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Main Index: Trial Testimony June 16, 1997


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                   v.                           93 CV 6656 LBS
                                                June 16, 1997
  12                                            10:05 a.m.
                            HON. LEONARD B. SAND
                                                District Judge


  17                            APPEARANCES

             Attorneys for Plaintiffs
             ROBERT L. PLOTZ
  20         PETER E. SEIDMAN

             Attorneys for Defendants
             JEFFREY G. HUVELLE
  23         SUSAN L. BURKE




   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


   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.


  20         called as a witness by the plaintiffs,

  21         having been duly sworn, testified as follows:


  23    BY MR. PLOTZ:

  24         Q.    How are you employed?

  25         A.    By phone call on a Friday early afternoon when I


   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


   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


   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


   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


   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


   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


   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.


  25    BY MR. MESERVE:


   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?


   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.


   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


   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


   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?


   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?


   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.


   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.


   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.


   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


   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


   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.


   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?


   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.


   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


   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,


   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


   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.


   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.


   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.


   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.


   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


   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


   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?


   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


   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.


   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


   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


   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


   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.


   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.


   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.


   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?


   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


   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.


   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


   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


   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 &


   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


   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.


   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?


   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?


   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


   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?


   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


   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


   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


   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


   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


   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


   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


   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.


   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 --


   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


   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.


   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.


  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.


   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


   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?


   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


   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.


   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?


   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


   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


   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


   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


   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 --


   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


   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 --


   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?


   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


   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


   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.


   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


   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.


  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.


   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.


   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.


   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


   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.


   1               MS. BURKE:  Yes, your Honor, we have basically

   2    done that.  We didn't use the right colors but --

   3               THE COURT:  I don't care about the colors.  What

   4    I don't want is to have two documents and something else

   5    which says page 75, lines 3 to 4.

   6               MS. BURKE:  We have consolidated it.

   7               MR. LUPERT:  It is done exactly as you have just

   8    stated it.

   9               THE COURT:  Fine.  Subject to which --

  10               MR. LUPERT:  Plaintiffs rest.

  11               THE COURT:  Plaintiffs rest.  OK.  What is the

  12    next order of business?

  13               MR. MESERVE:  Your Honor, I would like to move

  14    for judgment at this point.  The plaintiffs have completed

  15    their case.  Would you like to hear me on that motion, your

  16    Honor?

  17               THE COURT:  Why don't you take five minutes and

  18    just give me the highlights.

  19               MR. MESERVE:  Your Honor, the plaintiffs' theory

  20    of this case is that Castrol applies and that the reliance

  21    on the Barschall survey methodology for issues relating to

  22    whether the APS journals are cost effective or good values

  23    is false and misleading.  Their principle argument seems to

  24    be that the various factors evaluated by Professor Barschall

  25    do not support the finding that the APS journals and AIP


   1    journals are in fact cost effective.

   2               The cost per character factor is just a simple

   3    normalization to account for journal prices.  You have heard

   4    testimony elicited from the plaintiffs' own witnesses that

   5    this is a standard practice in the art.  George Taylor, who,

   6    as you will recall, was the editor of ferroelectrics, has

   7    effectively used exactly an analogous technique, cost per

   8    article, in discussing the cost-effectiveness of his

   9    journal.  And Mr. King, who was of course the plaintiffs'

  10    expert, said it is a sound practice to normalize cost of

  11    journals, and he has done that exactly himself.

  12               Impact factor is a standard bibliometric tool.

  13    Mr. King has agreed that such analysis is an indicator of

  14    scholarly value.  He has agreed that the impact factor is

  15    widely used by librarians, publishers, and others as a

  16    benchmark for comparing journals.  And he even acknowledged

  17    there was no basis for concluding the results that Barschall

  18    achieved would be any different if a different measure had

  19    been used.

  20               Ratio, which is the measure of the

  21    cost-effectiveness, is something that Mr. Kingma agreed that

  22    he had some disputes about the particular measures that were

  23    used but he acknowledged that the ratio was a standard

  24    economic tool, and if each of the factors is

  25    unobjectionable, cost per character and impact, then ratio,


   1    similarly, is just a way of arraying and comparing the data.

   2               Plaintiffs' principal grievance seems to be that

   3    there are reasons that they did poorly, a factor which is

   4    not discussed in the Barschall article at all.  It may well

   5    be that they have costs or high profits that explain their

   6    poor performance, but that was irrelevant to the Barschall

   7    analysis.  We don't disagree that libraries should consider

   8    other factors as well, but there is nothing in this case

   9    that we ever suggested that libraries should consider only

  10    the information in the survey.  We just really want to have

  11    the right to inform them of relevant and appropriate

  12    information so that they can make informed judgment.

  13               Considering the matter, the case law shows that

  14    the tests, the Castrol methodology, don't have to be

  15    perfect.  They only have to be sufficiently reliable to

  16    support the claim.  The testimony that we have elicited from

  17    the plaintiffs' own witnesses should be satisfactory to meet

  18    that burden, particularly when we have an audience here of

  19    librarians and scientists who are themselves sophisticated

  20    about the journals and would be highly unlikely to take this

  21    sort of information and misuse it.

  22               We believe that the plaintiffs have not

  23    established their burden of showing that the application of

  24    the Barschall methodology is false and misleading.  We think

  25    it is time to bring this extraordinarily expensive


   1    litigation to an end.  My clients have been sued in four

   2    countries, based on the sorts of evidence that this Court

   3    has heard.  They are non-profit societies.  They could spend

   4    money in much better ways than paying my fees.  We move for

   5    judgment, your Honor.

   6               THE COURT:  I think that the way the argument has

   7    just been made and -- but I'm going to deny the motion at

   8    this point, not because I feel it does not raise very

   9    significant issues, but indeed because it does.

  10    Mr. Meserve, when you talk about the long road here and the

  11    cost today, I have in mind the fact that we are, what, one

  12    day away from the conclusion of all proceedings, and it

  13    would indeed be a great disservice to your clients if this

  14    Court were to grant the motion and run the risk that some

  15    other court might say that it was premature to do so.  And

  16    so I am going to deny the motion and proceed to the

  17    defendants' case.

  18               Mr. Lupert, you are certainly entitled to five

  19    minutes of equal time if you want to, but in light of the

  20    Court's ruling, maybe that is not necessary.

  21               MR. LUPERT:  It strikes me that the better part

  22    of advocacy is to not respond at this time but after the

  23    case is completed.

  24               THE COURT:  Very well.  The defendants case is

  25    going to consist of recalling Mr. Lustig and how many other


   1    witnesses?

   2               MR. MESERVE:  I think we have -- I have lost

   3    count, your Honor.

   4               THE COURT:  You have lost count.  But remembering

   5    that tomorrow we start at 11, it is still anticipated that

   6    we will conclude tomorrow?

   7               MR. MESERVE:  It is dearly hoped by the

   8    defendants, your Honor, that we will conclude tomorrow.

   9               THE COURT:  All right.  We will break until 2

  10    o'clock.

  11               (Luncheon recess)
















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

   2                             2:10 p.m.

   3               THE COURT:  Ms. Burke.

   4               MS. BURKE:  We are going to call Isabel Czech of

   5    the Institute of Scientific Information.

   6     ISABEL CZECH,

   7         called as a witness by the defendants,

   8         having been duly sworn, testified as follows:


  10    BY MS. BURKE:

  11         Q.    Ms. Czech, where do you work?

  12         A.    I work for The Institute for Scientific

  13    Information in Philadelphia.

  14         Q.    What is that organization?

  15         A.    ISI is what's called a secondary publisher, which

  16    means that we take information from primary publishers and

  17    put it into a form that's used by researchers primarily in

  18    the sciences to help them with their research.

  19         Q.    What position do you hold at ISI?

  20         A.    Right now I'm the director of publisher relations

  21    and editorial development.

  22         Q.    How long have you been with ISI?

  23         A.    I started there in September of 1976.

  24         Q.    If you could just briefly describe the positions

  25    you held prior to your current one.


   1         A.    Sure.  When I started there in 1976, I was an

   2    editor in what's now called the Editorial Development

   3    Department, evaluating and selecting journals for coverage

   4    in Current Contents, specifically for Current Contents,

   5    Physical, Chemical, and Earth Sciences.

   6               From there, I moved on to evaluating journals in

   7    the social sciences and the humanities, and then when

   8    copyright law and things like that started to heat up and

   9    ISI decided that it needed somebody to focus on ensuring

  10    that ISI complied with copyright law and also needed

  11    somebody to negotiate contracts with publishers enabling us

  12    to do document delivery for their information, I moved

  13    slightly over from editorial into dealing with publisher

  14    relations so that I could interact with publishers to

  15    represent ISI to them and to negotiate contracts and also to

  16    ensure that ISI complied with all U.S. copyright law.

  17               I worked with that for a while, basically really

  18    started the Publisher Relations Department.  That started to

  19    grow.  As importance became greater on the part of the

  20    publishing community to get their journals covered by us, it

  21    was decided to merge the two groups of publisher relations

  22    and editorial development together since they were so

  23    interrelated, and just about two and a half years ago I

  24    became responsible for both groups.

  25         Q.    How many employees are in both groups?


   1         A.    I have 20 people under me now.

   2         Q.    What products does ISI sell?

   3         A.    We are best known, I would think, for Current

   4    Contents, specifically for Current Contents Life Sciences,

   5    which is probably our best known product, then Current

   6    Contents Physical, Chemical, and Earth Sciences, for

   7    example; there are five other editions of Current Contents

   8    as well.  Current Contents is a weekly publication.  It's a

   9    current awareness tool that helps researchers target in on

  10    articles that would be of interest to them.  We list the

  11    contents pages from the leading scientific and social

  12    scientific journals in the world.

  13               We also publish something called the Science

  14    Citation Index, which is used as a bibliograpic tool, which

  15    will lead people through their research from one relevant

  16    article to another.  For that product, we depend primarily

  17    on the cited references or the footnotes which appear at the

  18    ends of articles in the journals, and they enable people to

  19    sort of do detective work to move from the research that

  20    they're doing now, it leads them back through the research

  21    as it has progressed so that they can find more material to

  22    substantiate what they're working on or it perhaps shows

  23    them that they're going down a wrong road, for example.

  24               Another product which we're very well known for

  25    is the Journal Citation Reports.  That used to be an actual


   1    part of the Science Citation Index.  It's now published

   2    separately.  And that product has several different

   3    sections.  Basically, it rates or ranks journals based on

   4    citations that those journals receive in the literature, the

   5    literature in this case being the journals that ISI covers

   6    in its database.  Those are probably the products we are

   7    best known for.

   8         Q.    Back in 1986, was the Journal Citation Report

   9    part of the Science Citation Index?

  10         A.    Yes, it was.

  11         Q.    I am going to hand you what we have marked as

  12    Defendants' Exhibit MM and ask you to identify that.

  13         A.    This represents a portion of the SCI or the

  14    Science Citation Index back in 1986.  The introduction is

  15    here, as well as portions of the Journal Citation Reports

  16    where the journals are ranked in a variety of ways.

  17         Q.    You referred to this product as a bibliometric

  18    product.  Who is it that buys this product?

  19         A.    Are we referring to the Journal Citation Reports?

  20    Are we speaking of that?

  21         Q.    Yes, and the Science Citation Index as well.

  22         A.    The Science Citation Index in general and the

  23    Journal Citation Reports in particular are purchased by a

  24    lot of people.  The SCI is a broader tool than the JCR, and

  25    that is purchased primarily by large libraries,


   1    internationally, both corporate and academic.  It's used not

   2    by undergraduate-level people but it's used by graduate

   3    level, corporate, post-doctorate, people of that nature who

   4    are doing pretty heavy research in their particular field,

   5    and as I said, it is purchased primarily by libraries for

   6    their patrons.

   7               The Journal Citation Reports are also purchased

   8    by libraries, to a large extent.  They are also used more

   9    and more frequently by publishers, as well, to help them see

  10    how their journals are rated and compared to journals in

  11    their fields.

  12         Q.    How does ISI decide which journals to include in

  13    that product?

  14         A.    OK.  We don't decide what journals go

  15    specifically into the Journal Citation Reports.  What we do

  16    is, we evaluate journals for coverage in any products that

  17    may be relevant, and that is the primary responsibility of

  18    the people on my editorial staff, editorial development

  19    staff.  And there are a lot of factors that go into actually

  20    how we select the journals that get covered.

