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 |