry. This language may have been
13 picked up from the original filing. I wasn't sure whether I
14 was still a director, because we have made changes. The
15 directorial responsibilities have to do mainly with
16 financial matters, etc., etc., but nothing to do with the
17 activities of the foundation. Each activity appoints its
18 own board of directors which are in control of that
19 activity.
20 Q. Under the overall umbrella of FISC itself; isn't
21 that correct?
22 A. Under the overall umbrella, but I'm saying the
23 officers -- and I don't think -- I don't know if I'm still
24 chairman or just a director -- the overall officers just
25 take care of the day-to-day what I would call legal and
888
1 financial requirements of the filing, signing documents,
2 signing checks, etc.
3 Q. I will represent to you that this document
4 provides the names of two different individuals who are
5 designated as directors, one of whom is you, and the other
6 one is a person by the name of Madeleine Vuillard?
7 A. Yes.
8 Q. Madeleine Vuillard is a Gordon & Breach employee,
9 is she not?
10 A. Yes.
11 Q. I would like to have you turn to paragraph 3,
12 which is at the first flag, the document that I provided
13 you. It states, does it not -- and I will paraphrase -- the
14 company's objects are, A, basically to provide for temporary
15 traveling exhibits, and, B, to promote medical research; is
16 that right?
17 A. That's right, but there's an explanation. This
18 is a change in the company's products, because what has
19 happened is that FISC, as you prefer to call it, has been
20 divided into two foundations, and the activities have been
21 separated to the two foundations.
22 Q. There are two FISC's that exist?
23 A. There are two non-profit foundations.
24 Q. Of the same name?
25 A. Not with the same name. With slightly different
889
1 names. But that the original activities of FISC and the
2 revised, second revised activities of FISC, and the third
3 revised activities of FISC, were much broader, and these
4 activities have now been -- some of these activities have
5 been partitioned to the other society.
6 Q. What is the name of the other society? Is it
7 different from FISC?
8 A. Yes.
9 Q. Well, we're talking about FISC here, sir.
10 A. I'm just trying to get the -- yes, I see it. OK.
11 Foundation for International Scholarly Activities, all
12 right. And there are several projects under that --
13 Q. Under that different umbrella.
14 A. Under the -- under the same -- well, the same
15 related. Very little was left -- initially FISC did both.
16 Q. The creation of FISC was your idea, wasn't it?
17 A. Possibly, not solely.
18 Q. But you were --
19 A. I was involved, yes, sir.
20 Q. Involved in its creation?
21 A. Of course, sir.
22 Q. And FISC has no endowments, does it?
23 A. Endowments from -- no, it's set up as a
24 non-profit foundation.
25 Q. Funds that are under its controls that it invests
890
1 that provide money for its activities, it is dependent on
2 people to contribute money for it to undertake activities;
3 isn't that right?
4 A. Oh, I'm sorry. Yes.
5 Q. Now, you conceived of undertaking the project
6 that resulted in the publication of the FISC report in
7 consultation with Lewis Klein; isn't that right?
8 A. Yes.
9 Q. And you provided -- Gordon & Breach provided
10 funding for this project too, didn't it, a loan without
11 risk?
12 A. Yes, a loan without risk, yes.
13 Q. Gordon & Breach paid the expenses for the
14 non-French members of the advisory panel; isn't that right?
15 A. I believe so.
16 Q. AVRIST paid for the French members?
17 A. I believe so, yes.
18 Q. And Henderson, Albert Henderson, he was paid a
19 consulting fee --
20 A. Yes.
21 Q. -- by FISC, wasn't he?
22 A. Yes.
23 Q. And Gordon & Breach paid the funds to FISC that
24 enabled it to pay Albert Henderson --
25 A. Yes.
891
1 Q. -- isn't that right?
2 Now, you mentioned this project to Jean
3 Cantecuzene; is that right?
4 A. Cantecuzene.
5 Q. Who was an official with AVRIST --
6 A. Yes.
7 Q. And after you mentioned the project to him,
8 AVRIST provided funds for this activity, right?
9 A. He said AVRIST would very much like to join in
10 this activity.
11 Q. And you were involved in selecting the membership
12 of the advisory panel as well, weren't you?
13 A. I was not involved in selection. I was only
14 involved in suggestion.
15 Q. So you at least suggested members?
16 A. Yes.
17 Q. And the chairman of this is a fellow by the name
18 of Lewis Klein. He is an old friend of yours, isn't he?
19 A. Yes.
20 Q. In fact, Lewis Klein was your college roommate,
21 wasn't he?
22 A. Yes.
23 Q. You talked with your college roommate about
24 members of the advisory panel?
25 A. We made suggestions, yes.
892
1 Q. This Jean Cantecuzene -- am I -- I've got to get
2 it fractured here -- the AVRIST representative, he is a
3 business friend of yours; isn't that right?
4 A. No. Initially he was a very prominent man in the
5 CNRS, and then was working for -- doing chemical research
6 for an oil company, and etc. But we had contacts with him
7 through our publishing program.
8 Q. But in fact you had business relationships
9 with --
10 A. But not exclusive contacts with him.
11 Q. Excuse me?
12 A. Not exclusive contacts with him at the time.
13 Q. You did have business relationships with him at
14 the time of the formation of this panel; is that right?
15 A. I'm not -- I don't think -- I don't believe. I'm
16 not sure. I don't think so. It may have been he was being
17 paid as an editor on some publication, which I have no idea
18 of.
19 Q. You recall you were deposed in this case --
20 A. Yes.
21 Q. -- on December 11th of last year?
22 A. Yes.
23 Q. Did I ask you the following question and did you
24 give the following answer?
25 MR. LUPERT: Page and line, please.
893
1 MR. MESERVE: Page 265, line 18.
2 Q. (Reading)
3 "Q. Is he" -- referring to Mr. Cantecuzene --
4 "is he a social friend of yours or a business friend?
5 "A. No, no, business."
6 A. Yes.
7 Q. (Reading)
8 "A. Someone I knew from business."
9 Isn't that right?
10 A. Someone I knew from business, but that doesn't
11 mean we knew him editorially. Subsequently, subsequently,
12 sometime after this, he did some consulting work for us,
13 which I did say in my -- put in my testimony -- deposition,
14 so at some time he became a consultant to Gordon & Breach,
15 later.
16 Q. And you paid him as a consultant; isn't that
17 right?
18 A. He was paid on a part-time basis, yes.
19 Q. Jacques Revel was another name on this panel. He
20 is somebody you know in Paris; isn't that right?
21 A. Yes.
22 Q. He is an historian?
23 A. Yes.
24 Q. Clare Jenkins, you agree that's somebody you
25 could have suggested for the panel; isn't that right?
894
1 A. Yes. She was -- a suggestion -- I suggested many
2 other people, including Mr. Atiyah, who had published the
3 mathematical survey which we objected to, including some of
4 our competitors, from Elsevier, the one you said you were
5 going to call as a witness, Karen Hunter. And what we were
6 trying -- what -- my suggestions were and -- were meant to
7 get as broad an overview of people who were involved in
8 libraries, who were involved in publishing, who were
9 involved in the different aspects of -- and international.
10 I thought that was another.
11 Q. Let's look at the --
12 A. And many of the people we invited we -- I
13 suggested, of course. I had no idea whether they were
14 invited at all. Some of them I have seen were invited but
15 rejected.
16 Q. Let's talk about the people who actually
17 participated. Clare Jenkins, you agree you could have
18 suggested her?
19 A. Yes.
20 Q. Then we have Albert Henderson.
21 A. Yes.
22 Q. That is somebody you could have suggested as
23 well; isn't that right?
24 A. That is somebody I suggested.
25 Q. He serves as a consultant to publishers in his
895
1 professional life; isn't that right?
2 A. He could serve as a consultant but editor of
3 Publishing Research Quarterly, the journal, and it was based
4 upon that he had a fundamental view of the whole situation,
5 that we were not talking to amateurs, that I suggested Al,
6 before I had even met him.
7 Q. So you sort of knew where he was going to come
8 out when you suggested him; is that what you're saying?
9 A. No, I knew where he was going to come out because
10 I had just seen -- because he was focused in this area. I
11 had no idea if he would even agree to serve.
12 Q. Isn't it in fact the case, Mr. Gordon, that
13 Albert Henderson was serving as a consultant to Gordon &
14 Breach at the very time he was serving on this advisory
15 panel?
16 A. When we first met Al Henderson, we had no
17 relation -- which was for the benefit of the advertise --
18 THE COURT: Would you --
19 THE WITNESS: We had no relationship --
20 THE COURT: Excuse me. Would the reporter read
21 the question back and see whether Mr. Gordon is capable of a
22 yes or no answer.
23 (Record read)
24 THE COURT: Can you answer that yes or no?
25 THE WITNESS: I don't know.
896
1 Q. You have no reason to dispute Mr. Henderson's
2 testimony under oath at his deposition that he believed his
3 consultancy with Gordon & Breach overlapped with his service
4 on this advisory panel, do you?
5 A. Oh, it would overlap with it, but when he was
6 appointed, he had no -- we had no relationship with him at
7 all. It was purely done for this --
8 Q. You had no reason to dispute --
9 A. -- for this -- for this report.
10 Q. You have no reason to dispute, do you, that his
11 consultancy with Gordon & Breach started in 1991?
12 A. I have no reason -- I have no way to verify or
13 deny.
14 Q. And the FISC report was issued or at least was
15 published in an issue of the Publishing Research Quarterly,
16 that was in the fall of 1992; isn't that right?
17 If you look at Defendants' Exhibit HHHH, you will
18 look at the header at the top of the page, it indicates that
19 this is an issue from the fall of 1992.
20 A. Yes. I don't know -- I think it was completed
21 sometime earlier.
22 Q. Now, you also agree, don't you, that the Gordon &
23 Breach staff were actively involved in the startup of the
24 advisory panel, weren't they?
25 A. Involved in what way? In doing the secretarial
897
1 work or the work for Dr. Klein and Mr. Henderson?
2 Q. Let me show you some exhibits that may help you
3 understand what I am referring to.
4 A. I'm just asking for a definition of "involved."
5 Q. I am going to hand you two exhibits, Defendants'
6 Exhibit CCCCC, five C's, and Defendants' Exhibit EEEEE, five
7 E's. If you will look at Defendants' Exhibit CCCCC, the
8 first one, and perhaps you might look at the second page
9 first. This is the way they were produced to us. It is a
10 facsimile transmission to Jon Gillette from Vickie Banner.
11 And the heading on the fax cover sheet is Klepper, is it
12 not? The large letters.
13 A. Yes.
14 Q. Klepper is a public relations firm that does work
15 for Gordon & Breach, or at least it did in that period,
16 isn't it?
17 A. I believe so, yes.
18 Q. Jon Gillette, you know him, he's a Gordon &
19 Breach employee?
20 A. Yes.
21 Q. The letter, which is the top of Exhibit CCCCC, is
22 a form letter, is it not, to invite people to participate as
23 members of the panel?
24 A. Yes.
25 Q. Exhibit EEEEE, which is the next exhibit I
898
1 provided you --
2 A. Excuse me. If I could go back to the last
3 exhibit, I don't understand what relevance there would be to
4 the publicity people. The publicity firm, I have no idea --
5 THE COURT: Your role is not to ask questions.
6 Your attorney will have an opportunity to have you follow up
7 on anything.
8 Q. Now, Exhibit EEEEE --
9 A. Yes.
10 Q. The top page of that is a letter from this same
11 Jon Gillette, the Gordon & Breach employee?
12 A. Yes.
13 Q. And this is to Lewis Klein, who is the chairman
14 of the advisory panel?
15 A. That's right.
16 Q. Mr. Gillette is providing, is he not, a draft of
17 the letter to people who lived there and were invited to
18 participate on the panel?
19 A. But who have not responded to date, yes.
20 Q. Right. And the letter that Mr. Gillette was
21 sending to Mr. Klein to be sent is the second page of
22 Exhibit EEEEE, right?
23 A. Seems to.
24 Q. Now, the origins of this study that resulted in
25 the FISC report, the origin of the study was Gordon &
899
1 Breach's lawsuits against the APS and AIP, wasn't it?
2 A. No, not exclusively.
3 It had to do with the whole array of reports,
4 such as the AMS report which we had objected to earlier,
5 and -- in general. And the -- as I testified previously,
6 Mr. Klein's idea that such a report would be very valuable
7 for him, for his library at home. It was not exclusively
8 directed at the AIP, APS.
9 Q. I'm going to hand you an exhibit that has been
10 previously marked as WWWW, four W's. This is another
11 exhibit that is in the order that it was produced to us in.
12 I would ask you to turn to the second page.
13 A. Yes.
14 Q. That is the faxed transmission cover sheet.
15 A. Yes.
16 Q. This is a fax to somebody who was at Klepper
17 Associates --
18 A. Yes.
19 Q. -- the public relations firm?
20 A. Yes.
21 Q. It's from an Anne Walker.
22 A. Yes.
23 Q. Who is a Gordon & Breach employee, is she not?
24 A. I -- I don't recognize the name at all.
25 Q. The message is, "Revised draft of press release
900
1 received today from Martin Gordon." Is that what it says?
2 A. Yes.
3 Q. I would like to have you turn to the first page
4 of Exhibit WWWW. I would like you to look at the fourth
5 paragraph of the first page. It states, does it not, that
6 "The origin of the Foundation's move were commercial suits
7 initiated by Gordon & Breach Science Publishers, Inc.
8 against the American Institute of Physics and the American
9 Mathematical Society for the publication of comparative
10 journal surveys which, in the opinion of Gordon & Breach,
11 reflected inaccurate methodologies." Did I read that
12 accurately?
13 A. Yes.
14 Q. Now, there came a time, or early on in this
15 project, when there was a questionnaire that was distributed
16 to librarians?
17 A. Yes.
18 Q. I'm going to hand you a copy of that
19 questionnaire. I am handing you Defendants' Exhibit RRRR,
20 four R's. Exhibit RRRR is a questionnaire that is signed or
21 purportedly signed for Maurice Levy.
22 A. Yes.
23 Q. Maurice Levy, at that time at least, was the
24 director of FISC, wasn't he?
25 A. The executive director, yes.
901
1 Q. This is dated January of 1990.
2 A. Yes.
3 Q. Now, in fact this -- let's call this exhibit the
4 FISC questionnaire. Is that all right?
5 A. The first draft of the FISC questionnaire.
6 Q. You agree, do you not, that this questionnaire
7 was prepared by Gordon & Breach staff?
8 A. No. It was prepared by, but not -- but the
9 content was not exclusively provided by the Gordon & Breach
10 staff.
11 Q. But Gordon & Breach was intimately involved in
12 the preparation --
13 A. Oh, yes.
14 Q. -- of this questionnaire, wasn't it?
15 A. Yes, yes.
16 Q. In fact, the questionnaire was reviewed by you?
17 A. Yes.
18 Q. Gordon & Breach mailed this survey out to
19 librarians, didn't it?
20 A. Yes.
21 Q. When you got returns, Gordon & Breach tabulated
22 the results of the returns; isn't that right?
23 A. Possibly.
24 Q. You agree, do you not, that Maurice Levy did not
25 sign the questionnaire, did he?
902
1 A. I don't know how -- how this letter was done.
2 Q. Didn't you in fact call Dr. Levy and tell him
3 that his signature on the questionnaire was a secretarial
4 mistake?
5 A. I don't recall that.
6 Q. Didn't you tell him that the questionnaire was by
7 another branch of FISC, of which he, the general director,
8 was unaware?
9 A. I don't recall that. No.
10 Q. I am going to hand you an exhibit that has been
11 previously marked as Defendants' Exhibit JJJJJ, five J's, an
12 article from The Chronicle of Higher Education. I would
13 like to refer you to the very bottom of the third column.
14 There are two lines at the bottom of that column.
15 A. Two lines at the bottom of the column?
16 Q. It goes on to the fourth column.
17 A. Which column is this? I'm sorry.
18 Q. The third column. That states, does it not --
19 MR. LUPERT: Objection to the -- this is a
20 newspaper article. It shouldn't be used for this purpose.
21 It's not a question of what it states. If he is using it
22 for some particular other reason that is consistent with
23 cross, but this is not permissible.
24 THE COURT: Why don't you ask him a question and
25 this will refresh his recollection if it needs refreshing?
903
1 MR. MESERVE: That's correct, your Honor.
2 Q. It states, does it not, quote --
3 MR. LUPERT: Objection.
4 THE COURT: No.
5 MR. MESERVE: Excuse me. I'm sorry, your Honor.
6 Q. Could you look at the passage beginning, "After
7 learning of the survey" --
8 THE COURT: Ask him a question. If he doesn't
9 recall --
10 MR. MESERVE: Your Honor, let me explain what I
11 am trying to do. This discusses that very conversation. I
12 wanted to focus the witness's attention on what the report
13 said about the conversation between Mr. Gordon and Mr. Levy
14 and see if it refreshes his recollection.
15 THE COURT: If it refreshes his recollection as
16 to whether or not he had those telephone conversations with
17 Mr. Levy?
18 MR. MESERVE: With that substance.
19 THE COURT: Why don't you show it to him and ask
20 him whether that refreshes his recollection.
21 BY MR. MESERVE:
22 Q. Mr. Gordon, if you look at the passage that I am
23 referring to --
24 A. Yes.
25 Q. Do you see it at the bottom of the page? Does
904
1 that refresh your recollection that you told Mr. Levy that
2 the signature was a secretarial mistake and that the survey
3 was done by another branch of the Foundation?
4 A. No.
5 Q. Now, you in fact only received about 20 responses
6 to the questionnaire; isn't that right?
7 A. I think about 30, 35, yes.
8 Q. Pardon me?
9 A. 30 or 35. I believe -- it's in the report, so --
10 the number is in the report, in the cost effectiveness
11 journals. There is an analysis of what we received.
12 Q. Well, actually it's not in the one that we have
13 talked about before. It was in another exhibit.