  21               Do you want me to go into the details of those?

  22         Q.    Why don't you just tick off the factors, if you

  23    can, that you look at.

  24         A.    The first factor that we will look at when a

  25    journal comes in is, does our database need another journal


   1    in a particular discipline?  Just dealing with the sciences,

   2    for example, we deal with over 100 different disciplines in

   3    the five editions of Current Contents, for example, that

   4    deal with the sciences.

   5               So we are looking at a lot of journals every

   6    year.  A lot of those journals deal with subject matters

   7    that are already dealt with in depth in our product,

   8    journals of high quality, journals that our subscribers have

   9    asked us for, the journals that seem to be the best in their

  10    field.  So when new journals come in, we look at them very

  11    carefully because we want to make sure that we're covering

  12    the best, and if a new journal comes in and it's offering

  13    something new to our subscribers -- it's either dealing with

  14    a new field, a hot new field, a niche field, for example --

  15    we want to make sure that we get that into our product.

  16               The first step is, is it dealing with a field

  17    that is of particular interest to our subscribers at that

  18    particular moment.  Very general journals, for example, a

  19    general education journal, a general neuroscience journal at

  20    this point in time would probably not be considered for

  21    evaluation and coverage at this time because there are

  22    already very well established journals in those particular

  23    disciplines.  What we look for more now are journals that

  24    deal with more specialized fields, since that is what our

  25    subscribers are looking for.


   1               So if a journal makes that first cut, we will

   2    then go into more in-depth analysis of the journal.  And we

   3    look at a variety of things.  For example, we will look at

   4    the credentials of the editor of the journal, the editorial

   5    advisory board of the journal, and the authors who are

   6    contributing to the journal.  We look at their affiliations,

   7    where they're doing their research, where they're employed.

   8    And we also look to make sure that the editor and the Ed

   9    board and the authors are coming from a wide variety of

  10    places.  International coverage in our database is very

  11    important to us because more than half of our subscriber

  12    base is non-U.S., and so we work very hard to be sure that

  13    we are covering material from as broad a base as possible,

  14    getting journals from people who can bring in a large number

  15    of contributors from a wide variety, make sure that you're

  16    getting a broad perspective on an issue, that you're getting

  17    as many perspectives as possible.

  18               It also suggests, if the people come from a wide

  19    variety of bases, that you don't have an editor who

  20    basically has called in a lot of his friends to contribute

  21    to articles.  They may have come from Harvard and Harvard is

  22    very prestigious, but if they all come from the same place

  23    they might run out of manuscripts after the first couple of

  24    issues.  So you look for as wide variety of people that you

  25    can possibly get.


   1               We look at the citation data that is contributed

   2    to the Ed board, the editor, and the authors.  We can see

   3    how frequently prior material that these people have written

   4    have been cited, since that's a good indication that their

   5    prior work is well respected and well regarded.  And if

   6    these are people of high reputation, solid reputation, they

   7    are active contributors to their field and they have taken a

   8    chance on a new journal, they are willing to stake their

   9    reputation on it, become involved with it, that's a good

  10    indication to us that they have given contributing to this

  11    journal a lot of thought, and that's a good indicator to us

  12    that that would be a journal worthy of coverage in our

  13    database.  So we look at that.

  14               We look at other factors.  We look at the

  15    composition of the journal.  Things like the physical makeup

  16    of the journal.  Some things used to matter to us that don't

  17    any longer, the layout of the contents page and things like

  18    that.  Since we prepare a lot of this material

  19    electronically now, they no longer matter.

  20               But the physical composition of a journal is a

  21    good indicator to us that the publisher is solid, they have

  22    got enough money behind them, that they are not going to go

  23    out of business any time soon, that they have good printers

  24    behind them, they're not the bottom of the queue at the

  25    printer, that sort of thing.  So it gives us an indication


   1    that the publish is solid, that the journal is solid, that

   2    will be around for a while.  So we look at that.

   3               We look at the cited references of the ends of

   4    the article.  We look if there is some sort of standard used

   5    in the presentation of that material.  It's a good indicator

   6    that the editor knows what he or she is doing.

   7               We look for what we call meaningful article

   8    titles, because since our database is going to be used to

   9    help people do their literature searches, we need to be sure

  10    that people aren't going to find article titles that won't

  11    enable them to do their research.  So you look for key words

  12    being available in the article titles; again, a good

  13    indication that the editor and the authors know what they're

  14    doing.

  15               We also look at the frequency, the timely

  16    publication of the journal, particularly for Current

  17    Contents, since Current Contents is a current-awareness

  18    publication, and our subscribers rely on those to be sure

  19    that what we're bringing them is timely information and that

  20    they're not getting old information that's been sitting

  21    around for a while.

  22               So if a journal meets all those criteria we will

  23    then select it for coverage.

  24         Q.    So how many journals actually pass all those

  25    tests?


   1         A.    We actually only accept about 12 percent of what

   2    we look at.  We look at over 1,000 journals on an annual

   3    basis and we pick up fewer than -- a little more than 100, I

   4    would say, in all the disciplines.  We are very selective.

   5               THE COURT:  You pick up 100 per year?

   6               THE WITNESS:  That's correct.

   7               THE COURT:  You say out of 1,000?

   8               THE WITNESS:  About a thousand, yes.

   9               THE COURT:  How many do you have in total?

  10               THE WITNESS:  In total right now we have about

  11    8,500.  So the database is growing slightly every year, a

  12    couple percent every year it gets a little bigger.

  13         Q.    Do you ever drop any journals out of the

  14    database?

  15         A.    We do.  We probably drop about the same number

  16    that we add.  And it's not that we're mandated by management

  17    or by budget in any way to drop a certain number.  It's just

  18    coincidentally it almost seems to work out that we drop

  19    about as many as we add.

  20         Q.    What conclusions, if any, can you draw from the

  21    fact that a journal is included in your database?

  22               MR. PLOTZ:  Objection.  She is not an expert

  23    witness.

  24               THE COURT:  I'm not sure I understand the

  25    question, unless it is just a summary of what the witness


   1    has already said.  The witness has told us what her criteria

   2    are, and I suppose it follows from that that if an

   3    acceptance is granted to coverage, it would mean that the

   4    journal has passed muster under those criteria.  Is that

   5    what you're asking?

   6               MS. BURKE:  Yes.  It was a summary question, your

   7    Honor.

   8               THE COURT:  All right.

   9               MS. BURKE:  I'll move on.

  10    BY MS. BURKE:

  11         Q.    To what extent does ISI monitor the ways in which

  12    others use their data?

  13         A.    Publishers use our data a lot these days.  As

  14    competition for subscription dollars gets tougher and

  15    tougher, publishers have started to use ISI data like impact

  16    factors, for example, in their promotional material, and we

  17    see this in a variety of places, at poster sessions of the

  18    large end-user shows, the library shows, also up on

  19    publishers' Web sites, for example.

  20               My staff in Publisher Relations, it's part of

  21    their responsibility to monitor publishers' Web sites to see

  22    if our information is being used.  My staff and I attend

  23    just about every library show and user show that, the large

  24    ones, where our products would be relevant to look to see if

  25    this information is being used accurately.  I'm on a regular


   1    communication with the top publishers with whom we deal, and

   2    they know that they are supposed to clear copy with us

   3    before they do use this information because it sometimes

   4    does get misused.

   5         Q.    We have heard testimony earlier about some of the

   6    potential causes of confusion in citation analysis from

   7    Dr. Kingma, such as authors with the same name, misspellings

   8    and the like.  What steps, if any, does ISI take to make

   9    sure that its database is accurate?

  10         A.    I think one of the reasons ISI has been so

  11    successful is that we are very well known for the high

  12    quality of our data.  Dr. Kingma was right in saying that

  13    sometimes citations are incorrect at the end of articles.

  14    The editors unfortunately, I think, have so much to do that

  15    they cannot always verify the accuracy of those cited

  16    references and so you may get John Smith and John A. Smith,

  17    for example.

  18               ISI works very hard to rectify those situations,

  19    and, in fact, we are known in the industry and by our

  20    customers for having an --

  21               MR. PLOTZ:  I'm going to object to this.

  22               THE COURT:  Yes.  Just --

  23               THE WITNESS:  Sorry.

  24               THE COURT:  Just answer the question without the

  25    editorial comment.


   1               THE WITNESS:  OK.

   2         A.    We take steps in our data preparation facilities,

   3    which are in Cherry Hill, New Jersey, to verify the

   4    accuracy, whenever possible.  If there are inconsistencies,

   5    things that look like inconsistencies to us, we will pull

   6    the actual articles to verify the accurate spelling of a

   7    name, for example, the accurate volume and issue number, and

   8    rectify that information in our database.

   9         Q.    Do you and your colleagues follow the literature

  10    on citation analysis?

  11         A.    Yes, we do.

  12         Q.    Did your colleague David Pendlebury provide to

  13    Covington and Burling that literature?

  14         A.    Yes, he did.

  15         Q.    I would like to show you what has been marked as

  16    Defendants' Exhibit LLL and ask you to identify that group

  17    of articles.

  18         A.    Yes.  These are the articles that David provided.

  19         Q.    I would just like to direct your attention to the

  20    first article by Dr. Garfield.

  21               MR. PLOTZ:  Your Honor, I'm going to object to

  22    the use and introduction of any of these articles in

  23    evidence.  They are hearsay.  These are journal articles

  24    that not even this witness has identified.  But if she were

  25    an expert --


   1               THE COURT:  Isn't one of the issues in Castrol

   2    the extent to which a test has been accepted in the field?

   3               MR. PLOTZ:  But they need to prove it through a

   4    qualified expert.  You can't prove it by introducing hearsay

   5    literature.  That's what the expert is for, to explain it,

   6    and to testify about it.  This witness is not an expert.

   7    She didn't even collect those articles.

   8               THE COURT:  Is this witness being tendered as an

   9    expert in citation analysis?

  10               MS. BURKE:  No, your Honor.  She is being

  11    tendered as a fact witness, as someone who worked for ISI

  12    both at the time and presently and is familiar with their

  13    processes.

  14               THE COURT:  What is it that these articles are --

  15    for what reason are these articles being offered?

  16               MS. BURKE:  It was offered -- as your Honor said,

  17    it is offered to show the state of the art under the Castrol

  18    analysis, and I wanted Ms. Czech to identify the articles as

  19    ones that other colleagues had collected and supplied to us.

  20    And I am happy to move on from that, but I did want them

  21    authenticated and introduced into evidence.

  22               MR. PLOTZ:  Your Honor, she has authenticated it

  23    and I don't have an objection to her saying this is what

  24    other colleagues identified.  But even if she were an

  25    expert, under 803.18, the reports themselves could not come


   1    into evidence.  Even with an expert, it could only be

   2    referred to while the expert was on the stand so that the

   3    expert could explain what, if any, significance the articles

   4    have.  The articles themselves are hearsay, whether it's

   5    Ms. Czech's statement or some common expert.

   6               MS. BURKE:  Your Honor, the articles are not

   7    being offered for the truth of the matter.  They are being

   8    offered to prove the state of the testing art.  You don't

   9    have to prove all of the statements in them as factually

  10    correct for it to give you the perspective on what is out

  11    there as the state of the art.

  12               MR. PLOTZ:  If they are not being offered for

  13    what's in them, then I truly don't understand the statement.

  14               THE COURT:  I take it, it would be relevant

  15    whether the Barschall methodology -- well, I shouldn't use

  16    that word -- whether citation analysis originated with

  17    Barschall and he was the only proponent of citation

  18    analysis, it would be relevant to know that.

  19               MR. PLOTZ:  Certainly relevant.

  20               THE COURT:  Now, why isn't the converse also

  21    relevant, whether citation analysis is a well-established,

  22    utilized activity, inquiry among librarians and people who

  23    service librarians?

  24               MR. PLOTZ:  I'm not contending it's not relevant.

  25    But it has to be proven in a proper way.


   1               THE COURT:  What has to be proven?

   2               MR. PLOTZ:  What your Honor just said, if

   3    citation analysis is or is not a legitimate analysis or what

   4    about it is or what about it isn't, certainly is relevant in

   5    this case, but it has to be proven with competent evidence

   6    and a competent witness to do it.

   7               Articles are hearsay.  There is an exception

   8    under the hearsay rules, the learned treatise exception,

   9    it's Rule of Evidence 803.18.  Even under that exception,

  10    however, the articles themselves cannot come into evidence.

