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Main Index: Trial Testimony June 17, 1997


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   1    UNITED STATES DISTRICT COURT
        SOUTHERN DISTRICT OF NEW YORK
   2    ------------------------------x

   3    GORDON & BREACH SCIENCE
        PUBLISHERS S.A., STBS., LTD.
   4    and HARWOOD ACADEMIC
        PUBLISHERS GMBH,
   5
                       Plaintiffs,
   6
                   v.                           93 CV 6656 LBS
   7
        AMERICAN INSTITUTE OF PHYSICS
   8    and THE AMERICAN PHYSICAL
        SOCIETY,
   9
                       Defendants.
  10
        ------------------------------x
  11
                                                June 17, 1997
  12                                            11:20 a.m.
        Before:
  13
                            HON. LEONARD B. SAND
  14
                                                District Judge
  15

  16

  17                            APPEARANCES

  18    ORANS, ELSEN & LUPERT, LLP
             Attorneys for Plaintiffs
  19    BY:  LESLIE A. LUPERT
             ROBERT L. PLOTZ
  20         PETER E. SEIDMAN

  21    COVINGTON & BURLING
             Attorneys for Defendants
  22    BY:  RICHARD A. MESERVE
             JEFFREY G. HUVELLE
  23         SUSAN L. BURKE

  24

  25




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   1               (Trial resumed)

   2     PAUL H. RIBBE,

   3               Resumed, and testified further as follows:

   4               THE COURT:  Good morning.  You may be seated.

   5               You may resume.

   6               MR. HUVELLE:  Your Honor, if I may note just two

   7    things for the record before I begin.  Yesterday I showed

   8    the witness the Exhibit N and then took it back from him.

   9    The data underlying that chart is not in evidence so I will

  10    not be using Exhibit N.

  11               THE COURT:  Exhibit N is withdrawn?

  12               MR. HUVELLE:  Yes.

  13               In addition, your Honor, in connection with the

  14    testimony of Dr. King, I introduced a biographical statement

  15    relating to him, and the record reflects it is as being

  16    Exhibit UU, which may be the way I described it -- I am

  17    sorry, the record reflects that it is Exhibit VV.  In fact,

  18    the Exhibit is UU, so Defendants' Exhibit UU is in evidence,

  19    not VV, and we will not be offering VV.

  20               (Defendant's Exhibit UU received in evidence)

  21               THE COURT:  All right.  Let me return Exhibit N

  22    so it doesn't get mixed in with documents that are in

  23    evidence.

  24    DIRECT EXAMINATION (Resumed)

  25    BY MR. HUVELLE:




                                                                1029


   1         Q.    Now, Mr. Ribbe, Dr. Kingma testified that a

   2    journal might improve its cost impact ratio by adding pages

   3    and pages of nonsense words; do you remember that testimony?

   4         A.    Yes, I do.

   5         Q.    How much weight do you give to this criticism of

   6    Dr. Barschall's methodology?

   7         A.    I don't give any weight to it at all.

   8         Q.    Why not?

   9         A.    Editors wouldn't allow it, authors wouldn't do

  10    it, journals wouldn't print it.  We could go on.

  11         Q.    Let me direct your attention to the five Comments

  12    Journals of Gordon & Breach about which there has been some

  13    testimony by Mr. Gordon.

  14               Have you looked at those journals?

  15         A.    Yes, I have.

  16         Q.    Is it true that Dr. Barschall included those five

  17    journals in his cost per character calculations in table 3

  18    of Plaintiffs' Exhibit 2?

  19         A.    Yes, he did.

  20         Q.    And do you recall Mr. Gordon's testimony that

  21    those five journals are, by definition, the most expensive?

  22         A.    Yes.

  23         Q.    Is that correct?

  24         A.    No.

  25               MR. LUPERT:  I don't think Mr. Gordon testified




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   1    to that at all, Judge.  I think all he testified to were

   2    components of cost that were inherent in it.

   3               THE COURT:  I have no recollection of his

   4    characterizing them as the most expensive.  But --

   5               THE WITNESS:  It's possible I'm confusing cost

   6    and price.  You know, he used -- he talked about a cost of

   7    production also.

   8               MR. HUVELLE:  Well, let me withdraw that question

   9    and I will have to look back at the record.

  10         Q.    What effect did the inclusion of the five

  11    Comments Journals have -- the inclusion in Dr. Barschall's

  12    study, what effect did that have on the average cost per

  13    character of Gordon & Breach journals?

  14         A.    The place where the average cost per character --

  15    thousand characters of Gordon & Breach articles appears is

  16    in table 2 of the Physics Today article, page 59, where the

  17    average is 19.6 cents for 11 journals, which included the

  18    Comments Journals.

  19               The Comments Journals are, if you look back at

  20    table 3, in the first -- the bulletin article, you see that

  21    they all had prices -- I think all of them had prices which

  22    were less than 19.2 cents, so they would be lowering the

  23    average cost rather than raising it.

  24         Q.    Did Dr. Barschall include the five Comments

  25    Journals in his list of journals based upon cost per impact?




                                                                1031


   1         A.    No.

   2         Q.    Do you know why he did not do so?

   3         A.    They had no impact factor in the ISI Journal

   4    Citation Reports.

   5         Q.    There was testimony relating to 13 physics

   6    journals that were not included in Dr. Barschall's study; do

   7    you recall that?

   8         A.    Yes.

   9         Q.    One of those journals is called Physics of

  10    Metals?

  11         A.    Yes.

  12         Q.    Have you seen that journal?

  13         A.    I've seen bits of it, yes.

  14         Q.    What type of journal is that?

  15         A.    That's a review journal -- I mean, I'm sorry, not

  16    a review journal.  It a translation journal, from the

  17    Russian, I believe.

  18         Q.    Does Dr. Barschall include translation journals

  19    in tables 1 and 2 of the Physics Today article?

  20         A.    No.

  21         Q.    Does he include them in tables 3 or 4 of the

  22    bulletin article?

  23         A.    No.

  24         Q.    Another of the journals identified as a physics

  25    journal not included in Dr. Barschall's study was




                                                                1032


   1    Geophysical and Astrophysical Fluid Dynamics.  Are you

   2    familiar with that journal?

   3         A.    Yes, I am.

   4         Q.    If that were included in -- well, let's focus on

   5    your own listing of cost per character.  That would be

   6    Exhibit D?

   7         A.    B?

   8         Q.    D, as in David.

   9         A.    Oh, OK.

  10         Q.    If the Geophysical and Astrophysical Dynamics

  11    Journal was included in Exhibit D, where would it rank?

  12         A.    It would rank below the Physics and Chemistry of

  13    Liquids, which is the last journal on the lower right-hand

  14    column.

  15         Q.    And what is the cost per thousand characters for

  16    Geophysical and Astrophysical Fluid Dynamics?

  17               MR. PLOTZ:  Objection.  Based on what?  When?  We

  18    haven't been provided with any of it.

  19               THE WITNESS:  Yes.

  20               THE COURT:  Mr. Huvelle.

  21               MR. HUVELLE:  One moment, your Honor.

  22               THE COURT:  The reference is to Defendants'

  23    Exhibit D, and do you want to restate the question?

  24               MR. HUVELLE:  Well, your Honor, I asked him where

  25    it would rank if it were included on Defendants' Exhibit




                                                                1033


   1    D --

   2               THE COURT:  Yes.

   3               MR. HUVELLE:  -- in terms of cents per thousand

   4    characters.

   5               THE COURT:  Yes.

   6               MR. HUVELLE:  Let me ask him a few questions how

   7    it gets there.

   8         Q.    Have you done a calculation of the number of

   9    pages in that journal?

  10         A.    Yes -- for 1987, yes.

  11         Q.    Have you done a calculation of the costs per

  12    thousand characters for that journal?

  13         A.    Yes.

  14         Q.    And what is the cost per thousand characters for

  15    that journal, Geophysical and Astrophysical Fluid Dynamics,

  16    or the price per thousand characters, approximately?

  17         A.    It's in the 30 cents range, 30-plus.

  18         Q.    And what about the dollars per page or cents per

  19    page?

  20         A.    Well, I don't recall exactly.  It was in the

  21    '80s.  80 cents.  86 cents.  I don't know, 81 cents.

  22    Somewhere in that vicinity.

  23         Q.    I would like to show the witness Defendants'

  24    Exhibit AAAAAA, six.

  25               MR. PLOTZ:  I'm sorry, Judge, this page relating




                                                                1034


   1    to this journal is not in our copy of the exhibit, that I

   2    can tell.

   3               (Pause)

   4               MR. PLOTZ:  Now I have it.

   5         Q.    What is the cost per page for that journal?

   6         A.    81 cents.

   7         Q.    In connection with your work as the head of the

   8    library committee at Virginia Tech University, have you done

   9    any assessment of this journal?

  10         A.    We did an assessment of this journal, not as

  11    thorough as this, but we did an assessment in the early '90s

  12    when we were requested to do an evaluation of all our

  13    library journals.

  14         Q.    And what was the result of that assessment?

  15               MR. PLOTZ:  Judge, I object.  This is way beyond

  16    what was in his report, and, in fact, the exhibit that he is

  17    testifying about I just got for the first time.

  18               THE COURT:  But he is responding to Dr. Gordon's

  19    testimony.  It may be beyond his report but it is

  20    specifically responsive to issues raised by Mr. Gordon.

  21               Overruled.

  22         Q.    What is the result of that assessment?

  23         A.    We ended up canceling this journal.

  24         Q.    And on what basis did you make that decision?

  25         A.    Well, there were two bases.  One is that our list




                                                                1035


   1    for consideration of cancellations was ordered on price --

   2    in other words, the highest cost, subscription cost, would

   3    occur at the top of the list, and it was fairly near the top

   4    of the list on a per volume basis.  And then also, the other

   5    thing we had to help us was something every librarian would

   6    like to have probably, is that we had a circulation data

   7    which is kept in our computer, in our VTLS file, and it

   8    showed that it had been taken out of the library once in the

   9    past 8 or 10 years, so we decided that would be evidence

  10    enough for cancellation.  In other words, it was something

  11    that our faculty apparently did not have any use for because

  12    they are not in that field.

  13               I also knew that, by the way.  I knew that there

  14    were no people working in fluid dynamics at the time.

  15         Q.    Did you look at any other data?

  16         A.    Based on my previous work with mineralogy, I knew

  17    enough -- and geophysics, I reviewed the geophysics data of

  18    Spies, S-p-i-e-s, which he had provided for me earlier, and

  19    so I just looked up impact factor.

  20         Q.    Let me direct your attention to another journal

  21    identified by Mr. Gordon, Magnetic Resonance Reviews.

  22         A.    Yes.

  23         Q.    Have you done a per character cost calculation

  24    with respect to that journal?

  25         A.    Yes, I did.




                                                                1036


   1         Q.    And what is the cost in cents per character of

   2    that journal?

   3         A.    Approximately 33 cents.

   4         Q.    And how would that rank on Defendant's Exhibit D

   5    if that had been included in the parameters of this study?

   6         A.    It, too, would have been down by the Physics

   7    Chemistry of Liquids, in other words, below the last one on

   8    the list.

   9         Q.    And what about cost per page, what is the cost

  10    per page for that journal?

  11         A.    Cost per page is reported here as 86.7 cents.

  12         Q.    And where would that place it on Defendants'

  13    Exhibit C, which is the ranking of journals by cost per

  14    page?

  15         A.    It would place it about fourth from the bottom,

  16    just above Physics and Chemistry of Liquids.

  17         Q.    I would like to have you look at Plaintiff's

  18    Exhibit 706F and also 706E.

  19               Could you identify for us the impact factor for

  20    the journal Ferroelectrics for those two years?

  21         A.    Yes, on --

  22         Q.    Is this --

  23         A.    On which exhibit?

  24         Q.    Why don't we start with 706F.

  25         A.    706F is 1985.




                                                                1037


   1         Q.    Right.  If you turn to page 262.

   2         A.    Yes, 262, it is toward the end.

   3         Q.    In which category is it listed?

   4         A.    It is listed in "physics, condensed matter."

   5         Q.    And what is the impact factor for Ferroelectrics?

   6         A.    The impact factor is .859.

   7         Q.    And can you look at 706E?

   8         A.    Yes.  I found that one.  It is on page 253.

   9         Q.    And what is the impact factor in that year?

  10         A.    Under "physics, condensed matter" of

  11    Ferroelectrics is .443.

  12         Q.    And what is roughly the average of those two?

  13         A.    About .65.

  14         Q.    And what was the impact factor in 1986 used by

  15    Dr. Barschall?

  16         A.    That will be on Exhibit B, in column N, on the

  17    second page in yellow, marked in yellow.  Ferroelectrics was

  18    .63.

  19         Q.    Now, in your review of all the citation data for

  20    Exhibit B, did you detect any errors in the data that was

  21    provided by ISI, or omissions?

  22         A.    You mean errors in impact factor?  Or any errors

  23    at all?

  24         Q.    Any errors at all.

  25         A.    I'm not sure I found any errors, but I found an




                                                                1038


   1    omission.

   2         Q.    What was the omission?

   3         A.    Well, the omission was connected with the journal

   4    Ferroelectrics.

   5         Q.    Can you tell us what the omission was?

   6         A.    In 1986 -- and this is column P -- there was a

   7    noticeable absence of the immediacy index, and also there

   8    was a vacancy or an opening, nothing in the column which was

   9    labeled, in ISI, was labeled "number of source items in

  10    1986."  In other words, there was nothing recorded there in

  11    either of those columns.