14 A. Oh, may have been.
15 Q. Let me give you that. It's Defendants' Exhibit
16 IIIII, five I's.
17 A. Is that where the marker is?
18 Q. I put a marker on this. You will notice at page
19 70 of the exhibit, this is the exhibit which is The
20 Effectiveness of Science Journals and it is a supplement to
21 the Report of the Advisory Panel.
22 A. Oh, it does say 20.
23 Q. It says 20 responses. It also states, does it
24 not, that that was, "less than needed for a statistically
25 representative sample." Is that right?
905
1 A. Yes.
2 Q. Now, this supplement, Exhibit IIIII, five I's,
3 that was prepared by Albert Henderson, was it not?
4 A. In consultation with the other panel members.
5 Q. And Gordon & Breach paid for the publication of
6 the supplement?
7 A. Of the supplement, yes.
8 THE COURT: Are you finished with this? Are you
9 finished with FISC?
10 MR. MESERVE: We are finished with this, your
11 Honor, yes.
12 THE COURT: All right. We will take our
13 mid-morning break.
14 (Recess)
15 THE COURT: Mr. Gordon is not here?
16 MR. MESERVE: Counsel for the plaintiffs is also
17 absent.
18 (Pause)
19 BY MR. MESERVE:
20 Q. Mr. Gordon, I am going to hand you two exhibits,
21 Defendants' Exhibit PPPP, four P's, and Defendants' Exhibit
22 GGGGG, five G's.
23 Mr. Gordon, I would like to have you turn to
24 attachment D of Exhibit PPPP, and what that is, Mr. Gordon,
25 is a translation of a filing that was made by your counsel
906
1 in Switzerland on July 13, 1992. I would like to have you
2 turn, if you will, or examine, if you will, the paragraph
3 25.
4 It states, does it not, that the dubiousness of
5 the methods used by Barschall is demonstrated in a report,
6 and it's a report entitled "The Cost Effectiveness of
7 Science Journals."
8 A. Yes.
9 Q. It makes a footnote to some pages and it makes a
10 reference to a footnote, does it not? I'm talking about
11 paragraph 25.
12 A. Yes.
13 Q. Now, the evidence that is cited there is the
14 document with the title "Cost Effectiveness of Science
15 Journals, Report of the Advisory Panel for Scientific
16 Publications." It says, of January 23, 1992.
17 I would like to have you verify that the exhibit
18 with five G's is in fact a document with that title by that
19 group and with that date. You will see the date if you look
20 at the footer on the second page of the exhibit.
21 A. Yes.
22 Q. The reference to the footnote, if you look, is
23 the same footnote with which we started the examination this
24 morning, is it not?
25 That is found on page -- the text is actually on
907
1 page 61.
2 A. 61 of --
3 Q. Of Exhibit GGGGG. Could I help you?
4 A. I can find 61, but now I have to find the
5 footnote.
6 THE COURT: My copy goes from 60 to 64.
7 MR. MESERVE: Your Honor, I apologize. Let me
8 see if I have an additional copy.
9 A. I have it here.
10 MR. MESERVE: Your Honor, I have an additional
11 copy that has all the pages.
12 Q. If you will look, will you not, Mr. Gordon, at
13 footnote 43, that is the text. I won't ask you to verify
14 it, but it is substantially the same text that we discussed
15 earlier that is drawn from --
16 A. Yes, it is part of the same text, yes.
17 MR. LUPERT: We are just struggling. We can't
18 find any of these exhibits. I don't mean to slow this down.
19 Do you have another copy you can give us? The
20 book we have just doesn't have these in it. Thanks.
21 Q. Now, if you will look at the Exhibit --
22 THE COURT: Footnote 43 starts on page 59.
23 MR. MESERVE: That is correct, your Honor.
24 MR. LUPERT: Thank you, Judge.
25 Q. This is the reference that was made in the Swiss
908
1 brief, in support of the proposition that the Barschall
2 methodology was dubious.
3 Now, Exhibit GGGGG, which is what was submitted
4 to the Swiss court, Koenig & Meyer is the name of your Swiss
5 lawyer, isn't it? It's the name of the firm that represents
6 you in Switzerland?
7 A. He was one of the attorneys, I believe, at the
8 time, yes.
9 Q. The document that you actually submitted in
10 Switzerland is captioned, is it not, on the first page as
11 "Final draft?" I'm referring to the upper left-hand portion
12 of the title page.
13 A. Yes.
14 Q. Can you explain how it was that Gordon & Breach
15 had the draft of the report to which it had no influence?
16 MR. LUPERT: Judge, I don't think that's -- the
17 testimony is not that at all.
18 THE COURT: Yes. Sustained.
19 Do you want to restate the question? Or do you
20 want to withdraw it?
21 MR. MESERVE: I'm sorry, your Honor. I got ahead
22 of myself and I'm --
23 THE COURT: You were asked the question, can you
24 explain how was it Gordon & Breach had the draft of the
25 report to which it had no influence. The objection, which I
909
1 sustained, I take it is to the latter phrase of that
2 sentence.
3 Do you wish to ask that question without that
4 phrase, or do you wish to move on? I certainly don't want
5 to --
6 MR. MESERVE: No, I'm happy to ask the question.
7 Q. Can you explain, Mr. Gordon, how it was that
8 Gordon & Breach had access to the draft of the advisory
9 panel's work?
10 A. It was obviously sent to us by Albert Henderson.
11 It was obviously sent to us by Albert Henderson.
12 Q. Who at that time of course was -- this is 1992 --
13 was your paid consultant; isn't that right?
14 A. He would have sent it to us in any event, I
15 assume.
16 Q. In fact, Mr. Henderson is your litigation
17 consultant in this very case, isn't he?
18 A. Litigation consultant?
19 Q. Yes.
20 A. I don't understand what you mean by that.
21 Q. He has been hired by your lawyers to assist you
22 in the litigation of this matter; isn't that right?
23 A. I don't know. I don't know.
24 Q. If you will look at the translation of your Swiss
25 filing, though it does acknowledge that the study was
910
1 suggested by the plaintiffs, it doesn't say, does it, that
2 Gordon & Breach suggested the members?
3 THE COURT: That sounds like it is going to be
4 the start of a long litany of what is not disclosed in this.
5 Anything not set forth in this is not disclosed in this
6 document.
7 MR. MESERVE: Very well, your Honor.
8 Q. I would like to have you turn to paragraph 27,
9 which is on the next page.
10 A. The next page being?
11 Q. Of Exhibit PPPP.
12 A. PPPP.
13 Q. It is the paragraph that starts, "In the course
14 of the study by the 'Panel,' Lewis S. Klein also sent out
15 questionnaires to libraries around the world."
16 A. Yes.
17 Q. Do you see that?
18 A. Mm-hmm.
19 Q. In fact, you know Lewis Klein did not send out
20 the questionnaire, did he?
21 A. It was sent out on his behalf. That's --
22 Q. But it was sent out by Gordon & Breach, wasn't
23 it?
24 A. The actual mailing was done by Gordon & Breach.
25 Q. And in your Swiss filing, you set out the results
911
1 that you derived from the questionnaire, right?
2 A. Apparently. I have -- sorry. I'm reading it in
3 German. Do you have a translation here as well?
4 Q. The translation is the very last page of the
5 exhibit.
6 A. OK.
7 Q. Do you have it in front of you?
8 A. Yes.
9 Q. It sets out the data, does it not, that you
10 derived from your tabulation of the questionnaire, right?
11 MR. LUPERT: I object to the form.
12 THE COURT: Overruled.
13 A. It sets out the data from the survey.
14 Q. That's what I mean. We are calling it the
15 questionnaire earlier, if you will recall, so there is not
16 confusion between --
17 A. This was tabulated in the survey, not the
18 questionnaire. I mean -- OK. Never mind.
19 Q. You agree, do you not, that paragraph 27 sets out
20 the results of the questionnaire that was mailed to
21 librarians with a cover letter signed by Maurice Levy,
22 Defendants' Exhibit RRRR?
23 A. Yes, some of the results, yes.
24 Q. Some of the results. And if you will look at the
25 paragraph 27, it does not state, does it, that there were
912
1 too few data for a statistically reliable sample?
2 A. Doesn't seem to say that. Doesn't say -- doesn't
3 say that.
4 Q. Do you think it was appropriate to file data with
5 the Swiss court? You didn't inform the court? You didn't
6 have a statistically reliable sample?
7 A. I --
8 MR. LUPERT: Objection. This was part of the
9 report. Didn't he go --
10 THE COURT: Excuse me?
11 MR. LUPERT: Didn't Mr. Meserve bring out earlier
12 today, Judge, that this was part of a report which said
13 that? There is no evidence Mister --
14 THE COURT: I thought the objection was -- you
15 are asking this witness whether it was appropriate for his
16 attorney to file this in the Swiss court? Is that the
17 question?
18 MR. LUPERT: That was my next objection.
19 MR. MESERVE: Without informing the court that it
20 was not based on a statistically valid sample.
21 THE COURT: I will sustain the objection to that
22 question. If you want to ask him what his opinion is as to
23 the propriety, that is one thing, but to ask him whether
24 what his attorney did was appropriate I think gets too
25 convoluted.
913
1 Q. Do you think it was appropriate to make a filing
2 of this data with the Swiss court without informing the
3 court that the data was not derived from a statistically
4 val -- reliable sample?
5 MR. LUPERT: Objection.
6 A. I can't -- I --
7 MR. LUPERT: Objection.
8 THE COURT: Overruled.
9 A. I really cannot say.
10 Q. Mr. Gordon, I just have one final question I want
11 to ask you.
12 Are you aware that your lawyers have filed a
13 claim against Professor Barschall's estate?
14 A. I believe so.
15 Q. Did you authorize your lawyers to do that?
16 A. No. The lawyers -- we were informed by the
17 lawyers that under French law we had to -- they had -- they
18 had to.
19 THE COURT: Or what?
20 THE WITNESS: Or the essence of the case would
21 be -- would be gone. We couldn't exclude it.
22 Q. Your lawyers informed you that you were obliged
23 to pursue an 80-year-old widow's estate?
24 MR. LUPERT: Objection.
25 A. No. They were --
914
1 MR. LUPERT: Judge, do we now have to put on in
2 rebuttal a French lawyer who confirms that that is exactly
3 what French practice is?
4 THE COURT: I understand the witness's testimony
5 to be that he was advised that, in order to pursue the other
6 defendants in the case, he would have to retain in the case
7 Professor Barschall's widow; that the alternative to that
8 would have been to drop the suit in its entirety.
9 MR. LUPERT: Exactly.
10 THE WITNESS: Exactly.
11 THE COURT: All right.
12 MR. MESERVE: I have no further questions, your
13 Honor.
14 MR. LUPERT: Judge, I don't have with me -- I
15 didn't anticipate this -- the actual claim that was filed
16 against the estate, which I believe so states. This is not
17 something that anybody wanted to do. I just don't have it
18 with me.
19 MR. MESERVE: Your Honor, I would be very happy,
20 with Mr. Lupert's consent, to forward the Court a copy of
21 the claim that was filed in Wisconsin against the estate, if
22 there is any question about that?
23 MR. LUPERT: Yes. Put in evidence from a French
24 attorney.
25 THE COURT: Is it disputed? Do the defendants
915
1 dispute the witness's testimony that he believed that
2 continuation of the suit against the Barschall estate was a
3 prerequisite to continuation of the case with respect to APS
4 and AIP? Is that going to be the subject that we have to
5 have additional proceedings on?
6 MR. MESERVE: No, your Honor.
7 THE COURT: I asked you some questions last week
8 and I am still not clear on the decision making process at
9 Gordon & Breach with respect to the institution of
10 litigation. OK?
11 THE WITNESS: Yes.
12 THE COURT: I get the impression from these
13 documents and your testimony that you personally have been
14 very much involved in these matters. Is that right?
15 THE WITNESS: Sometimes.
16 THE COURT: Sometimes. Well, now, let's take the
17 commencement of the action against the AMS in Germany.
18 THE WITNESS: Yes.
19 THE COURT: Was that something you were
20 personally aware of?
21 THE WITNESS: Yes.
22 THE COURT: Now, I think you told us that you are
23 not personally aware of the threats of litigation with
24 respect to the librarian in Belgium?
25 THE WITNESS: That's correct.
916
1 THE COURT: Who is responsible for that?
2 THE WITNESS: Mr. Roger Green, who was and is the
3 managing director of one of our U.K. operations, United
4 Kingdom operations.
5 THE COURT: Tell me what, just generally, what
6 does the Klepper organization do for Gordon & Breach?
7 THE WITNESS: The surveys themselves are
8 responsive and were very highly publicized by the society,
9 and we decided that we needed to respond through publicity
10 of our own. So the Klepper organization was engaged for
11 these publicity activities for the media, in this particular
12 case. They have other -- they may from time to time have
13 other connections that have nothing to do with this.
14 THE COURT: So they were retained -- oh, they
15 have other duties from Gordon & Breach unrelated to this?
16 THE WITNESS: From time to time. Whether it's
17 them or other agencies, yes.
18 REDIRECT EXAMINATION
19 BY MR. LUPERT:
20 Q. I think the Klepper firm, Mr. Gordon, is a public
21 relations firm.
22 A. Yes.
23 Q. They were brought in because once you brought the
24 lawsuits in Europe, there was a great deal of publicity, you
25 said.
917
1 A. Yes.
2 Q. Was the publicity generally adverse to Gordon &
3 Breach?
4 MR. MESERVE: Objection, your Honor. Leading.
5 Q. What was the nature of the publicity?
6 MR. LUPERT: I'll withdraw the question.
7 Q. Just in a sentence, what was the nature of the
8 publicity?
9 A. The nature of the publicity was adverse.
10 Q. I just want to ask you a couple of questions that
11 go back to the issue concerning the methodology, Barschall's
12 methodology, unless the Court has other questions with
13 respect to these other matters.
14 Mr. Meserve had asked you about differences
15 between the Gordon & Breach journals and some of the other
16 journals in the Barschall survey.
17 A. Yes.
18 Q. I would like you to just briefly state for us, as
19 the principal of Gordon & Breach, what are the fundamental
20 differences between the journals that upset you?
21 A. The fundamental differences in this, as they were
22 presented in the survey, was they presented an equality
23 against -- of all publications despite all factors, their
24 market limitations, their specialties, their
25 internationality, whether or not they were cited in the
918
1 Science Citation Index, which is very limited, whether --
2 what the -- the page charge and other cost variables, if I
3 could put it that way, affect price, including in fact
4 how -- even how things are -- manuscripts are handled.
5 If I could take a very simple example on the
6 manuscript part, both the societies and we will accept color
7 illustrations for relevant data. We don't charge the
8 authors for reproduction of that data. The society does.
9 Now, obviously, that's going to affect our price
10 insofar as this is a factor compared to their price. And --
11 but the main point is -- well, was that we felt this was
12 done purely for -- as a means to drive commercial publishers
13 in general out as competitors, and that the fundamental data
14 was skewed to present the best possible picture.
15 Q. Just focusing on a couple of these components, I
16 believe you had testified earlier that, as far as you know,
17 neither Professor Barschall nor the defendant societies
18 attempted to verify any of the information from Gordon &
19 Breach that was included in the survey; is that correct?
20 A. Yes.
21 Q. Are there differences -- strike that.
22 The surveys obviously include subscription prices
23 and the like. Are there differences that are material with
24 respect to pricing aspect of this that might have come out
25 had there been some verification?
919
1 A. Yes. I made a short list to refresh my memory
2 here. These are some of the differences: The means of
3 billing, for example, for first, discuss -- air mail
4 postage. We included at that time the postage rate in our
5 subscription price, and all journals were posted that way,
6 or at least we were charged by the vendors as if they were
7 that way. And this would be a separate line on the society
8 publication invoice if the --
9 MR. MESERVE: Your Honor, I object. This is way
10 beyond the scope of my cross-examination.
11 MR. LUPERT: Judge, I think it goes to the
12 questions that were asked both this morning and Friday, that
13 go to the issue of the differences, why there are
14 differences that this cost methodology isn't picking up. We
15 focused a lot of the specialization, but there are lots of
16 factors.
17 THE COURT: I think you previously testified that
18 you believed that there are costs that Gordon & Breach
19 incurred which are not incurred by not-for-profit
20 publishers.
21 THE WITNESS: They are -- they may be incurred,
22 but not in measuring -- it's in the measurement that journal
23 A may have cost factors which are totally different from
24 journal B, and to compare these on a regular basis, I'm not
25 saying -- if both the societies and we published journal A
920
1 to the same market at the same complexity and everything
2 else, that the cost factors would necessarily be different.
3 That's where the page charge, of course, subsidy comes in.
4 But aside from that, then you're comparing like and like.
5 But if I --
6 THE COURT: You're comparing like and like if
7 you're making a comparison of the sales price to the cost of
8 production. Isn't that it?
9 THE WITNESS: No, the sales price, or the
10 character count, which precedes the sale, which is the
11 derivative of the sales count, does not take into account
12 the cost of production of the characters, so that 1,000
13 characters of pure mathematics will obviously have a
14 different cost --
15 THE COURT: Its focus --
16 THE WITNESS: That's right.
17 THE COURT: -- price focuses on price, regardless
18 of cost.
19 THE WITNESS: That's right. Regardless of the --
20 price per character regardless of cost per character.
21 THE COURT: All right. Let me ask you another
22 question. One of your other main objections is that the
23 survey doesn't take into account the characteristics of each
24 of the journals. Is that correct?
25 THE WITNESS: The market focus, yes.
921
1 THE COURT: Now, do you think that it is -- and
2 you talked of some of your publications as some being more
3 specialized than others and things which were peculiar to
4 particular journals.
5 THE WITNESS: Unique.
6 THE COURT: Unique.
7 THE WITNESS: Not --
8 THE COURT: Now, do you think that it's realistic
9 to expect, with a price survey of as many journals as are
10 listed in Plaintiffs' Exhibit 2, for the surveyor to be
11 aware of all these nuances with respect to each of these
12 publications?