  11    The expert can testify about them.

  12               THE COURT:  Now, we let in KKK, didn't we?  How

  13    does KKK differ from this?

  14               MR. PLOTZ:  We objected to that exhibit as well.

  15               THE COURT:  I see.

  16               MR. PLOTZ:  But I think that that was offered for

  17    a slightly different purpose.  We are now getting into --

  18    these are -- just the first one is an article on citation

  19    analysis as a tool.  The other group of articles dealt with

  20    instances in which cost normalization was used in a

  21    comparison of the journals.  This is getting into the

  22    nitty-gritty of what citation analysis is all about.

  23               THE COURT:  Are you going to call another

  24    witness?

  25               MS. BURKE:  That's just what I was going to


   1    offer, your Honor.  If it would expedite matters, we would

   2    be happy to offer these through Dr. Ribbe.  They have been

   3    authenticated by Ms. Czech, and I can move on.

   4               MR. PLOTZ:  Just so it's clear, your Honor, I

   5    will make the same objection at that time, because the

   6    articles themselves will still be hearsay.

   7               THE COURT:  But he is being offered as an expert

   8    and then, under the rules you have identified, he will be

   9    able to testify as to those things which persons with his

  10    expertise normally --

  11               MR. PLOTZ:  Assuming he is an expert in this

  12    area, he will so testify.

  13               THE COURT:  I sustain the objection to the

  14    evidence subject to introduction at a later stage.

  15         Q.    Ms. Czech, the ISI data that's at issue in this

  16    case is the impact factor.

  17               Could you briefly tell us what the impact factor

  18    tells about a journal.

  19         A.    In layman's terms, an impact factor will tell you

  20    the average number of times an average article, in a

  21    particular journal, has been cited in a particular year.

  22         Q.    We have also heard reference to other ISI

  23    measurements, half-life.  What does that measurement tell

  24    you?

  25         A.    Half-life, cited half-life in particular, which I


   1    think is what you are referring to, refers to the number of

   2    years back you would have to go from the time -- from the

   3    present day to the number of years you would have go back to

   4    see half of the citations that an article has received.

   5         Q.    How do your consumers use that information?

   6         A.    Though use cited half-life on the journal level,

   7    librarians would use that -- one of the interesting uses is

   8    to decide how long a journal should stay on a shelf, should

   9    remain accessible to the patrons of a library.

  10         Q.    The other measurement referred to is total

  11    citations.

  12         A.    Total citations simply refers to the grand total

  13    of citations that a journal has received since the time it

  14    was published up through the present time.

  15         Q.    If you compare the impact factor and total

  16    citations, what is the effect?

  17         A.    Well, total citations, as I said, will just give

  18    you a grand total.  An impact factor deals with a specific

  19    three-year period.

  20         Q.    To what extent does using total citations favor

  21    the older and larger journals?

  22         A.    Well, obviously if it's 1997 now and a journal

  23    was published in 1980, it's had 17 years of exposure to the

  24    scientific community to receive its total number of

  25    citations.  Journals receive citations at different rates.


   1    Some journals receive them more quickly than others.

   2    Certain fields receive them more quickly than others.  So

   3    the number obviously will get larger the more time has gone

   4    by, in total number of citations.

   5         Q.    Does ISI determine impact factors for all types

   6    of journals, for review journals, letters journals, original

   7    research journals?

   8         A.    Yes, it does.

   9         Q.    What about for specialized or niche journals?

  10         A.    Yes.

  11         Q.    Does ISI segregate the data by type?

  12         A.    No.

  13         Q.    Why not?

  14         A.    Well, we don't segregate them by type of journal.

  15    We do -- one of the rankings that we do is by discipline.

  16    But we don't by type.  We cover all types of journals.  We

  17    cover review journals and original research journals and

  18    letters journals, for example.  We don't discriminate

  19    against one type, let's say, or favor one type or another.

  20    We will cover all types.  So we group the journals together

  21    by discipline.  Our community, the community who is using

  22    that material, would know to discriminate or segregate from

  23    it if they so desired.

  24         Q.    When you refer to "discipline," do you mean like

  25    physics or do you mean a smaller, such as ferroelectrics?


   1         A.    Well, for example, we will have a physics

   2    category.  Then within physics we will have smaller

   3    categories as well.  We wouldn't have anything so small as

   4    ferroelectrics as a specific category, although the

   5    ferroelectrics journals would be covered in its relevant

   6    categories within physics.

   7         Q.    There has been testimony in this case that the

   8    specialized or niche journals necessarily have lower impact

   9    factors than a general journal.  Is that true?

  10         A.    No, that wouldn't necessarily be the case.

  11         Q.    Could you explain why not.

  12         A.    Well, for example, a niche journal or, you know,

  13    a subdiscipline journal would have fewer people doing the

  14    research in that particular field, and their potential

  15    audience would be small.

  16               I mean, the audience tends to be made up of the

  17    same people who are doing the research.  So you may have 100

  18    people doing the research.  You may have 100 people

  19    potentially going to cite that material.  So you could have

  20    100 articles written.  You could have 100 citations and your

  21    impact factor will be 1.

  22               You could have a larger, more general journal,

  23    that could have 10,000 potential citations, potential, you

  24    know, articles written, and 10,000 people who could cite

  25    that material in that field.  You would have the same impact


   1    factor.  That's one of the things impact factors do.  It

   2    normalizes the activity and would help people to measure

   3    journals regardless of the size.

   4         Q.    There has also been testimony in the case that

   5    impact factors fluctuate substantially from year to year.

   6    Based on your experience, does that hold true?

   7         A.    They tend not to fluctuate dramatically.  You

   8    might see a slight fluctuation of, you know, for example, an

   9    impact factor could be 1.000.  The next year it might be

  10    1.025.  You might see small fluctuations for most journals.

  11    Some journals will see very dramatic fluctuations, and there

  12    are a couple of causes of that.

  13         Q.    What are those causes?

  14         A.    Well, for example, there could be an incredibly

  15    hot article written, and the citations would just go through

  16    the roof.  And since articles tend to be cited most

  17    frequently in the year or two after they are published, you

  18    would see an impact factor go quite high for if an article

  19    was written in the year or two before, in one of those years

  20    that's part of the impact factor.  Then after the flurry

  21    over that article has died down or you have moved away from

  22    that three-year period for which an impact factor is

  23    calculated, you might see the impact factor go back down to

  24    what it was prior to the article.  That's one reason.

  25               Another reason an impact factor could fluctuate


   1    dramatically is if a journal didn't publish in a particular

   2    year:  It published in one year, it didn't publish in a

   3    second year.  So your denominator of the impact factor,

   4    which is the total number of articles written, might be

   5    skewed because nothing was written in that particular year.

   6         Q.    I would like to turn to G&B in particular and ask

   7    whether the ISI database includes any G&B physics journals.

   8         A.    Yes, it does.

   9         Q.    To what extent, if at all, is ISI aware of G&B's

  10    flow system?

  11         A.    We are very familiar with the flow system and we

  12    are in regular contact with people at G&B so that we know

  13    when to anticipate journals, journal issues, because with

  14    the flow system it's almost impossible to anticipate when an

  15    issue might arrive.  So we are -- that's why we're in

  16    regular communication with them so we know when to expect

  17    issues.

  18         Q.    I am going to hand you what is marked as

  19    Defendants' Exhibit LL, and ask you to identify those

  20    documents.

  21               Ms. Czech, what are the documents I have handed

  22    you?

  23         A.    These are the letters from Helene Chernack who

  24    works for Gordon & Breach in their U.K. office to me.

  25         Q.    Why is Ms. Chernack -- G&B writing to ISI?


   1         A.    She is our regular contact at G&B and she writes

   2    to me whenever there are new journals, new titles that she

   3    would like ISI to evaluate or when she would like an updated

   4    status on where our valuation stands in reference to their

   5    titles.

   6         Q.    There is some reference in the correspondence to

   7    G&B editors being anxious to be included in the ISI

   8    database?  Why is it that the editors want to be included?

   9               MR. PLOTZ:  Objection.  There are references and

  10    it is in evidence.

  11               THE COURT:  Restate the question.

  12         Q.    What are the reasons that G&B is seeking to be

  13    included in the ISI database?

  14               MR. PLOTZ:  Same objection.

  15               THE COURT:  Do publishers want to be included in

  16    your database?

  17               THE WITNESS:  Yes, they do.

  18               THE COURT:  Do they tell you why?

  19               THE WITNESS:  Yes.

  20               THE COURT:  What do they say?

  21               THE WITNESS:  They want to be covered because of

  22    the selectivity of our database, and it's generally looked

  23    upon as a seal of approval for a journal if ISI picks it up,

  24    so it helps the future success of the journal.

  25         Q.    Does ISI cover any of G&B's comments journals?


   1         A.    We cover one comments title.

   2         Q.    Why don't you cover the others?

   3         A.    There are several others that we have looked at

   4    that didn't meet our criteria.  As I said, if we're looking

   5    for journals to enhance the database that deal with subject

   6    matters that we don't already deal with, that's what we're

   7    looking for.  The one that we picked up, Comments and

   8    Inorganic Chemistry, offered something new and different to

   9    our database, which is why we picked that one up.  The

  10    others didn't.

  11               THE COURT:  When you say you cover one comment

  12    journal, one comment journal of G&B?

  13               THE WITNESS:  That's correct.

  14               THE COURT:  You cover comments journals of other

  15    publishers?

  16               THE WITNESS:  I'm not familiar with other

  17    publishers.  I believe Elsevier may put out something

  18    similar to comments journals, but in my experience I haven't

  19    seen a lot of journals that are similar to that.

  20         Q.    Ms. Czech, are you familiar with the way in which

  21    Professor Barschall used the ISI data in his cost

  22    effectiveness studies?

  23         A.    Yes.

  24         Q.    What is your view on his use of the data?

  25         A.    Well, he --


   1               MR. PLOTZ:  Objection.

   2               THE COURT:  You see, you disclaim reliance on

   3    this witness as an expert, and now you're asking for an

   4    opinion.

   5               MS. BURKE:  Well, she has testified that ISI

   6    monitors the way in which others use their data and they do

   7    so on a regular basis.  And so I'm asking her a question

   8    that goes to the fact of the matter as to whether at the

   9    time -- what view ISI had formed as to Professor Barschall's

  10    use of the data.

  11               MR. PLOTZ:  She has testified about how

  12    publishers use it in their promotional material.

  13               MS. BURKE:  I believe the allegations of the

  14    plaintiffs in this case are that in fact those were

  15    promotional materials.  And I'm asking her ISI's view of the

  16    Barschall use of impact factor.

  17               THE COURT:  All right.  The line between fact and

  18    opinion here is a very wavy line and I don't -- I don't

  19    think it's of great moment.

  20               You may answer the question.

  21         A.    Could you ask it again?

  22         Q.    What is your view on -- what is ISI's view on the

  23    way that Professor Barschall used the impact data?

  24               MR. PLOTZ:  Wait a minute.  Are we talking about

  25    this witness's view or ISI's view?  I'm going to object.


   1               THE COURT:  Is it part of your responsibility at

   2    ISI to monitor how others are utilizing your product?

   3               THE WITNESS:  Yes, it is.

   4               THE COURT:  When you find a use which is in

   5    your -- in the view of ISI inappropriate, do you take any

   6    action?

   7               THE WITNESS:  Yes, we do.

   8               THE COURT:  What action do you take?

   9               THE WITNESS:  We get in touch with the people who

  10    have published the article, have written the article,

  11    stating our objections to it, asking for a retraction if

  12    necessary.

  13               THE COURT:  Did you review the Barschall article?

  14               THE WITNESS:  Yes.

  15               THE COURT:  Did you do so independently of this

  16    litigation?

  17               THE WITNESS:  Oh, yes.  We were aware of it when

  18    it first came out.

  19               THE COURT:  You may ask your question.

  20         Q.    What is ISI's view of Professor Barschall's use

  21    of the impact factor data?

  22         A.    He used our data accurately.  He used accurate

  23    numbers.  They were -- and they were used in a way that we

  24    did not find objectionable.

  25         Q.    Thank you, Ms. Czech.



   2    BY MR. PLOTZ:

   3         Q.    The primary purpose of the Science Citation Index

   4    is to help authors and researchers identify papers and help

   5    them in their research; isn't that right?