  12         Q.    And what does the item "source items" refer to?

  13         A.    That refers to the number of citable articles

  14    that occur in the journal for that year.

  15         Q.    And what is your understanding of how ISI

  16    determines the number of citable items or articles?

  17         A.    They count them.

  18         Q.    From where?

  19         A.    They count them from the journals which they

  20    receive at their office.

  21         Q.    And have you gone back and counted the number of

  22    journals -- the number of articles that appeared in that

  23    year?

  24         A.    Yes, I did, because to complete my database I

  25    needed that number.




                                                                1039


   1         Q.    And do you recall what the number was?

   2         A.    Well, it's recorded in this Exhibit B, in column

   3    N, under "Ferroelectrics," it is recorded as -- I'm sorry,

   4    column O, as 124.

   5         Q.    And how did you determine that?

   6         A.    Actually went through the journal and counted the

   7    number of citable articles in the journal.

   8         Q.    And did you recalculate the impact factor for

   9    1987 based upon the correct number of citable items?

  10         A.    Yes, I did.

  11         Q.    And what result did you get?

  12         A.    That's in column S, and the number is 1.229.

  13         Q.    And did you make any other adjustments to the

  14    citation or impact data on Exhibit B?

  15         A.    I don't recall any others.

  16         Q.    That was the only omission you noticed?

  17         A.    There were omissions in other years, but -- in

  18    '87, for example, there were omissions, but I didn't do

  19    anything with those.

  20         Q.    I would like to have you look at a document that

  21    has been marked as Defendants' Exhibit P.

  22               MR. PLOTZ:  I'm sorry, what letter?

  23               MR. HUVELLE:  P, as in Peter.

  24         Q.    Did you prepare this document?

  25         A.    I did.




                                                                1040


   1         Q.    And what does it show?

   2         A.    The data taken for this exhibit come from columns

   3    AA and AB in Exhibit 1, and it shows, on the vertical axis,

   4    a plot of the total citations from the ISI index for the

   5    year 1986, for all the journals -- of all the 148 journals

   6    in the table, and that is plotted against for a price, so to

   7    get some price structure into this, plotted against dollars

   8    per page using the 1987 subscription price and page numbers.

   9         Q.    Are the Gordon & Breach journals separately

  10    identified?

  11         A.    They were darkened-in and then labeled, yes.

  12         Q.    And the AIP and APS journals?

  13         A.    Not all of them.  I just identified a few of the

  14    high-citation ones.

  15         Q.    And which journal is N-H?

  16         A.    That is North Holland Journal.

  17         Q.    Is that a society or a commercial publisher?

  18         A.    That is a commercial journal.

  19         Q.    What does this document, this exhibit, show with

  20    regard to Gordon & Breach, in terms of its distinctiveness?

  21         A.    Well, the total citations in 1986 are low, on the

  22    order of 1,000 or 1,500 or less -- that's to all years of

  23    the journal that existed prior -- including 1986 and all the

  24    way badge to the origin of the journal.  And it also shows,

  25    obviously, that their price is higher than most -- their




                                                                1041


   1    prices are higher than most.

   2         Q.    Are there other journals shown on the document

   3    that have comparable numbers of total citations?

   4         A.    Oh, many, yes.  Probably 30 or 40.

   5         Q.    Are there other journals shown on this exhibit

   6    that have comparable price on a unit measure?

   7         A.    I would say anything over 60 cents a page, there

   8    are four -- there happen to be four -- that are commercial

   9    journals that fall in that range.

  10         Q.    Could I have you now look at Defendants' Exhibit

  11    Q.

  12               Did you prepare this exhibit?

  13         A.    I did.

  14         Q.    What does this exhibit show -- how does it differ

  15    and how does it resemble the prior one?

  16         A.    The -- I'm plotting the same things, that is, the

  17    total citations and dollars per page on the vertical and

  18    horizontal axis, respectively, but in this case I took the

  19    average citations and the average dollars per page for any

  20    society or commercial publisher which published more than

  21    three -- three or more journals and I averaged those prices

  22    and I averaged those total citations and plotted them as a

  23    single datum.

  24         Q.    On this exhibit there are references to two

  25    articles, do you see that?




                                                                1042


   1         A.    Two articles?  Excuse me.

   2               Oh, yes.  Yes, in the legend of the caption.

   3         Q.    And for what purpose did you mention those

   4    articles?

   5         A.    Since this piece of work is new, I'm just

   6    comparing it to -- by reference -- by reason of reference to

   7    work done by Bensman on chemistry journals and works done by

   8    Benian and Karscham Roon, K-a-r-s-c-h-a-m  R-o-o-n, a

   9    journal that -- an article which was published in the

  10    journal of documentation in 1984 on physics journals.

  11         Q.    Is there anyone else who has done an analysis of

  12    journals in a particular scientific area based on total

  13    citations?

  14         A.    Yes, actually there is.

  15         Q.    Who is that?

  16         A.    That was Spies.

  17         Q.    And for what area did he do it?

  18         A.    He did it for geophysics expiration journals.

  19         Q.    And he used total citations?

  20         A.    He used dollars per total citation.

  21         Q.    What can you tell us about the study done by

  22    Benian and Karscham Roon?

  23         A.    I can tell you that their purpose was to try to

  24    find a citation parameter which correlated well with faculty

  25    perception of value and utility of a journal.  And they




                                                                1043


   1    found that this total citation parameter correlated well

   2    with faculty -- perceived faculty value of journals.

   3               And Bensman did likewise but he did it with

   4    chemistry journals at his university.

   5         Q.    Did Bensman also look at impact factor?

   6         A.    No, Bensman -- well, Bensman looked at impact

   7    factor.  He put it into the citation analysis and -- into

   8    the regression analysis, I'm sorry, regression is the

   9    appropriate word -- as one of the citation factors that he

  10    considered.

  11         Q.    And what is your understanding of the reason why

  12    total citations correlated more closely with faculty

  13    rankings in Bensman's study?

  14         A.    Well, total citations in a given year apply to

  15    all issues, former volumes and issues of that journal, back

  16    to its inception.  So if a journal has been around for very

  17    long, or if a journal is a very large journal in terms of

  18    number of articles that it publishes, one would expect the

  19    number of citations -- total number of citations to be high,

  20    and if the journal has quality and the faculty perceives

  21    that it does, then they would say -- that's probably why I

  22    put that down.  I don't have any evidence of that, but that

  23    would be what I would do.

  24         Q.    Based upon Mr. Bensman's analysis, what

  25    conclusions can be drawn as to the relative value placed by




                                                                1044


   1    the faculty members in his study on large journals versus

   2    small and specialty journals?

   3         A.    Well, large journals clearly -- large journals,

   4    in terms of number of articles, presumably reach more

   5    people, or impact them more.  You can think of it in two

   6    different ways.  One is that it reaches more people, which

   7    is possible, but the other is, of course, that, given the

   8    fact that there are a lot of articles that may be reaching

   9    to various and sundry other areas of physics and they may be

  10    looking at more than one article in a particular large

  11    journal.

  12         Q.    Can we draw any inference as to which kind of

  13    journal was valued more highly by the faculty in Bensman's

  14    study?

  15         A.    In Bensman's study, he actually did a survey of

  16    faculty -- faculty, what shall we say -- what they stated

  17    was useful, valuable, helpful to them.

  18         Q.    OK.  Now, let me ask you about Dr. Barschall's

  19    methodology.

  20               Let me specifically direct your attention to --

  21    let me just direct your attention to two measurements, one

  22    being the unit cost measurement, the other being a

  23    measurement based upon citation data.

  24               First of all, let me ask you to turn to

  25    Defendants' Exhibit AA, which is the analysis that you




                                                                1045


   1    performed with respect to mineralogy journals.

   2         A.    OK.

   3         Q.    Let me ask you to turn to page 457 of your first

   4    article, and figure 3, in which there are four graphs, do

   5    you see that?

   6         A.    Yes.

   7         Q.    Can you tell us what you plotted in graph A?

   8         A.    In graph A, I -- the horizontal axis represents

   9    the mean impact factor for 1983 to 1985 of the 15 individual

  10    journals that I studied in my prestige and price study, and

  11    on the vertical axis are the percentage of papers by

  12    authors -- by American authors of grants from the National

  13    Science Foundation, plus the Department of Energy, plus

  14    NASA.

  15         Q.    And to what extent did you find that these two

  16    elements were correlated?

  17         A.    Well, it's pretty obvious from the graph that

  18    those who had support, 15 to 45 percent of the people who

  19    had support published in the lower impact journals, that is,

  20    below 1.2, in impact factor; and those whose support was 60

  21    percent, up to 75 or 78 percent, maybe even 80 percent, were

  22    publishing in journals with impact factors greater than 1.2,

  23    all the way up to 3.6.

  24         Q.    And what conclusions do you draw from this

  25    comparison?




                                                                1046


   1         A.    Well, my conclusion, since this was part of a

   2    study of NSF funding and the prestige of institutions of

   3    learning -- higher learning in the geosciences, my

   4    conclusion was those who are funded -- and all funding is

   5    competitive in this business -- who are funded by the

   6    community, they have to go through certain rigors to get

   7    funded, including reviews and criticisms from their

   8    colleagues and peers.  Those who had support tended to

   9    publish in journals with higher impact factors, and those

  10    who had less support, or, as one can see in another of these

  11    graphs, who had no support, tended to publish in journals

  12    with lower impact factors.

  13         Q.    And what does table -- figure B show?

  14         A.    Figure B shows simply the percentage of papers in

  15    a given journal by U.S. authors.

  16         Q.    What is the straight line in that graph?

  17         A.    The straight line is -- got me into trouble with

  18    some of my friends who work for the U.S. Geological Survey

  19    and other federal agencies.  It showed that they tended

  20    to -- well, one could hardly hope -- hold them to it.  It is

  21    not much of a trend.  But they didn't seem to have that same

  22    discrimination in terms of where they published.  In other

  23    words, those government-agency types seem to publish

  24    somewhat more frequently in the lower impact journals.

  25         Q.    Could you turn to the last -- page 462 of this




                                                                1047


   1    article, to the references section.

   2         A.    Yes.

   3         Q.    What articles by Mr. Garfield did you cite there?

   4         A.    There was an article in Science 1972 in which he

   5    first put forth his citation analysis as a tool in journal

   6    evaluation to the general public, scientific public.

   7               And then the following are a couple of essays

   8    that came from what actually became collections of essays by

   9    him and other members of ISI called "Essays of an

  10    Information Scientist," published by ISI.

  11         Q.    And why did you cite Mr. Hawkins there?

  12         A.    Well, Hawkins had done a citation analysis of the

  13    crystallographic literature back in 1980, which was a very

  14    early one for mineralogically related fields.

  15         Q.    Can you turn to the last page of Exhibit AA?

  16         A.    Yes?  Are.  Oh, the very last page or the last

  17    page of this article?

  18         Q.    The very last page of the entire document.

  19         A.    Yes.

  20         Q.    Is this a list of your references with respect to

  21    your most recent bibliographic publications?

  22         A.    Yes, attached to the very last one, which is the

  23    article in which it appears.

  24         Q.    And you refer to Spies in that list of

  25    references?




                                                                1048


   1         A.    Yes.

   2         Q.    Can you tell us what article you are referring to

   3    there?

   4         A.    That is an article which was published in

   5    Geophysics either in '91 or '92, I forget which now, that he

   6    had sent me a preprint of, for my comments and also for my

   7    use.  I actually used some of his data in this paper, to

   8    which this is -- this reference is appended.

   9         Q.    And can you turn to the first page of this

  10    article.

  11         A.    Page 41?

  12         Q.    Yes.

  13               Can you look at the first paragraph.

  14         A.    Yes.

  15         Q.    Let me just read a couple of sentences from the

  16    first:

  17               "An extensive study of serial publications in

  18    mineralogy, petrology and geochemistry has demonstrated that

  19    the quality of a journal is reliably indicated by its impact

  20    factor as reported by the Science Citation Index.  A

  21    serial's IF is highly correlated to SCI's Immediacy Index to

  22    the proportion of papers in that serial supported by

  23    research grants from the National Science Foundation, the

  24    U.S. Department of Energy, and the National Aeronautics and

  25    Space Administration and even to the number of grants




                                                                1049


   1    acknowledged per paper as funded by these agencies.  One

   2    measure of the value of a serial may be calculated by

   3    dividing the cost per source item or the cost per character

   4    by IF."

   5               Do you see that statement?

   6         A.    Yes.

   7         Q.    Does that accurately summarize the views that you

   8    derived from the analysis in this study?

   9         A.    This is referring particularly to the mineralogy,

  10    petrology, geochemistry study, which was the first of the

  11    papers, Exhibit AA, and, yes, my answer to that is yes.

  12         Q.    I would like you to turn to Defendants' Exhibit

  13    LLL.  Do you have that up there?

  14         A.    No, sir.

  15         Q.    Well, wait a minute.  You are right.

  16               (Pause)

  17               Can you identify the first article in Defendants'

  18    Exhibit LLL?

  19         A.    Yes, it's called "Citation Analysis as a Tool in

  20    Journal Evaluation."

  21         Q.    And what is the subheading there?

  22         A.    "Journals can be ranked by frequency and impact

  23    of citations for science policy studies."

  24         Q.    And what is the date of this article?

  25         A.    1972.




                                                                1050


   1         Q.    Is this the article which you cited in your -- in

   2    the prior article that you just referred to?

   3         A.    Yes.  That is one of them.

   4         Q.    Can you turn to page 37A of this exhibit.

   5               Let me direct your attention to the section

   6    entitled "some applications."