13 THE WITNESS: Yes. In that -- insofar as they
14 are publishers, this is part of the academic part of
15 publishing. It is part of your evaluation of your product
16 of what you are going to have to spend, what you are going
17 to receive, whether you are going to receive the money in
18 page charge form or subscription form.
19 The reason I brought up this color point was, if
20 we decide -- if they decide, look, color is very expensive
21 and this will raise our prices so let us charge the authors
22 for it and we decide that this is part of the author's
23 submission, that is a different --
24 THE COURT: Isn't it the essence of your position
25 that scientific journals cannot be compared based on price?
922
1 THE WITNESS: That's not the essence of my
2 position. But you must take -- you must compare like to
3 like. You must take those journals which appeal to the same
4 kind of market, which publish the same -- which publish
5 research papers, if you're saying research papers. Many of
6 our journals that they included don't publish research
7 papers at all. And then the cost factors --
8 THE COURT: I'm thinking --
9 THE WITNESS: Yes, there are the cost factors as
10 well.
11 THE COURT: Who has determined like to like? Who
12 is to make that determination?
13 THE WITNESS: The determination is known by the,
14 what I would call the scientific community, and as we heard
15 testimony here, the others, of what journals they are
16 comparable to, and also which are non-comparable.
17 THE COURT: But you testified with respect to
18 your own publications, your own limited list of 11
19 publications. You had some problems --
20 THE WITNESS: Yes.
21 THE COURT: -- in the characterization of them.
22 THE WITNESS: Yes.
23 THE COURT: You said that extent of the
24 specialization varies. You said with respect to one that
25 you are not an expert as to how specialized a particular
923
1 journal is.
2 THE WITNESS: No, how we're compared to another.
3 I'm not the expert. It would be somebody who could be.
4 Let me put it to you this way. Of the 11
5 journals, seven journals were not comparable at all in that
6 they did not publish research papers or reviews or letters,
7 all right. Of the next four journals, these would be
8 comparable to other specialized journals, or similar
9 journals.
10 Now, there is a journal that we have published
11 which another publisher publishes under a different title,
12 of course, and these journals I would say on a character
13 basis or pricing basis would be directly comparable.
14 Now, from the four that are left, assuming these
15 are comparable -- and they're not comparable of course to
16 Physical Review, they're comparable to other specialized
17 journals -- from the four that remain, there are two --
18 there's an extrapolation. The first six, etc., first seven,
19 are included in the impact survey even though they are not
20 related kinds of publications. And then the second -- to
21 give an adverse impact feeling.
22 And then the second compilation, of course, is
23 the list of publications by publisher. And this now is
24 extended. If having 30 responses was not enough for us to
25 prepublish the survey, having four journals which may have
924
1 been, let's say, relevant out of 300 to a listing of then
2 ranking by publisher of which are the most expensive
3 publishers makes absolutely no sense.
4 THE COURT: I think I have led us away from the
5 immediate subject of the objection. The objection was by
6 Mr. Meserve to the detailed description of one aspect of
7 costs incurred by G&B as being beyond the scope of the
8 cross.
9 MR. MESERVE: That's correct, your Honor. I
10 think we're going to get it here a lot more, too, if we
11 allow the witness to continue, which is why I interrupted.
12 THE COURT: Is that a disputed issue, that the
13 Gordon & Breach operation of some of its journals results in
14 costs to the publisher which are not absorbed by the
15 publisher with respect to other publications listed in the
16 Barschall article?
17 MR. MESERVE: It is a disputed issue, your Honor,
18 in the sense that Mr. Gordon incurs some costs and we accept
19 the fact that the costs per copy for his publications are
20 larger perhaps than those for much larger circulation
21 journals because of this fixed cost problem. We start to
22 get into these issues that he has sort of unique
23 characteristics of his journals that give him specialized
24 cost in other ways.
25 We have no way that we can -- we do contest that
925
1 those questions -- we're hearing about this from Mr. Gordon
2 not in response to my cross-examination, because Mr. Lupert
3 is eliciting it on redirect.
4 A. May I --
5 Q. Mr. Gordon, there is no question.
6 THE COURT: Is Mr. Meserve's anticipation that
7 this is going to be an extended foray into this area well
8 taken?
9 MR. LUPERT: No, no. I hoped to get finished
10 with Mr. Gordon in two minutes.
11 THE COURT: Why don't you ask the witness to just
12 state in summary fashion those costs which he believes his
13 journals incur which are peculiar to Gordon & Breach or to a
14 commercial as distinguished from a society publisher.
15 BY MR. LUPERT:
16 Q. I adopt that exact question, Mr. Gordon. Could
17 you answer that question?
18 A. One distinction. We're not saying no commercial
19 publisher has these costs, but for comparable publications,
20 another commercial publisher would have these costs as well.
21 Q. With that caveat, would you answer that question
22 which I just adopted?
23 A. Yes, that we -- the complexity of typesetting --
24 Q. One.
25 A. One. The -- whether the journal includes -- the
926
1 journal price includes discounts for positive and negative
2 page charges, which the societies used to subsidize their
3 own program.
4 Copyright licenses, which we may have to seek,
5 which a society is very often excluded from.
6 And then there is a very important one. We're
7 talking now, in today's world, because I'm really not
8 focusing as much on the old.
9 MR. MESERVE: Your Honor, I make an objection.
10 A. On the Web, CD-ROM.
11 THE COURT: Excuse me.
12 MR. MESERVE: We're going on into different costs
13 as it exists today. This is a challenge to a methodology in
14 1988, his comments about the fact that he has established
15 different costs now --
16 THE COURT: Sustained. Your answer should be as
17 of 1988.
18 THE WITNESS: OK.
19 A. There are now different -- there are different
20 formats in which the journal is published and distributed.
21 The reprints, for example, and the -- we give free reprints
22 to authors --
23 Q. Now, were those taken into account in the
24 Barschall cost --
25 A. I don't think --
927
1 Q. -- counting of characters?
2 A. No.
3 And the republication in other forum --
4 redistribution in other forums.
5 Q. You had mentioned last week, just so that we
6 could try to have these in one place, that there are certain
7 translation costs because of the foreign nature of your
8 work --
9 A. Yes.
10 Q. -- that even though articles may be in English,
11 the English is sometimes not adequate or requires additional
12 cost; do I have that right?
13 A. And we do translation.
14 MR. MESERVE: Objection, your Honor, reading.
15 A. And we do translation as well.
16 MR. LUPERT: There was no question that was
17 leading.
18 THE COURT: Just tell us all of these.
19 THE WITNESS: The translation costs --
20 THE COURT: No, just list them. One is
21 typesetting costs. Two is --
22 THE WITNESS: OK. One is typesetting costs. Two
23 is multiple formatting costs. Three is translation and
24 trans -- local translation editing costs. Four is, as I
25 said, different formats and what things were included in our
928
1 pricing that are not included in theirs, such as air mail
2 postage, color work, things of that nature. You know, the
3 element that the subscriber must pay for in our publication
4 which they don't pay for in theirs.
5 But basically this is more the -- the fundamental
6 basis of the survey is that the -- if we had two journals
7 which were going to the -- exactly the same audience, they
8 would have the same typesetting costs. That's why I was --
9 or should have about the same typesetting costs. But the
10 cost factor, when you're comparing incomparables such as
11 this and when you're using as other means to finance these
12 costs, makes the whole survey moot.
13 THE COURT: Have you finished?
14 THE WITNESS: Oh, yes. One other point in --
15 just one other thing. Payments to authors, of course, we
16 brought up before. And quality of images and paper. There
17 are many ways you can resolve an image for printing, for a
18 low resolution or high resolution, depending on the -- and
19 this is a definite factor in cost.
20 The payment to authors, of course, is a cost
21 factor which --
22 THE COURT: Now, my question is this. When the
23 Court suggested that perhaps the essence of your objection
24 was that scientific journals are not capable of comparison
25 or ranking based on the price to the subscribers --
929
1 THE WITNESS: Alone.
2 THE COURT: -- you said that that was not your
3 objection. Your objection was to a ranking of
4 non-comparable journals.
5 THE WITNESS: That's right.
6 THE COURT: You now have given us a list of cost
7 aspects of Gordon & Breach which you believe Gordon &
8 Breach -- which distinguishes the Gordon & Breach journals
9 from other journals to which it is being compared. Is that
10 right?
11 THE WITNESS: Specifically to the Physical
12 Society journals. I did make the --
13 THE COURT: All right, for the physical --
14 THE WITNESS: Yes. Specifically also to the
15 other publishers' journals which are not relevant, but to
16 some journals you might be able to make a relevant
17 comparison. If it was focused in the same subject area to
18 the same level of audience and to the same subscription
19 basis, etc. I'm not saying there is no way you can compare
20 A to B on price at all.
21 THE COURT: Well, what I was going to ask -- and
22 maybe you clarified it by your statement, no comparisons to
23 APS journals -- was whether you thought that it was possible
24 for any surveyor to go through this list --
25 How many journals are listed in this?
930
1 MR. LUPERT: 200 possibly.
2 THE COURT: 200.
3 -- and group them, taking into consideration all
4 of these cost variables that you have just enumerated?
5 THE WITNESS: Your Honor, at least the major cost
6 variables and at least to get also -- there's another
7 point -- the data correct, and when we tried to correct the
8 data, it was also eliminated.
9 THE COURT: But you have said now --
10 THE WITNESS: That could be done by verifying
11 with the publishers, if you've got me, that you're citing --
12 that what you're citing in these would be done then in
13 different kinds of tables. Now, seven journals are not
14 research publication journals at all, out of eleven.
15 THE COURT: I understand that.
16 Mr. Lupert?
17 BY MR. LUPERT:
18 Q. In fact, maybe my last question would be, you had
19 testified that there were in the neighborhood of something
20 over 20 physics journals --
21 A. Yes.
22 Q. -- that Gordon & Breach published?
23 And there had been a question put to you on
24 Friday by Mr. Meserve about the other ones that were
25 excluded which it turned out we had actually listed in an
931
1 interrogatory answer. We are not taking you through all of
2 them. There are some of these in the other 13, the ones
3 that Professor Barschall was not able to get access to, in
4 his words, that would fall within the specialized concept
5 that ferroelectrics -- and I don't mean that it deals with
6 ferroelectrics, I mean just in a general sense.
7 A. Yes. Yes, but we are not saying that because
8 it's specialized it cannot be compared to another
9 specialized journal.
10 Q. No, you have made that point.
11 A. I want to make that clear.
12 Q. But there were eleven that he chose --
13 A. Yes.
14 Q. And you have said repeatedly -- and, please,
15 don't say it again -- that seven of them fit within the
16 comments and other context.
17 A. Yes.
18 Q. But there were -- of the other 13, there were a
19 lot of other specialized journals, like Ferroelectrics, one
20 of the ones that was included, correct?
21 A. Yes.
22 Q. I would put in as a final exhibit the list of the
23 other 13, which was in fact a response to interrogatory No.
24 1 promulgated by the defendants. Mr. Meserve had stated --
25 it was promulgated by the defendants, obviously answered by
932
1 the plaintiffs, dated April 15, 1996.
2 MR. MESERVE: Your Honor, could we object? We
3 have had no testimony from any witness about what these
4 specific journals are. Mr. Gordon didn't know them the
5 other day. We haven't heard about this from any other
6 witness. And I think it's a little late in the day for --
7 THE COURT: What inference am I to draw from that
8 exhibit?
9 MR. LUPERT: That there are indeed -- well, let
10 me put it this way, Judge. There seems to be an inference
11 that the defendants want to draw that somehow Gordon &
12 Breach is drawing lines between these eleven journals that
13 are in some way either arbitrary or inaccurate, but, in
14 fact, there's a panoply of 24 journals, and it just happened
15 that Barschall had selected five comments journals, a
16 handbook, but had he gone to the other ones there would have
17 been another group of very specialized journals that are
18 basic research journals.
19 THE COURT: What is going to tell me what that
20 listing is of journals that are significantly different from
21 the 11 selected?
22 MR. LUPERT: I should ask the question, then. I
23 didn't think there would be a dispute, frankly, but you are
24 quite right that I should put the list before the witness
25 and ask him very briefly.
933
1 MR. MESERVE: Your Honor, this witness has
2 already testified during the cross-examination that he
3 doesn't have sufficient knowledge of physics to be able to
4 determine what is specialized and what isn't. He doesn't
5 know the fields.
6 THE WITNESS: I'm sorry. That isn't what I said.
7 THE COURT: He has been testifying all morning as
8 to the nature of his journals. No, overruled.
9 BY MR. LUPERT:
10 Q. Mr. Gordon, I put before you a list of the other
11 13 or 15 physics journals that were identified. Can you
12 state very briefly which fall within the kind of specialized
13 areas that you described was accurate for the
14 ferroelectrics, for example?
15 A. Ferroelectrics, I would include Active and
16 Passive Electronics, Combustion Science and Technology,
17 Crystallography Reviews, the one that's a -- European
18 Applied Research Reports is like the ones they included that
19 they shouldn't have because these are obviously not research
20 papers.
21 Q. I don't know what you mean by the word -- they
22 shouldn't have.
23 A. The Applied Research Reports, Nuclear Science and
24 Technology, these reports were done for the European
25 commission on just reports of their research, not reviews or
934
1 anything else.
2 Q. So they weren't basic research papers?
3 A. No, no, they weren't research papers at all.
4 They were just summaries of their research.
5 Geophysics and Natural Fluid Dynamics obviously.
6 Magnetic --
7 Q. Obviously one, obviously?
8 A. Obviously specialized.
9 Magnetic Resonance Review, Molecular Crystals and
10 Liquid Crystals, Phase Transitions, Physics Chemistry and
11 Mechanics of Surfaces.
12 Q. Thank you, Mr. Gordon.
13 MR. LUPERT: Judge, I have no further questions.
14 THE COURT: Anything further of this witness?
15 MR. MESERVE: Your Honor, I will be very brief.
16 RECROSS-EXAMINATION
17 BY MR. MESERVE:
18 Q. Mr. Gordon, I am going to hand you a copy of -- I
19 only have one copy -- I'm going to hand you a copy of
20 Defendants' Exhibit VVVVV, five V's. It's Ferroelectrics
21 Volume 76, Nos. 3 and 4.
22 What I am going to refer you to is an article on
23 page 343. I am going to ask you a question as to whether
24 that is an example of the high-quality typesetting that is
25 provided by Gordon & Breach.
935
1 A. No.
2 Q. You would concede that in fact that typesetting
3 is very poor, isn't it?
4 A. That's not typesetting. There are proceedings --
5 this is the proceedings volume of the British Dielectric
6 Society meeting. It is distributed both to attendees as
7 part of their registration fee and as the --
8 THE COURT: So at some other reproduction
9 process?
10 THE WITNESS: That's right. Authors submit
11 camera-ready copy.
12 Q. In fact, that seems to be one that's --
13 A. Now, these days there would be one that would be
14 electronic, yes, hopefully.
15 Q. That one seems to be a document with -- composed
16 on a rather poor manual typewriter?
17 A. We haven't composed it.
18 Q. I'm sorry.
19 A. It was composed by the author.
20 Q. In the field of physics, is it your view that
21 Gordon & Breach journals in general require more
22 sophisticated typesetting than those of other publishers in
23 the field of physics?
24 A. In the field of physics in general?
25 Q. Yes.
936
1 A. I -- you know, not necessarily every publication
2 requires more sophisticated typesetting.
3 Q. So this is not a subject area in which you are
4 prepared to testify that there's a difference in terms of
5 the sophisticated typesetting between your journals and
6 those of other publishers?
7 A. I could testify specifically on, for example,
8 applicable analysis, which is not one of the physics
9 journals, which came up in the AMS survey. That article --
10 those articles, just the same, were pure math. By the way,
11 that was mentioned in the first Barschall survey so it's not
12 totally irrelevant.
13 And in addition, we have other journals which are
14 pure typesetting. The typeset -- the factor -- the cost
15 factor at that time was about a factor of 8, between the --
16 setting a page of pure mathematics and setting a page of
17 pure text.
18 Q. You agree, do you not, Mr. Gordon, that Gordon &
19 Breach journals in general do not necessarily require more
20 sophisticated typesetting than those of other publishers?
21 A. "In general not necessarily," I don't understand
22 the meaning of that.
23 Q. Now, in the years 1987, 1988, Gordon & Breach
24 didn't have page charges, did it?
25 A. No.
937
1 MR. MESERVE: No further questions, your Honor.
2 THE COURT: Thank you. You may step down.
3 THE WITNESS: Thank you.
4 (Witness excused)
5 THE COURT: Plaintiff may call its next witness.
6 MR. LUPERT: Judge, at this time, the plaintiffs
7 would wish to introduce a variety of documents and
8 deposition testimony, but my strong sense of it is that the
9 Court would not want me to begin reading this. I just need
10 to make a presentation of it, to put it into evidence. Our
11 thought was that in the post trial submissions we would
12 analyze all of this.
13 THE COURT: So you have a list of exhibits?
14 MR. LUPERT: We have a list of exhibits and we
15 have depositions.
16 THE COURT: And you have gone over it with
17 Mr. Meserve?
18 MR. LUPERT: We have gone over it in the pretrial
19 process a great deal to isolate the testimony and the
20 objections.
21 MR. HUVELLE: Your Honor, I think we were hoping
22 for a more refined or limited list based upon the rulings
23 and progression of the case.
24 MR. LUPERT: I think therefore we have to do
25 this. But before I rested, I just didn't want to leave the
938
1 record barren of my thinking on the documents.
2 THE COURT: The plaintiffs rest subject to a
3 submission of a list of exhibits to which there is no
4 objection or the Court's ruling with respect to those as to
5 which there is an objection?
6 MR. LUPERT: First, and, second, the deposition
7 testimony would fall into the same category.
8 THE COURT: Deposition testimony?
9 MR. LUPERT: Yes.
10 THE COURT: Now, how much deposition testimony is
11 going to be offered in evidence?
12 MR. LUPERT: I defer to Ms. Burke.
13 MS. BURKE: (Indicating)
14 THE COURT: Do we have designations and counter
15 designations?