   6         A.    That's correct.

   7         Q.    When ISI selects journals for inclusion, that's

   8    the guiding principle that governs, isn't it?

   9         A.    That's right.

  10         Q.    Similarly, Current Contents is a publication

  11    which is used to help researchers learn what's going on in

  12    their fields, right?

  13         A.    That's right.

  14         Q.    To help them in their research?

  15         A.    Correct.

  16         Q.    The database -- you have a single database which

  17    covers all of these publications, don't you?

  18         A.    It's one large database, that's right.

  19         Q.    Pretty much if you're in Science Citation Index

  20    you're in Current Contents, right?

  21         A.    No.  There -- well, for example, obviously you

  22    would have to be a science journal in order to be in the

  23    Science Citation Index as opposed to in one of our social

  24    science products.  It's more likely that you could be in --

  25    you could be in Current Contents and not be in the SCI.


   1    It's unlikely you would be in the SCI and not current

   2    Contents.  They don't automatically go together.

   3         Q.    But there's a pretty substantial overlap, isn't

   4    there?

   5         A.    Somewhat.

   6         Q.    You said that currently ISI covers about 8500

   7    journals?

   8         A.    That's right.

   9         Q.    That's out of, what?  About 90,000 journals in

  10    the world?

  11         A.    Yes.  We estimate them at probably 75,000 and up.

  12    It's hard to calculate an exact number.

  13         Q.    Most of the journals that you cover are based in

  14    the United States and in Europe; isn't that right?

  15         A.    United States and Europe, yes.  We also cover a

  16    fair number from Asia as well.

  17         Q.    About how many Gordon & Breach journals does ISI

  18    cover?

  19         A.    We cover 51 Gordon & Breach journals and we cover

  20    in excess of 30 Harvard titles as well.

  21         Q.    So that's about 81 in all?

  22         A.    Correct.

  23         Q.    These journals generally come out on the flow

  24    system?

  25         A.    That's right.


   1         Q.    You understand what the flow system is?

   2         A.    Yes, I do.

   3         Q.    If you didn't understand it, you wouldn't cover,

   4    it right?

   5         A.    It would be hard to know when to expect issues,

   6    and it might look as if the issues were publishing late,

   7    that's right, but we're well aware of the system.

   8         Q.    Now, Judge Sand asked you a question about why

   9    publishers want to get into the ISI database.

  10         A.    That's right.

  11         Q.    In any of the correspondence that was identified

  12    from Ms. Chernack of Gordon & Breach, did she ever say that

  13    Gordon & Breach wanted to be included in the database

  14    because it was interested in what the impact factor of a

  15    journal might be?

  16         A.    No.

  17         Q.    Have you ever had any communication with

  18    Ms. Chernack in which she said that Gordon & Breach was

  19    interested in being covered because of what its impact

  20    factor might be?

  21         A.    No.

  22         Q.    Isn't it a fact that Gordon & Breach wanted to be

  23    covered because it wanted its journals to be in an index and

  24    available for researchers; isn't that right?

  25         A.    That's correct.


   1         Q.    Isn't it a fact -- you testified that impact

   2    factor can fluctuate from year to year?

   3         A.    That's right.

   4         Q.    But in your view it, generally speaking, won't

   5    fluctuate very much?

   6         A.    Generally speaking, that's right.

   7         Q.    You testified that David Pendlebury works in your

   8    research department?

   9         A.    That's right.

  10         Q.    Do you agree with this testimony that he gave at

  11    a deposition in this case on May 2nd of this year at page 15

  12    and 16?

  13               "Q.    Speaking generally, not specifically, with

  14    respect to any particular journal, can the impact factor for

  15    a journal vary from year to year?

  16               "A.    Yes, it can.

  17               "Q.    Can it vary materially?

  18               "A.    Yes, it's possible."

  19               Do you agree with that?

  20         A.    Yes, I do.

  21         Q.    Isn't it a fact that if you went through the

  22    JCR -- let's just talk about physics.

  23         A.    OK.

  24         Q.    -- that if you went through the JCR from year to

  25    year, you would find that impact factor regularly can


   1    fluctuate 20, 30, 40 percent, up or down from one year to

   2    the next?

   3         A.    I would be surprised to see fluctuations of that

   4    magnitude.

   5         Q.    But you would agree that if that's what the JCR

   6    showed, that that would be a fact, right?

   7         A.    I don't think I understand the question.

   8         Q.    Now, when you make comparisons between journals,

   9    in your view and ISI's view, it's important to compare like

  10    journals with like journals.

  11         A.    That's right.

  12         Q.    That's indeed one of the reasons that ISI breaks

  13    down journals, by subdiscipline in the JCR, right?

  14         A.    That's right.

  15         Q.    The purpose is to facilitate comparisons of like

  16    with like?

  17         A.    That's right.

  18         Q.    So in your view, it would not be a correct use of

  19    impact factor to make comparisons across disciplines or

  20    subdisciplines without identifying that fact, correct?

  21         A.    Well, you wouldn't want to see neurology journals

  22    compared with chemistry journals, for example.  That would

  23    be a bad use of the information.

  24         Q.    Or, indeed, comparisons between one niche in

  25    physics and another niche in physics; isn't that right?


   1         A.    I think the fields within physics are probably

   2    related in close enough ways the librarians and the

   3    researchers who would be using that information would know

   4    how to use it correctly if journals were grouped perhaps a

   5    little more broadly.  We do group journals a little more

   6    broadly than, I think, than -- we're not quite that limited,

   7    because when people do literature searches, you want them to

   8    be able to find material that's going to be useful, and that

   9    could be cross-disciplinary.

  10         Q.    But in fact you do break the journals down by

  11    subdiscipline, don't you?

  12         A.    Yes, to some level, that's right.

  13         Q.    And the range of impact factors differs from one

  14    subdiscipline to another subdiscipline, doesn't it?

  15         A.    Yes, it could.

  16         Q.    For example, the top impact factor in one

  17    subdiscipline in physics could be three and a half and in

  18    another one it could be 11, couldn't it?

  19         A.    It could be.

  20         Q.    That doesn't say anything about the relative

  21    merit of one over the other, does it?

  22         A.    No.

  23         Q.    It just says they're in different subdisciplines,

  24    right?

  25         A.    That's right.


   1         Q.    And different types of journals, like review

   2    journals and primary research journals, also have different

   3    citation rates, don't they?

   4         A.    Yes, they do.

   5         Q.    Review journals in general have a higher rate of

   6    citation than research journals, don't they?

   7         A.    In general.

   8         Q.    And it's your view and ISI's view that that fact

   9    is something that should be taken into account in comparing

  10    journals; isn't that right?

  11         A.    That's a tough one.  When we evaluate journals,

  12    we don't take that into account.  We just want to make sure

  13    that we're bringing the best literature to people.  It is

  14    true that citation analysis will show that certain types of

  15    journals do get different citation rates.  But I don't know

  16    if we necessarily need to spell out the differences among

  17    the journals.  I think our researchers and librarians are

  18    well acquainted with the types of journals out there and

  19    it's easier for them to split them up further if they want

  20    to.

  21         Q.    Do you believe that in any comparison of journals

  22    it is important to take into account the fact that these

  23    different types of articles and journals have different

  24    rates of citation?

  25         A.    From whose perspective?


   1         Q.    From anyone's perspective.

   2         A.    I don't know.  I'm not sure.

   3         Q.    Let me put before you what we have marked as

   4    Plaintiffs' Exhibit 800 and turn to page 21A, which is

   5    entitled "Source Data Listing."  I would ask you to take a

   6    look at the first paragraph in the right-hand column.

   7               First of all, is the exhibit that I have just

   8    handed you a copy of an excerpt from the SCI Journal

   9    Citation Reports?

  10         A.    Yes, it is.

  11         Q.    You recognize it as part of the introductory

  12    material that SCI -- that is included in SCI?

  13         A.    That's right.

  14         Q.    Do you agree with this statement, made in that

  15    paragraph that I just referred you to:  "Since a good review

  16    article is likely to be highly cited, the publication of

  17    reviews should increase the total citations a journal

  18    receives.  A journal that publishes reviews regularly will

  19    probably be more highly cited than one which prints only

  20    original research articles.  This factor should be taken

  21    into account in any citation analysis comparing journals."

  22         A.    Yes, I do.

  23         Q.    You do agree with that statement?

  24         A.    Yeah, I'm comfortable with that.

  25         Q.    I take it it's not your view that a review


   1    journal is in any way better than a research journal simply

   2    because it has more citations, is it?

   3         A.    It's different.

   4         Q.    It's different.  And it's not your view that it's

   5    better if it has a higher impact factor, either, right?

   6         A.    No.

   7               MR. PLOTZ:  Your Honor, I apologize.  I don't

   8    think I handed up a copy of Exhibit 800.  I can point the

   9    page to you if you would like.  It's not numbered at the

  10    bottom, but it comes after 20A.  The number is very small.

  11         Q.    Now, you don't believe, do you, that a journal

  12    with a higher impact factor than another journal is of

  13    higher quality than the other journal, do you?

  14         A.    It's not what the number is meant to do.  An

  15    impact factor is a quantitative analysis.  A logical

  16    inference could be made from that, which I think is how they

  17    are used primarily in the community.  The number itself does

  18    not state that.  The number is quantitative.

  19         Q.    In fact, isn't it true that one of the ways in

  20    which you monitor use of impact factor by publishers is

  21    precisely because you are concerned when a publisher says

  22    that it has a certain impact factor which means that it has

  23    a journal of great quality or better quality?  Isn't that

  24    one of things you look for?

  25         A.    That's correct.


   1         Q.    You don't want publishers saying that, do you?

   2         A.    We don't want publishers to say that we said it,

   3    you know.

   4         Q.    Because in your view impact factor is a

   5    quantitative measure, correct?

   6         A.    Impact factor is quantitative.

   7         Q.    So if someone said that Barschall's formula,

   8    Barschall's survey, proved that certain journals were of

   9    higher quality than other journals, that would be a use that

  10    you would consider inappropriate, correct?

  11         A.    I think it's a logical inference that, if a

  12    journal has a higher impact factor, it could be inferred

  13    that the journal is better.  In his tables, he simply ranked

  14    journals quantitatively, so that was an accurate use.

  15         Q.    Let me put before you Plaintiffs' Exhibit 97A and

  16    ask if you recognize that as being from an Internet journal

  17    called Newsletter on Serial Pricing Issues.

  18         A.    Yes, I'm familiar with it.

  19         Q.    Does this exhibit reflect basically an exchange

  20    of views of many people, including Eugene Garfield?

  21         A.    I don't know.  I haven't seen this.

  22         Q.    Take a look at page 4.

  23         A.    OK.

  24               MS. BURKE:  Your Honor, I object to questions of

  25    this witness about this exhibit.  She has testified she has


   1    not seen this before.

   2               MR. PLOTZ:  Your Honor, she testified about it at

   3    her deposition.

   4               THE WITNESS:  I just don't remember.

   5               THE COURT:  What is the question?

   6               MS. BURKE:  She nonetheless has no personal

   7    knowledge of the document.

   8               THE COURT:  Yes.  Has a question been asked of

   9    her?  She has been told to look at this, but not --

  10               MR. PLOTZ:  That's right.  I am about to ask the

  11    question.

  12               MS. BURKE:  Excuse me, your Honor.

  13         Q.    First of all, who is Eugene Garfield?

  14         A.    He is the founder of ISI.

  15         Q.    And the inventor of the impact factor statistic?

  16         A.    Yes, he is.

  17         Q.    Do you agree with this statement at the bottom of

  18    page 4:  "Impact, he stated," referring to Garfield, "is

  19    used to describe the effect of citations.  Quality of

  20    valuation, however, requires more detailed content and

  21    context analysis."

  22               Do you agree with that statement?

  23         A.    Yes, I do.

  24         Q.    Referring to the paragraph immediately above that

  25    paragraph, do you agree with this statement:  "If an audit


   1    determines the cost effectiveness of various publishers,

   2    Garfield asked, would librarians make journal purchase

   3    decisions based solely on these factors.  He hopes not, for

   4    not all factors are equal.  Such things as whether journals

   5    include review articles or research articles need to be

   6    weighed, for example, since there is different value

   7    received.  The size of the audience is another significant

   8    factor, as is peer rankings of journal quality."