   7         A.    Yes.

   8         Q.    Let me direct you to the second sentence,

   9    "Measures of citation frequency and impact factor should be

  10    helpful in determining the optimum makeup of both special

  11    and general collections."  Do you see that statement?

  12         A.    Yes.

  13         Q.    And at the bottom of that columns do you see the

  14    statement, "Another application which harried librarians may

  15    welcome is the correlation of data on citation frequency in

  16    impact with subscription costs.  Such a correlation can

  17    provide a solid basis for cost benefit analyses in the

  18    management of subscription budgets."  Do you see that

  19    statement?

  20         A.    Yes.

  21         Q.    Were you aware of those views by Dr. Garfield at

  22    the time you did your own analysis in 1986?

  23         A.    When I began it, no.  But I came to find these

  24    things as I stumbled through the process of trying to make

  25    some sense out of all of this data.




                                                                1051


   1         Q.    And did you ultimately prepare an analysis using

   2    impact factor?

   3         A.    Yes.

   4         Q.    Can you turn to the next article in that exhibit.

   5         A.    Yes.

   6         Q.    Is that another article by Mr. Garfield?

   7         A.    Yes, and a co-author.

   8         Q.    And what is the import of that article?

   9         A.    This was a very interesting study.  It is not the

  10    first he had done.  This is dated 1992.  I recall one some

  11    years earlier, maybe in the '70s, in which he began to see

  12    if he could locate in a group of highly-cited scientists in

  13    the fields in which Nobel prizes are given, to locate in

  14    those groups those who -- by simply looking at citations, to

  15    find people who had received the Nobel Prize and to keep

  16    track of those who might receive the Nobel Prize.  And this

  17    paper carries that both forward and backwards, by generating

  18    a new list and by sort of touting his success, a little

  19    braggadocio, I would say, in this article about the use of

  20    citation in spotting those kinds of people.

  21         Q.    And what kind what conclusions did it reach about

  22    the use of citations in that regard?

  23         A.    Very helpful.  Very useful.  He didn't predict

  24    exactly who is going to get it, but he picked out the group

  25    from which probably the next Nobelists would be chosen, the




                                                                1052


   1    future ones.  Time will tell.

   2         Q.    I would like you to look at Defendants' Exhibit

   3    K.

   4               MR. HUVELLE:  Your Honor, I am not sure if you

   5    have that.  You might.

   6               THE COURT:  I had it at one time.

   7         Q.    Can you look at Defendants' Exhibit KKK.

   8         A.    Yes.

   9         Q.    Can you look at the second article in the

  10    exhibit.

  11         A.    Yes.

  12         Q.    That's called "A Study of Chemical Research

  13    Publications."

  14         A.    Yes.

  15         Q.    What organization does that relate to?

  16         A.    It's funny, it doesn't say on the cover, but it's

  17    the American -- or the ACS, American Chemical Society.  And

  18    it is their department of market research.

  19         Q.    And is the American Chemical Society a publisher

  20    of journals?

  21         A.    Yes.

  22         Q.    Are you familiar with the extent to which that

  23    society uses impact factors in assessing, or the extent to

  24    which they use impact factors?

  25         A.    Yes.




                                                                1053


   1         Q.    Can you tell us how they use them?

   2         A.    I have a friend who is an editor of one of their

   3    25 journals, and he provided me recently with their annual

   4    statement, which is handed to all the editors and associate

   5    editors, which shows the impact factors for all of the 25

   6    journals of ACS tabulated back five years, so that they can

   7    see the progress, change in impact factor with time --

   8               THE COURT:  This is for self-evaluation?

   9               THE WITNESS:  This is a self-evaluation from ISI

  10    data, that's correct.

  11               MR. PLOTZ:  Your Honor, I am going to object at

  12    this point.  Professor Ribbe is not offering expert

  13    testimony on this issue.  He is talking about a document

  14    from another society which a friend of his gave him, who

  15    isn't here.  It is double hearsay.  It is not expert

  16    testimony.  He is just talking about a document a friend

  17    gave him.

  18               MR. HUVELLE:  Well, your Honor --

  19               THE COURT:  Overruled.  But he is testifying as

  20    an expert, and he is able to testify with respect to his

  21    utilization of those things which an expert in this field

  22    would customarily rely upon.  It is classic expert

  23    testimony.

  24               Overruled.

  25         Q.    Does the American Chemistry Society use impact




                                                                1054


   1    factors, impact data in any other respect?

   2         A.    Well, they use it in this particular document, in

   3    fact.

   4               No, not this one.  I've seen it in others that

   5    they have.  This one uses -- is a price analysis, a cost

   6    analysis.

   7         Q.    Am I correct in understanding that you have

   8    testified that they use impact factor -- they track impact

   9    factor over a number of years?

  10         A.    Yes.

  11         Q.    Do they present any other data to editors

  12    relating to impact factor?

  13         A.    Yes, they do.  They present the journal ranking.

  14    For example, my friend edits the Journal of Natural

  15    Products, and that's a relatively new journal for the

  16    American Chemical Society, dealing mainly with trying to

  17    extract medicinal things from Amazonian trees or bugs or

  18    things of that sort, and they track the ranking that that

  19    journal has in several different ISI categories.  It is

  20    ranked, for example, in pharmacology, and it is ranked in

  21    general chemistry, and it may have another ranking, as well.

  22    So they track all of those from year to year to indicate to

  23    the editors how things are going.

  24         Q.    Now, the document in front of you, "A Study of

  25    Chemical Research Publications," what kind of analysis is




                                                                1055


   1    set forth in that document?  Is that a cost analysis or a

   2    citation analysis?

   3         A.    On page 2, there is an increase in price,

   4    subscription price, over a four-year period, and then on

   5    page 3, there are cents per 1,000 word analyses.  Then they

   6    do an average subscription price for 1986 for commercial

   7    society and ACS publications.

   8         Q.    And what is the date of that analysis?

   9         A.    1986.

  10         Q.    Can you look at the next document in the exhibit.

  11         A.    Yes.

  12         Q.    Called "Price Comparison Study of Optics

  13    Periodical Literature."

  14         A.    Yes.

  15         Q.    1984 to 1986.

  16               Can you tell us what document -- what this is?

  17         A.    This is prepared for the Optical Society of

  18    America by a consulting service.  And --

  19         Q.    What is the measure of comparison?

  20         A.    The measure of comparison, they give the

  21    subscription price, they give the number of pages, and they

  22    give the cents per 1,000 words, for quite a number of

  23    optics-related journals.

  24         Q.    And what period of time does study relate to?

  25         A.    Table 1 and table 2 -- well, table 1 is 1986 and




                                                                1056


   1    table 2 considers 1986 versus 1984 cents per 1,000 words.

   2         Q.    And when was the article prepared?

   3         A.    It must have been prepared -- well, it is

   4    copyrighted 1987, so I presume that it was finished then.

   5         Q.    And can you turn to page 29 of this exhibit.

   6         A.    Yes.

   7         Q.    In the lower right.

   8               Is that another price comparison within the

   9    optics field?

  10         A.    Yes, optics -- this is prepared by the same

  11    consulting service.

  12         Q.    Does this use the same measure of price, unit

  13    price?

  14               Look at page 31.

  15         A.    Cents per 1,000 word values were calculated using

  16    the following procedures, and they described their

  17    methodology.

  18         Q.    What is the date of this article?

  19         A.    This one is dated December 1985.

  20         Q.    Which academic disciplines, to your knowledge,

  21    have in the last decade or so done similar price analyses

  22    based on a unit measure of cost such as cost per 1,000

  23    characters, dollars per page?

  24         A.    The American Mathematical Society did it, the

  25    European Mathematical Council, the International Union of




                                                                1057


   1    Crystallography, obviously the optics and physics people

   2    have done it.

   3         Q.    Chemistry?

   4         A.    Well, chemistry, Bensman did some things with

   5    chemistry and other people have done -- Christensen had done

   6    some things with chemistry.  I'm trying to think if there

   7    were -- it seems to me there were others.  Oh, I know.

   8    Actually, Barschall refers to a study of philosophy journals

   9    that are done on cents per character.  I never looked at

  10    that.

  11         Q.    And can you look at this exhibit, page 111.

  12         A.    Yes.  That reminds me of another one.

  13         Q.    And what is this study?

  14         A.    This is the "Effectiveness of Journals in

  15    Expiration Geophysics" by Spies, 1991.

  16         Q.    What parameters did he use?

  17         A.    He looked at total citations and the subscription

  18    price.  So he would take the total subscription price for a

  19    year and divide it by the number of citations in that year.

  20         Q.    And can you look at the abstract on the first

  21    page of that article.

  22         A.    Yes.

  23         Q.    Was he purporting to measure the cost

  24    effectiveness of these journals?

  25         A.    That's what he says, to judge their cost




                                                                1058


   1    effectiveness and impact, in the first sentence.

   2         Q.    And can you look at the next article, beginning

   3    page 126.

   4         A.    Yes.

   5         Q.    What measure does this use?

   6         A.    Here he uses million characters.

   7         Q.    Cost per million characters?

   8         A.    Cost per million characters, yes.

   9         Q.    Who is the author of this study?

  10         A.    This is John Christensen.

  11         Q.    What group of journals is he analyzing in this

  12    study?

  13         A.    Chemistry journals, in particular.  Yes, mainly

  14    breaking them down into commercial, society and combination

  15    type journals.

  16         Q.    What is the date of this study?

  17         A.    It was published in '92.  It covers the years

  18    1980 to 1990.

  19         Q.    And what is the next article in this set,

  20    beginning at page 147?

  21         A.    "Do we know what we are paying for?  A comparison

  22    of journal and subscription costs, by John Christensen."

  23         Q.    What measure of cost does he use?

  24         A.    Again, cost per million characters.

  25         Q.    And can you look at the next article beginning at




                                                                1059


   1    page 173.  Is this the analysis of statistics journals to

   2    which you referred to a moment ago?

   3         A.    Yes, "Survey of Statistical Journals," published

   4    in 1992.

   5         Q.    And what unit measure of cost does he use, on

   6    page --

   7         A.    My recollection is that he uses --

   8         Q.    If you look at page --

   9         A.    Cents -- dollars per paper, dollars per page

  10    and -- I guess that's it, or, yes, cents per page, I'm

  11    sorry, dollars per paper.

  12         Q.    And the first exhibit, the very first exhibit in

  13    this set, the 1933 article, what measure does that use?

  14         A.    That uses approximate cost in cents for 10,000

  15    words.

  16         Q.    What does that show as the total domestic

  17    subscription price for the first journal, yearly?

  18         A.    Domestic for the first one in the table?

  19         Q.    Yes.

  20         A.    It looks like $9.60.

  21         Q.    Can I ask you to look at Defendant's Exhibit G.

  22    Did you prepare this exhibit?

  23         A.    I did.

  24         Q.    What data did you use for this?

  25         A.    I used data from the Notices of the American




                                                                1060


   1    Mathematical Society, dated 1989.

   2         Q.    And what does this exhibit show?

   3         A.    Well, in this case, I decided to plot the two

   4    cost measures that I had used in my exhibit for the physics

   5    journals.  One is, in this case, cents per page rather than

   6    dollars per page, and the other is cents per 1,000

   7    characters on the horizontal axis.

   8         Q.    And how are society and university publishers

   9    indicated on this exhibit?

  10         A.    The society and university publishers have open

  11    symbols, and commercial publishers have the filled symbols.

  12         Q.    And how many commercial publishers are included

  13    in this analysis?

  14         A.    There are five.

  15         Q.    And what is the identity of the commercial

  16    publisher shown at the far right?

  17         A.    At the far upper right is the Gordon & Breach

  18    journals.

  19         Q.    In cents per thousand characters, where do they

  20    rank?

  21         A.    Cents per thousand characters, about 63 or 62

  22    cents per thousand characters.

  23         Q.    And cents per page?

  24         A.    Cents per page, 145.

  25         Q.    And can I ask you now to look at Defendants'




                                                                1061


   1    Exhibit K.

   2               Did you prepare this exhibit, sir?

   3         A.    I did.

   4         Q.    What data did you use?

   5         A.    I used data from the Institute of Mathematical

   6    Statistics, published in 1992.

   7         Q.    What does this document show?

   8         A.    This is a frequency graph similar to the ones

   9    that we looked at yesterday.  And it plots the total number

  10    of journals in each price category.  The first price

  11    category, labeled 5, covers the region from 0 to 10 cents

  12    per page, the second one from 10 to 20 cents per page, and

  13    so on.

  14         Q.    How many Gordon & Breach journals are included in

  15    this journal?

  16         A.    Two.

  17         Q.    What is the lowest cents per page cost for the

  18    G & B journals?

  19         A.    145.

  20         Q.    And what is the highest cents per page costs of

  21    the other 121 journals?

  22         A.    85.

  23         Q.    I would like you to look at Defendants' Exhibits

  24    S and T.

  25               Let me ask you first, were you asked to prepare a




                                                                1062


   1    report in connection with your work in this case?

   2         A.    Yes.

   3         Q.    Indeed, were you required to do so?

   4         A.    Yes, sir.

   5         Q.    And are these copies of the report and the

   6    supplementary report that you prepared?

   7         A.    They are.

   8               MR. HUVELLE:  Your Honor, because I believe it is

   9    going to be contested, I would like to formally move that he

  10    be recognized as an expert witness in this case.

  11               THE COURT:  And define the area of his expertise.

  12               MR. HUVELLE:  On the assessment of the

  13    cost-effectiveness of journals.

  14               THE COURT:  Is there an objection to his

  15    expertise?