16 MR. LUPERT: Yes, and there is a book that has
17 been prepared which combines them and --
18 THE COURT: No. I have a uniform rule. Take one
19 copy of each deposition. Xerox it. Plaintiff is red.
20 Defendant is blue. You draw a red line down the margin of
21 the pages that the plaintiff designates, a blue line down
22 the margin for the pages that the defendant designates, and
23 that document is offered in evidence.
24 MR. LUPERT: I think we have done basically that.
25 THE COURT: If you have done that that's fine.
939
1 MS. BURKE: Yes, your Honor, we have basically
2 done that. We didn't use the right colors but --
3 THE COURT: I don't care about the colors. What
4 I don't want is to have two documents and something else
5 which says page 75, lines 3 to 4.
6 MS. BURKE: We have consolidated it.
7 MR. LUPERT: It is done exactly as you have just
8 stated it.
9 THE COURT: Fine. Subject to which --
10 MR. LUPERT: Plaintiffs rest.
11 THE COURT: Plaintiffs rest. OK. What is the
12 next order of business?
13 MR. MESERVE: Your Honor, I would like to move
14 for judgment at this point. The plaintiffs have completed
15 their case. Would you like to hear me on that motion, your
16 Honor?
17 THE COURT: Why don't you take five minutes and
18 just give me the highlights.
19 MR. MESERVE: Your Honor, the plaintiffs' theory
20 of this case is that Castrol applies and that the reliance
21 on the Barschall survey methodology for issues relating to
22 whether the APS journals are cost effective or good values
23 is false and misleading. Their principle argument seems to
24 be that the various factors evaluated by Professor Barschall
25 do not support the finding that the APS journals and AIP
940
1 journals are in fact cost effective.
2 The cost per character factor is just a simple
3 normalization to account for journal prices. You have heard
4 testimony elicited from the plaintiffs' own witnesses that
5 this is a standard practice in the art. George Taylor, who,
6 as you will recall, was the editor of ferroelectrics, has
7 effectively used exactly an analogous technique, cost per
8 article, in discussing the cost-effectiveness of his
9 journal. And Mr. King, who was of course the plaintiffs'
10 expert, said it is a sound practice to normalize cost of
11 journals, and he has done that exactly himself.
12 Impact factor is a standard bibliometric tool.
13 Mr. King has agreed that such analysis is an indicator of
14 scholarly value. He has agreed that the impact factor is
15 widely used by librarians, publishers, and others as a
16 benchmark for comparing journals. And he even acknowledged
17 there was no basis for concluding the results that Barschall
18 achieved would be any different if a different measure had
19 been used.
20 Ratio, which is the measure of the
21 cost-effectiveness, is something that Mr. Kingma agreed that
22 he had some disputes about the particular measures that were
23 used but he acknowledged that the ratio was a standard
24 economic tool, and if each of the factors is
25 unobjectionable, cost per character and impact, then ratio,
941
1 similarly, is just a way of arraying and comparing the data.
2 Plaintiffs' principal grievance seems to be that
3 there are reasons that they did poorly, a factor which is
4 not discussed in the Barschall article at all. It may well
5 be that they have costs or high profits that explain their
6 poor performance, but that was irrelevant to the Barschall
7 analysis. We don't disagree that libraries should consider
8 other factors as well, but there is nothing in this case
9 that we ever suggested that libraries should consider only
10 the information in the survey. We just really want to have
11 the right to inform them of relevant and appropriate
12 information so that they can make informed judgment.
13 Considering the matter, the case law shows that
14 the tests, the Castrol methodology, don't have to be
15 perfect. They only have to be sufficiently reliable to
16 support the claim. The testimony that we have elicited from
17 the plaintiffs' own witnesses should be satisfactory to meet
18 that burden, particularly when we have an audience here of
19 librarians and scientists who are themselves sophisticated
20 about the journals and would be highly unlikely to take this
21 sort of information and misuse it.
22 We believe that the plaintiffs have not
23 established their burden of showing that the application of
24 the Barschall methodology is false and misleading. We think
25 it is time to bring this extraordinarily expensive
942
1 litigation to an end. My clients have been sued in four
2 countries, based on the sorts of evidence that this Court
3 has heard. They are non-profit societies. They could spend
4 money in much better ways than paying my fees. We move for
5 judgment, your Honor.
6 THE COURT: I think that the way the argument has
7 just been made and -- but I'm going to deny the motion at
8 this point, not because I feel it does not raise very
9 significant issues, but indeed because it does.
10 Mr. Meserve, when you talk about the long road here and the
11 cost today, I have in mind the fact that we are, what, one
12 day away from the conclusion of all proceedings, and it
13 would indeed be a great disservice to your clients if this
14 Court were to grant the motion and run the risk that some
15 other court might say that it was premature to do so. And
16 so I am going to deny the motion and proceed to the
17 defendants' case.
18 Mr. Lupert, you are certainly entitled to five
19 minutes of equal time if you want to, but in light of the
20 Court's ruling, maybe that is not necessary.
21 MR. LUPERT: It strikes me that the better part
22 of advocacy is to not respond at this time but after the
23 case is completed.
24 THE COURT: Very well. The defendants case is
25 going to consist of recalling Mr. Lustig and how many other
943
1 witnesses?
2 MR. MESERVE: I think we have -- I have lost
3 count, your Honor.
4 THE COURT: You have lost count. But remembering
5 that tomorrow we start at 11, it is still anticipated that
6 we will conclude tomorrow?
7 MR. MESERVE: It is dearly hoped by the
8 defendants, your Honor, that we will conclude tomorrow.
9 THE COURT: All right. We will break until 2
10 o'clock.
11 (Luncheon recess)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
944
1 A F T E R N O O N S E S S I O N
2 2:10 p.m.
3 THE COURT: Ms. Burke.
4 MS. BURKE: We are going to call Isabel Czech of
5 the Institute of Scientific Information.
6 ISABEL CZECH,
7 called as a witness by the defendants,
8 having been duly sworn, testified as follows:
9 DIRECT EXAMINATION
10 BY MS. BURKE:
11 Q. Ms. Czech, where do you work?
12 A. I work for The Institute for Scientific
13 Information in Philadelphia.
14 Q. What is that organization?
15 A. ISI is what's called a secondary publisher, which
16 means that we take information from primary publishers and
17 put it into a form that's used by researchers primarily in
18 the sciences to help them with their research.
19 Q. What position do you hold at ISI?
20 A. Right now I'm the director of publisher relations
21 and editorial development.
22 Q. How long have you been with ISI?
23 A. I started there in September of 1976.
24 Q. If you could just briefly describe the positions
25 you held prior to your current one.
945
1 A. Sure. When I started there in 1976, I was an
2 editor in what's now called the Editorial Development
3 Department, evaluating and selecting journals for coverage
4 in Current Contents, specifically for Current Contents,
5 Physical, Chemical, and Earth Sciences.
6 From there, I moved on to evaluating journals in
7 the social sciences and the humanities, and then when
8 copyright law and things like that started to heat up and
9 ISI decided that it needed somebody to focus on ensuring
10 that ISI complied with copyright law and also needed
11 somebody to negotiate contracts with publishers enabling us
12 to do document delivery for their information, I moved
13 slightly over from editorial into dealing with publisher
14 relations so that I could interact with publishers to
15 represent ISI to them and to negotiate contracts and also to
16 ensure that ISI complied with all U.S. copyright law.
17 I worked with that for a while, basically really
18 started the Publisher Relations Department. That started to
19 grow. As importance became greater on the part of the
20 publishing community to get their journals covered by us, it
21 was decided to merge the two groups of publisher relations
22 and editorial development together since they were so
23 interrelated, and just about two and a half years ago I
24 became responsible for both groups.
25 Q. How many employees are in both groups?
946
1 A. I have 20 people under me now.
2 Q. What products does ISI sell?
3 A. We are best known, I would think, for Current
4 Contents, specifically for Current Contents Life Sciences,
5 which is probably our best known product, then Current
6 Contents Physical, Chemical, and Earth Sciences, for
7 example; there are five other editions of Current Contents
8 as well. Current Contents is a weekly publication. It's a
9 current awareness tool that helps researchers target in on
10 articles that would be of interest to them. We list the
11 contents pages from the leading scientific and social
12 scientific journals in the world.
13 We also publish something called the Science
14 Citation Index, which is used as a bibliograpic tool, which
15 will lead people through their research from one relevant
16 article to another. For that product, we depend primarily
17 on the cited references or the footnotes which appear at the
18 ends of articles in the journals, and they enable people to
19 sort of do detective work to move from the research that
20 they're doing now, it leads them back through the research
21 as it has progressed so that they can find more material to
22 substantiate what they're working on or it perhaps shows
23 them that they're going down a wrong road, for example.
24 Another product which we're very well known for
25 is the Journal Citation Reports. That used to be an actual
947
1 part of the Science Citation Index. It's now published
2 separately. And that product has several different
3 sections. Basically, it rates or ranks journals based on
4 citations that those journals receive in the literature, the
5 literature in this case being the journals that ISI covers
6 in its database. Those are probably the products we are
7 best known for.
8 Q. Back in 1986, was the Journal Citation Report
9 part of the Science Citation Index?
10 A. Yes, it was.
11 Q. I am going to hand you what we have marked as
12 Defendants' Exhibit MM and ask you to identify that.
13 A. This represents a portion of the SCI or the
14 Science Citation Index back in 1986. The introduction is
15 here, as well as portions of the Journal Citation Reports
16 where the journals are ranked in a variety of ways.
17 Q. You referred to this product as a bibliometric
18 product. Who is it that buys this product?
19 A. Are we referring to the Journal Citation Reports?
20 Are we speaking of that?
21 Q. Yes, and the Science Citation Index as well.
22 A. The Science Citation Index in general and the
23 Journal Citation Reports in particular are purchased by a
24 lot of people. The SCI is a broader tool than the JCR, and
25 that is purchased primarily by large libraries,
948
1 internationally, both corporate and academic. It's used not
2 by undergraduate-level people but it's used by graduate
3 level, corporate, post-doctorate, people of that nature who
4 are doing pretty heavy research in their particular field,
5 and as I said, it is purchased primarily by libraries for
6 their patrons.
7 The Journal Citation Reports are also purchased
8 by libraries, to a large extent. They are also used more
9 and more frequently by publishers, as well, to help them see
10 how their journals are rated and compared to journals in
11 their fields.
12 Q. How does ISI decide which journals to include in
13 that product?
14 A. OK. We don't decide what journals go
15 specifically into the Journal Citation Reports. What we do
16 is, we evaluate journals for coverage in any products that
17 may be relevant, and that is the primary responsibility of
18 the people on my editorial staff, editorial development
19 staff. And there are a lot of factors that go into actually
20 how we select the journals that get covered.
21 Do you want me to go into the details of those?
22 Q. Why don't you just tick off the factors, if you
23 can, that you look at.
24 A. The first factor that we will look at when a
25 journal comes in is, does our database need another journal
949
1 in a particular discipline? Just dealing with the sciences,
2 for example, we deal with over 100 different disciplines in
3 the five editions of Current Contents, for example, that
4 deal with the sciences.
5 So we are looking at a lot of journals every
6 year. A lot of those journals deal with subject matters
7 that are already dealt with in depth in our product,
8 journals of high quality, journals that our subscribers have
9 asked us for, the journals that seem to be the best in their
10 field. So when new journals come in, we look at them very
11 carefully because we want to make sure that we're covering
12 the best, and if a new journal comes in and it's offering
13 something new to our subscribers -- it's either dealing with
14 a new field, a hot new field, a niche field, for example --
15 we want to make sure that we get that into our product.
16 The first step is, is it dealing with a field
17 that is of particular interest to our subscribers at that
18 particular moment. Very general journals, for example, a
19 general education journal, a general neuroscience journal at
20 this point in time would probably not be considered for
21 evaluation and coverage at this time because there are
22 already very well established journals in those particular
23 disciplines. What we look for more now are journals that
24 deal with more specialized fields, since that is what our
25 subscribers are looking for.
950
1 So if a journal makes that first cut, we will
2 then go into more in-depth analysis of the journal. And we
3 look at a variety of things. For example, we will look at
4 the credentials of the editor of the journal, the editorial
5 advisory board of the journal, and the authors who are
6 contributing to the journal. We look at their affiliations,
7 where they're doing their research, where they're employed.
8 And we also look to make sure that the editor and the Ed
9 board and the authors are coming from a wide variety of
10 places. International coverage in our database is very
11 important to us because more than half of our subscriber
12 base is non-U.S., and so we work very hard to be sure that
13 we are covering material from as broad a base as possible,
14 getting journals from people who can bring in a large number
15 of contributors from a wide variety, make sure that you're
16 getting a broad perspective on an issue, that you're getting
17 as many perspectives as possible.
18 It also suggests, if the people come from a wide
19 variety of bases, that you don't have an editor who
20 basically has called in a lot of his friends to contribute
21 to articles. They may have come from Harvard and Harvard is
22 very prestigious, but if they all come from the same place
23 they might run out of manuscripts after the first couple of
24 issues. So you look for as wide variety of people that you
25 can possibly get.
951
1 We look at the citation data that is contributed
2 to the Ed board, the editor, and the authors. We can see
3 how frequently prior material that these people have written
4 have been cited, since that's a good indication that their
5 prior work is well respected and well regarded. And if
6 these are people of high reputation, solid reputation, they
7 are active contributors to their field and they have taken a
8 chance on a new journal, they are willing to stake their
9 reputation on it, become involved with it, that's a good
10 indication to us that they have given contributing to this
11 journal a lot of thought, and that's a good indicator to us
12 that that would be a journal worthy of coverage in our
13 database. So we look at that.
14 We look at other factors. We look at the
15 composition of the journal. Things like the physical makeup
16 of the journal. Some things used to matter to us that don't
17 any longer, the layout of the contents page and things like
18 that. Since we prepare a lot of this material
19 electronically now, they no longer matter.
20 But the physical composition of a journal is a
21 good indicator to us that the publisher is solid, they have
22 got enough money behind them, that they are not going to go
23 out of business any time soon, that they have good printers
24 behind them, they're not the bottom of the queue at the
25 printer, that sort of thing. So it gives us an indication
952
1 that the publish is solid, that the journal is solid, that
2 will be around for a while. So we look at that.
3 We look at the cited references of the ends of
4 the article. We look if there is some sort of standard used
5 in the presentation of that material. It's a good indicator
6 that the editor knows what he or she is doing.
7 We look for what we call meaningful article
8 titles, because since our database is going to be used to
9 help people do their literature searches, we need to be sure
10 that people aren't going to find article titles that won't
11 enable them to do their research. So you look for key words
12 being available in the article titles; again, a good
13 indication that the editor and the authors know what they're
14 doing.
15 We also look at the frequency, the timely
16 publication of the journal, particularly for Current
17 Contents, since Current Contents is a current-awareness
18 publication, and our subscribers rely on those to be sure
19 that what we're bringing them is timely information and that
20 they're not getting old information that's been sitting
21 around for a while.
22 So if a journal meets all those criteria we will
23 then select it for coverage.
24 Q. So how many journals actually pass all those
25 tests?
953
1 A. We actually only accept about 12 percent of what
2 we look at. We look at over 1,000 journals on an annual
3 basis and we pick up fewer than -- a little more than 100, I
4 would say, in all the disciplines. We are very selective.
5 THE COURT: You pick up 100 per year?
6 THE WITNESS: That's correct.
7 THE COURT: You say out of 1,000?
8 THE WITNESS: About a thousand, yes.
9 THE COURT: How many do you have in total?
10 THE WITNESS: In total right now we have about
11 8,500. So the database is growing slightly every year, a
12 couple percent every year it gets a little bigger.
13 Q. Do you ever drop any journals out of the
14 database?
15 A. We do. We probably drop about the same number
16 that we add. And it's not that we're mandated by management
17 or by budget in any way to drop a certain number. It's just
18 coincidentally it almost seems to work out that we drop
19 about as many as we add.
20 Q. What conclusions, if any, can you draw from the
21 fact that a journal is included in your database?
22 MR. PLOTZ: Objection. She is not an expert
23 witness.
24 THE COURT: I'm not sure I understand the
25 question, unless it is just a summary of what the witness
954
1 has already said. The witness has told us what her criteria
2 are, and I suppose it follows from that that if an
3 acceptance is granted to coverage, it would mean that the
4 journal has passed muster under those criteria. Is that
5 what you're asking?
6 MS. BURKE: Yes. It was a summary question, your
7 Honor.
8 THE COURT: All right.
9 MS. BURKE: I'll move on.
10 BY MS. BURKE:
11 Q. To what extent does ISI monitor the ways in which
12 others use their data?
13 A. Publishers use our data a lot these days. As
14 competition for subscription dollars gets tougher and
15 tougher, publishers have started to use ISI data like impact
16 factors, for example, in their promotional material, and we
17 see this in a variety of places, at poster sessions of the
18 large end-user shows, the library shows, also up on
19 publishers' Web sites, for example.
20 My staff in Publisher Relations, it's part of
21 their responsibility to monitor publishers' Web sites to see
22 if our information is being used. My staff and I attend
23 just about every library show and user show that, the large
24 ones, where our products would be relevant to look to see if
25 this information is being used accurately. I'm on a regular
955
1 communication with the top publishers with whom we deal, and
2 they know that they are supposed to clear copy with us
3 before they do use this information because it sometimes
4 does get misused.
5 Q. We have heard testimony earlier about some of the
6 potential causes of confusion in citation analysis from
7 Dr. Kingma, such as authors with the same name, misspellings
8 and the like. What steps, if any, does ISI take to make
9 sure that its database is accurate?
10 A. I think one of the reasons ISI has been so
11 successful is that we are very well known for the high
12 quality of our data. Dr. Kingma was right in saying that
13 sometimes citations are incorrect at the end of articles.
14 The editors unfortunately, I think, have so much to do that
15 they cannot always verify the accuracy of those cited
16 references and so you may get John Smith and John A. Smith,
17 for example.