   9               Are those statements with which you agree?

  10         A.    Yes.

  11         Q.    I have nothing further?

  12               THE COURT:  Any redirect?


  14    BY MS. BURKE:

  15         Q.    Ms. Czech, you were asked the question about a

  16    specialty journal in one specialty that had a three and a

  17    half impact factor and in another specialty it had an 11

  18    impact factor.  What do those variations tell you about

  19    those two journals?

  20         A.    They simply state that at one journal -- in one

  21    journal the article, an average article in the journal, was

  22    cited an average of three times in the particular year.  And

  23    the journal with its impact factor of over 11 would have

  24    been cited an average of 11 times.

  25         Q.    You were also handed Plaintiffs' Exhibit 800.  I


   1    would just ask you to turn to the back of that document and

   2    describe for me what this bibliography is.

   3         A.    The bibliography at the end that seems to start

   4    on 52A?

   5               This is articles that were written prior to the

   6    publication of the SCI in this particular year, which all

   7    deal with citation analysis and different ways to do

   8    collection development, and the way citation data can be

   9    used.  It's bibliometric articles.

  10         Q.    Thank you.  I have no further questions.

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

  12               (Witness excused)

  13               THE COURT:  Defendants may call their next

  14    witness.

  15               MR. HUVELLE:  Your Honor, our next witness is

  16    Paul Ribbe.

  17     PAUL H. RIBBE,

  18         called as a witness by the defendants,

  19         having been duly sworn, testified as follows:


  21    BY MR. HUVELLE:

  22         Q.    Mr. Ribbe, where do you live?

  23         A.    Blacksburg, Virginia.

  24         Q.    Do you have a Ph.D.?

  25         A.    I do.


   1         Q.    In what subject?

   2         A.    Physics.

   3         Q.    From what university?

   4         A.    The University of Cambridge, in England.

   5         Q.    Did you engage in any post-doctoral education?

   6         A.    I had one year as a National Science Foundation

   7    fellow at the University of Chicago.

   8         Q.    Have you been employed as a university professor?

   9         A.    Yes.

  10         Q.    For what years?

  11         A.    1964 and '65 I was at U.C.L.A., and from 1964

  12    until about a year ago I was fully employed at Virginia

  13    Tech, in Blacksburg.

  14         Q.    Is that from 1966?

  15         A.    '60 -- I'm sorry.  I meant '66.  '66 to '96.

  16         Q.    What is your current status?

  17         A.    Professor emeritus.

  18         Q.    You were at Virginia Tech?

  19         A.    Yes.

  20         Q.    What is your area of specialty within the field

  21    of physics?

  22         A.    I am a crystallographer and I work with minerals.

  23         Q.    What is crystallography?

  24         A.    Crystallography is primarily involved with the

  25    determination of the arrangements of atoms in crystals.


   1    This can be atoms in things like proteins, DNA, as well as

   2    inorganics.  I worked on inorganic crystallin materials.

   3         Q.    Were you considered a mineralogist?

   4         A.    I was called a mineralogist by choice because I

   5    did crystallography and the physics and chemistry of

   6    minerals for my research, in the geology department.

   7         Q.    Can you tell us what your area of research was?

   8         A.    From the beginning, I was interested in the --

   9    how the arrangement of atoms in a crystal structure affected

  10    the chemical and physical properties of minerals, or, to

  11    think of it another way, how the chemistry affected the

  12    crystal structures and how that in turn related to the

  13    physical properties of those minerals.

  14         Q.    In what -- what was the focus of your research?

  15         A.    The general theme was to look at minerals which

  16    formed the major rock types, that make up the crust of the

  17    earth, because that's what geologists are most interested

  18    in.  And by relating crystal structures and physical

  19    properties, we can use a -- and chemical properties -- we

  20    can use a combination of these things to determine something

  21    about the history of the formation of the rocks in which

  22    these minerals occur.

  23         Q.    Have you had occasion to publish any articles in

  24    scientific journals regarding your research?

  25         A.    Yes.


   1         Q.    About how many articles have you published?

   2         A.    Close to 100, certainly more than that if I count

   3    chapters in books.

   4         Q.    Have you served on any university library

   5    committees during your time at Virginia Tech?

   6         A.    Yes.

   7         Q.    Could you describe them for us?

   8         A.    The main work I've done has been with our

   9    departmental library committee beginning for the most part

  10    in the late '70's, early '80's, when the pricing prices

  11    began, where libraries were becoming lean and efficient, in

  12    terms of the amount of money they had available.

  13         Q.    What was your role on the committee?

  14         A.    Well, one was to oversee the use of the library.

  15    We had all the administrative tasks, as well as appraising

  16    the work of the staff, but we also were involved with a

  17    series of cancellations that came almost in waves every

  18    other year or so, based on strictures in library funding.

  19         Q.    Have you had any experience as an editor of

  20    scientific writings?

  21         A.    Yes, I have.

  22         Q.    Can you describe that experience from the

  23    beginning?

  24         A.    My earliest involvement was as an associate

  25    editor of the American Mineralogists, which is my


   1    professional society journal, in which I was responsible for

   2    obtaining reviews and for reviewing papers for publication,

   3    passing them on to the editor.  Later on I became, in the

   4    mid '70's, the editor of a journal which is called Reviews

   5    in mineralogy, which is a series of graduate-level

   6    textbooks, essentially, text and reference books.

   7         Q.    Have you had any other editing experience?

   8         A.    Yes.  I have edited for the Mineralogic Society

   9    of America, the Reviews in Mineralogy, which now is -- I'm

  10    working on the 36th book in that series.  I've also been

  11    editor of their monograph series, which is fairly new.

  12         Q.    For what period of time have you served as editor

  13    of Reviews in Mineralogy?

  14         A.    Officially since 1978, but I also was doing it in

  15    the years previous to that, 1974, '75.

  16         Q.    Do you continue in that role today?

  17         A.    Yes.

  18         Q.    How successful has that journal been?

  19         A.    By all reports, it has been very successful, but

  20    then I'm prejudiced and perhaps people don't tell me if it's

  21    not, but actually the -- it's been very well accepted by the

  22    scientific community and has sold over 150,000 books.

  23         Q.    How do you measure its success?

  24         A.    Well, obviously sales are one area that we look

  25    at every year, to see how well it's selling, how many copies


   1    of each edition we sell.  We are, you know, very much

   2    concerned that it's reaching the people and that people are

   3    using it.  It's being used -- these are being used as

   4    textbooks in advanced courses, not all of them, but some of

   5    them.  They are being used in things like other professions

   6    as well.  We keep a record of what is sold to our membership

   7    and to related people and what is sold to -- outside the

   8    community of mineralogists.

   9         Q.    Apart from your role as editor, to what extent

  10    have you been a reader of scientific journals in connection

  11    with your own research and teaching?

  12         A.    My editorial work involves a lot of reading, of

  13    course, but most -- for the most part that doesn't -- is not

  14    directly involved with my research.  My teaching and

  15    research just means that I have to be in the literature at

  16    all times, although I'm retired from the teaching aspects,

  17    so I don't do that kind of reading at that intensity any

  18    longer.

  19         Q.    Are you familiar with the journals included in

  20    Dr. Barschall's survey, generally?

  21         A.    Generally speaking, yes, of course.

  22         Q.    Have you published articles in any of those

  23    journals?

  24         A.    Yes, I have.

  25         Q.    About how many of those journals have you


   1    published in?

   2         A.    Three, at least three.

   3         Q.    And in connection with your reading of journals

   4    as part of your own research and teaching activities, have

   5    you had opportunities to read articles in the journals

   6    included in Dr. Barschall's survey?

   7         A.    Yes, I have.

   8         Q.    About how many have you read in that connection?

   9         A.    It's a bit of a guess, but probably somewhere

  10    between 12 and 20, or 15 maybe.

  11         Q.    In connection with your research during your

  12    university career, to what extent have you been required to

  13    collect and analyze data?

  14         A.    That's my stock in trade.  That's what

  15    crystallographers do.  They extract data from the minerals

  16    by various methods, x-ray diffraction and so on, and process

  17    that data.

  18         Q.    Can you give us that example?

  19         A.    Well, the first one that is blazoned on my mind,

  20    is -- the job I did as a first-year graduate -- doctoral

  21    student at Cambridge where I collected -- for the first six

  22    months I collected data from an x-ray diffraction unit on

  23    film and then I spent one entire summer just quantifying

  24    those films to get the data set that I would use for later

  25    computer processing and determining this crystal structure.


   1    That's one of many different kinds of examples, but I'm sure

   2    I would bore you with others.

   3         Q.    One example would do fine.  Thank you.

   4               I would like to show you a document that has been

   5    marked as Defendants' Exhibit U.

   6               MR. PLOTZ:  Excuse me.  What exhibit?

   7               MR. HUVELLE:  U.

   8         Q.    Can you identify Defendants' Exhibit U?

   9         A.    Yes.  This is my resume as of the 10th of June,

  10    '96, with one penciled-in change, small change, on the first

  11    page.

  12         Q.    Does this contain a listing of your writings?

  13         A.    Yes, up through '94.

  14         Q.    Dr. Ribbe, have you done any writings in the area

  15    of bibliographics?

  16         A.    Yes, I have.

  17         Q.    How many -- how much writing have you done in

  18    that area?

  19         A.    I have published four papers, one of which, by

  20    the way, was a corrections manuscript, which made a few

  21    changes in one of the earlier ones.

  22         Q.    I would like to show you Defendants' Exhibit AA.

  23    Can you identify for us Defendants' Exhibit AA?

  24         A.    Yes.  These are the four papers that we just

  25    mentioned.


   1         Q.    Can you describe generally for us the subject

   2    matter of the first article appearing in the May, June

   3    edition of American Mineralogists?

   4         A.    Yes.  It's an article that was written for my --

   5    as part of my presidential address to the Mineralogical

   6    Society of America.  It's called "The assessment of prestige

   7    and price of professional publications."

   8         Q.    Can you tell us what led to your becoming

   9    involved in this subject matter?

  10         A.    Actually, it was an outcome of another study that

  11    I was undertaking for the Mineralogic Society for my

  12    presidential address.  Rather than spout off about my

  13    research accomplishments, about which most everyone knew

  14    anyhow and may have been quite tired of, I decided to do, as

  15    a service to the society, an undertaking of a survey of the

  16    current state of funding, federal funding especially, of

  17    research in the area of mineralogy and petrology and related

  18    disciplines.  And as part of that, I was looking at the --

  19    assessing the faculties, using the Carnegie surveys to --

  20    and the National Academy surveys of faculty and institutions

  21    that granted Ph.D.'s, in order to assess how well the money

  22    was being spent.  In other words, if Cal. Tech. gets a lot

  23    of money, what are they producing for that money?  How many

  24    publications do they turn out?  What kind of money do they

  25    get in the first place?


   1               And as a subset of that I thought, well, it might

   2    be interesting to see where these people are publishing

   3    their papers.  And I started to look in the journals to see

   4    where these well-funded people were publishing, and I

   5    started looking at the acknowledgements of those articles

   6    and seeing where -- what grants they were referring to, and

   7    the whole thing became a rather -- a large study which

   8    involved not just the funding aspects of the thing and the

   9    prestige of the departments and the individual members

  10    within the departments but also the media in which they were

  11    publishing.

  12         Q.    Was there a cost analysis that was a component of

  13    that study that you did?

  14         A.    The -- one of the grants, you mean, or --

  15         Q.    No.  In your own study.

  16         A.    My own study?  Yes, there was.

  17         Q.    Can you briefly describe what that consisted of?

  18         A.    Well, I compiled the -- I compiled -- I compiled

  19    the subscription prices over a period of eight or nine

  20    years, and then I counted all of the articles that were

  21    published.  I had some help doing this, by the way.  Counted

  22    all of the articles that were published during each of those

  23    annual periods, and compiled that data.

  24         Q.    What did you calculate from that data?

  25         A.    Well, I calculated and plotted the changes of


   1    price with time, and I also -- of course, the major thing

   2    was to take the time to look into the grants that were

   3    acknowledged in these articles, and that was a whole another

   4    aspect of it.

   5         Q.    What analysis did you do with respect to that

   6    grant information?

   7         A.    Grant information was of two types.  First of

   8    all, I looked, since I can only consider those and was only

   9    considering the U.S.-granting agencies, I only looked at

  10    grants which were acknowledged in articles who would one

  11    or -- which had one or more American author or authors who

  12    identified himself as being American by having an address in

  13    the United States.  Sometimes that was a little tricky but

  14    not often.  And looked at the acknowledgements.  I counted

  15    how many grants -- and actually wrote down the names of the

  16    grants that were recorded in those acknowledgements, and

  17    also how many grants.  In other words, a record was kept of

  18    the grants that were acknowledged for each of the articles

  19    by American authors.  They also kept a record of those that

  20    had no acknowledgements.