  16               MR. PLOTZ:  Yes, there is.

  17               THE COURT:  Do you want to articulate the

  18    objection?

  19               MR. PLOTZ:  I can articulate it, and if a voir

  20    dire is appropriate, we can do that.

  21               THE COURT:  You can conduct a voir dire, if you

  22    wish.

  23               MR. PLOTZ:  I do.

  24               THE COURT:  Maybe we will take a five-minute

  25    break.




                                                                1063


   1               (Recess)

   2               THE COURT:  Voir dire?

   3               MR. PLOTZ:  Yes, your Honor.

   4    VOIR DIRE EXAMINATION

   5    BY MR. PLOTZ:

   6         Q.    Dr. Ribbe, I'm correct that your educational

   7    background is in crystallography and related fields?

   8         A.    Yes.

   9         Q.    And that in the more than 30 years in which

  10    you've taught, all your teaching appointments were in the

  11    fields of geology and crystallography and mineralogy,

  12    correct?

  13         A.    Yes.

  14         Q.    You haven't taught courses in any other areas,

  15    have you?

  16         A.    That's correct.

  17         Q.    And the research that you have conducted over

  18    your career, your funded research, has all been in the same

  19    general areas of geology, crystallography, mineralogy,

  20    correct?

  21         A.    I did some work in industry, in ceramics.

  22         Q.    OK.  With that qualification, was my statement a

  23    correct one?

  24         A.    Yes.

  25         Q.    You have had various fellowships along the way,




                                                                1064


   1    haven't you?

   2         A.    Yes.

   3         Q.    And those fellowships have all been in generally

   4    the crystallography-related areas?

   5         A.    Fellowships, yes.

   6         Q.    You are a member of professional societies?

   7         A.    Yes.

   8         Q.    All of those societies relate to crystallography,

   9    mineralogy, geology, those sorts of fields?

  10         A.    My scientific affiliations are scientific

  11    societies, yes.

  12         Q.    In fact, you are the past president of the

  13    Mineralogical Society of America, correct?

  14         A.    That is correct.

  15         Q.    You served as editor of various journals and

  16    monographs, correct?

  17         A.    "Various" may be too generous.  I am editor of

  18    one group called Reviews in Mineralogy, and I edit the

  19    monograph series for the Mineralogical Society of America.

  20         Q.    Those are both mineralogy-related publications,

  21    correct?

  22         A.    Yes.

  23         Q.    I think you testified yesterday that you had

  24    published articles or chapters in books that number over

  25    100?




                                                                1065


   1         A.    Yes.

   2         Q.    Of those, I take it all but four have related to

   3    mineralogy and crystallography and geology?

   4         A.    Pretty much, yes.

   5         Q.    And the four that I have taken out all relate to

   6    the study of 15 mineralogy journals that you have already

   7    testified about?

   8         A.    No, the first three were related to mineralogy

   9    journals -- mineralogy, crystallography, petrology.  The

  10    last one included other geoscience fields as well as

  11    physics.  In other words, I reworked some of the Barschall

  12    data in the last one.

  13         Q.    Before you looked into the mineralogy journals,

  14    the 15 mineralogy journals -- you did that in about 1986 or

  15    '87?

  16         A.    Uh-huh.

  17         Q.    -- you had not written anything --

  18         A.    No.

  19         Q.    -- relating to citation analysis or journal

  20    pricing, had you?

  21         A.    No.

  22         Q.    And you had not made a study of the literature in

  23    those fields, had you?

  24         A.    Not in an intense way like one does when one is

  25    doing research under pressure.




                                                                1066


   1         Q.    And the various articles that you have given some

   2    testimony about in Exhibit LLL, you didn't refer to all

   3    those articles in your report, did you?

   4         A.    I'm sorry, all what articles?

   5         Q.    The articles in LLL that you've given testimony

   6    about earlier this morning.

   7         A.    Oh, I suppose -- no, because some of them were

   8    published after 1987.

   9         Q.    In your report in this case, you did not refer to

  10    all of those articles, did you?

  11         A.    No -- well, in this case?  That is probably true,

  12    yes.

  13         Q.    Now, you have not taken any courses, have you, in

  14    information science?

  15         A.    No.

  16         Q.    You certainly have never taught in information

  17    science, have you?

  18         A.    No.

  19         Q.    And you have never conducted research in

  20    information science, have you, other than perhaps this

  21    mineralogy study?

  22         A.    Other than this study and the one that I did for

  23    the Mineralogical Society.

  24         Q.    And the same is true with the library science,

  25    isn't it?  You have never taken a course with the library




                                                                1067


   1    science, have you?

   2         A.    No.

   3         Q.    No.  And you haven't taught any courses in

   4    library science?

   5         A.    No.

   6         Q.    You haven't conducted any research in library

   7    science?

   8         A.    If you can define "library science" for me?

   9         Q.    Can you?

  10         A.    I'm not sure.  I guess I think that the kind of

  11    thing that was done here is bibliometric.  I am not sure

  12    whether you would call it library science or not.

  13         Q.    You are not sure?

  14         A.    No, it doesn't matter what you call it.

  15         Q.    And I take it you haven't taken courses in

  16    economics, either, have you?

  17         A.    No, the economic of life.

  18         Q.    You haven't studied it, have you?

  19         A.    Not specifically, no.

  20         Q.    You never taught a course in economics?

  21         A.    No.

  22         Q.    You have never written anything on the economics

  23    of information, have you?

  24         A.    No.

  25               MR. PLOTZ:  Your Honor, we object to the offer of




                                                                1068


   1    Dr. Ribbe as an expert in the area for which he has been

   2    offered.  He is undoubtedly an eminent mineralogist and

   3    clearly qualified to offer expert testimony in

   4    mineralogy-related fields but not in the fields for which he

   5    is being offered.

   6               THE COURT:  The objection is overruled.  The

   7    Court is satisfied that Dr. Ribbe has had a sufficient

   8    involvement in the matters as to which he has been proffered

   9    as an expert based on his role on the library committee, his

  10    experience as an editor and as an astute writer and lecturer

  11    in this industry.  Overruled.

  12    DIRECT EXAMINATION (resumed)

  13               MR. HUVELLE:  Your Honor, we would like to move

  14    into evidence Defendants' Exhibits Q, AA, LLL, KKK, G, K, S

  15    and T.

  16               MR. PLOTZ:  We need that again.

  17               THE COURT:  You begin with Q?

  18               MR. HUVELLE:  Do you want me to do them in order?

  19    I can re-sort them.

  20               Re-sorted, it is G, K --

  21               THE COURT:  Wait a minute.  I have read them and

  22    you have dealt with them in the courtroom.  Other than the

  23    objection which I have just overruled, is there any

  24    objection?

  25               MR. PLOTZ:  I am just finishing my list, your




                                                                1069


   1    Honor.

   2               We don't object to Q, G, or K.  We do object to

   3    the others, and generically, the basis for the objection is

   4    the hearsay objection.  S and T are Dr. Ribbe's report and

   5    supplemental report.  He is testifying.  His report is

   6    hearsay.  So we object to their admission.

   7               AA are the various articles he has written on the

   8    mineralogy studies about which there has been some

   9    testimony.  That is hearsay.  He has testified to that.

  10               THE COURT:  I would assume that when you took

  11    Dr. Ribbe through the KKK and LLL, it was an acknowledgment

  12    of a marvelous rule of evidence that says that an expert can

  13    testify with respect to those things which are normally

  14    relied upon by an expert but are not received in evidence.

  15               It seems to me that that is clearly appropriate

  16    here.  That there has been extensive testimony with respect

  17    to these documents and as to their nature, but I don't see

  18    any virtue in receiving them in.  So I sustain the objection

  19    as to KKK and LLL.

  20               MR. HUVELLE:  Your Honor, our view was that,

  21    under 703, that those would be admissible, and particularly

  22    in this case where there is an independent need to establish

  23    the state of the art, we thought that it would be helpful

  24    evidence.  In my examination, I was anticipating the

  25    possibility of such a ruling and tried to get the essence of




                                                                1070


   1    those studies into evidence.

   2               MR. PLOTZ:  Your Honor, even as to the latter

   3    point Mr. Huvelle raises, that's what the experts are for

   4    and he did elicit testimony about the various articles.  The

   5    purpose for which the offer is made doesn't affect the rule

   6    of evidence that requires -- that does not permit these to

   7    be received directly in evidence, as your Honor observed.

   8               So, our objection on that ground applies to AA,

   9    KKK and LLL.

  10               THE COURT:  AA is Dr. Ribbe's article on the

  11    American mineralogy --

  12               MR. PLOTZ:  The group of articles, yes.

  13               THE COURT:  I take it my previous ruling would be

  14    correct in a case in which an expert was offering expert

  15    opinion in general, but that this case is different in that

  16    the subject of the expertise, the testing methodology, is

  17    itself an issue in the case.  And why isn't that sound?

  18               MR. PLOTZ:  I agree that the state of testing

  19    art, such as it is, is an element of the Castrol analysis

  20    and is an issue in the case.  But to establish that, an

  21    expert can testify as to what the state of the art was.  He

  22    can state what it is he relied on.  That is all 703 says, is

  23    that the expert can state the bases that were relied on in

  24    terms of expressing his opinion or describing whatever it

  25    is.  And Dr. Ribbe, or any other competent expert, can




                                                                1071


   1    testify about what it was that was the state of the testing

   2    literature and what tests had been done.  And that's what he

   3    has done.

   4               THE COURT:  Yes.

   5               MR. PLOTZ:  I would suggest that the only one of

   6    these three exhibits that we are talking about now which

   7    even arguably would go to that is KKK, which was identified

   8    initially yesterday and is a collection of various studies

   9    using cost per thousand characters or some variant on that.

  10    That is the only one that even goes to that.

  11               THE COURT:  I think KKK is already in evidence.

  12    Yes?

  13               MR. HUVELLE:  Your Honor, as you suggest, in the

  14    case of all three of these exhibits, we are not trying to

  15    prove what the cost per thousand characters of a particular

  16    chemistry journal was.  We are not offering it for the truth

  17    of that.  It is simply to show that such studies were done,

  18    and although we have tried to have the witness refer to

  19    them, still the manner in which the data is presented, the

  20    statements made in connection with the data, the way it is

  21    presented, all of that bears on the state of the art, how

  22    people do it, and that's how we are trying to do it.  This

  23    is not a car case or a medical malpractice case where the

  24    witness is relying on a treatise.

  25               THE COURT:  I think that's sound.  I think that




                                                                1072


   1    if this were an issue in which the expert opinion as to

   2    causation or nature of the malady were at issue, then 703

   3    would be appropriate.  But here the issue on the merits is

   4    the methodology used for the purposes of this analysis.  I

   5    will receive it in evidence.

   6               MR. PLOTZ:  Judge, let me just make one point.

   7               THE COURT:  Yes.

   8               MR. PLOTZ:  Because I think that this discussion,

   9    I would like to stress again, would relate only to KKK,

  10    which is the discussion of the other studies.

  11               LLL, for example, includes a New York Times

  12    article from a few weeks ago.  It includes --

  13               THE COURT:  It does?  What is that?

  14               MR. PLOTZ:  Even studies that appear even in The

  15    New York Times, your Honor.  This is not limited to

  16    scholarly articles that appeared in reference to journals.

  17               THE COURT:  Well, maybe we have to take them on a

  18    more specific basis.

  19               MR. PLOTZ:  I would also --

  20               THE COURT:  LLL -- all right.  LLL, the Garfield

  21    articles, I think clearly come within what I said.  I think

  22    Garfield is sort of the father of this area of analysis.

  23               MR. PLOTZ:  Yes.  He invented it.

  24               THE COURT:  And what is the newspaper article to

  25    which you are speaking?




                                                                1073


   1               MR. PLOTZ:  It starts at page 112 of the exhibit.

   2               THE COURT:  Page 112.  Apart from the other

   3    methods in which -- the other areas in which this case is

   4    restrained, the strain on the eyesight is much.  I think I

   5    would exclude 112 and 113 on the basis of, if nothing else,

   6    it is too difficult to read.

   7               MR. PLOTZ:  I will take any basis your Honor

   8    finds convenient.

   9               THE COURT:  Well --

  10               MR. PLOTZ:  Following that, there is an

  11    unpublished study showing some link between U.S. technology

  12    and public science --

  13               THE COURT:  What is that?

  14               MR. PLOTZ:  I don't know.

  15               THE COURT:  My question is really to the

  16    proponent of the exhibit.  What is this Narin?

  17               MR. HUVELLE:  This is actually the study that is

  18    referred to in The New York Times article, as The New York

  19    Times article being a user friendly summary of what the

  20    article relates to.

  21               In that case, there was analysis linking the

  22    number of citations appearing in articles that were relied

  23    upon in patent applications.

  24               THE COURT:  But it is an unpublished work; it

  25    isn't something that -- is it something that you read and




                                                                1074


   1    relied on?

   2               THE WITNESS:  No, sir.  It is unpublished.  It is

   3    a consultant's report.

   4               THE COURT:  I will exclude that.

   5               MR. PLOTZ:  Then also included in this package,

   6    at page 46, there is a roughly 60-page document which

   7    appears to be some analysis some government agency in

   8    Australia did about citations to Australian publications,

   9    and, again, this is a case about comparisons of journals,

  10    and this has nothing to do with the comparison of journals

  11    for acquisition decision.

  12               THE COURT:  No, if it is a published work which

  13    supports the proposition that, in a variety of disciplines,

  14    in a variety of countries, the methodology, allegedly the

  15    same methodology as used by Barschall, is recognized and

  16    applied, then it seems to me that it is relevant.