18 ISI works very hard to rectify those situations,
19 and, in fact, we are known in the industry and by our
20 customers for having an --
21 MR. PLOTZ: I'm going to object to this.
22 THE COURT: Yes. Just --
23 THE WITNESS: Sorry.
24 THE COURT: Just answer the question without the
25 editorial comment.
956
1 THE WITNESS: OK.
2 A. We take steps in our data preparation facilities,
3 which are in Cherry Hill, New Jersey, to verify the
4 accuracy, whenever possible. If there are inconsistencies,
5 things that look like inconsistencies to us, we will pull
6 the actual articles to verify the accurate spelling of a
7 name, for example, the accurate volume and issue number, and
8 rectify that information in our database.
9 Q. Do you and your colleagues follow the literature
10 on citation analysis?
11 A. Yes, we do.
12 Q. Did your colleague David Pendlebury provide to
13 Covington and Burling that literature?
14 A. Yes, he did.
15 Q. I would like to show you what has been marked as
16 Defendants' Exhibit LLL and ask you to identify that group
17 of articles.
18 A. Yes. These are the articles that David provided.
19 Q. I would just like to direct your attention to the
20 first article by Dr. Garfield.
21 MR. PLOTZ: Your Honor, I'm going to object to
22 the use and introduction of any of these articles in
23 evidence. They are hearsay. These are journal articles
24 that not even this witness has identified. But if she were
25 an expert --
957
1 THE COURT: Isn't one of the issues in Castrol
2 the extent to which a test has been accepted in the field?
3 MR. PLOTZ: But they need to prove it through a
4 qualified expert. You can't prove it by introducing hearsay
5 literature. That's what the expert is for, to explain it,
6 and to testify about it. This witness is not an expert.
7 She didn't even collect those articles.
8 THE COURT: Is this witness being tendered as an
9 expert in citation analysis?
10 MS. BURKE: No, your Honor. She is being
11 tendered as a fact witness, as someone who worked for ISI
12 both at the time and presently and is familiar with their
13 processes.
14 THE COURT: What is it that these articles are --
15 for what reason are these articles being offered?
16 MS. BURKE: It was offered -- as your Honor said,
17 it is offered to show the state of the art under the Castrol
18 analysis, and I wanted Ms. Czech to identify the articles as
19 ones that other colleagues had collected and supplied to us.
20 And I am happy to move on from that, but I did want them
21 authenticated and introduced into evidence.
22 MR. PLOTZ: Your Honor, she has authenticated it
23 and I don't have an objection to her saying this is what
24 other colleagues identified. But even if she were an
25 expert, under 803.18, the reports themselves could not come
958
1 into evidence. Even with an expert, it could only be
2 referred to while the expert was on the stand so that the
3 expert could explain what, if any, significance the articles
4 have. The articles themselves are hearsay, whether it's
5 Ms. Czech's statement or some common expert.
6 MS. BURKE: Your Honor, the articles are not
7 being offered for the truth of the matter. They are being
8 offered to prove the state of the testing art. You don't
9 have to prove all of the statements in them as factually
10 correct for it to give you the perspective on what is out
11 there as the state of the art.
12 MR. PLOTZ: If they are not being offered for
13 what's in them, then I truly don't understand the statement.
14 THE COURT: I take it, it would be relevant
15 whether the Barschall methodology -- well, I shouldn't use
16 that word -- whether citation analysis originated with
17 Barschall and he was the only proponent of citation
18 analysis, it would be relevant to know that.
19 MR. PLOTZ: Certainly relevant.
20 THE COURT: Now, why isn't the converse also
21 relevant, whether citation analysis is a well-established,
22 utilized activity, inquiry among librarians and people who
23 service librarians?
24 MR. PLOTZ: I'm not contending it's not relevant.
25 But it has to be proven in a proper way.
959
1 THE COURT: What has to be proven?
2 MR. PLOTZ: What your Honor just said, if
3 citation analysis is or is not a legitimate analysis or what
4 about it is or what about it isn't, certainly is relevant in
5 this case, but it has to be proven with competent evidence
6 and a competent witness to do it.
7 Articles are hearsay. There is an exception
8 under the hearsay rules, the learned treatise exception,
9 it's Rule of Evidence 803.18. Even under that exception,
10 however, the articles themselves cannot come into evidence.
11 The expert can testify about them.
12 THE COURT: Now, we let in KKK, didn't we? How
13 does KKK differ from this?
14 MR. PLOTZ: We objected to that exhibit as well.
15 THE COURT: I see.
16 MR. PLOTZ: But I think that that was offered for
17 a slightly different purpose. We are now getting into --
18 these are -- just the first one is an article on citation
19 analysis as a tool. The other group of articles dealt with
20 instances in which cost normalization was used in a
21 comparison of the journals. This is getting into the
22 nitty-gritty of what citation analysis is all about.
23 THE COURT: Are you going to call another
24 witness?
25 MS. BURKE: That's just what I was going to
960
1 offer, your Honor. If it would expedite matters, we would
2 be happy to offer these through Dr. Ribbe. They have been
3 authenticated by Ms. Czech, and I can move on.
4 MR. PLOTZ: Just so it's clear, your Honor, I
5 will make the same objection at that time, because the
6 articles themselves will still be hearsay.
7 THE COURT: But he is being offered as an expert
8 and then, under the rules you have identified, he will be
9 able to testify as to those things which persons with his
10 expertise normally --
11 MR. PLOTZ: Assuming he is an expert in this
12 area, he will so testify.
13 THE COURT: I sustain the objection to the
14 evidence subject to introduction at a later stage.
15 Q. Ms. Czech, the ISI data that's at issue in this
16 case is the impact factor.
17 Could you briefly tell us what the impact factor
18 tells about a journal.
19 A. In layman's terms, an impact factor will tell you
20 the average number of times an average article, in a
21 particular journal, has been cited in a particular year.
22 Q. We have also heard reference to other ISI
23 measurements, half-life. What does that measurement tell
24 you?
25 A. Half-life, cited half-life in particular, which I
961
1 think is what you are referring to, refers to the number of
2 years back you would have to go from the time -- from the
3 present day to the number of years you would have go back to
4 see half of the citations that an article has received.
5 Q. How do your consumers use that information?
6 A. Though use cited half-life on the journal level,
7 librarians would use that -- one of the interesting uses is
8 to decide how long a journal should stay on a shelf, should
9 remain accessible to the patrons of a library.
10 Q. The other measurement referred to is total
11 citations.
12 A. Total citations simply refers to the grand total
13 of citations that a journal has received since the time it
14 was published up through the present time.
15 Q. If you compare the impact factor and total
16 citations, what is the effect?
17 A. Well, total citations, as I said, will just give
18 you a grand total. An impact factor deals with a specific
19 three-year period.
20 Q. To what extent does using total citations favor
21 the older and larger journals?
22 A. Well, obviously if it's 1997 now and a journal
23 was published in 1980, it's had 17 years of exposure to the
24 scientific community to receive its total number of
25 citations. Journals receive citations at different rates.
962
1 Some journals receive them more quickly than others.
2 Certain fields receive them more quickly than others. So
3 the number obviously will get larger the more time has gone
4 by, in total number of citations.
5 Q. Does ISI determine impact factors for all types
6 of journals, for review journals, letters journals, original
7 research journals?
8 A. Yes, it does.
9 Q. What about for specialized or niche journals?
10 A. Yes.
11 Q. Does ISI segregate the data by type?
12 A. No.
13 Q. Why not?
14 A. Well, we don't segregate them by type of journal.
15 We do -- one of the rankings that we do is by discipline.
16 But we don't by type. We cover all types of journals. We
17 cover review journals and original research journals and
18 letters journals, for example. We don't discriminate
19 against one type, let's say, or favor one type or another.
20 We will cover all types. So we group the journals together
21 by discipline. Our community, the community who is using
22 that material, would know to discriminate or segregate from
23 it if they so desired.
24 Q. When you refer to "discipline," do you mean like
25 physics or do you mean a smaller, such as ferroelectrics?
963
1 A. Well, for example, we will have a physics
2 category. Then within physics we will have smaller
3 categories as well. We wouldn't have anything so small as
4 ferroelectrics as a specific category, although the
5 ferroelectrics journals would be covered in its relevant
6 categories within physics.
7 Q. There has been testimony in this case that the
8 specialized or niche journals necessarily have lower impact
9 factors than a general journal. Is that true?
10 A. No, that wouldn't necessarily be the case.
11 Q. Could you explain why not.
12 A. Well, for example, a niche journal or, you know,
13 a subdiscipline journal would have fewer people doing the
14 research in that particular field, and their potential
15 audience would be small.
16 I mean, the audience tends to be made up of the
17 same people who are doing the research. So you may have 100
18 people doing the research. You may have 100 people
19 potentially going to cite that material. So you could have
20 100 articles written. You could have 100 citations and your
21 impact factor will be 1.
22 You could have a larger, more general journal,
23 that could have 10,000 potential citations, potential, you
24 know, articles written, and 10,000 people who could cite
25 that material in that field. You would have the same impact
964
1 factor. That's one of the things impact factors do. It
2 normalizes the activity and would help people to measure
3 journals regardless of the size.
4 Q. There has also been testimony in the case that
5 impact factors fluctuate substantially from year to year.
6 Based on your experience, does that hold true?
7 A. They tend not to fluctuate dramatically. You
8 might see a slight fluctuation of, you know, for example, an
9 impact factor could be 1.000. The next year it might be
10 1.025. You might see small fluctuations for most journals.
11 Some journals will see very dramatic fluctuations, and there
12 are a couple of causes of that.
13 Q. What are those causes?
14 A. Well, for example, there could be an incredibly
15 hot article written, and the citations would just go through
16 the roof. And since articles tend to be cited most
17 frequently in the year or two after they are published, you
18 would see an impact factor go quite high for if an article
19 was written in the year or two before, in one of those years
20 that's part of the impact factor. Then after the flurry
21 over that article has died down or you have moved away from
22 that three-year period for which an impact factor is
23 calculated, you might see the impact factor go back down to
24 what it was prior to the article. That's one reason.
25 Another reason an impact factor could fluctuate
965
1 dramatically is if a journal didn't publish in a particular
2 year: It published in one year, it didn't publish in a
3 second year. So your denominator of the impact factor,
4 which is the total number of articles written, might be
5 skewed because nothing was written in that particular year.
6 Q. I would like to turn to G&B in particular and ask
7 whether the ISI database includes any G&B physics journals.
8 A. Yes, it does.
9 Q. To what extent, if at all, is ISI aware of G&B's
10 flow system?
11 A. We are very familiar with the flow system and we
12 are in regular contact with people at G&B so that we know
13 when to anticipate journals, journal issues, because with
14 the flow system it's almost impossible to anticipate when an
15 issue might arrive. So we are -- that's why we're in
16 regular communication with them so we know when to expect
17 issues.
18 Q. I am going to hand you what is marked as
19 Defendants' Exhibit LL, and ask you to identify those
20 documents.
21 Ms. Czech, what are the documents I have handed
22 you?
23 A. These are the letters from Helene Chernack who
24 works for Gordon & Breach in their U.K. office to me.
25 Q. Why is Ms. Chernack -- G&B writing to ISI?
966
1 A. She is our regular contact at G&B and she writes
2 to me whenever there are new journals, new titles that she
3 would like ISI to evaluate or when she would like an updated
4 status on where our valuation stands in reference to their
5 titles.
6 Q. There is some reference in the correspondence to
7 G&B editors being anxious to be included in the ISI
8 database? Why is it that the editors want to be included?
9 MR. PLOTZ: Objection. There are references and
10 it is in evidence.
11 THE COURT: Restate the question.
12 Q. What are the reasons that G&B is seeking to be
13 included in the ISI database?
14 MR. PLOTZ: Same objection.
15 THE COURT: Do publishers want to be included in
16 your database?
17 THE WITNESS: Yes, they do.
18 THE COURT: Do they tell you why?
19 THE WITNESS: Yes.
20 THE COURT: What do they say?
21 THE WITNESS: They want to be covered because of
22 the selectivity of our database, and it's generally looked
23 upon as a seal of approval for a journal if ISI picks it up,
24 so it helps the future success of the journal.
25 Q. Does ISI cover any of G&B's comments journals?
967
1 A. We cover one comments title.
2 Q. Why don't you cover the others?
3 A. There are several others that we have looked at
4 that didn't meet our criteria. As I said, if we're looking
5 for journals to enhance the database that deal with subject
6 matters that we don't already deal with, that's what we're
7 looking for. The one that we picked up, Comments and
8 Inorganic Chemistry, offered something new and different to
9 our database, which is why we picked that one up. The
10 others didn't.
11 THE COURT: When you say you cover one comment
12 journal, one comment journal of G&B?
13 THE WITNESS: That's correct.
14 THE COURT: You cover comments journals of other
15 publishers?
16 THE WITNESS: I'm not familiar with other
17 publishers. I believe Elsevier may put out something
18 similar to comments journals, but in my experience I haven't
19 seen a lot of journals that are similar to that.
20 Q. Ms. Czech, are you familiar with the way in which
21 Professor Barschall used the ISI data in his cost
22 effectiveness studies?
23 A. Yes.
24 Q. What is your view on his use of the data?
25 A. Well, he --
968
1 MR. PLOTZ: Objection.
2 THE COURT: You see, you disclaim reliance on
3 this witness as an expert, and now you're asking for an
4 opinion.
5 MS. BURKE: Well, she has testified that ISI
6 monitors the way in which others use their data and they do
7 so on a regular basis. And so I'm asking her a question
8 that goes to the fact of the matter as to whether at the
9 time -- what view ISI had formed as to Professor Barschall's
10 use of the data.
11 MR. PLOTZ: She has testified about how
12 publishers use it in their promotional material.
13 MS. BURKE: I believe the allegations of the
14 plaintiffs in this case are that in fact those were
15 promotional materials. And I'm asking her ISI's view of the
16 Barschall use of impact factor.
17 THE COURT: All right. The line between fact and
18 opinion here is a very wavy line and I don't -- I don't
19 think it's of great moment.
20 You may answer the question.
21 A. Could you ask it again?
22 Q. What is your view on -- what is ISI's view on the
23 way that Professor Barschall used the impact data?
24 MR. PLOTZ: Wait a minute. Are we talking about
25 this witness's view or ISI's view? I'm going to object.
969
1 THE COURT: Is it part of your responsibility at
2 ISI to monitor how others are utilizing your product?
3 THE WITNESS: Yes, it is.
4 THE COURT: When you find a use which is in
5 your -- in the view of ISI inappropriate, do you take any
6 action?
7 THE WITNESS: Yes, we do.
8 THE COURT: What action do you take?
9 THE WITNESS: We get in touch with the people who
10 have published the article, have written the article,
11 stating our objections to it, asking for a retraction if
12 necessary.
13 THE COURT: Did you review the Barschall article?
14 THE WITNESS: Yes.
15 THE COURT: Did you do so independently of this
16 litigation?
17 THE WITNESS: Oh, yes. We were aware of it when
18 it first came out.
19 THE COURT: You may ask your question.
20 Q. What is ISI's view of Professor Barschall's use
21 of the impact factor data?
22 A. He used our data accurately. He used accurate
23 numbers. They were -- and they were used in a way that we
24 did not find objectionable.
25 Q. Thank you, Ms. Czech.
970
1 CROSS-EXAMINATION
2 BY MR. PLOTZ:
3 Q. The primary purpose of the Science Citation Index
4 is to help authors and researchers identify papers and help
5 them in their research; isn't that right?
6 A. That's correct.
7 Q. When ISI selects journals for inclusion, that's
8 the guiding principle that governs, isn't it?
9 A. That's right.
10 Q. Similarly, Current Contents is a publication
11 which is used to help researchers learn what's going on in
12 their fields, right?
13 A. That's right.
14 Q. To help them in their research?
15 A. Correct.
16 Q. The database -- you have a single database which
17 covers all of these publications, don't you?
18 A. It's one large database, that's right.
19 Q. Pretty much if you're in Science Citation Index
20 you're in Current Contents, right?
21 A. No. There -- well, for example, obviously you
22 would have to be a science journal in order to be in the
23 Science Citation Index as opposed to in one of our social
24 science products. It's more likely that you could be in --
25 you could be in Current Contents and not be in the SCI.
971
1 It's unlikely you would be in the SCI and not current
2 Contents. They don't automatically go together.
3 Q. But there's a pretty substantial overlap, isn't
4 there?
5 A. Somewhat.
6 Q. You said that currently ISI covers about 8500
7 journals?
8 A. That's right.
9 Q. That's out of, what? About 90,000 journals in
10 the world?
11 A. Yes. We estimate them at probably 75,000 and up.
12 It's hard to calculate an exact number.
13 Q. Most of the journals that you cover are based in
14 the United States and in Europe; isn't that right?
15 A. United States and Europe, yes. We also cover a
16 fair number from Asia as well.
17 Q. About how many Gordon & Breach journals does ISI
18 cover?
19 A. We cover 51 Gordon & Breach journals and we cover
20 in excess of 30 Harvard titles as well.
21 Q. So that's about 81 in all?
22 A. Correct.
23 Q. These journals generally come out on the flow
24 system?
25 A. That's right.
972
1 Q. You understand what the flow system is?
2 A. Yes, I do.
3 Q. If you didn't understand it, you wouldn't cover,
4 it right?
5 A. It would be hard to know when to expect issues,
6 and it might look as if the issues were publishing late,
7 that's right, but we're well aware of the system.
8 Q. Now, Judge Sand asked you a question about why
9 publishers want to get into the ISI database.
10 A. That's right.
11 Q. In any of the correspondence that was identified
12 from Ms. Chernack of Gordon & Breach, did she ever say that
13 Gordon & Breach wanted to be included in the database
14 because it was interested in what the impact factor of a
15 journal might be?
16 A. No.
17 Q. Have you ever had any communication with
18 Ms. Chernack in which she said that Gordon & Breach was
19 interested in being covered because of what its impact
20 factor might be?
21 A. No.
22 Q. Isn't it a fact that Gordon & Breach wanted to be
23 covered because it wanted its journals to be in an index and
24 available for researchers; isn't that right?