  21         Q.    In connection with your analyses of these

  22    journals, did you look at citation data?

  23         A.    I did.

  24         Q.    What citation data did you review?

  25         A.    I reviewed primarily the impact factor and the


   1    immediacy index.  I looked at the others but I didn't

   2    actually do any analysis of it.

   3         Q.    For how many journals did you examine such data?

   4         A.    I think there were 19 journals in the study and

   5    only about 15 of them were actually subject to any citation,

   6    series citation study.

   7         Q.    During what period of time did you conduct this

   8    study?

   9         A.    I began when I was elected vice president of the

  10    Society, knowing that two years down the line I would have

  11    to do a presidential report, so I sort of began at that

  12    time, and for the next year and a half at least I was pretty

  13    intensely involved, not just in this but also in that

  14    funding study that I mentioned.  They both went on

  15    simultaneously.

  16         Q.    Have you done subsequent analyses or writings in

  17    the field of bibliometrics?

  18         A.    Subsequent to this article?

  19         Q.    Yes.

  20         A.    Yes.  I was encouraged to expand this, and I did.

  21         Q.    What did you do when you expanded it?

  22         A.    Well, there were a couple of things.  One is that

  23    the article drew some flak, and rightly so in one case where

  24    there was actually an error.  Someone had published two

  25    volumes in one year, but the second volume wasn't in the


   1    library, so I never saw it.  You know, there were things of

   2    that sort and other things that we had to discuss with

   3    sister societies, who were a little bit ticked off that I

   4    discovered that they had made $1,000 on every library in the

   5    United States by selling their journal at the pound price

   6    instead of the dollar price, that sort of thing.

   7               After that correction, I was asked to address the

   8    national, what's called NASIG, National Association of

   9    Serials Interest Groups, and they wanted a paper out of

  10    that.  So I essentially recast my study in terms that might

  11    be a little more interesting to librarians.

  12         Q.    Is that the third article in the package?

  13         A.    That's -- yes, that is -- that is the third one.

  14         Q.    What is the fourth article?

  15         A.    The fourth article is an article that I wrote for

  16    the Geosciences Information Society, GIS, who were

  17    interested in hearing what sort of work I had done and

  18    wanted me to expand the study into other areas of the

  19    geosciences.

  20         Q.    What other areas did you go into?

  21         A.    Well, my study was on the -- what we -- the

  22    specialties that we call mineralogy and petrology,

  23    geochemistry.  One can go on fragmenting the specialties,

  24    but those are the general, broad terms.  And

  25    crystallography.  They wanted me to go into other areas, and


   1    so I chose the journals in the ISI as they were categorized

   2    in geosciences, geology, paleontology, and also I looked at

   3    geophysics, based on somebody else's work.

   4         Q.    For what purpose did you examine these areas?

   5         A.    Well, once again, the problem was, libraries were

   6    in great distress over the increasing cost of articles, and

   7    they wanted to know more information than they had, which

   8    basically was the subscription price and the fact that it

   9    was going up every year.  And that's about all they had.

  10    They didn't have anything else.  I mean, they had other

  11    things available to them, but they didn't take the time or

  12    the energy to do it, do the work to find this information or

  13    to compile this information.

  14         Q.    In connection with that analysis, did you

  15    normalize the prices of these journals?

  16         A.    I did.  I did for the mineralogy, petrology

  17    things, I did normalize them.

  18         Q.    Now, let me ask you to turn to this case.

  19               THE COURT:  We will take our mid-afternoon

  20    recess.

  21               MR. HUVELLE:  OK.

  22               (Recess)

  23         Q.    Dr. Ribbe, in front of you, I believe, is a copy

  24    of an article that has been marked as Plaintiffs' Exhibit 2.

  25    do you see that?


   1         A.    Yes.

   2         Q.    Are you familiar with that document?

   3         A.    Yes.

   4         Q.    Have you had the opportunity to review the tables

   5    that are set forth at the end of that article?

   6         A.    Yes.  I did nothing with table 2, but I did look

   7    at the others.  I mean, I looked at it, but I didn't do

   8    anything with it.

   9         Q.    Have you, sir, attempted to put together your own

  10    database relating to the articles included in tables 1, 3,

  11    and 4?

  12         A.    Yes, sir, but I used only part of the tables.  I

  13    used those which had complete data sets.  As you notice,

  14    there are some blanks in the -- in a couple of columns,

  15    namely the impact, the impact column and cost per impact

  16    column.

  17         Q.    Approximately how many journals are listed in

  18    Dr. Barschall's study?

  19         A.    I think 178.

  20         Q.    Can you turn to page 1439 of Plaintiffs' Exhibit

  21    2.

  22         A.    Yes.

  23         Q.    When you refer to "missing information," can you

  24    point out to us with respect to that page what you mean?

  25         A.    Well, at the top of the page there are the five


   1    Gordon & Breach comments journals, for example, which had

   2    not been listed at that time in the ISI data file, and so

   3    they have no impact factors and therefore no cost per

   4    impact.  And that's true with quite a number of other

   5    journals as well.

   6         Q.    In putting together your own database, did you

   7    include the journals which in Dr. Barschall's analysis had

   8    no impact or cost impact data?

   9         A.    I did not.

  10         Q.    Approximately how many journals then were you

  11    left with that had a complete data set?

  12         A.    148.

  13         Q.    Could I ask you to look at a document that has

  14    been marked as Defendants' Exhibit B, as in boy.

  15               MR. HUVELLE:  Your Honor, this document tests all

  16    of us whose eyesight is not what it once was.

  17               THE COURT:  I noticed that.

  18               MR. HUVELLE:  I apologize for that.

  19         Q.    Can you identify Defendants' Exhibit B?

  20         A.    Yes.  This is the data record of those 148

  21    journals I just mentioned, which contain the information

  22    from Barschall's tables plus other information.

  23         Q.    Did you put together this document?

  24         A.    I did.

  25         Q.    Did you create the database?


   1         A.    I created it, some of it.  The rest of it came

   2    from the data, came from other places, yes.

   3         Q.    In what form did you store the data?

   4         A.    This was on an Excel spreadsheet, Microsoft -- I

   5    mean in a Macintosh computer.

   6         Q.    I would like to direct your attention to the

   7    columns of data and ask you to identify them.

   8               First of all, the journals that are listed on the

   9    left, can you tell us how those are arrayed, in what

  10    sequence?

  11         A.    They are listed alphabetically by publisher, the

  12    publisher being in column B, so that AIP publications would

  13    be all listed together, APS would be all listed together,

  14    etc.

  15         Q.    Which journals are highlighted in pink?

  16         A.    The pink ones on this are the AIP, the first

  17    group, and the second group is the APS.

  18         Q.    Which journals are highlighted in yellow?

  19         A.    The yellow ones are Gordon & Breach journals.

  20         Q.    How many Gordon & Breach journals did you

  21    include?

  22         A.    I included four.

  23         Q.    Now, can you look at the first column with data,

  24    which is column C?

  25         A.    Yes.


   1         Q.    Can you tell us what information is recorded in

   2    that column?

   3         A.    This is the -- these are the prices that

   4    Barschall and Arrington in Plaintiffs' Exhibit 2 listed as

   5    the subscription price for 1987.

   6         Q.    Can you look at column E, in title B and A pages,

   7    1987, what is in that column?

   8         A.    Those are the numbers of pages reported in the

   9    Barschall and Arrington Table 1.

  10         Q.    Can you look at column G, B and A cost per

  11    character?

  12         A.    Yes.  That means the cost per 1,000 characters

  13    that Barschall and Arrington calculated.  I have taken them

  14    directly from their tables.

  15         Q.    Can you look at column N, 1986 impact factor?

  16         A.    Yes.  These are the impact factors that I took

  17    directly from the ISI Journal Citation Report for 1986.

  18    They agree -- they were found to agree within one decimal

  19    place, which is the limit to which Barschall and Arrington

  20    quoted their impact factors.  They also got them from the

  21    same place.

  22         Q.    What is the difference in the way you recorded

  23    the impact factor and they recorded the impact factor?

  24         A.    Mine is recorded to a few more decimal places.

  25         Q.    Can you look at column J, B and A cents/character


   1    1986, IF?  What does that show?

   2         A.    Yes.  That is the last on the right column in the

   3    Barschall and Arrington Table 1, which is the cents per

   4    1,000 characters divided by the impact factor, which in my

   5    case is in column N.

   6         Q.    Is column J what Dr. Barschall refers to as

   7    cost/impact?

   8         A.    Yes.

   9         Q.    Now, have we just identified all of the columns

  10    that reflect data that you have taken from Dr. Barschall's

  11    tables?

  12         A.    Yes.

  13         Q.    Now, can you look at column D --

  14         A.    Yes.

  15         Q.    -- which is entitled "PHR price 1987."

  16         A.    Yes.

  17         Q.    Can you tell us what information is in that

  18    column?

  19         A.    This is --

  20         Q.    I'm sorry.

  21         A.    Go ahead.

  22         Q.    For -- let me just start with column F.

  23         A.    Yes.

  24         Q.    "PHR pages, 1987."

  25         A.    Yes.


   1         Q.    What information is in that column?

   2         A.    These are the number of pages that came from

   3    looking at each of the issues and each of the volumes of the

   4    journal listed in column A to get the total number of Roman

   5    numeral -- I'm sorry, the Arabic numeral pages in that

   6    journal.

   7               THE COURT:  What does "PHR" stand for?

   8               THE WITNESS:  PHR, that's me, sir.

   9               MR. HUVELLE:  These scientists have their ways.

  10               THE COURT:  I see.  OK.

  11         Q.    Who calculated the figures that are in column F?

  12         A.    One doesn't exactly calculate these.  You

  13    actually measure -- you read them off and you write them

  14    down.

  15         Q.    Who counted them?

  16         A.    I did.

  17         Q.    And how did you do it?

  18         A.    By looking at the journals themselves, looking at

  19    the -- in some cases, an issue would have the numbers

  20    included in it, imprinted on the cover, and in some cases

  21    one had to look at the first page of the journal which

  22    contained text, go to the last page which contained text,

  23    and read off its page number.

  24         Q.    How did Dr. Barschall, to your understanding,

  25    calculate the pages for column E, or that are now reflected


   1    in your column E?

   2         A.    He would hopefully have done the same, with a few

   3    exceptions.

   4         Q.    What is your understanding of what the exceptions

   5    were?

   6         A.    There were 34 journals that he works with

   7    asterisks in his Table 1, which were -- in which the pages

   8    were determined by extrapolation.

   9         Q.    What is your understanding of why he determined

  10    those by extrapolation?

  11         A.    The library, or libraries to which he had access

  12    did not have, for example, the last issue or the last few

  13    issues, or perhaps even were missing entire volumes of a

  14    year's publication.  So he had to extrapolate based on the

  15    earlier part of production in the earlier part of the year.

  16         Q.    Can you tell us why you went back and counted the

  17    pages?

  18         A.    Well, because there was implication on the part

  19    of at least Dr. Kingma that this is no way to determine

  20    pages.  There might be inaccuracies there which might cause

  21    biases to disfavor one journal over another.  And I wanted

  22    to straighten that out.

  23         Q.    Can I direct your attention now to column D, PHR

  24    price 1987.

  25         A.    Yes.


   1         Q.    How did you calculate -- did you record the

   2    figures in that column?

   3         A.    Yes, I did.

   4         Q.    How did you do that?

   5         A.    This was done by looking at the inside of the

   6    journal covers in order for each of the issues and, if

   7    necessary, each of the volumes or vice versa.  We could

   8    do -- sometimes we had multiple volumes, sometimes multiple

   9    issues -- just I went through and took the price out of the

  10    inside cover for each of those and weighted them

  11    appropriately.  That is to say, if you had an issue which

  12    had one price and an issue which had another price, you

  13    would assign those issues the prices that were in the

  14    journal covers, to total the prices for the year.

  15         Q.    Which price, if multiple prices were listed in

  16    the journal cover, which price did you select?

  17         A.    I always selected the one which indicated that it

  18    was for institutions in particular, libraries in particular

  19    if they were differentiated between industrial or commercial

  20    applications, and academic libraries.