  17               MR. PLOTZ:  Your Honor, I don't even know where

  18    it is published, so I can't even -- it may or may not be.

  19               MR. HUVELLE:  Your Honor, the next document in

  20    this set by its title says "citation" --

  21               THE COURT:  I'll tell you what we are going to

  22    do.  We are going to take a break.  We are breaking for

  23    lunch.  During the break, if you will go through these

  24    exhibits on a more precise basis, the exhibits other than

  25    those that Dr. Ribbe has identified and testified with




                                                                1075


   1    respect to, and my criterion then, I think I have just

   2    stated it.  We will resume at 2 o'clock.

   3               MR. HUVELLE:  Your Honor, there are two other

   4    exhibits which are a different category of the two reports

   5    that this witness prepared in accordance with the Federal

   6    Rules.  My understanding is it is generally helpful, rather

   7    than have the witness spell out every half step he takes in

   8    his assessment, to put in the report itself --

   9               THE COURT:  Exclusion of hearsay -- this is a

  10    bench trial, so there is no question whether the jury is

  11    going to see it during its deliberation.

  12               MR. HUVELLE:  Thank you.

  13               THE COURT:  We will take this up at 2 o'clock.

  14               (Luncheon recess)

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25




                                                                1076


   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:  I have been trying to think, over the

   4    lunch hour, of what difference it makes in this non-jury

   5    suit on injunctive relief whether LLL is received in

   6    evidence or merely marked for identification.  What

   7    difference does it make?

   8               MR. HUVELLE:  Well, I think it's easier for the

   9    Court and for an appellate court to review the nature of the

  10    analyses that have been done before and to judge the

  11    analysis by Dr. Barschall in terms of the prior state of the

  12    art with respect to these criteria.

  13               THE COURT:  It's easier if it's received in

  14    evidence than if it's merely marked for identification?  The

  15    conclusion I reached was that it really doesn't make any

  16    difference at all and then you get to a philosophical

  17    question of whether, if it doesn't make any difference, it

  18    comes in or it stays out.

  19               MR. HUVELLE:  Your Honor, I guess what I don't

  20    know is, if it's marked for identification but not admitted,

  21    does the Court have access to it?  Can we refer to it in a

  22    brief or a proposed finding?

  23               THE COURT:  What is it that you would -- why

  24    would you want access to it?  For what purpose other than

  25    that it exists?  Because it is not being offered for the




                                                                1077


   1    truth of any of its conclusions, which mineralogical journal

   2    is more or less expensive really isn't the issue.

   3               MR. HUVELLE:  It certainly shows -- I mean, if

   4    there is simply testimony that a cost analysis that has been

   5    done by unit of measure, you can look at the study and see

   6    precisely how it was calculated, how the data was displayed.

   7               THE COURT:  But Dr. Ribbe has testified to that.

   8    He has testified that it has been done and it has been done

   9    not only with respect -- by Dr. Barschall with respect to

  10    physics, but with all the various other disciplines and so

  11    on.

  12               MR. HUVELLE:  It is also useful because the

  13    writers often, as a result of these studies, comment on how

  14    it might -- how they see the inferences that can be drawn

  15    from it.

  16               THE COURT:  The more you grope -- and you grope

  17    because of the nature of the question -- the more it becomes

  18    clear that the difference between it being merely marked for

  19    identification and being the subject of the witness's

  20    testimony, and it being received in evidence, would be an

  21    improper use of it, would be a use of it which would be

  22    dependent on the validity or the specific contents of the

  23    document.

  24               MR. HUVELLE:  I think, in addition, your Honor,

  25    Dr. Barschall's analysis is fairly straightforward, and if




                                                                1078


   1    you look at the history of similar analyses, some have been

   2    more complicated and try to go further in terms of

   3    conclusion, and I think it's helpful, in judging where his

   4    study falls in the continuum of such studies, that the

   5    modesty of its analysis and conclusions can be judged in

   6    that framework.  It seems to me an area where the more

   7    information we have about what the state of the art is, the

   8    better we are in truly assessing what he did and the

   9    methodology that he used.

  10               THE COURT:  I think that the testimony of the

  11    witness, which has been quite clear and quite extensive with

  12    respect to, these are the publications, is entirely proper

  13    and entirely relevant to the defendants' contention that the

  14    methodology used by Barschall is not unique but indeed has

  15    been utilized in other disciplines and has been recognized

  16    in the literature since 1932.

  17               I will sustain the objection, with the present

  18    state of the record.  Obviously, if cross-examination of the

  19    witness would alter the role that might be played with

  20    respect to these other publications, we will reexamine it.

  21    But I will sustain the objection as to LLL and AA and, what

  22    else?  Do you have a list now?

  23               MR. PLOTZ:  I believe it is AA, KKK, and LLL.

  24               MR. HUVELLE:  AA being the writers only.

  25               THE COURT:  Being the writers only.




                                                                1079


   1               MR. HUVELLE:  Your Honor, we don't disagree with

   2    your summary of why we are trying to introduce it.  Like

   3    many things in this case, it's not really a complicated

   4    point here.  So why don't we proceed and see if we can bring

   5    this to a conclusion soon.

   6    PAUL H. RIBBE, resumed.

   7               MR. HUVELLE:  I just have a couple more

   8    questions.

   9               I'm sorry.  Are you ready for me to resume?

  10               THE COURT:  You offered a lot of exhibits, and I

  11    don't know that the record is clear that I have ruled on all

  12    that you have offered.  Q --

  13               MR. PLOTZ:  Q we have not --

  14               THE COURT:  -- K, and S and T.  S and T, are, I

  15    guess, Dr. Ribbe's report.

  16               MR. HUVELLE:  And the supplement.  S and T are

  17    the report and the supplement.  G, K, and Q are charts and

  18    graphs.

  19               THE COURT:  Prepared by this witness?

  20               MR. HUVELLE:  Yes.

  21               THE COURT:  Yes.  They are received.

  22               (Defendants' Exhibits G, K, and Q received in

  23    evidence)

  24               THE COURT:  The objection to S and T is

  25    sustained.




                                                                1080


   1               MR. HUVELLE:  You are sustaining it as to the

   2    report?

   3               THE COURT:  To the report.

   4               MR. HUVELLE:  And then we have AA, LLL, and KKK.

   5               THE COURT:  I sustained on those.

   6               Now, if there is anything in these reports which

   7    has not been covered by oral testimony, obviously you are

   8    free to elicit it from the witness.

   9    DIRECT EXAMINATION (Continued)

  10    BY MR. HUVELLE:

  11         Q.    Mr. Ribbe, in connection with assessments of

  12    journals based upon citation data, is there an organization

  13    that annually prepares such assessments?

  14         A.    I mentioned the American Chemical Society, but

  15    obviously the premier one is the Institute for Scientific

  16    Information, which does this on an annual basis for over

  17    4,000 journals.

  18         Q.    Mr. Ribbe, in connection with this case and as a

  19    result of your work on this case, have you formed an opinion

  20    as to whether or not Dr. Barschall's analysis is a reliable

  21    basis for assessing the cost effectiveness of scientific

  22    journals?

  23         A.    I have.

  24         Q.    What is your opinion?

  25         A.    It is reliable.




                                                                1081


   1         Q.    Thank you.

   2               MR. HUVELLE:  No further questions, your Honor.

   3               THE COURT:  Mr. Plotz.

   4               MR. PLOTZ:  Thank you, your Honor.  Just one

   5    moment, please.

   6    CROSS-EXAMINATION

   7    BY MR. PLOTZ:

   8         Q.    Dr. Ribbe, when you did your own study of the 15

   9    mineralogy journals, you used the ISI impact factor in part

  10    of your analysis; isn't that right?

  11         A.    Yes.

  12         Q.    When you wrote the article that appeared in your

  13    journal, you defined impact factor, didn't you?

  14         A.    Yes.

  15         Q.    The reason you did that was because you wanted

  16    the readers to understand what we're talking about; isn't

  17    that right?

  18         A.    One tries to under -- to define its parameters.

  19         Q.    The audience for your article were fellow

  20    mineralogists, correct?

  21         A.    Primarily.

  22         Q.    A sophisticated audience?

  23         A.    Say that again, sir?

  24         Q.    Would you consider the audience to be

  25    sophisticated?




                                                                1082


   1         A.    Modestly.

   2         Q.    Would you consider that your audience would have

   3    known what the impact factor was without your telling them?

   4         A.    Some of them might have.

   5         Q.    And some of them might not have?

   6         A.    Some of them might not have.

   7         Q.    Now, in that article, you did not define impact

   8    factor as ISI does, did you?

   9         A.    That's correct.

  10         Q.    You defined it differently, didn't you?

  11         A.    Yes.

  12         Q.    In fact -- well, give your definition -- give the

  13    definition of how ISI defines impact.

  14         A.    ISI defines -- we'll take an example -- the

  15    impact factor for 1986 of a journal to be the number of

  16    articles published by that journal in 1984 and 1985 divided

  17    into the number of citations that those articles received in

  18    those two years -- I mean, I'm sorry, in 1986.

  19         Q.    Now, do you have Defendants' Exhibit AA in front

  20    of you, which is the collection of your articles?

  21         A.    Yes.

  22         Q.    Could you take a look at your Prestige article,

  23    page 451?

  24         A.    Yes.

  25         Q.    That's where you discuss impact factor; isn't




                                                                1083


   1    that right?

   2         A.    Yes.

   3         Q.    In fact, if you look at the preceding page, under

   4    the heading "Tools of Assessment," you discuss the whole

   5    Science Citation Index, don't you?

   6         A.    Right.

   7         Q.    Then you go to the discussion on page 451 of

   8    impact factor, correct?

   9         A.    Yes.

  10         Q.    In the course of your discussion, you quote from

  11    the JCR put out by the ISI --

  12         A.    Yes.

  13         Q.    -- you quote some of the perceived virtues of

  14    impact factor, correct?

  15         A.    Yes.

  16         Q.    But in the first paragraph on page 451 under

  17    "Impact Factor," you define impact factor differently from

  18    the way ISI does?

  19         A.    Incorrectly.

  20         Q.    Incorrectly.

  21         A.    Yes.

  22         Q.    In fact, there are two mistakes in the way you

  23    defined it, aren't there?

  24         A.    Well, it's misdefined.  I -- I -- I only --

  25         Q.    Your definition is misdefined, correct?




                                                                1084


   1         A.    Yes.

   2         Q.    You made a mistake in doing --

   3         A.    That is correct.

   4         Q.    Now, this is the study you that spent a year and

   5    a half putting together, correct?

   6         A.    Yes.

   7         Q.    You were trying to be as clear as you could so

   8    that your sophisticated audience would know what you were

   9    talking about?

  10         A.    This is an embarrassment, of course, and when one

  11    finds these things out, one is duly embarrassed.

  12         Q.    When did you find this out?

  13         A.    Well, actually, I had struggled with it in a long

  14    time -- a long time ago, but fairly recently I discerned

  15    that this is -- I hadn't read the paper for many years, at

  16    least seven or eight, and when I found it out I was duly

  17    embarrassed.

  18         Q.    I take it that none of the readers of this

  19    journal called this to your attention at about the time this

  20    journal came out, did they?

  21         A.    Unfortunately this was one of those articles that

  22    goes through without getting reviewed because it is a

  23    presidential address and they grant -- I don't know if it's

  24    a courtesy or a disservice -- the privilege of not having to

  25    mess with reviews, which in this case would have been




                                                                1085


   1    helpful, I am sure.

   2         Q.    So it was not subject to peer review, this

   3    article?

   4         A.    No.  That's correct.

   5         Q.    In any event, you're sure today what "impact

   6    factor" is, aren't you?

   7         A.    Yes, sir.

   8         Q.    Now, you don't have any question, do you, that a

   9    librarian in making journal acquisition decisions needs to

  10    consider the needs of his or her community, do you?

  11         A.    Oh, unquestionably they would have to do that.

  12         Q.    You need to consider whether a journal is

  13    actually used at a particular library; isn't that right?

  14         A.    Used or would have potential use, sure.

  15         Q.    In fact, you testified this morning about your

  16    library canceling one of Gordon & Breach's journals because

  17    it had hardly been used?

  18         A.    That's correct.

  19         Q.    It didn't make sense for the library to subscribe

  20    to a journal that people in the faculty --

  21         A.    Would cancel.

  22         Q.    -- weren't interested in, right?

  23         A.    They canceled many such journals.

  24         Q.    You have canceled non-Gordon & Breach journals

  25    for that reason also?




                                                                1086


   1         A.    We've canceled many more than one.

   2         Q.    So no matter how expensive or inexpensive a

   3    journal is, a library shouldn't subscribe to a journal that

   4    its community doesn't need, right?

   5         A.    Certainly not.

   6         Q.    That's --

   7         A.    Normally -- well --

   8         Q.    That's not a very earth-shattering observation,

   9    is it?

  10         A.    No, certainly not.

  11         Q.    Let me -- another way of putting it is, a journal

  12    that no one is going to look at in the community is

  13    expensive at any price, isn't it?

  14         A.    Yes.

  15         Q.    Now, if the library does not subscribe to a

  16    journal but someone in the library community needs an

  17    article or needs to have access to a journal, how is that

  18    person going to get access to the journal, or to the

  19    article?

  20         A.    Well, yeah, in my experience there are a number

  21    of ways.  Sometimes colleagues will have copies of the

  22    journal that you're looking for.  That's one possibility.

  23    Another is, we maintained rather enormous reprint files

  24    which got so unwieldy after awhile we, in our personal case,

  25    had to give it up, but we had a very extensive reprint file.