25 A. That's correct.
973
1 Q. Isn't it a fact -- you testified that impact
2 factor can fluctuate from year to year?
3 A. That's right.
4 Q. But in your view it, generally speaking, won't
5 fluctuate very much?
6 A. Generally speaking, that's right.
7 Q. You testified that David Pendlebury works in your
8 research department?
9 A. That's right.
10 Q. Do you agree with this testimony that he gave at
11 a deposition in this case on May 2nd of this year at page 15
12 and 16?
13 "Q. Speaking generally, not specifically, with
14 respect to any particular journal, can the impact factor for
15 a journal vary from year to year?
16 "A. Yes, it can.
17 "Q. Can it vary materially?
18 "A. Yes, it's possible."
19 Do you agree with that?
20 A. Yes, I do.
21 Q. Isn't it a fact that if you went through the
22 JCR -- let's just talk about physics.
23 A. OK.
24 Q. -- that if you went through the JCR from year to
25 year, you would find that impact factor regularly can
974
1 fluctuate 20, 30, 40 percent, up or down from one year to
2 the next?
3 A. I would be surprised to see fluctuations of that
4 magnitude.
5 Q. But you would agree that if that's what the JCR
6 showed, that that would be a fact, right?
7 A. I don't think I understand the question.
8 Q. Now, when you make comparisons between journals,
9 in your view and ISI's view, it's important to compare like
10 journals with like journals.
11 A. That's right.
12 Q. That's indeed one of the reasons that ISI breaks
13 down journals, by subdiscipline in the JCR, right?
14 A. That's right.
15 Q. The purpose is to facilitate comparisons of like
16 with like?
17 A. That's right.
18 Q. So in your view, it would not be a correct use of
19 impact factor to make comparisons across disciplines or
20 subdisciplines without identifying that fact, correct?
21 A. Well, you wouldn't want to see neurology journals
22 compared with chemistry journals, for example. That would
23 be a bad use of the information.
24 Q. Or, indeed, comparisons between one niche in
25 physics and another niche in physics; isn't that right?
975
1 A. I think the fields within physics are probably
2 related in close enough ways the librarians and the
3 researchers who would be using that information would know
4 how to use it correctly if journals were grouped perhaps a
5 little more broadly. We do group journals a little more
6 broadly than, I think, than -- we're not quite that limited,
7 because when people do literature searches, you want them to
8 be able to find material that's going to be useful, and that
9 could be cross-disciplinary.
10 Q. But in fact you do break the journals down by
11 subdiscipline, don't you?
12 A. Yes, to some level, that's right.
13 Q. And the range of impact factors differs from one
14 subdiscipline to another subdiscipline, doesn't it?
15 A. Yes, it could.
16 Q. For example, the top impact factor in one
17 subdiscipline in physics could be three and a half and in
18 another one it could be 11, couldn't it?
19 A. It could be.
20 Q. That doesn't say anything about the relative
21 merit of one over the other, does it?
22 A. No.
23 Q. It just says they're in different subdisciplines,
24 right?
25 A. That's right.
976
1 Q. And different types of journals, like review
2 journals and primary research journals, also have different
3 citation rates, don't they?
4 A. Yes, they do.
5 Q. Review journals in general have a higher rate of
6 citation than research journals, don't they?
7 A. In general.
8 Q. And it's your view and ISI's view that that fact
9 is something that should be taken into account in comparing
10 journals; isn't that right?
11 A. That's a tough one. When we evaluate journals,
12 we don't take that into account. We just want to make sure
13 that we're bringing the best literature to people. It is
14 true that citation analysis will show that certain types of
15 journals do get different citation rates. But I don't know
16 if we necessarily need to spell out the differences among
17 the journals. I think our researchers and librarians are
18 well acquainted with the types of journals out there and
19 it's easier for them to split them up further if they want
20 to.
21 Q. Do you believe that in any comparison of journals
22 it is important to take into account the fact that these
23 different types of articles and journals have different
24 rates of citation?
25 A. From whose perspective?
977
1 Q. From anyone's perspective.
2 A. I don't know. I'm not sure.
3 Q. Let me put before you what we have marked as
4 Plaintiffs' Exhibit 800 and turn to page 21A, which is
5 entitled "Source Data Listing." I would ask you to take a
6 look at the first paragraph in the right-hand column.
7 First of all, is the exhibit that I have just
8 handed you a copy of an excerpt from the SCI Journal
9 Citation Reports?
10 A. Yes, it is.
11 Q. You recognize it as part of the introductory
12 material that SCI -- that is included in SCI?
13 A. That's right.
14 Q. Do you agree with this statement, made in that
15 paragraph that I just referred you to: "Since a good review
16 article is likely to be highly cited, the publication of
17 reviews should increase the total citations a journal
18 receives. A journal that publishes reviews regularly will
19 probably be more highly cited than one which prints only
20 original research articles. This factor should be taken
21 into account in any citation analysis comparing journals."
22 A. Yes, I do.
23 Q. You do agree with that statement?
24 A. Yeah, I'm comfortable with that.
25 Q. I take it it's not your view that a review
978
1 journal is in any way better than a research journal simply
2 because it has more citations, is it?
3 A. It's different.
4 Q. It's different. And it's not your view that it's
5 better if it has a higher impact factor, either, right?
6 A. No.
7 MR. PLOTZ: Your Honor, I apologize. I don't
8 think I handed up a copy of Exhibit 800. I can point the
9 page to you if you would like. It's not numbered at the
10 bottom, but it comes after 20A. The number is very small.
11 Q. Now, you don't believe, do you, that a journal
12 with a higher impact factor than another journal is of
13 higher quality than the other journal, do you?
14 A. It's not what the number is meant to do. An
15 impact factor is a quantitative analysis. A logical
16 inference could be made from that, which I think is how they
17 are used primarily in the community. The number itself does
18 not state that. The number is quantitative.
19 Q. In fact, isn't it true that one of the ways in
20 which you monitor use of impact factor by publishers is
21 precisely because you are concerned when a publisher says
22 that it has a certain impact factor which means that it has
23 a journal of great quality or better quality? Isn't that
24 one of things you look for?
25 A. That's correct.
979
1 Q. You don't want publishers saying that, do you?
2 A. We don't want publishers to say that we said it,
3 you know.
4 Q. Because in your view impact factor is a
5 quantitative measure, correct?
6 A. Impact factor is quantitative.
7 Q. So if someone said that Barschall's formula,
8 Barschall's survey, proved that certain journals were of
9 higher quality than other journals, that would be a use that
10 you would consider inappropriate, correct?
11 A. I think it's a logical inference that, if a
12 journal has a higher impact factor, it could be inferred
13 that the journal is better. In his tables, he simply ranked
14 journals quantitatively, so that was an accurate use.
15 Q. Let me put before you Plaintiffs' Exhibit 97A and
16 ask if you recognize that as being from an Internet journal
17 called Newsletter on Serial Pricing Issues.
18 A. Yes, I'm familiar with it.
19 Q. Does this exhibit reflect basically an exchange
20 of views of many people, including Eugene Garfield?
21 A. I don't know. I haven't seen this.
22 Q. Take a look at page 4.
23 A. OK.
24 MS. BURKE: Your Honor, I object to questions of
25 this witness about this exhibit. She has testified she has
980
1 not seen this before.
2 MR. PLOTZ: Your Honor, she testified about it at
3 her deposition.
4 THE WITNESS: I just don't remember.
5 THE COURT: What is the question?
6 MS. BURKE: She nonetheless has no personal
7 knowledge of the document.
8 THE COURT: Yes. Has a question been asked of
9 her? She has been told to look at this, but not --
10 MR. PLOTZ: That's right. I am about to ask the
11 question.
12 MS. BURKE: Excuse me, your Honor.
13 Q. First of all, who is Eugene Garfield?
14 A. He is the founder of ISI.
15 Q. And the inventor of the impact factor statistic?
16 A. Yes, he is.
17 Q. Do you agree with this statement at the bottom of
18 page 4: "Impact, he stated," referring to Garfield, "is
19 used to describe the effect of citations. Quality of
20 valuation, however, requires more detailed content and
21 context analysis."
22 Do you agree with that statement?
23 A. Yes, I do.
24 Q. Referring to the paragraph immediately above that
25 paragraph, do you agree with this statement: "If an audit
981
1 determines the cost effectiveness of various publishers,
2 Garfield asked, would librarians make journal purchase
3 decisions based solely on these factors. He hopes not, for
4 not all factors are equal. Such things as whether journals
5 include review articles or research articles need to be
6 weighed, for example, since there is different value
7 received. The size of the audience is another significant
8 factor, as is peer rankings of journal quality."
9 Are those statements with which you agree?
10 A. Yes.
11 Q. I have nothing further?
12 THE COURT: Any redirect?
13 REDIRECT EXAMINATION
14 BY MS. BURKE:
15 Q. Ms. Czech, you were asked the question about a
16 specialty journal in one specialty that had a three and a
17 half impact factor and in another specialty it had an 11
18 impact factor. What do those variations tell you about
19 those two journals?
20 A. They simply state that at one journal -- in one
21 journal the article, an average article in the journal, was
22 cited an average of three times in the particular year. And
23 the journal with its impact factor of over 11 would have
24 been cited an average of 11 times.
25 Q. You were also handed Plaintiffs' Exhibit 800. I
982
1 would just ask you to turn to the back of that document and
2 describe for me what this bibliography is.
3 A. The bibliography at the end that seems to start
4 on 52A?
5 This is articles that were written prior to the
6 publication of the SCI in this particular year, which all
7 deal with citation analysis and different ways to do
8 collection development, and the way citation data can be
9 used. It's bibliometric articles.
10 Q. Thank you. I have no further questions.
11 THE COURT: Thank you. You may step down.
12 (Witness excused)
13 THE COURT: Defendants may call their next
14 witness.
15 MR. HUVELLE: Your Honor, our next witness is
16 Paul Ribbe.
17 PAUL H. RIBBE,
18 called as a witness by the defendants,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. HUVELLE:
22 Q. Mr. Ribbe, where do you live?
23 A. Blacksburg, Virginia.
24 Q. Do you have a Ph.D.?
25 A. I do.
983
1 Q. In what subject?
2 A. Physics.
3 Q. From what university?
4 A. The University of Cambridge, in England.
5 Q. Did you engage in any post-doctoral education?
6 A. I had one year as a National Science Foundation
7 fellow at the University of Chicago.
8 Q. Have you been employed as a university professor?
9 A. Yes.
10 Q. For what years?
11 A. 1964 and '65 I was at U.C.L.A., and from 1964
12 until about a year ago I was fully employed at Virginia
13 Tech, in Blacksburg.
14 Q. Is that from 1966?
15 A. '60 -- I'm sorry. I meant '66. '66 to '96.
16 Q. What is your current status?
17 A. Professor emeritus.
18 Q. You were at Virginia Tech?
19 A. Yes.
20 Q. What is your area of specialty within the field
21 of physics?
22 A. I am a crystallographer and I work with minerals.
23 Q. What is crystallography?
24 A. Crystallography is primarily involved with the
25 determination of the arrangements of atoms in crystals.
984
1 This can be atoms in things like proteins, DNA, as well as
2 inorganics. I worked on inorganic crystallin materials.
3 Q. Were you considered a mineralogist?
4 A. I was called a mineralogist by choice because I
5 did crystallography and the physics and chemistry of
6 minerals for my research, in the geology department.
7 Q. Can you tell us what your area of research was?
8 A. From the beginning, I was interested in the --
9 how the arrangement of atoms in a crystal structure affected
10 the chemical and physical properties of minerals, or, to
11 think of it another way, how the chemistry affected the
12 crystal structures and how that in turn related to the
13 physical properties of those minerals.
14 Q. In what -- what was the focus of your research?
15 A. The general theme was to look at minerals which
16 formed the major rock types, that make up the crust of the
17 earth, because that's what geologists are most interested
18 in. And by relating crystal structures and physical
19 properties, we can use a -- and chemical properties -- we
20 can use a combination of these things to determine something
21 about the history of the formation of the rocks in which
22 these minerals occur.
23 Q. Have you had occasion to publish any articles in
24 scientific journals regarding your research?
25 A. Yes.
985
1 Q. About how many articles have you published?
2 A. Close to 100, certainly more than that if I count
3 chapters in books.
4 Q. Have you served on any university library
5 committees during your time at Virginia Tech?
6 A. Yes.
7 Q. Could you describe them for us?
8 A. The main work I've done has been with our
9 departmental library committee beginning for the most part
10 in the late '70's, early '80's, when the pricing prices
11 began, where libraries were becoming lean and efficient, in
12 terms of the amount of money they had available.
13 Q. What was your role on the committee?
14 A. Well, one was to oversee the use of the library.
15 We had all the administrative tasks, as well as appraising
16 the work of the staff, but we also were involved with a
17 series of cancellations that came almost in waves every
18 other year or so, based on strictures in library funding.
19 Q. Have you had any experience as an editor of
20 scientific writings?
21 A. Yes, I have.
22 Q. Can you describe that experience from the
23 beginning?
24 A. My earliest involvement was as an associate
25 editor of the American Mineralogists, which is my
986
1 professional society journal, in which I was responsible for
2 obtaining reviews and for reviewing papers for publication,
3 passing them on to the editor. Later on I became, in the
4 mid '70's, the editor of a journal which is called Reviews
5 in mineralogy, which is a series of graduate-level
6 textbooks, essentially, text and reference books.
7 Q. Have you had any other editing experience?
8 A. Yes. I have edited for the Mineralogic Society
9 of America, the Reviews in Mineralogy, which now is -- I'm
10 working on the 36th book in that series. I've also been
11 editor of their monograph series, which is fairly new.
12 Q. For what period of time have you served as editor
13 of Reviews in Mineralogy?
14 A. Officially since 1978, but I also was doing it in
15 the years previous to that, 1974, '75.
16 Q. Do you continue in that role today?
17 A. Yes.
18 Q. How successful has that journal been?
19 A. By all reports, it has been very successful, but
20 then I'm prejudiced and perhaps people don't tell me if it's
21 not, but actually the -- it's been very well accepted by the
22 scientific community and has sold over 150,000 books.
23 Q. How do you measure its success?
24 A. Well, obviously sales are one area that we look
25 at every year, to see how well it's selling, how many copies
987
1 of each edition we sell. We are, you know, very much
2 concerned that it's reaching the people and that people are
3 using it. It's being used -- these are being used as
4 textbooks in advanced courses, not all of them, but some of
5 them. They are being used in things like other professions
6 as well. We keep a record of what is sold to our membership
7 and to related people and what is sold to -- outside the
8 community of mineralogists.
9 Q. Apart from your role as editor, to what extent
10 have you been a reader of scientific journals in connection
11 with your own research and teaching?
12 A. My editorial work involves a lot of reading, of
13 course, but most -- for the most part that doesn't -- is not
14 directly involved with my research. My teaching and
15 research just means that I have to be in the literature at
16 all times, although I'm retired from the teaching aspects,
17 so I don't do that kind of reading at that intensity any
18 longer.
19 Q. Are you familiar with the journals included in
20 Dr. Barschall's survey, generally?
21 A. Generally speaking, yes, of course.
22 Q. Have you published articles in any of those
23 journals?
24 A. Yes, I have.
25 Q. About how many of those journals have you
988
1 published in?
2 A. Three, at least three.
3 Q. And in connection with your reading of journals
4 as part of your own research and teaching activities, have
5 you had opportunities to read articles in the journals
6 included in Dr. Barschall's survey?
7 A. Yes, I have.
8 Q. About how many have you read in that connection?
9 A. It's a bit of a guess, but probably somewhere
10 between 12 and 20, or 15 maybe.
11 Q. In connection with your research during your
12 university career, to what extent have you been required to
13 collect and analyze data?
14 A. That's my stock in trade. That's what
15 crystallographers do. They extract data from the minerals
16 by various methods, x-ray diffraction and so on, and process
17 that data.
18 Q. Can you give us that example?
19 A. Well, the first one that is blazoned on my mind,
20 is -- the job I did as a first-year graduate -- doctoral
21 student at Cambridge where I collected -- for the first six
22 months I collected data from an x-ray diffraction unit on
23 film and then I spent one entire summer just quantifying
24 those films to get the data set that I would use for later
25 computer processing and determining this crystal structure.
989
1 That's one of many different kinds of examples, but I'm sure
2 I would bore you with others.
3 Q. One example would do fine. Thank you.
4 I would like to show you a document that has been
5 marked as Defendants' Exhibit U.
6 MR. PLOTZ: Excuse me. What exhibit?
7 MR. HUVELLE: U.
8 Q. Can you identify Defendants' Exhibit U?
9 A. Yes. This is my resume as of the 10th of June,
10 '96, with one penciled-in change, small change, on the first
11 page.
12 Q. Does this contain a listing of your writings?
13 A. Yes, up through '94.
14 Q. Dr. Ribbe, have you done any writings in the area
15 of bibliographics?
16 A. Yes, I have.
17 Q. How many -- how much writing have you done in
18 that area?
19 A. I have published four papers, one of which, by
20 the way, was a corrections manuscript, which made a few
21 changes in one of the earlier ones.
22 Q. I would like to show you Defendants' Exhibit AA.
23 Can you identify for us Defendants' Exhibit AA?
24 A. Yes. These are the four papers that we just
25 mentioned.
990
1 Q. Can you describe generally for us the subject
2 matter of the first article appearing in the May, June
3 edition of American Mineralogists?
4 A. Yes. It's an article that was written for my --
5 as part of my presidential address to the Mineralogical
6 Society of America. It's called "The assessment of prestige
7 and price of professional publications."
8 Q. Can you tell us what led to your becoming
9 involved in this subject matter?