  21         Q.    You would take the academic price?

  22         A.    I always took the academic one, yes, sir.

  23         Q.    Is it your understanding that Dr. Barschall, at

  24    least in some instances, used a different approach?

  25         A.    For getting prices?


   1         Q.    Yes.

   2         A.    Yes, he did.  He took the inside the cover price

   3    where he found it available, easily available, or available

   4    to him.  If he couldn't find it there, he says in his

   5    article that he went to the library to get the price that

   6    was charged to the library from their inventory.  Or I think

   7    he used prices, I know, for Pergamon I think he used their

   8    price list for North America, and he may have even used the

   9    Ulrich's periodical listings, which has some prices as well.

  10         Q.    Why did you go through this process of looking at

  11    each journal and determining prices for yourself?

  12         A.    Well, obviously Barschall was working at

  13    something of a disadvantage, in the time frame in which he

  14    chose to work, and so I went to get a uniform source of

  15    prices.  I went to the journal covers, which I figured was

  16    basically the horse's mouth on prices.

  17         Q.    And then column H, PHR cost character, what is

  18    that called?

  19         A.    There I took the cost and divided it by the

  20    number of pages and multiplied that times the number of

  21    characters per page in order to get the same -- it's an

  22    analogous figure to the Barschall and Arrington cost per

  23    thousand character figure in column G.

  24         Q.    In reviewing and setting forth your own data on

  25    pages and price, how many of the journals did you review?


   1         A.    I reviewed about 70 -- 102 or something like

   2    that, about 70 percent of them.

   3         Q.    How many of the journals of Gordon & Breach, AIP,

   4    and APS did you review?

   5         A.    I did all of them.

   6         Q.    Columns Q through -- I'm sorry.  Columns L

   7    through P relate to -- are derived from what source?

   8         A.    They came from the Science Citation Index,

   9    Journal Citation Reports, volume 19, for 1986.

  10         Q.    And columns Q through U relate to what?

  11         A.    The same, only for 1987.

  12         Q.    Column AA is what?

  13         A.    There I calculated the -- I took the subscription

  14    price in column D and divided it by the number of pages in

  15    column F, to obtain dollars per page cost.

  16         Q.    Why did you do that?

  17         A.    Well, for two reasons.  One is that Barschall's

  18    cents per thousand characters had come under some fire from

  19    Dr. Kingma, among others, and the suggestion was that that's

  20    not a reasonable way to cost out a journal or to normalize

  21    cost for a journal, and these are readily available numbers,

  22    pretty easy to do.  And in fact it turns out that this is

  23    how people, certain people, especially people in flow

  24    publishing, how they basically charge for journals.

  25               They take -- get enough pages.  They put out a


   1    journal.  They charge a certain amount for that journal.

   2    And one can think of that exactly that way, as a cost per

   3    page.  And in our society, we have a limited number of

   4    signatures per year, so we have a limited number of pages.

   5    And we set the price.  And in one sense our charge is by

   6    price.  There are other societies that don't handle it that

   7    way but that's the way our society does it.

   8         Q.    Can you look now at column AB?

   9         A.    Yes.

  10         Q.    Can you tell us what data is set forth in that

  11    column?

  12         A.    This is data also from the Science Citation

  13    Index, Journal Citation Reports for 1986, which is the total

  14    citations to a journal in the year 1987.

  15         Q.    To what articles?

  16         A.    To all the articles that appeared in that journal

  17    regardless of what date they had them from them -- on them,

  18    from 1986 all the way back to the beginning of the journal.

  19         Q.    In the case of the first journal that's

  20    highlighted in pink --

  21         A.    Yes.

  22         Q.    -- J. Chem. Phys., Journal of Chemical Physics, I

  23    guess?

  24         A.    Yes.

  25         Q.    What is the figure that is shown in column AB?


   1         A.    It's testing my eyesight, but I think it's 78,759

   2    citations.

   3         Q.    What does that figure represent?

   4         A.    That represents how many citations were counted

   5    in all of the science literature to that journal in that

   6    year.

   7         Q.    And the citations could be to articles in any

   8    year?

   9         A.    Any year, yes.

  10         Q.    And what is column AC?

  11         A.    Column AC is the citation number in column AB

  12    divided into the price for 1987, the subscription price.

  13         Q.    And that would be column D?

  14         A.    That would be column D.

  15         Q.    Why did you make that calculation?

  16         A.    Actually, it was at the suggestion of Mr. Plotz,

  17    who suggested that, having done these citation counts, it

  18    might be interesting to find out what the cost was per

  19    citation.

  20         Q.    Let me ask you to look at Defendants' Exhibit D,

  21    as in David.

  22         A.    Yes.

  23         Q.    Is Exhibit D a re-sorting of some of the data

  24    from Exhibit B?

  25         A.    Yes.  It's an exact re-sorting with some of the,


   1    I guess, extraneous columns cut out, so that it's sorted on

   2    the cents per thousand characters.

   3         Q.    And the journals are ranked in a different

   4    sequence?

   5         A.    Different than Exhibit B, is that what you mean?

   6         Q.    Right.

   7         A.    Yes, sir.

   8         Q.    In what order are they listed on Exhibit D?

   9         A.    In Exhibit D they are listed by cost per thousand

  10    characters, which is the column to the far right.

  11         Q.    And that's column H?

  12         A.    Column H.

  13         Q.    Where are the Gordon & Breach journals listed on

  14    this exhibit?

  15         A.    Well, they are listed at the bottom of the

  16    right-hand column, or the right-hand row of columns.  They

  17    are listed as 148, 146, 145, and 143, in terms of ranking.

  18         Q.    Now, the first journal that's listed on this

  19    exhibit, Astrophysics Journal --

  20         A.    Yes.

  21         Q.    Do you see that?

  22               THE COURT:  Excuse me.  They are listed as 148 --

  23               THE WITNESS:  Yes, sir.

  24               MR. HUVELLE:  I was going to help on that issue.

  25               THE COURT:  OK.


   1         Q.    The first one is what number?

   2         A.    It's No. 11.  So that those numbers aren't the

   3    ranking numbers.  11 is -- you have to subtract 10 from all

   4    of these numbers to get the actual ranking numbers, if you

   5    want them.  You would subtract 10 from the first one, which

   6    is Astrophysics Journal.

   7               THE COURT:  They are highlighted in green?  They

   8    are using the numbers that are printed here.  They are 153,

   9    155, 156, and 158?

  10               THE WITNESS:  Yes.  We need to subtract 10 from

  11    those to get them right.  Because there are 148 journals on

  12    the list.

  13               MR. HUVELLE:  Presumably, your Honor, there is

  14    some reason known best to scientists why you start with 11

  15    rather than 1.

  16               THE WITNESS:  No.  It's the spreadsheet.

  17               THE COURT:  I still don't get those numbers.

  18         Q.    How many journals are included on this list?

  19         A.    148.

  20         Q.    And the first one listed is identified in the far

  21    left column as No. 11?

  22         A.    Yes.

  23         Q.    And they are done in sequence by the cost per

  24    character in column H?

  25         A.    Yes.


   1         Q.    What is the cost per character of the first

   2    journal?

   3         A.    .4 cents per thousand characters.

   4         Q.    What is the most expensive journal in terms of

   5    cost per character?

   6         A.    30.7 cents per thousand characters.

   7         Q.    What journal is that?

   8         A.    That is Physics and Chemistry of Liquids.

   9         Q.    Can you refer back to Table 3 on

  10    Dr. Barschall's --

  11         A.    Yes.

  12         Q.    -- exhibit, Exhibit PX 2.

  13               To what extent does the ranking of the AIP, APS

  14    and Gordon & Breach journals on your own Defendants' Exhibit

  15    D correspond to the ranking that Dr. Barschall had on Table

  16    3?

  17         A.    Very close indeed.

  18         Q.    Can you focus particularly on Gordon & Breach.

  19    To what extent are their rankings similar?

  20         A.    Well, comparing Exhibit D, the yellow highlighted

  21    materials, with the bottom of Table 3 on page 1444, Physics

  22    and Chemistry of Liquids is -- has the lowest rank, or the

  23    highest cost per 1,000 characters.

  24               We jump up to, on Barschall's Fundamentals of

  25    Cosmic Physics, which is not in my list because it isn't in


   1    the -- it doesn't have an impact factor, is absent.

   2    Particle Accelerators is absent from my list, because it

   3    doesn't have an impact factor.  Radiation Effects, by Gordon

   4    & Breach, is the next one.  It's also No. 140 -- 156, i.e.

   5    146, Re: E on Exhibit D.

   6         Q.    Thank you.  I don't think we need to compare --

   7         A.    You don't want any further --

   8         Q.    -- each of them.

   9               I would like to ask you to look at Defendants'

  10    Exhibit I.  How does this -- who prepared Exhibit I?

  11         A.    I did.

  12         Q.    How does Defendants' Exhibit I relate to

  13    Defendants' Exhibit D?

  14         A.    It's what we call a frequency graph, put the

  15    number -- we broke up the cents per 1,000 characters, which

  16    ranges from .4 cents in the table to 30.7 cents, divided

  17    that up into units of 2 cents.  In other words, everything

  18    between .4 and 1.9 cents would be included in the first

  19    column, and it's labeled 1 on the graph, because that is the

  20    middle of the range between 0 and 2 cents.

  21               And I counted up the number of journals that are

  22    in there.  The number of society journals is indicated by

  23    the total height of the line; in other words, 23 journals

  24    that were published by societies occur in that column.  And

  25    so on.


   1         Q.    What about the sequence between 2 and 4?  Can you

   2    tell us about that?

   3         A.    Between 2 and 4 --

   4         Q.    2 and 4 cents, that is.

   5         A.    Right, 2 and 4 cents per 1,000 characters.  There

   6    are actually two categories plus a third one, which is the

   7    AIP, APS, but the dark line is the number of -- represents

   8    the number of commercial journals which fall in that price

   9    range.  There are nine, according to this graph and

  10    according to the table.  There are 26 society journals that

  11    fall in that bracket of price, with AIP and APS representing

  12    eight of those 26.

  13         Q.    What number of the journals in the 0 to 2 cents

  14    range did AIP and APS account for?

  15         A.    They accounted for 9.

  16         Q.    For a total of 17?

  17         A.    That was 17, yes.

  18         Q.    Where are the Gordon & Breach journals displayed

  19    on this document?

  20         A.    They are labeled and indicated by lines drawn

  21    from the name Gordon & Breach to the individual occurrences

  22    of these journals in this sequence.

  23         Q.    At what price range are they found?

  24         A.    15 cents, 19, 23, and 31.

  25         Q.    Could you look now at Defendants' Exhibit C.  Who


   1    prepared this document?

   2         A.    I did.

   3         Q.    Is this a re-sorting of the data we looked at

   4    previously?

   5         A.    It's exactly the data that's in Exhibit B, but

   6    sorted on the basis of dollars per page.

   7         Q.    The same 148 journals?

   8         A.    Yes.

   9         Q.    What is the basis for the ranking or the sequence

  10    in this one?

  11         A.    Dollars per page, from lowest to highest.

  12         Q.    From what column on Exhibit B is that information

  13    taken?

  14         A.    That is column AA.

  15         Q.    What is the lowest priced journal on a page -- on

  16    a dollar-per-page basis included in this exhibit?

  17         A.    3 cents, for Astrophysics Journal.

  18         Q.    3 cents per page?

  19         A.    3 cents per page.

  20         Q.    What is the lowest ranked of the four Gordon &

  21    Breach journals listed on this document?

  22         A.    97 cents per page.

  23         Q.    Lowest-ranked?

  24         A.    I'm sorry.  It's --

  25         Q.    Or low --


   1         A.    Yes, that's the lowest rank.  The other one is

   2    Optical --

   3         Q.    I'm sorry.  Highest rank, lowest price.

   4         A.    Highest price, lowest rank.

   5         Q.    That's Radiation Effects?

   6         A.    That is Radiation Effects, yes.

   7         Q.    I'm sorry.  What was the price?

   8         A.    90 -- looks like 97 cents per page.

   9         Q.    Under this ranking it's not the last journal?

  10         A.    No.

  11         Q.    What is the last journal?

  12         A.    It's called Optik, the German spelling.

  13         Q.    And the Crystal Lattice Defects is the

  14    best-ranked of the Gordon & Breach journals on this chart?