                                                                1087


   1    We had a network of being able to call people and ask them

   2    to send a copy, or use interlibrary loan.

   3         Q.    There are costs associated with interlibrary

   4    loan, aren't there?

   5         A.    Yes.  It is a cost that I am not aware of because

   6    I don't -- they don't ask the question, how much is it going

   7    to -- they don't tell me how much it's going to cost.

   8         Q.    But you're aware there are costs?

   9         A.    Surely.

  10         Q.    You understand that, if a journal -- if articles

  11    from a journal are ordered with some frequency through

  12    interlibrary loan, those costs would obviously increase,

  13    wouldn't they?

  14         A.    Sure.

  15         Q.    And there might come a point where the cost of

  16    ordering through interlibrary loan matches or exceeds the

  17    subscription price to the journal?

  18         A.    Ostensibly, yes.

  19         Q.    That's true regardless of what the subscription

  20    price of the journal is, isn't it?

  21         A.    Yes.

  22         Q.    Is it fair to say that, regardless of the

  23    subscription price of a journal, the needs -- use of that

  24    journal in the community could make it more cost effective

  25    for the library to subscribe as opposed to using




                                                                1088


   1    interlibrary loan or alternative means of getting access to

   2    the journal?

   3         A.    I don't like the word "regardless" because I

   4    think it leaves it open to $20,000 subscriptions which I'm

   5    dubious about.  I agree with you on principle there might be

   6    a breaking point, but there are probable limitations to

   7    that.  So I would disagree with that regardless of what the

   8    price is.

   9         Q.    Have you done any analysis of the average number

  10    of readings of a scientific journal in any given year?  Have

  11    you done any analysis of that?

  12         A.    I have -- no, I have not personally.

  13         Q.    You are aware that such analyses have been done,

  14    aren't you?

  15         A.    Yes.

  16         Q.    Mr. King, for one?

  17         A.    Yes, I am familiar with his work.

  18         Q.    You are aware of analyses -- withdrawn.

  19               Let me ask you about different types of journals.

  20               You are aware of what a review article is, aren't

  21    you?

  22         A.    Yes.

  23         Q.    And letters?

  24         A.    Yes.

  25         Q.    Original research articles?




                                                                1089


   1         A.    Yes.

   2         Q.    You are aware that there are journals which are

   3    generally devoted to these different kinds of articles?

   4         A.    Yes.

   5         Q.    You are also aware, are you not, that each of

   6    these different types of articles have different rates of

   7    citation?

   8         A.    Yes.

   9         Q.    Generally speaking, review articles tend to have

  10    the highest rates of citation, don't they?

  11         A.    Yes.

  12         Q.    And letters, generally speaking, come next?

  13         A.    Yes.

  14         Q.    And, generally speaking, research articles are at

  15    the bottom of the pecking order, correct?

  16         A.    Yes.

  17         Q.    One of the reasons review articles tend to be

  18    cited more is because they collect and analyze the state of

  19    some body of research, correct?

  20         A.    Yes.

  21         Q.    Generally speaking, it's easier and more

  22    convenient to cite the review article than all the

  23    underlying research articles which are cited in the review

  24    article, right?

  25         A.    It's a matter of economics for someone writing up




                                                                1090


   1    new research.  It often is.

   2         Q.    It wouldn't make sense to you, would it, to make

   3    a comparison across these different types of journals

   4    without taking into account these different rates of

   5    citation, would it?

   6         A.    I suppose it wouldn't make sense.  I don't

   7    imagine anybody doing it.

   8         Q.    So you think it would be wrong to do it, correct?

   9         A.    With numbers of that sort, I'm not sure what's

  10    right and what's wrong.  I think it has -- there are so many

  11    other factors one has to take into account other than impact

  12    factor that I think anyone who is sensible, not a fool,

  13    would certainly consider those factors.

  14         Q.    And the fact that a review journal may have a

  15    higher impact factor than an original research journal

  16    doesn't say that the review journal is better, does it?

  17         A.    Certainly is better for certain purposes, no

  18    question about that.

  19         Q.    It says it's a review journal, doesn't it?

  20         A.    Valuable for review purposes.

  21         Q.    It is also your strongly-held view, isn't it,

  22    that impact factors cannot be used to compare journals

  23    across disciplines, correct?

  24         A.    Should not.

  25         Q.    The same is true in making comparisons across




                                                                1091


   1    subdisciplines, isn't it?

   2         A.    Well, I think that requires a little

   3    qualification, because subdisciplines are infinitely

   4    divisible.  You can get down to specialties in which you may

   5    only have one journal and then you're pretty safe -- if you

   6    understand what I'm saying -- no comparisons can be made.

   7    And oftentimes -- well, the Science Citation Index doesn't

   8    do that.  They have eight or ten or twelve categories in

   9    physics, for example, and they use those regularly.

  10         Q.    And, in fact, the range of impact factors in

  11    these different subdisciplines of physics and the ISI

  12    differs from subdiscipline to subdiscipline, doesn't it?

  13         A.    Certainly.

  14         Q.    You don't quarrel with the notion that the top

  15    impact factor in one subdiscipline of physics might be two

  16    and a half, roughly, and another might be 11 and a half,

  17    roughly, right?

  18         A.    It's conceivable.

  19         Q.    Do you doubt it?

  20         A.    I --

  21         Q.    Shall we examine the quantity --

  22         A.    That's not necessarily.  I mean, it's

  23    conceivable, so it could happen, certainly.

  24         Q.    Does that fact make the top journal in the

  25    higher-ranked subdiscipline a better journal than the




                                                                1092


   1    top-ranked journal in another subdiscipline?

   2         A.    It may.

   3         Q.    So if, for example, the top impact factor for

   4    nuclear physics in 1986 was approximately 11 and a half and

   5    the top impact factor that year in mathematical physics was

   6    approximately 2 and a half, do you think that fact is a

   7    factor to consider in a library's determination of whether

   8    to subscribe to the nuclear physics journal as opposed to

   9    the mathematical physics journal?

  10         A.    Could you tell me what type of journal they are,

  11    that those two are, what you're talking about, what journals

  12    specifically?

  13         Q.    Let me show you what has been marked Plaintiffs'

  14    706G, which is from the 1986 JCR.  Do you have that?

  15         A.    No, I don't, but I have the previous year.  And I

  16    have already spotted the problem with your example.

  17               Nuclear physics and mathematical physics?

  18         Q.    Well, those are the two I picked, but we can pick

  19    others.

  20         A.    Well, the example of nuclear physics is that you

  21    have advances in nuclear physics, which is essentially a --

  22    let me see here, just a moment.

  23               (Pause)

  24               I was thinking I could find those in the

  25    Barschall article, but I was unable to do that, that




                                                                1093


   1    particular one.  It's probably in there, but -- I mean,

   2    obviously this is possible because there it is.  Let's stop

   3    there.  Why should I argue?

   4         Q.    Well, the question was, is the fact that the

   5    top-rated nuclear physics journal has an 11 and a half

   6    impact factor and the top-rated mathematical physics has a 2

   7    and a half impact factor, does that mean that a library

   8    should select the nuclear physics journal?

   9         A.    Oh, no.

  10         Q.    You see on the page before that that the

  11    top-rated atomic physics impact factor is about 7.6?  That's

  12    also different from these other disciplines, isn't it?

  13         A.    I would have thought there's a strong

  14    relationship between atomic and nuclear, but maybe not.

  15         Q.    So there's a difference you can't explain,

  16    correct?

  17         A.    There is a difference I can't explain.  I would

  18    very much depend on what is needed in the situation, but

  19    surely -- well --

  20         Q.    You would need to know more than just what

  21    these --

  22         A.    Of course.

  23         Q.    -- impact factors are, wouldn't you?

  24               It's true also that different numbers, rather,

  25    different subdisciplines have different numbers of




                                                                1094


   1    scientists working in them, don't they?

   2         A.    Sure.

   3         Q.    And that the smaller fields will tend to have

   4    fewer citations, won't they?

   5         A.    And fewer source items, I would expect.

   6         Q.    But they will have fewer citations in each

   7    article, won't they, because there are fewer readers, fewer

   8    workers in the field?

   9         A.    Fewer citations in each article?  I don't know

  10    that that holds at all.

  11         Q.    But you are aware of Mr. King's research on

  12    readings?

  13         A.    Readings don't -- are not directly tied to

  14    citations.

  15         Q.    You heard Mr. King's testimony on this subject,

  16    didn't you?

  17         A.    I did hear it, but I don't recall it all.

  18         Q.    You have written, haven't you, that there is no

  19    doubt that the impact factor has been misused?  Haven't you

  20    written that?

  21         A.    Yes, I have.

  22         Q.    You wrote that, in fact, in -- I think it was the

  23    last of your four articles, the one entitled "Value of

  24    Serials"?

  25         A.    Yes.




                                                                1095


   1         Q.    When you wrote that, you cited to an article,

   2    correct?

   3         A.    Yes.

   4         Q.    And --

   5         A.    I think so -- well, I --

   6         Q.    Take a look.  You have part of AA in front of

   7    you, page 44 of your "Value of serials" article?

   8         A.    Yes.

   9         Q.    You cited an article by Archibald and Finifter,

  10    F-I-N-I-F-T-E-R?

  11         A.    Yes.

  12         Q.    Correct?  They are a pair of economists from

  13    William and Mary, correct?

  14         A.    I don't know.  I don't re -- I don't recall, sir.

  15         Q.    Well, when you cited this article, which is the

  16    only article you cited for the proposition that impact

  17    factor had been misused, you did so for a reason, didn't

  18    you?

  19         A.    Yes.

  20         Q.    And you did so because it's your view that, when

  21    scientists cite in the highest traditions of scholarship,

  22    they make a thoughtful decision about what to cite; isn't

  23    that right?

  24         A.    Certainly.

  25         Q.    So you relied on the Archibald and Finifter




                                                                1096


   1    article for the proposition that impact factor has been

   2    misused, correct?

   3         A.    Sure, plus experience of my own.

   4         Q.    Isn't it true that Archibald and Finifter wrote,

   5    just in the abstract to their article, that "Existing

   6    methods of ranking are flawed because they do not account

   7    for variations in article length or size of potential

   8    readership?"

   9         A.    I have no recollection of that, sir.

  10         Q.    Let me find a copy of the article for you.

  11               Let me hand you what has been marked Plaintiffs'

  12    Exhibit 670, which is a copy of the Archibald and Finifter

  13    article, and ask you to take a look at the -- just at the

  14    brief abstract and italics on the front page.

  15         A.    I see it.

  16         Q.    You agree that that's what they wrote, don't you?

  17         A.    Yes.

  18         Q.    And Archibald and Finifter wrote in this article

  19    that you relied on, did they not, that rankings are biased

  20    against journals representing smaller fields?  Do you see

  21    that, at the second paragraph on that first page?

  22         A.    Are you -- can you fill me in, since you are

  23    familiar with this, with whether they are talking about

  24    citations or impact factors or what method they are using of

  25    ranking here?




                                                                1097


   1         Q.    Well, I think we'll see as we go through this

   2    that they talk about both, but --

   3         A.    OK.

   4         Q.    Since you're the person who has cited the

   5    article, I prefer to be the one asking you the questions.

   6         A.    Well, I know that you like to ask questions and

   7    that's your job, but it's been a long time since I wrote

   8    that article.

   9         Q.    This is the article that you cited for the --

  10         A.    It is an article that I cited.  That is correct.

  11         Q.    And Archibald and Finifter also wrote, did they

  12    not, "More recently, because it has been recognized that

  13    different disciplines have different practices in citation,

  14    rankings have been limited to journals within a discipline,

  15    but, as various researchers have pointed out, this does not

  16    correct the flaw.  Journals specializing in small fields

  17    within a discipline will still be at a disadvantage in the

  18    typical citations-based ranking."

  19               Is that a statement with which you agree?  That's

  20    a statement made in the article you cited?

  21         A.    No, I don't agree fully with it, because there

  22    are some arguments to the opposite, that the impact factor

  23    actually favors articles which have low citation rates,

  24    which have lower citation rates or lower readerships,

  25    because when you take the impact factor and invert it and




                                                                1098


   1    multiply it times your cost factor, you're multiplying times

   2    the number of source items in that journal, so that smaller

   3    journals are actually in some ways advantaged by the impact

   4    factor rather than disadvantaged.

   5         Q.    Well, we'll come to that in just a moment.

   6               But do you agree with the last statement they

   7    made on that first stage, "The inconsistent treatment of

   8    field journals is a serious problem since such journals are

   9    growing in number and importance?"

  10         A.    What is a "field journal," sir?  I'm not sure of

  11    the definition of it.

  12         Q.    A small field.

  13         A.    I don't know.  I'm not sure.  I'm not sure how to

  14    answer that.

  15         Q.    Well, you cited this article for the proposition

  16    that impact factor has been misused, correct?

  17         A.    Yes.

  18         Q.    So you wouldn't have cited it for the proposition

  19    that citations analysis generally is misleading, would you

  20    have?  Rather, did you?

  21         A.    Excuse me?

  22         Q.    Take a look at page 133 of the article.  The

  23    first full paragraph on page 133 makes reference to

  24    Garfield's impact factor, correct?

  25         A.    Yes.




                                                                1099


   1         Q.    And the authors write, do they not, that "Impact

   2    factor corrects for the clear advantage a gross citations

   3    ranking affords to larger journals.  It is a step in the

   4    right direction, but a good ranking should consider several

   5    other factors."

   6         A.    Yes, I see that.

   7         Q.    And they write, the first is the length of

   8    articles, correct?