10 A. Actually, it was an outcome of another study that
11 I was undertaking for the Mineralogic Society for my
12 presidential address. Rather than spout off about my
13 research accomplishments, about which most everyone knew
14 anyhow and may have been quite tired of, I decided to do, as
15 a service to the society, an undertaking of a survey of the
16 current state of funding, federal funding especially, of
17 research in the area of mineralogy and petrology and related
18 disciplines. And as part of that, I was looking at the --
19 assessing the faculties, using the Carnegie surveys to --
20 and the National Academy surveys of faculty and institutions
21 that granted Ph.D.'s, in order to assess how well the money
22 was being spent. In other words, if Cal. Tech. gets a lot
23 of money, what are they producing for that money? How many
24 publications do they turn out? What kind of money do they
25 get in the first place?
991
1 And as a subset of that I thought, well, it might
2 be interesting to see where these people are publishing
3 their papers. And I started to look in the journals to see
4 where these well-funded people were publishing, and I
5 started looking at the acknowledgements of those articles
6 and seeing where -- what grants they were referring to, and
7 the whole thing became a rather -- a large study which
8 involved not just the funding aspects of the thing and the
9 prestige of the departments and the individual members
10 within the departments but also the media in which they were
11 publishing.
12 Q. Was there a cost analysis that was a component of
13 that study that you did?
14 A. The -- one of the grants, you mean, or --
15 Q. No. In your own study.
16 A. My own study? Yes, there was.
17 Q. Can you briefly describe what that consisted of?
18 A. Well, I compiled the -- I compiled -- I compiled
19 the subscription prices over a period of eight or nine
20 years, and then I counted all of the articles that were
21 published. I had some help doing this, by the way. Counted
22 all of the articles that were published during each of those
23 annual periods, and compiled that data.
24 Q. What did you calculate from that data?
25 A. Well, I calculated and plotted the changes of
992
1 price with time, and I also -- of course, the major thing
2 was to take the time to look into the grants that were
3 acknowledged in these articles, and that was a whole another
4 aspect of it.
5 Q. What analysis did you do with respect to that
6 grant information?
7 A. Grant information was of two types. First of
8 all, I looked, since I can only consider those and was only
9 considering the U.S.-granting agencies, I only looked at
10 grants which were acknowledged in articles who would one
11 or -- which had one or more American author or authors who
12 identified himself as being American by having an address in
13 the United States. Sometimes that was a little tricky but
14 not often. And looked at the acknowledgements. I counted
15 how many grants -- and actually wrote down the names of the
16 grants that were recorded in those acknowledgements, and
17 also how many grants. In other words, a record was kept of
18 the grants that were acknowledged for each of the articles
19 by American authors. They also kept a record of those that
20 had no acknowledgements.
21 Q. In connection with your analyses of these
22 journals, did you look at citation data?
23 A. I did.
24 Q. What citation data did you review?
25 A. I reviewed primarily the impact factor and the
993
1 immediacy index. I looked at the others but I didn't
2 actually do any analysis of it.
3 Q. For how many journals did you examine such data?
4 A. I think there were 19 journals in the study and
5 only about 15 of them were actually subject to any citation,
6 series citation study.
7 Q. During what period of time did you conduct this
8 study?
9 A. I began when I was elected vice president of the
10 Society, knowing that two years down the line I would have
11 to do a presidential report, so I sort of began at that
12 time, and for the next year and a half at least I was pretty
13 intensely involved, not just in this but also in that
14 funding study that I mentioned. They both went on
15 simultaneously.
16 Q. Have you done subsequent analyses or writings in
17 the field of bibliometrics?
18 A. Subsequent to this article?
19 Q. Yes.
20 A. Yes. I was encouraged to expand this, and I did.
21 Q. What did you do when you expanded it?
22 A. Well, there were a couple of things. One is that
23 the article drew some flak, and rightly so in one case where
24 there was actually an error. Someone had published two
25 volumes in one year, but the second volume wasn't in the
994
1 library, so I never saw it. You know, there were things of
2 that sort and other things that we had to discuss with
3 sister societies, who were a little bit ticked off that I
4 discovered that they had made $1,000 on every library in the
5 United States by selling their journal at the pound price
6 instead of the dollar price, that sort of thing.
7 After that correction, I was asked to address the
8 national, what's called NASIG, National Association of
9 Serials Interest Groups, and they wanted a paper out of
10 that. So I essentially recast my study in terms that might
11 be a little more interesting to librarians.
12 Q. Is that the third article in the package?
13 A. That's -- yes, that is -- that is the third one.
14 Q. What is the fourth article?
15 A. The fourth article is an article that I wrote for
16 the Geosciences Information Society, GIS, who were
17 interested in hearing what sort of work I had done and
18 wanted me to expand the study into other areas of the
19 geosciences.
20 Q. What other areas did you go into?
21 A. Well, my study was on the -- what we -- the
22 specialties that we call mineralogy and petrology,
23 geochemistry. One can go on fragmenting the specialties,
24 but those are the general, broad terms. And
25 crystallography. They wanted me to go into other areas, and
995
1 so I chose the journals in the ISI as they were categorized
2 in geosciences, geology, paleontology, and also I looked at
3 geophysics, based on somebody else's work.
4 Q. For what purpose did you examine these areas?
5 A. Well, once again, the problem was, libraries were
6 in great distress over the increasing cost of articles, and
7 they wanted to know more information than they had, which
8 basically was the subscription price and the fact that it
9 was going up every year. And that's about all they had.
10 They didn't have anything else. I mean, they had other
11 things available to them, but they didn't take the time or
12 the energy to do it, do the work to find this information or
13 to compile this information.
14 Q. In connection with that analysis, did you
15 normalize the prices of these journals?
16 A. I did. I did for the mineralogy, petrology
17 things, I did normalize them.
18 Q. Now, let me ask you to turn to this case.
19 THE COURT: We will take our mid-afternoon
20 recess.
21 MR. HUVELLE: OK.
22 (Recess)
23 Q. Dr. Ribbe, in front of you, I believe, is a copy
24 of an article that has been marked as Plaintiffs' Exhibit 2.
25 do you see that?
996
1 A. Yes.
2 Q. Are you familiar with that document?
3 A. Yes.
4 Q. Have you had the opportunity to review the tables
5 that are set forth at the end of that article?
6 A. Yes. I did nothing with table 2, but I did look
7 at the others. I mean, I looked at it, but I didn't do
8 anything with it.
9 Q. Have you, sir, attempted to put together your own
10 database relating to the articles included in tables 1, 3,
11 and 4?
12 A. Yes, sir, but I used only part of the tables. I
13 used those which had complete data sets. As you notice,
14 there are some blanks in the -- in a couple of columns,
15 namely the impact, the impact column and cost per impact
16 column.
17 Q. Approximately how many journals are listed in
18 Dr. Barschall's study?
19 A. I think 178.
20 Q. Can you turn to page 1439 of Plaintiffs' Exhibit
21 2.
22 A. Yes.
23 Q. When you refer to "missing information," can you
24 point out to us with respect to that page what you mean?
25 A. Well, at the top of the page there are the five
997
1 Gordon & Breach comments journals, for example, which had
2 not been listed at that time in the ISI data file, and so
3 they have no impact factors and therefore no cost per
4 impact. And that's true with quite a number of other
5 journals as well.
6 Q. In putting together your own database, did you
7 include the journals which in Dr. Barschall's analysis had
8 no impact or cost impact data?
9 A. I did not.
10 Q. Approximately how many journals then were you
11 left with that had a complete data set?
12 A. 148.
13 Q. Could I ask you to look at a document that has
14 been marked as Defendants' Exhibit B, as in boy.
15 MR. HUVELLE: Your Honor, this document tests all
16 of us whose eyesight is not what it once was.
17 THE COURT: I noticed that.
18 MR. HUVELLE: I apologize for that.
19 Q. Can you identify Defendants' Exhibit B?
20 A. Yes. This is the data record of those 148
21 journals I just mentioned, which contain the information
22 from Barschall's tables plus other information.
23 Q. Did you put together this document?
24 A. I did.
25 Q. Did you create the database?
998
1 A. I created it, some of it. The rest of it came
2 from the data, came from other places, yes.
3 Q. In what form did you store the data?
4 A. This was on an Excel spreadsheet, Microsoft -- I
5 mean in a Macintosh computer.
6 Q. I would like to direct your attention to the
7 columns of data and ask you to identify them.
8 First of all, the journals that are listed on the
9 left, can you tell us how those are arrayed, in what
10 sequence?
11 A. They are listed alphabetically by publisher, the
12 publisher being in column B, so that AIP publications would
13 be all listed together, APS would be all listed together,
14 etc.
15 Q. Which journals are highlighted in pink?
16 A. The pink ones on this are the AIP, the first
17 group, and the second group is the APS.
18 Q. Which journals are highlighted in yellow?
19 A. The yellow ones are Gordon & Breach journals.
20 Q. How many Gordon & Breach journals did you
21 include?
22 A. I included four.
23 Q. Now, can you look at the first column with data,
24 which is column C?
25 A. Yes.
999
1 Q. Can you tell us what information is recorded in
2 that column?
3 A. This is the -- these are the prices that
4 Barschall and Arrington in Plaintiffs' Exhibit 2 listed as
5 the subscription price for 1987.
6 Q. Can you look at column E, in title B and A pages,
7 1987, what is in that column?
8 A. Those are the numbers of pages reported in the
9 Barschall and Arrington Table 1.
10 Q. Can you look at column G, B and A cost per
11 character?
12 A. Yes. That means the cost per 1,000 characters
13 that Barschall and Arrington calculated. I have taken them
14 directly from their tables.
15 Q. Can you look at column N, 1986 impact factor?
16 A. Yes. These are the impact factors that I took
17 directly from the ISI Journal Citation Report for 1986.
18 They agree -- they were found to agree within one decimal
19 place, which is the limit to which Barschall and Arrington
20 quoted their impact factors. They also got them from the
21 same place.
22 Q. What is the difference in the way you recorded
23 the impact factor and they recorded the impact factor?
24 A. Mine is recorded to a few more decimal places.
25 Q. Can you look at column J, B and A cents/character
1000
1 1986, IF? What does that show?
2 A. Yes. That is the last on the right column in the
3 Barschall and Arrington Table 1, which is the cents per
4 1,000 characters divided by the impact factor, which in my
5 case is in column N.
6 Q. Is column J what Dr. Barschall refers to as
7 cost/impact?
8 A. Yes.
9 Q. Now, have we just identified all of the columns
10 that reflect data that you have taken from Dr. Barschall's
11 tables?
12 A. Yes.
13 Q. Now, can you look at column D --
14 A. Yes.
15 Q. -- which is entitled "PHR price 1987."
16 A. Yes.
17 Q. Can you tell us what information is in that
18 column?
19 A. This is --
20 Q. I'm sorry.
21 A. Go ahead.
22 Q. For -- let me just start with column F.
23 A. Yes.
24 Q. "PHR pages, 1987."
25 A. Yes.
1001
1 Q. What information is in that column?
2 A. These are the number of pages that came from
3 looking at each of the issues and each of the volumes of the
4 journal listed in column A to get the total number of Roman
5 numeral -- I'm sorry, the Arabic numeral pages in that
6 journal.
7 THE COURT: What does "PHR" stand for?
8 THE WITNESS: PHR, that's me, sir.
9 MR. HUVELLE: These scientists have their ways.
10 THE COURT: I see. OK.
11 Q. Who calculated the figures that are in column F?
12 A. One doesn't exactly calculate these. You
13 actually measure -- you read them off and you write them
14 down.
15 Q. Who counted them?
16 A. I did.
17 Q. And how did you do it?
18 A. By looking at the journals themselves, looking at
19 the -- in some cases, an issue would have the numbers
20 included in it, imprinted on the cover, and in some cases
21 one had to look at the first page of the journal which
22 contained text, go to the last page which contained text,
23 and read off its page number.
24 Q. How did Dr. Barschall, to your understanding,
25 calculate the pages for column E, or that are now reflected
1002
1 in your column E?
2 A. He would hopefully have done the same, with a few
3 exceptions.
4 Q. What is your understanding of what the exceptions
5 were?
6 A. There were 34 journals that he works with
7 asterisks in his Table 1, which were -- in which the pages
8 were determined by extrapolation.
9 Q. What is your understanding of why he determined
10 those by extrapolation?
11 A. The library, or libraries to which he had access
12 did not have, for example, the last issue or the last few
13 issues, or perhaps even were missing entire volumes of a
14 year's publication. So he had to extrapolate based on the
15 earlier part of production in the earlier part of the year.
16 Q. Can you tell us why you went back and counted the
17 pages?
18 A. Well, because there was implication on the part
19 of at least Dr. Kingma that this is no way to determine
20 pages. There might be inaccuracies there which might cause
21 biases to disfavor one journal over another. And I wanted
22 to straighten that out.
23 Q. Can I direct your attention now to column D, PHR
24 price 1987.
25 A. Yes.
1003
1 Q. How did you calculate -- did you record the
2 figures in that column?
3 A. Yes, I did.
4 Q. How did you do that?
5 A. This was done by looking at the inside of the
6 journal covers in order for each of the issues and, if
7 necessary, each of the volumes or vice versa. We could
8 do -- sometimes we had multiple volumes, sometimes multiple
9 issues -- just I went through and took the price out of the
10 inside cover for each of those and weighted them
11 appropriately. That is to say, if you had an issue which
12 had one price and an issue which had another price, you
13 would assign those issues the prices that were in the
14 journal covers, to total the prices for the year.
15 Q. Which price, if multiple prices were listed in
16 the journal cover, which price did you select?
17 A. I always selected the one which indicated that it
18 was for institutions in particular, libraries in particular
19 if they were differentiated between industrial or commercial
20 applications, and academic libraries.
21 Q. You would take the academic price?
22 A. I always took the academic one, yes, sir.
23 Q. Is it your understanding that Dr. Barschall, at
24 least in some instances, used a different approach?
25 A. For getting prices?
1004
1 Q. Yes.
2 A. Yes, he did. He took the inside the cover price
3 where he found it available, easily available, or available
4 to him. If he couldn't find it there, he says in his
5 article that he went to the library to get the price that
6 was charged to the library from their inventory. Or I think
7 he used prices, I know, for Pergamon I think he used their
8 price list for North America, and he may have even used the
9 Ulrich's periodical listings, which has some prices as well.
10 Q. Why did you go through this process of looking at
11 each journal and determining prices for yourself?
12 A. Well, obviously Barschall was working at
13 something of a disadvantage, in the time frame in which he
14 chose to work, and so I went to get a uniform source of
15 prices. I went to the journal covers, which I figured was
16 basically the horse's mouth on prices.
17 Q. And then column H, PHR cost character, what is
18 that called?
19 A. There I took the cost and divided it by the
20 number of pages and multiplied that times the number of
21 characters per page in order to get the same -- it's an
22 analogous figure to the Barschall and Arrington cost per
23 thousand character figure in column G.
24 Q. In reviewing and setting forth your own data on
25 pages and price, how many of the journals did you review?
1005
1 A. I reviewed about 70 -- 102 or something like
2 that, about 70 percent of them.
3 Q. How many of the journals of Gordon & Breach, AIP,
4 and APS did you review?
5 A. I did all of them.
6 Q. Columns Q through -- I'm sorry. Columns L
7 through P relate to -- are derived from what source?
8 A. They came from the Science Citation Index,
9 Journal Citation Reports, volume 19, for 1986.
10 Q. And columns Q through U relate to what?
11 A. The same, only for 1987.
12 Q. Column AA is what?
13 A. There I calculated the -- I took the subscription
14 price in column D and divided it by the number of pages in
15 column F, to obtain dollars per page cost.
16 Q. Why did you do that?
17 A. Well, for two reasons. One is that Barschall's
18 cents per thousand characters had come under some fire from
19 Dr. Kingma, among others, and the suggestion was that that's
20 not a reasonable way to cost out a journal or to normalize
21 cost for a journal, and these are readily available numbers,
22 pretty easy to do. And in fact it turns out that this is
23 how people, certain people, especially people in flow
24 publishing, how they basically charge for journals.
25 They take -- get enough pages. They put out a
1006
1 journal. They charge a certain amount for that journal.
2 And one can think of that exactly that way, as a cost per
3 page. And in our society, we have a limited number of
4 signatures per year, so we have a limited number of pages.
5 And we set the price. And in one sense our charge is by
6 price. There are other societies that don't handle it that
7 way but that's the way our society does it.
8 Q. Can you look now at column AB?
9 A. Yes.
10 Q. Can you tell us what data is set forth in that
11 column?
12 A. This is data also from the Science Citation
13 Index, Journal Citation Reports for 1986, which is the total
14 citations to a journal in the year 1987.
15 Q. To what articles?
16 A. To all the articles that appeared in that journal
17 regardless of what date they had them from them -- on them,
18 from 1986 all the way back to the beginning of the journal.
19 Q. In the case of the first journal that's
20 highlighted in pink --
21 A. Yes.
22 Q. -- J. Chem. Phys., Journal of Chemical Physics, I
23 guess?
24 A. Yes.
25 Q. What is the figure that is shown in column AB?
1007
1 A. It's testing my eyesight, but I think it's 78,759
2 citations.
3 Q. What does that figure represent?
4 A. That represents how many citations were counted
5 in all of the science literature to that journal in that
6 year.
7 Q. And the citations could be to articles in any
8 year?
9 A. Any year, yes.
10 Q. And what is column AC?
11 A. Column AC is the citation number in column AB
12 divided into the price for 1987, the subscription price.
13 Q. And that would be column D?
14 A. That would be column D.
15 Q. Why did you make that calculation?
16 A. Actually, it was at the suggestion of Mr. Plotz,
17 who suggested that, having done these citation counts, it
18 might be interesting to find out what the cost was per
19 citation.
20 Q. Let me ask you to look at Defendants' Exhibit D,
21 as in David.
22 A. Yes.
23 Q. Is Exhibit D a re-sorting of some of the data
24 from Exhibit B?
25 A. Yes. It's an exact re-sorting with some of the,
1008
1 I guess, extraneous columns cut out, so that it's sorted on
2 the cents per thousand characters.
3 Q. And the journals are ranked in a different
4 sequence?
5 A. Different than Exhibit B, is that what you mean?
6 Q. Right.
7 A. Yes, sir.
8 Q. In what order are they listed on Exhibit D?
9 A. In Exhibit D they are listed by cost per thousand
10 characters, which is the column to the far right.