  15         A.    Of these four, yes.

  16         Q.    What is the price per page of that journal?

  17         A.    62 cents.

  18         Q.    Now could you look at Defendants' Exhibit J.  Who

  19    prepared this exhibit?

  20         A.    I did.

  21         Q.    What is its relationship to the document we just

  22    examined?

  23         A.    It's taken directly from it, from column AA,

  24    again a frequency graph.

  25         Q.    Is it basically the same as the prior frequency


   1    graph that we examined?

   2         A.    Well, the numbers are different.  The

   3    distribution is slightly different.  But the overall picture

   4    is pretty much the same.

   5         Q.    This one is shown by dollars per page?

   6         A.    Dollars per page, yes.

   7         Q.    Now let me ask you to look at Defendants' Exhibit

   8    H.

   9               Who prepared this exhibit?

  10         A.    I did.

  11         Q.    Can you explain what information is displayed on

  12    Defendants' Exhibit H?

  13         A.    Yes.  This is a plot of both of the previous two

  14    cost factors, dollars per page on the vertical axis, cents

  15    per 1,000 characters on the horizontal axis.  And plotted

  16    there are the average of these cost parameters for eight

  17    society publications, which are included in the lower left;

  18    nine commercial publishers with a society, an aberrant but

  19    high -- high cost society data right in the middle of it;

  20    nine commercial publishers in the square; and the Gordon &

  21    Breach average, dollars per page and cents per character, on

  22    the far upper right.

  23         Q.    If you take, for example, the dot representing

  24    the society publisher that's in the lowest left of the box,

  25    can you tell us approximately what the average dollars per


   1    page and cents per character is for that society publisher?

   2         A.    Yes.  The average is about 1 cent per 1,000

   3    characters and about 8 cents per page.

   4         Q.    In the next box, the clear circles, if you look

   5    at the circle on the lowest level of the box, that's a

   6    commercial publisher?

   7         A.    That is.

   8         Q.    Approximately what is the dollars per page and

   9    cents per character for that?

  10         A.    Approximately 6 cents per 1,000 characters and

  11    approximately 22 -- 24 cents -- yes, 24 cents per page.

  12         Q.    And at the end of the line, what does the circle

  13    represent?

  14         A.    Those are the prices, the average price of the

  15    four Gordon & Breach journals.

  16         Q.    Approximately what are the figures that are

  17    represented by that circle?

  18         A.    22 cents per 1,000 characters and roughly, it

  19    looks like about 78 cents per page.

  20         Q.    I would like you to now look at a document that

  21    has been marked as Defendants' Exhibit F.

  22               Who generated this document?

  23         A.    I did.

  24         Q.    It is a re-sorting of the data on Exhibit B?

  25         A.    Yes, sir.


   1         Q.    In what sequence are the journals listed on this

   2    document?

   3         A.    They are sorted on the basis of dollars -- I'm

   4    sorry -- cents per 1,000 characters divided by the 1986

   5    impact factor.

   6         Q.    This is the figure that Dr. Barschall referred to

   7    as cost per impact?

   8         A.    Cost per impact, yes.

   9         Q.    This is based on your own data?

  10         A.    Not on his but on mine, yes.

  11         Q.    Where do the Gordon & Breach journals appear on

  12    this document?

  13         A.    Basically the same general areas in previous

  14    documents, 141 to 147 in rank, out of 148.

  15         Q.    Can you look at Defendants' Exhibit L --

  16               MR. PLOTZ:  I'm sorry.  What exhibit?

  17               MR. HUVELLE:  L.

  18         Q.    Who generated this document?

  19         A.    I did.

  20         Q.    Can you explain to us what information it

  21    displays?

  22         A.    The same information as in Exhibit F, in

  23    graphical form, with a frequency graph similar to the ones

  24    that we have already looked at.

  25         Q.    Now let me ask you to look at Defendants' Exhibit


   1    E.

   2               Did you prepare this exhibit?

   3         A.    Yes, sir.

   4         Q.    This is a re-sorting of the data on Exhibit B?

   5         A.    Yes, sir.

   6         Q.    What is the sequence in which the journals are

   7    listed on this document?

   8         A.    In the far right-hand corner, it's the

   9    subscription price for 1987 divided by 1986 citations to all

  10    prior articles in that journal for that year.

  11         Q.    What is the first journal that is listed on this

  12    document?

  13         A.    Phys. Rev. Let., Physical Reviews Letters.

  14         Q.    What is the publisher of that journal?

  15         A.    American Physical Society.

  16         Q.    Can you tell us what the division was to get the

  17    ranking information there?

  18         A.    Yes.  I took the publish -- the inside cover

  19    price, which is located in this case in column D, and

  20    divided it by the total number of citations received by that

  21    journal in 1986, which is column AB.

  22         Q.    Those two figures are the 1987 price of $470?

  23         A.    Yes.

  24         Q.    Divided into the total number of citations,

  25    which, I believe, is 58,000?


   1         A.    Divided by the 58,000, yes.

   2         Q.    Thank you.  And the resulting figure is 1 cent

   3    per citation?

   4         A.    1 cent per citation.

   5         Q.    Can you look at the journal that is ranked No.

   6    136 on the list, which bears the number next to it -- I'm

   7    sorry -- ranked 126, with the number 136 next to it.  Is

   8    that the Gordon & Breach journal Radiation Effects?

   9         A.    Yes, sir.

  10         Q.    And the lowest-ranked journal is Crystal Lattice

  11    Defects?

  12         A.    Yes, sir.

  13         Q.    Where does Ferroelectrics rank on this list?

  14         A.    140th, with 130 -- 1133 citations and a total

  15    cost of $1.54 per citation.

  16         Q.    For Physical Chemical Liquids, what is the total

  17    yearly subscription price that you used in your calculations

  18    for that journal?

  19         A.    Looks like 358 or 368.  It's a little hard to

  20    read.

  21         Q.    What is the total number of citations that

  22    appeared in 1986 to articles of Physical Chemical Review in

  23    prior years?

  24         A.    Physical Chem -- Physics of Chemistry and

  25    Liquids?  Is that the journal you're referring to?


   1         Q.    Yes, sir.

   2         A.    177 citations.

   3         Q.    So what was the cost per citation for that

   4    journal?

   5         A.    2 dollars and 6 or 8 cents, I can't tell which.

   6         Q.    Can you look at Exhibit, Defendants' Exhibit N.

   7               Does Defendants' Exhibit N represent a somewhat

   8    different calculation?

   9         A.    Yes, it does, because in this case we dropped

  10    those parameters which had been objected to earlier and

  11    which people had found fault with, namely the cents per

  12    1,000 characters and dollars per page, dropped those out of

  13    the calculation altogether and used, as Dr. Kingma

  14    suggested, the subscription price for the entire year, and

  15    divided that by the total number of citations.

  16         Q.    On the exhibit you are looking at, though --

  17         A.    Yes.

  18               (Pause)

  19               Oh, I'm sorry.  That's not correct.  I stand

  20    corrected.  This is dollars per citation.

  21         Q.    For what period of time were the citations

  22    calculated?

  23         A.    In this case these citations were averaged for

  24    articles that were cited in 1986 and 1987 for 1984 plus

  25    1985, and in the case of 1987 for 1985 plus 1986.


   1         Q.    And from what column in Exhibit B did you take

   2    the day that you used in preparing the exhibit that you are

   3    looking at?

   4         A.    This would be column -- excuse me.

   5         Q.    Can you look at column Y?

   6         A.    Yes.  I'm looking at column Y, and -- yes.

   7    That's the correct column.  W, X, Y, Z, yes.  OK.  X is

   8    missing from this list.

   9         Q.    In column what?

  10         A.    I'm having a little problem with that at this

  11    moment.  Let me just look.  I need to check.

  12         Q.    Dr. Ribbe, why don't we pass on this exhibit for

  13    the moment.

  14         A.    OK, if you would like.

  15         Q.    Could I ask you to look at Defendants' Exhibit A.

  16         A.    Yes.

  17         Q.    Can you tell us what information Defendants'

  18    Exhibit A displays?

  19         A.    This is taking the ranking numbers from Exhibit 1

  20    as it has been re-sorted in several different ways and

  21    plotting those rankings as a function of the journals.  The

  22    G&B journals are shown at the top in red.  The APS journals

  23    are shown near the bottom in brown.  And the AIP journals

  24    are shown in blue.

  25         Q.    Column A of Defendants' Exhibit A ranks the


   1    journals according to what criteria?

   2         A.    Cost per 1,000 characters.

   3         Q.    Column B ranks them by what criteria?

   4         A.    Cost per character or per thousand characters

   5    divided by the impact factor.

   6         Q.    And column C ranks them by what factor?

   7         A.    The yearly cost divided by the average year's

   8    citation, which is the graphic that we were looking at,

   9    Defendants' Exhibit N.  But the data is from the table.

  10         Q.    And column D ranks the journals by what criteria?

  11         A.    The subscription cost, annual subscription cost,

  12    divided by the citations for all years.

  13         Q.    What does this exhibit show us about the

  14    different methods of ranking the journals?

  15         A.    Well, it shows that one can take a variety of

  16    approaches to classifying them, if you want to do that,

  17    ranking them by some cost per quality, or whatever you want

  18    to call it, impact, except for the first one, which is pure

  19    cost, and that the rankings don't change a whole lot from

  20    one method to another.  We didn't include dollars per page,

  21    but we could have done it and it would have given us

  22    similar-looking spreads of dots on the graph.

  23         Q.    I would like to have you look at Defendants'

  24    Exhibit R.  What does Defendants' Exhibit -- strike that.

  25               Who prepared Defendants' Exhibit R?


   1         A.    I did.

   2         Q.    What does it show?

   3         A.    It is a summary of all the data about which we

   4    have been speaking, or at least most of it, plus a little

   5    bit, lumped into -- by publisher.  In other words, if a

   6    publisher had more than three -- three or more journals in

   7    the listing that I extracted from Barschall's listing, I

   8    averaged the cost per character in column AG opposite APS,

   9    that would be the number of cents per character average for

  10    all of the journals that APS produced in that year, and so

  11    on, throughout the whole graph.

  12               MR. HUVELLE:  Your Honor, I would like to move

  13    into evidence the exhibits that the witness has been

  14    identifying.

  15               MR. PLOTZ:  No objection.

  16               THE COURT:  Received.

  17               MR. HUVELLE:  Do you want me to read them off?

  18    That would include his resume and the articles that he

  19    looked at at the beginning.  Thank you.

  20               MR. PLOTZ:  I don't have a problem with the

  21    resume, but I do have a problem with the articles, for

  22    similar reasons.

  23               THE COURT:  You have a problem with Exhibit AA?

  24    Is that it?

  25               THE WITNESS:  Yes.


   1               MR. PLOTZ:  Yes, AA, which is the articles.  He

   2    has referred to them.  He has testified about them.  The

   3    articles themselves, though, I don't believe can come in.

   4               MR. HUVELLE:  Your Honor, we think the articles

   5    go to the -- demonstrate the extent of the work he has done

   6    in the area in terms of his analysis and review of citation

   7    data, his review and analysis of cost data.  They display --

   8    we think it goes to his qualifications as an expert.

   9               THE COURT:  There is no challenge, is there, to

  10    his expertise in the area in which he is testifying?

  11               MR. PLOTZ:  Yes, there will be.

  12               THE COURT:  There is.

  13               I sustain the objection to AA, but the testimony

  14    with respect to what the witness has done and written and so

  15    on and so forth is part of the record.

  16               MR. PLOTZ:  No objection to the testimony.

  17               THE COURT:  Are you finished?

  18               MR. HUVELLE:  With the witness?

  19               THE COURT:  Yes.

  20               MR. HUVELLE:  I'm finished with the area but not

  21    with the witness.  If we are going to break in the next

  22    couple of minutes --

  23               THE COURT:  If we don't break in five minutes, I

  24    have another conference.  So you want to break?

  25               MR. HUVELLE:  If you want.


   1               THE COURT:  All right.  We are adjourned until 11

   2    a.m. tomorrow.  11 a.m.

   3               (Adjourned to 11:00 a.m, Tuesday, June 17, 1997)

























   2                        INDEX OF EXAMINATION


   4    Witness                    D      X      RD     RX

   5    THOMAS VERHOEVEN.........853    860

   6    MARTIN B. GORDON.........872    872     916     934

   7    ISABEL CZECH.............944    970     981

   8    PAUL H. RIBBE............982