   9         A.    That's what they say.

  10         Q.    Then in the next paragraph, "The size of the

  11    field addressed by a given article also influences its

  12    potential to be cited," correct?

  13         A.    Yes.

  14         Q.    Now, these are the problems with using impact

  15    factor to which you were referring in your article when you

  16    wrote, citing this article, there is no doubt that impact

  17    factor has been misused?

  18         A.    Yes.  It could relate to these things, these

  19    individual things.

  20         Q.    In fact, as Archibald and Finifter point out,

  21    "Rankings of journal impact, that is, citations per article,

  22    tend to give journals with longer articles an unfair

  23    advantage."  Is that something that you agree with?

  24    That's --

  25         A.    I'm not sure, sir.  I haven't done the -- any




                                                                1100


   1    analysis of it myself, and I'm not sure that I see any real

   2    data on that in this case.

   3         Q.    But this is one of the problems in misuses of

   4    impact factor that you have cited in your article, isn't it?

   5         A.    I want to give you a definition of an expert.  An

   6    expert is one who gains skill through experience.  I've had

   7    a long time to think about statements that I've made in my

   8    articles, and I have -- given the nature of this kind of

   9    field, which has developed considerably since I wrote the

  10    article, one has to be able to bend a little bit, not

  11    necessarily change, but bend a little bit in their

  12    interpretation of data, and I don't have all the full data

  13    on this one.  I haven't reviewed it recently.  And I'm not

  14    sure that I see any data here.

  15               That's their argument.  They're entitled to it.

  16    It may be true.  I haven't investigated it.

  17         Q.    Well, is what you're saying that your citation to

  18    the article maybe doesn't have as much validity in your view

  19    today as perhaps it did when you wrote it?

  20         A.    It's possible.

  21         Q.    So the value of citations can change over time,

  22    can't they?

  23         A.    That's very clever.

  24               I think the way --

  25         Q.    Can't they?




                                                                1101


   1         A.    The way we look at things does change.  The

   2    relative way in which we evaluate serials, serial

   3    publications, does change with time, of course it does.

   4         Q.    So you wouldn't put as much weight today on the

   5    citation to Archibald and Finifter as you did in --

   6         A.    1991.

   7         Q.    -- in 1991 --

   8         A.    Probably not.

   9         Q.    -- when you wrote "Value of serials?"

  10         A.    Probably not.  I would look for other things.  I

  11    think there are other more important things.

  12         Q.    So if you were examining, doing a citations

  13    analysis or an impact factor analysis of the journal

  14    "Scholarly Publishing," where Archibald and Finifter

  15    appeared, you think it would be accurate to subtract one

  16    from the ranking, to take away this citation?

  17         A.    Are you suggesting I do that?

  18         Q.    I'm asking --

  19         A.    That's a hypothetical question of no particular

  20    dis --

  21         Q.    You don't care to answer it?

  22         A.    No, I don't care to answer it.

  23         Q.    Why not?

  24         A.    You're trying to get me to say something that I

  25    might not, on reflection, want to say.




                                                                1102


   1               THE COURT:  All right.  Let's move on.

   2               MR. PLOTZ:  I will.

   3         Q.    Now, in Archibald and Finifter, if you turn to

   4    page 135, they discuss uses and abuses of citations-based

   5    journal rankings.  Do you see that?

   6         A.    Yes.

   7         Q.    One of the potential reasons that had been

   8    identified in the literature was to help choose journals,

   9    correct?

  10         A.    Yes.

  11         Q.    As to that use, Archibald and Finifter say, do

  12    they not, in the third paragraph of that section, that, "In

  13    a world which included only equal size, general journals,

  14    all charging the same price per page, journals could be

  15    selected on the basis of gross citations per dollar.

  16    However, we do not live in such a world.

  17               "A citations per dollar ranking would not help in

  18    choosing field journals.  Nor would any system of ranking

  19    which did not adjust for field size.  Clearly journals from

  20    larger fields have more potential readers, and without such

  21    adjustments would be ranked as more important for librarians

  22    than journals from smaller fields.  A library which relied

  23    on such a simple system of ranking might totally ignore all

  24    journals from a smaller field."

  25         A.    Yes.




                                                                1103


   1         Q.    Is that one of the misuses of impact factor --

   2         A.    Certainly.

   3         Q.    -- on which you are relying when you cited this

   4    article?

   5         A.    I would agree with that.

   6         Q.    Let me put before you what has previously been

   7    marked as Plaintiffs' Exhibit 97A.

   8               You were in court, were you not, when Isabel

   9    Czech of ISI testified?

  10         A.    I was.

  11         Q.    You recall, do you not, that she was asked --

  12    withdrawn.

  13               Turn to page 4.  You will recall this is from the

  14    Internet newsletter on serials pricing issues that Ms. Czech

  15    was asked about.

  16         A.    Yes.  It's obviously an Internet document, that

  17    newsletter, so it appears.

  18         Q.    If you turn to page 4, there is reference to

  19    statements of Eugene Garfield.

  20         A.    What paragraph, sir?

  21         Q.    Well, you see his name on the second paragraph of

  22    page 4 in capital letters?

  23         A.    Oh, yes.  It's been blotted out here but I can

  24    see it.

  25         Q.    Now, at the bottom of that page, Ms. Czech was




                                                                1104


   1    asked whether she agreed with the statement, "Impact, he" --

   2    meaning Garfield -- "stated is used to describe the effect

   3    of citations.  Quality evaluation, however, requires more

   4    detailed content and context analysis."

   5               Ms. Czech agreed with that statement.  Do you?

   6         A.    Full quality in evaluation always involves more

   7    than one parameter in this business.

   8         Q.    Now take a look at the paragraph immediately

   9    above that one.

  10         A.    Yes.

  11         Q.    Ms. Czech was asked whether she agreed with this

  12    statement of Mr. Garfield:  "If an audit determines the cost

  13    effectiveness of various publishers, Garfield asked, would

  14    librarians make journal purchase decisions based solely on

  15    these factors.  He hopes not, for not all factors are equal.

  16    Such things as whether journals include review articles or

  17    research articles need to be weighed, for example, since

  18    there is different value received.  The size of the audience

  19    is another significant factor, as is peer rankings of

  20    journal quality."

  21               Ms. Czech also agreed with that statement.  Do

  22    you?  Or with those statements?

  23         A.    Yes, in principle.

  24         Q.    You agree also, don't you, that the small size of

  25    the potential readership for a journal will tend to drive




                                                                1105


   1    the price of a subscription to the journal up because the

   2    first copy cost stated to be -- is being spread over a

   3    smaller circulation base?

   4         A.    Do you mean small circulation or small

   5    readership?

   6         Q.    Small circulation.

   7         A.    Small circulation increases -- what kind of

   8    circulation are we talking about?  Are we talking about

   9    circulation to libraries?

  10         Q.    Yes.

  11         A.    Yes, I would agree.

  12         Q.    And that's because there are fewer subscriptions

  13    to spread these first copy costs over, right?

  14         A.    Correct.

  15         Q.    You are familiar with that from your time with

  16    your own society journal, aren't you?

  17         A.    Yes.

  18         Q.    Now, it's true, is it not, that commercial

  19    publishers tend to publish more specialized journals than

  20    societies, don't they?

  21         A.    I think Ms. Czech said she wasn't sure about

  22    that, and I guess I'm not either.  It may be true, but I

  23    don't -- I don't have any documentation on that.

  24         Q.    Well, it's true that societies tend to publish

  25    journals which are of broader interest to their general




                                                                1106


   1    membership, don't they?

   2         A.    Yes, if it's a general society, yes.

   3         Q.    But you believe, don't you, that niche journals

   4    can serve a valuable purpose?

   5         A.    Yes.

   6         Q.    In fact, your own experience at the Mineralogical

   7    Society of America was that you wanted your society to be

   8    more aggressive about starting journals with narrower

   9    focuses, weren't you?

  10         A.    I was hoping it wouldn't be a narrower focus, a

  11    broad focus, but --

  12         Q.    In more specialized fields, right?

  13         A.    Not necessarily.  It was applied mineralogy, is I

  14    think what you were talking about, something in my

  15    deposition.

  16         Q.    Well, you testified at your deposition, did you

  17    not, that your society journal had a fixed number of issues

  18    and pages to go out every year, right?

  19         A.    They did at that time, yes.

  20         Q.    And that you felt there were more papers out

  21    there that ought to be published?

  22         A.    Yes.

  23         Q.    And that they weren't getting published by your

  24    society because --

  25         A.    Not by my society but they were getting




                                                                1107


   1    published.

   2         Q.    But you wanted them to be published by your

   3    society, didn't you?

   4         A.    I had hoped for that.

   5         Q.    And you advocated for that, didn't you?

   6         A.    Yes.

   7         Q.    In fact, you tried to get your society to start

   8    this Applied Mineralogy journal --

   9         A.    Yes, sir.

  10         Q.    -- for some time, didn't you?

  11         A.    Yes, sir.

  12         Q.    It got -- was deliberated upon for two years

  13    within the society?

  14         A.    15 minutes.

  15         Q.    But you tried for two years to get them to do it,

  16    right?

  17         A.    Not exactly, no, but timing is not important

  18    here.  I did try.

  19         Q.    And your society didn't do it, did they?

  20         A.    They did not.

  21         Q.    And at the same time, you are aware that a

  22    commercial publisher was proposing to start up a journal in

  23    this very area?

  24         A.    Yes.

  25         Q.    You do think that commercial publishers are more




                                                                1108


   1    nimble in terms of moving into areas that -- even areas that

   2    you believe societies should move into, don't you?

   3         A.    If "nimble" is meant to be a complimentary term,

   4    I'm not sure.  I think it's a matter of profit.

   5         Q.    I just want to make sure I understand.  You

   6    thought your society should start a journal in applied

   7    mineralogy, correct?

   8         A.    Yes.

   9         Q.    Some commercial publisher thought the same thing,

  10    correct?

  11         A.    Yes.

  12         Q.    But you're saying that the motivation of the

  13    commercial publisher was profit?

  14         A.    Yes.

  15         Q.    And the motivation of your society was something

  16    else?

  17         A.    Yes.

  18         Q.    But you thought it was a good thing to start this

  19    journal, didn't you?

  20         A.    I had no quarrel with the idea of having such a

  21    journal, but I would have had a big quarrel with it being

  22    done by a commercial printer.

  23         Q.    So you would rather that this journal in this

  24    area that you think was important to do not exist than have

  25    a commercial publisher publish it?




                                                                1109


   1         A.    In a sense, because we handle articles in applied

   2    mineralogy in many different mineralogical journals, and

   3    that -- the fact that we don't have one with that title

   4    doesn't mean that papers don't get published and that people

   5    won't read those papers.

   6         Q.    So now it's not so important to have started this

   7    journal?

   8         A.    Oh, don't misunderstand me.  I -- you're

   9    actually, I think you may be deliberately trying to

  10    understand me -- misunderstand me, but I think that the

  11    journal would have served a purpose for us as a society and

  12    as a profession.

  13         Q.    But only if the society had published it, right?

  14         A.    No, of course not.  You're -- once again we have

  15    a twist here.  The idea is that we could serve the

  16    mineralogical profession with a journal that might take a

  17    group of papers, including some that we already published,

  18    and put those out, at --

  19               THE COURT:  Why does the commercial publisher not

  20    serve the purpose?

  21               THE WITNESS:  The commercial publisher would

  22    serve the purpose of getting the journal out, but my

  23    sensitivity at the time was that the commercial press was

  24    charging so much money for their journals that our libraries

  25    were in big trouble, and if we -- if the commercial press




                                                                1110


   1    had issued such a journal, our library would not have

   2    subscribed to it because it would have cost on the average,

   3    based on data that we had assembled, four to six times as

   4    much.

   5               THE COURT:  Are you saying it would have been

   6    better for the discipline had the commercial journal not

   7    come into being?

   8               THE WITNESS:  In fact it did not, sir, but I

   9    don't think that it really would have hurt the -- you know,

  10    would have hurt us that much, because those articles do get

  11    published, somewhere.  Everything gets published eventually,

  12    unfortunately.

  13         Q.    Just to be clear, the articles that you were

  14    talking about being published are unquestionably articles

  15    that you believed were worth being published, aren't they?

  16         A.    Hopefully.

  17         Q.    If this journal had not -- well, this journal, I

  18    guess, didn't start -- wasn't started by anyone, was it?

  19         A.    Not to my knowledge.

  20         Q.    In this particular instance, was it?

  21               But in the absence of that journal, one would

  22    have to find these articles in a whole assortment of other

  23    journals, right?

  24         A.    Yes, in some others, yes.

  25         Q.    And some of these articles, which you believed




                                                                1111


   1    were worth publishing, might not get published as a result

   2    also, right?

   3         A.    I personally would doubt that very much.

   4         Q.    You wrote in your report that the cost per

   5    character ratio was a time-tested bibliometric measure; do

   6    you recall that?

   7         A.    Yes.

   8         Q.    At your deposition, you testified, when you were

   9    asked what that meant, that that meant it had been around

  10    for three or four years before Barschall, correct?

  11         A.    Yes.

  12         Q.    That's not a very long time, is it?

  13         A.    I stand corrected on that deposition testimony.

  14         Q.    You are referring to this one-page 1933 article

  15    that is part of Defendants' Exhibit KKK, correct?

  16         A.    Yes.

  17         Q.    Which compared cost per character of German

  18    language, French language, and English language journals,

  19    correct?

  20         A.    Yes.

  21         Q.    Between 1933 and the 1980's, a span of about 50

  22    years, are you aware of any other surveys using a cost per

  23    character formula?