11 Q. And that's column H?
12 A. Column H.
13 Q. Where are the Gordon & Breach journals listed on
14 this exhibit?
15 A. Well, they are listed at the bottom of the
16 right-hand column, or the right-hand row of columns. They
17 are listed as 148, 146, 145, and 143, in terms of ranking.
18 Q. Now, the first journal that's listed on this
19 exhibit, Astrophysics Journal --
20 A. Yes.
21 Q. Do you see that?
22 THE COURT: Excuse me. They are listed as 148 --
23 THE WITNESS: Yes, sir.
24 MR. HUVELLE: I was going to help on that issue.
25 THE COURT: OK.
1009
1 Q. The first one is what number?
2 A. It's No. 11. So that those numbers aren't the
3 ranking numbers. 11 is -- you have to subtract 10 from all
4 of these numbers to get the actual ranking numbers, if you
5 want them. You would subtract 10 from the first one, which
6 is Astrophysics Journal.
7 THE COURT: They are highlighted in green? They
8 are using the numbers that are printed here. They are 153,
9 155, 156, and 158?
10 THE WITNESS: Yes. We need to subtract 10 from
11 those to get them right. Because there are 148 journals on
12 the list.
13 MR. HUVELLE: Presumably, your Honor, there is
14 some reason known best to scientists why you start with 11
15 rather than 1.
16 THE WITNESS: No. It's the spreadsheet.
17 THE COURT: I still don't get those numbers.
18 Q. How many journals are included on this list?
19 A. 148.
20 Q. And the first one listed is identified in the far
21 left column as No. 11?
22 A. Yes.
23 Q. And they are done in sequence by the cost per
24 character in column H?
25 A. Yes.
1010
1 Q. What is the cost per character of the first
2 journal?
3 A. .4 cents per thousand characters.
4 Q. What is the most expensive journal in terms of
5 cost per character?
6 A. 30.7 cents per thousand characters.
7 Q. What journal is that?
8 A. That is Physics and Chemistry of Liquids.
9 Q. Can you refer back to Table 3 on
10 Dr. Barschall's --
11 A. Yes.
12 Q. -- exhibit, Exhibit PX 2.
13 To what extent does the ranking of the AIP, APS
14 and Gordon & Breach journals on your own Defendants' Exhibit
15 D correspond to the ranking that Dr. Barschall had on Table
16 3?
17 A. Very close indeed.
18 Q. Can you focus particularly on Gordon & Breach.
19 To what extent are their rankings similar?
20 A. Well, comparing Exhibit D, the yellow highlighted
21 materials, with the bottom of Table 3 on page 1444, Physics
22 and Chemistry of Liquids is -- has the lowest rank, or the
23 highest cost per 1,000 characters.
24 We jump up to, on Barschall's Fundamentals of
25 Cosmic Physics, which is not in my list because it isn't in
1011
1 the -- it doesn't have an impact factor, is absent.
2 Particle Accelerators is absent from my list, because it
3 doesn't have an impact factor. Radiation Effects, by Gordon
4 & Breach, is the next one. It's also No. 140 -- 156, i.e.
5 146, Re: E on Exhibit D.
6 Q. Thank you. I don't think we need to compare --
7 A. You don't want any further --
8 Q. -- each of them.
9 I would like to ask you to look at Defendants'
10 Exhibit I. How does this -- who prepared Exhibit I?
11 A. I did.
12 Q. How does Defendants' Exhibit I relate to
13 Defendants' Exhibit D?
14 A. It's what we call a frequency graph, put the
15 number -- we broke up the cents per 1,000 characters, which
16 ranges from .4 cents in the table to 30.7 cents, divided
17 that up into units of 2 cents. In other words, everything
18 between .4 and 1.9 cents would be included in the first
19 column, and it's labeled 1 on the graph, because that is the
20 middle of the range between 0 and 2 cents.
21 And I counted up the number of journals that are
22 in there. The number of society journals is indicated by
23 the total height of the line; in other words, 23 journals
24 that were published by societies occur in that column. And
25 so on.
1012
1 Q. What about the sequence between 2 and 4? Can you
2 tell us about that?
3 A. Between 2 and 4 --
4 Q. 2 and 4 cents, that is.
5 A. Right, 2 and 4 cents per 1,000 characters. There
6 are actually two categories plus a third one, which is the
7 AIP, APS, but the dark line is the number of -- represents
8 the number of commercial journals which fall in that price
9 range. There are nine, according to this graph and
10 according to the table. There are 26 society journals that
11 fall in that bracket of price, with AIP and APS representing
12 eight of those 26.
13 Q. What number of the journals in the 0 to 2 cents
14 range did AIP and APS account for?
15 A. They accounted for 9.
16 Q. For a total of 17?
17 A. That was 17, yes.
18 Q. Where are the Gordon & Breach journals displayed
19 on this document?
20 A. They are labeled and indicated by lines drawn
21 from the name Gordon & Breach to the individual occurrences
22 of these journals in this sequence.
23 Q. At what price range are they found?
24 A. 15 cents, 19, 23, and 31.
25 Q. Could you look now at Defendants' Exhibit C. Who
1013
1 prepared this document?
2 A. I did.
3 Q. Is this a re-sorting of the data we looked at
4 previously?
5 A. It's exactly the data that's in Exhibit B, but
6 sorted on the basis of dollars per page.
7 Q. The same 148 journals?
8 A. Yes.
9 Q. What is the basis for the ranking or the sequence
10 in this one?
11 A. Dollars per page, from lowest to highest.
12 Q. From what column on Exhibit B is that information
13 taken?
14 A. That is column AA.
15 Q. What is the lowest priced journal on a page -- on
16 a dollar-per-page basis included in this exhibit?
17 A. 3 cents, for Astrophysics Journal.
18 Q. 3 cents per page?
19 A. 3 cents per page.
20 Q. What is the lowest ranked of the four Gordon &
21 Breach journals listed on this document?
22 A. 97 cents per page.
23 Q. Lowest-ranked?
24 A. I'm sorry. It's --
25 Q. Or low --
1014
1 A. Yes, that's the lowest rank. The other one is
2 Optical --
3 Q. I'm sorry. Highest rank, lowest price.
4 A. Highest price, lowest rank.
5 Q. That's Radiation Effects?
6 A. That is Radiation Effects, yes.
7 Q. I'm sorry. What was the price?
8 A. 90 -- looks like 97 cents per page.
9 Q. Under this ranking it's not the last journal?
10 A. No.
11 Q. What is the last journal?
12 A. It's called Optik, the German spelling.
13 Q. And the Crystal Lattice Defects is the
14 best-ranked of the Gordon & Breach journals on this chart?
15 A. Of these four, yes.
16 Q. What is the price per page of that journal?
17 A. 62 cents.
18 Q. Now could you look at Defendants' Exhibit J. Who
19 prepared this exhibit?
20 A. I did.
21 Q. What is its relationship to the document we just
22 examined?
23 A. It's taken directly from it, from column AA,
24 again a frequency graph.
25 Q. Is it basically the same as the prior frequency
1015
1 graph that we examined?
2 A. Well, the numbers are different. The
3 distribution is slightly different. But the overall picture
4 is pretty much the same.
5 Q. This one is shown by dollars per page?
6 A. Dollars per page, yes.
7 Q. Now let me ask you to look at Defendants' Exhibit
8 H.
9 Who prepared this exhibit?
10 A. I did.
11 Q. Can you explain what information is displayed on
12 Defendants' Exhibit H?
13 A. Yes. This is a plot of both of the previous two
14 cost factors, dollars per page on the vertical axis, cents
15 per 1,000 characters on the horizontal axis. And plotted
16 there are the average of these cost parameters for eight
17 society publications, which are included in the lower left;
18 nine commercial publishers with a society, an aberrant but
19 high -- high cost society data right in the middle of it;
20 nine commercial publishers in the square; and the Gordon &
21 Breach average, dollars per page and cents per character, on
22 the far upper right.
23 Q. If you take, for example, the dot representing
24 the society publisher that's in the lowest left of the box,
25 can you tell us approximately what the average dollars per
1016
1 page and cents per character is for that society publisher?
2 A. Yes. The average is about 1 cent per 1,000
3 characters and about 8 cents per page.
4 Q. In the next box, the clear circles, if you look
5 at the circle on the lowest level of the box, that's a
6 commercial publisher?
7 A. That is.
8 Q. Approximately what is the dollars per page and
9 cents per character for that?
10 A. Approximately 6 cents per 1,000 characters and
11 approximately 22 -- 24 cents -- yes, 24 cents per page.
12 Q. And at the end of the line, what does the circle
13 represent?
14 A. Those are the prices, the average price of the
15 four Gordon & Breach journals.
16 Q. Approximately what are the figures that are
17 represented by that circle?
18 A. 22 cents per 1,000 characters and roughly, it
19 looks like about 78 cents per page.
20 Q. I would like you to now look at a document that
21 has been marked as Defendants' Exhibit F.
22 Who generated this document?
23 A. I did.
24 Q. It is a re-sorting of the data on Exhibit B?
25 A. Yes, sir.
1017
1 Q. In what sequence are the journals listed on this
2 document?
3 A. They are sorted on the basis of dollars -- I'm
4 sorry -- cents per 1,000 characters divided by the 1986
5 impact factor.
6 Q. This is the figure that Dr. Barschall referred to
7 as cost per impact?
8 A. Cost per impact, yes.
9 Q. This is based on your own data?
10 A. Not on his but on mine, yes.
11 Q. Where do the Gordon & Breach journals appear on
12 this document?
13 A. Basically the same general areas in previous
14 documents, 141 to 147 in rank, out of 148.
15 Q. Can you look at Defendants' Exhibit L --
16 MR. PLOTZ: I'm sorry. What exhibit?
17 MR. HUVELLE: L.
18 Q. Who generated this document?
19 A. I did.
20 Q. Can you explain to us what information it
21 displays?
22 A. The same information as in Exhibit F, in
23 graphical form, with a frequency graph similar to the ones
24 that we have already looked at.
25 Q. Now let me ask you to look at Defendants' Exhibit
1018
1 E.
2 Did you prepare this exhibit?
3 A. Yes, sir.
4 Q. This is a re-sorting of the data on Exhibit B?
5 A. Yes, sir.
6 Q. What is the sequence in which the journals are
7 listed on this document?
8 A. In the far right-hand corner, it's the
9 subscription price for 1987 divided by 1986 citations to all
10 prior articles in that journal for that year.
11 Q. What is the first journal that is listed on this
12 document?
13 A. Phys. Rev. Let., Physical Reviews Letters.
14 Q. What is the publisher of that journal?
15 A. American Physical Society.
16 Q. Can you tell us what the division was to get the
17 ranking information there?
18 A. Yes. I took the publish -- the inside cover
19 price, which is located in this case in column D, and
20 divided it by the total number of citations received by that
21 journal in 1986, which is column AB.
22 Q. Those two figures are the 1987 price of $470?
23 A. Yes.
24 Q. Divided into the total number of citations,
25 which, I believe, is 58,000?
1019
1 A. Divided by the 58,000, yes.
2 Q. Thank you. And the resulting figure is 1 cent
3 per citation?
4 A. 1 cent per citation.
5 Q. Can you look at the journal that is ranked No.
6 136 on the list, which bears the number next to it -- I'm
7 sorry -- ranked 126, with the number 136 next to it. Is
8 that the Gordon & Breach journal Radiation Effects?
9 A. Yes, sir.
10 Q. And the lowest-ranked journal is Crystal Lattice
11 Defects?
12 A. Yes, sir.
13 Q. Where does Ferroelectrics rank on this list?
14 A. 140th, with 130 -- 1133 citations and a total
15 cost of $1.54 per citation.
16 Q. For Physical Chemical Liquids, what is the total
17 yearly subscription price that you used in your calculations
18 for that journal?
19 A. Looks like 358 or 368. It's a little hard to
20 read.
21 Q. What is the total number of citations that
22 appeared in 1986 to articles of Physical Chemical Review in
23 prior years?
24 A. Physical Chem -- Physics of Chemistry and
25 Liquids? Is that the journal you're referring to?
1020
1 Q. Yes, sir.
2 A. 177 citations.
3 Q. So what was the cost per citation for that
4 journal?
5 A. 2 dollars and 6 or 8 cents, I can't tell which.
6 Q. Can you look at Exhibit, Defendants' Exhibit N.
7 Does Defendants' Exhibit N represent a somewhat
8 different calculation?
9 A. Yes, it does, because in this case we dropped
10 those parameters which had been objected to earlier and
11 which people had found fault with, namely the cents per
12 1,000 characters and dollars per page, dropped those out of
13 the calculation altogether and used, as Dr. Kingma
14 suggested, the subscription price for the entire year, and
15 divided that by the total number of citations.
16 Q. On the exhibit you are looking at, though --
17 A. Yes.
18 (Pause)
19 Oh, I'm sorry. That's not correct. I stand
20 corrected. This is dollars per citation.
21 Q. For what period of time were the citations
22 calculated?
23 A. In this case these citations were averaged for
24 articles that were cited in 1986 and 1987 for 1984 plus
25 1985, and in the case of 1987 for 1985 plus 1986.
1021
1 Q. And from what column in Exhibit B did you take
2 the day that you used in preparing the exhibit that you are
3 looking at?
4 A. This would be column -- excuse me.
5 Q. Can you look at column Y?
6 A. Yes. I'm looking at column Y, and -- yes.
7 That's the correct column. W, X, Y, Z, yes. OK. X is
8 missing from this list.
9 Q. In column what?
10 A. I'm having a little problem with that at this
11 moment. Let me just look. I need to check.
12 Q. Dr. Ribbe, why don't we pass on this exhibit for
13 the moment.
14 A. OK, if you would like.
15 Q. Could I ask you to look at Defendants' Exhibit A.
16 A. Yes.
17 Q. Can you tell us what information Defendants'
18 Exhibit A displays?
19 A. This is taking the ranking numbers from Exhibit 1
20 as it has been re-sorted in several different ways and
21 plotting those rankings as a function of the journals. The
22 G&B journals are shown at the top in red. The APS journals
23 are shown near the bottom in brown. And the AIP journals
24 are shown in blue.
25 Q. Column A of Defendants' Exhibit A ranks the
1022
1 journals according to what criteria?
2 A. Cost per 1,000 characters.
3 Q. Column B ranks them by what criteria?
4 A. Cost per character or per thousand characters
5 divided by the impact factor.
6 Q. And column C ranks them by what factor?
7 A. The yearly cost divided by the average year's
8 citation, which is the graphic that we were looking at,
9 Defendants' Exhibit N. But the data is from the table.
10 Q. And column D ranks the journals by what criteria?
11 A. The subscription cost, annual subscription cost,
12 divided by the citations for all years.
13 Q. What does this exhibit show us about the
14 different methods of ranking the journals?
15 A. Well, it shows that one can take a variety of
16 approaches to classifying them, if you want to do that,
17 ranking them by some cost per quality, or whatever you want
18 to call it, impact, except for the first one, which is pure
19 cost, and that the rankings don't change a whole lot from
20 one method to another. We didn't include dollars per page,
21 but we could have done it and it would have given us
22 similar-looking spreads of dots on the graph.
23 Q. I would like to have you look at Defendants'
24 Exhibit R. What does Defendants' Exhibit -- strike that.
25 Who prepared Defendants' Exhibit R?
1023
1 A. I did.
2 Q. What does it show?
3 A. It is a summary of all the data about which we
4 have been speaking, or at least most of it, plus a little
5 bit, lumped into -- by publisher. In other words, if a
6 publisher had more than three -- three or more journals in
7 the listing that I extracted from Barschall's listing, I
8 averaged the cost per character in column AG opposite APS,
9 that would be the number of cents per character average for
10 all of the journals that APS produced in that year, and so
11 on, throughout the whole graph.
12 MR. HUVELLE: Your Honor, I would like to move
13 into evidence the exhibits that the witness has been
14 identifying.
15 MR. PLOTZ: No objection.
16 THE COURT: Received.
17 MR. HUVELLE: Do you want me to read them off?
18 That would include his resume and the articles that he
19 looked at at the beginning. Thank you.
20 MR. PLOTZ: I don't have a problem with the
21 resume, but I do have a problem with the articles, for
22 similar reasons.
23 THE COURT: You have a problem with Exhibit AA?
24 Is that it?
25 THE WITNESS: Yes.
1024
1 MR. PLOTZ: Yes, AA, which is the articles. He
2 has referred to them. He has testified about them. The
3 articles themselves, though, I don't believe can come in.
4 MR. HUVELLE: Your Honor, we think the articles
5 go to the -- demonstrate the extent of the work he has done
6 in the area in terms of his analysis and review of citation
7 data, his review and analysis of cost data. They display --
8 we think it goes to his qualifications as an expert.
9 THE COURT: There is no challenge, is there, to
10 his expertise in the area in which he is testifying?
11 MR. PLOTZ: Yes, there will be.
12 THE COURT: There is.
13 I sustain the objection to AA, but the testimony
14 with respect to what the witness has done and written and so
15 on and so forth is part of the record.
16 MR. PLOTZ: No objection to the testimony.
17 THE COURT: Are you finished?
18 MR. HUVELLE: With the witness?
19 THE COURT: Yes.
20 MR. HUVELLE: I'm finished with the area but not
21 with the witness. If we are going to break in the next
22 couple of minutes --
23 THE COURT: If we don't break in five minutes, I
24 have another conference. So you want to break?
25 MR. HUVELLE: If you want.
1025
1 THE COURT: All right. We are adjourned until 11
2 a.m. tomorrow. 11 a.m.
3 (Adjourned to 11:00 a.m, Tuesday, June 17, 1997)
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1026
1
2 INDEX OF EXAMINATION
3
4 Witness D X RD RX
5 THOMAS VERHOEVEN.........853 860
6 MARTIN B. GORDON.........872 872 916 934
7 ISABEL CZECH.............944 970 981
8 PAUL H. RIBBE............982
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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