  24         A.    No.

  25         Q.    So you were here when Mr. Keller testified?




                                                                1112


   1         A.    Yes.

   2         Q.    And he identified this group of documents, of

   3    surveys in Defendants --

   4         A.    Yes.

   5         Q.    He testified that Barschall was part of a

   6    continuum --

   7         A.    Yes.

   8         Q.    -- of --

   9         A.    Yes.

  10         Q.    Was the continuum that he was referring to, this

  11    50-year gap?

  12         A.    I think that cents per thousand characters or

  13    cents per 10,000 words is not the only unit that one can use

  14    to compare journal prices with one another.

  15         Q.    What other unit?

  16         A.    Dollars per article, dollar --

  17         Q.    Are you aware of any surveys between 1933 and the

  18    1980's which did that?

  19         A.    Probably not.  No, I don't think I am.  But there

  20    are other ways, and one is dollars per page.  Now, you may

  21    not state it in those terms, but if you put the subscription

  22    price and the number of pages in a survey, you could easily

  23    figure that out.

  24         Q.    You didn't cite to any of those in your report,

  25    did you?




                                                                1113


   1         A.    No.

   2         Q.    Isn't it a fact and -- withdrawn.

   3               The various studies in the 1980's that you have

   4    testified about were all conducted either by or for academic

   5    societies; isn't that right?

   6         A.    By or for academic societies?  I think that's

   7    probably true, yes.

   8         Q.    These studies appeared in the 1980's at a time

   9    when the prices of all journals, both society and

  10    commercial, were increasing greatly, weren't they?

  11         A.    They certainly were on a rise and -- as the

  12    budgets were going down and as foreign exchange was

  13    changing.

  14         Q.    In fact, didn't the Chemical Society study, the

  15    first of the Chemical Society studies, show that 14 journals

  16    had at least doubled in price from 1981 to 1985?

  17         A.    I didn't count them.

  18         Q.    Well, it's one of the tables that you referred to

  19    this morning in the Chemical Society study.

  20         A.    I don't --

  21         Q.    Don't you --

  22         A.    I didn't make a count.

  23         Q.    So you don't recall whether or not a majority of

  24    those 14 were society journals, do you?

  25         A.    I know one thing, that the rate of increase of




                                                                1114


   1    society and commercial journals during the period of time

   2    were not that much different in terms of the rate of

   3    increase, but, of course, the fact that the commercial

   4    journals started at a four to five to, in some cases, eight

   5    or ten times higher point in terms of dollars, that was the

   6    alarming portion -- part.  If you double $60 a year to $120

   7    and you double $480 to $960, those are considerably

   8    different numbers when it comes to allocating budget money.

   9         Q.    Do you think it was alarming to anyone that the

  10    cost per character of Physics Review A increased by 363

  11    percent in the five years from 1981 to 1986?

  12         A.    Is that true?

  13         Q.    So found the Chemical Society.

  14         A.    Pardon?

  15         Q.    So found the Chemical Society.

  16         A.    I see.  Would you refer me to that document,

  17    please?

  18         Q.    Certainly.  Take a look at -- you have KKK in

  19    front of you?

  20         A.    Yes, I think I do.

  21         Q.    Take a look, and see if this refreshes your

  22    recollection, at the numbered page, handwritten numbered

  23    page 78, and look at the top of that chart and see if that

  24    refreshes your recollection.

  25         A.    Phys. Rev. A, 1986, 8.8 cents per thousand words




                                                                1115


   1    and 1991, 1.9 cents, yes, I see that.

   2         Q.    That's an increase of about 363 percent?

   3         A.    Yes.

   4         Q.    This was an increase in the five years

   5    immediately before Professor Barschall did his first survey,

   6    correct?

   7         A.    Yes.

   8         Q.    I take it your position is that in any ranking of

   9    journals in which cost is compared to some citations-based

  10    figure, that society journals are always going to come out

  11    better than commercial journals, right?

  12         A.    That's not always true.

  13         Q.    Generally speaking, that's your position?

  14         A.    Generally speaking, it certainly is -- isn't

  15    evident, but there are some exceptions.

  16         Q.    Now, you, as part of coming to that conclusion,

  17    you re-examine Barschall's data?

  18         A.    Yes.

  19         Q.    You have gone through all these graphs and

  20    spreadsheets which reflect your analysis, correct?

  21         A.    Yes.

  22               THE COURT:  We will take a five-minute break.

  23               (Recess)

  24               THE COURT:  Are we going to conclude today?

  25               MR. PLOTZ:  I don't have very much longer on




                                                                1116


   1    cross.

   2               MR. MESERVE:  Your Honor, we have two witnesses,

   3    both of whom I think will be fairly short.  Given the hour,

   4    I'm --

   5               THE COURT:  All right.  If it would be helpful to

   6    the parties to stay a little later, I'm prepared to do that.

   7               MR. LUPERT:  I think we would very much

   8    appreciate it, trying to finish today, if we could.

   9               (Pause)

  10               THE COURT:  I apparently have some other matters,

  11    including a resentencing, which I had good intentions but I

  12    can't deliver.  All right.  Perhaps we should pick up the

  13    pace.

  14               MR. PLOTZ:  We'll come close.

  15    BY MR. PLOTZ:

  16         Q.    All your variations in our analyses that you did

  17    all came, in your view, to pretty much the same conclusion,

  18    didn't they?

  19         A.    That's correct.

  20         Q.    And pretty much they demonstrated, in your view,

  21    that in this type of comparison, society journals will tend

  22    to come out better than commercial journals, right?

  23         A.    In terms of cost per character and any other

  24    measure of quality that you might take from citation

  25    indexes, yes.




                                                                1117


   1         Q.    Let me ask you if you agree with this testimony

   2    that was given by another of defendants' experts, Karen

   3    Hunter, in a deposition in this case, page 122.

   4               "Q.    Is it your view that, in a comparison of

   5    journals based on a ratio of cost to citations or impact

   6    factor, that society journals will always tend to come out

   7    more favorably than commercially published journals?

   8               "A.    Yes.

   9               "Q.    Is it your view that that fact says

  10    anything about the relative quality of society and

  11    commercial journals?

  12               "A.    As aggregates between commercial and

  13    society?

  14               "Q.    Yes.

  15               "A.    No, not as aggregate, not as an

  16    aggregate."

  17               Is that testimony that you agree with?

  18         A.    I did some calculations which I am now, I guess,

  19    infamous for, and using the data of Barschall, the impact

  20    factors, for commercial journals were -- and we took out the

  21    reviews journals and the letters journals and just looked at

  22    the original research journals, the impact factors for

  23    commercial journals were slightly less than those -- on the

  24    average -- than those for society journals, at that level.

  25    1.65 for the society journals and 1.4 for the commercial




                                                                1118


   1    journals.

   2         Q.    That's not an analysis that appears in any of the

   3    many graphs and charts in this case?

   4         A.    All the data is here in Exhibit B.  It's just a

   5    matter of manipulating it.

   6         Q.    But you haven't manipulated it for us in this

   7    case, have you?

   8         A.    Yes, I just did.  I reported to you the results.

   9         Q.    But it's not in any of the exhibits is what I'm

  10    asking.

  11         A.    No.  No.  Sorry.

  12         Q.    Now can you answer the question that I asked,

  13    which is whether you agree with Ms. Hunter's testimony?

  14         A.    Essentially I am saying that there is data to

  15    support that there is not a great deal of difference between

  16    commercial and society journals when it comes to impact

  17    factor, if that was the question.  I may have lost the

  18    question.

  19         Q.    Let me ask it again.

  20         A.    Please.

  21         Q.    (Reading)

  22               "Q.    Is it your view that, in a comparison of

  23    journals based on a ratio of cost to citations or impact

  24    factor, that society journals will always tend to come out

  25    more favorably than commercially published journals?




                                                                1119


   1               "A.    Yes."

   2         A.    I agree with that.

   3         Q.    (Reading)

   4               "Q.    Is it your view that that fact says

   5    anything about the relative quality of society and

   6    commercial journals?

   7               "A.    No, not as aggregate, not as an

   8    aggregate."

   9               Is that something you agree with?

  10         A.    Yes, I think I do.

  11         Q.    Let me place before you what has been marked as

  12    Plaintiffs' Exhibit 701 and ask you to turn to the

  13    second-to-last page of the exhibit.  This is a letter from

  14    Karen Hunter to Mr. Meserve.

  15               I call your attention to the middle of the second

  16    paragraph on the first page of this letter where Ms. Hunter

  17    wrote, "I would question, however, whether any of the

  18    surveys," referring to Barschall and others that had been

  19    done at this point, "I would question, however, whether any

  20    of the surveys which have been done to date have actually

  21    been helpful in and of themselves due to, one, frequent

  22    methodological flaws in the surveys; two, inherent

  23    differences such as those I noted in my speech in the

  24    economic infrastructures of society versus non-society

  25    publishers; and, three, as you would expect, the general




                                                                1120


   1    absence of a publishing or business background among most

   2    academics, librarians or scientists, reading studies, so

   3    that a misreading or overinterpretation of the survey often

   4    results."

   5               Do you agree with Ms. Hunter's statements?

   6         A.    I can't answer that question.  I have no

   7    information here other than what she says.  Remember that

   8    she represents Elsevier, which is one of the most, more

   9    expensive commercial publishers.

  10         Q.    She has been called as an expert by the

  11    defendants in this case.  Do you agree that there are

  12    frequently methodological flaws in these surveys?

  13         A.    In what surveys, sir?

  14         Q.    Barschall and the other surveys that you have

  15    testified about.

  16         A.    I don't find methodological flaws in presenting

  17    data.

  18         Q.    Do you agree with her statement at the bottom of

  19    the page, "Costs, prices are truly only one part of a much

  20    larger picture and that a study of the whole, not just one

  21    part, which may be beneficial"?

  22         A.    Prices is the -- does she mean prices of journals

  23    here?  Is that what she's referring to?

  24         Q.    Let's assume that's what she's talking about.

  25         A.    "Are truly only one part of a much larger




                                                                1121


   1    picture"?  That's certainly true.  It's the study of a

   2    whole, not just one part, which may be beneficial.  I

   3    presume that that's true.  I mean, Professor Barschall said

   4    it too.  He said that the use of consulting his staff and

   5    the faculty would be a very important aspect, and these

   6    would only be ancillary parts of that survey.

   7         Q.    You testified yesterday that Barschall had a time

   8    disadvantage in collecting data.  What did you mean?

   9         A.    Just that, given the date at which this was

  10    submitted for publication and the fact that he could only --

  11    he only waited until -- whether he could or could not have

  12    done that is irrelevant, I suppose, but he published in or

  13    sent it off to the publisher in April of 1988, as I recall

  14    him saying.  That's a bit of a disadvantage if you are

  15    looking at journals from 1987, I suppose, if the journals

  16    are tardy in arriving as they were scheduled to arrive.

  17         Q.    Why couldn't Barschall have taken the time that

  18    was required to collect all his data?

  19         A.    I have no idea.

  20         Q.    You were in the courtroom when Dr. Lustig

  21    testified, weren't you?

  22         A.    Yes.

  23         Q.    Are you familiar with his testimony on the

  24    pressures to get this survey done in time to include with

  25    the renewal bills?




                                                                1122


   1         A.    I don't recall that testimony.

   2         Q.    So you don't recall whether that was the time

   3    pressure that Barschall was operating under that you

   4    testified about yesterday?

   5         A.    I don't know.

   6         Q.    Now, you believe that a citation implies that

   7    there is merit to the work that's cited?

   8         A.    I believe that a citation means that someone is

   9    interested in the results enough to comment on them and to

  10    refer to them in their own work.

  11         Q.    Are you aware of studies which show that it is

  12    the accessibility of an article more than any other factor

  13    which produces the largest proportion of citations?

  14         A.    I'm not sure that I'm aware of such a one.  I may

  15    be, but I don't recall it.

  16         Q.    Well, let me ask you about a statement made in

  17    the article "Citation Analysis" by Linda C. Smith, which was

  18    included in Defendants' Exhibit LLL.  Ms. Smith wrote,

  19    "Studies of science information use have suggested that

  20    accessibility may be as important a factor as quality in the

  21    selection of an information source.  Soper conducted a study

  22    to investigate the effect of physical accessibility on the

  23    selection and use of references.  She found that the largest

  24    proportion of documents cited in authors' recent papers was

  25    located in personal collections, a smaller proportion was




                                                                1123


   1    located in libraries, in departments and institutions to

   2    which departments belonged, and the smallest proportion was

   3    located in libraries in other cities and countries.  Thus, a

   4    paper might well have been cited because it happened to be

   5    on the citer's desk rather than because it was the ideal

   6    paper to cite."

   7               Are you familiar with that research?

   8         A.    Yes.  I have read that paper.

   9         Q.    Do you agree with its conclusions?

  10         A.    I know myself and what -- you know, it certainly

  11    sounds reasonable.

  12         Q.    In fact, isn't that how Barschall selected the

  13    journals to include in his survey?

  14         A.    I got the impression that he -- in fact, he says

  15    that of those which were available to them at Wisconsin in

  16    particular were the ones that he used.

  17         Q.    He -- the phrase he used was those to which he

  18    had easy access at his campus, correct?

  19         A.    I think that's correct, yes, sir.

  20         Q.    So he chose the journals to include in his survey

  21    in much the same way that the research suggests authors

  22    choose articles to cite, correct?

  23         A.    I don't know if he was thinking about that, but

  24    that's apparently what he did.

  25         Q.    You are familiar with a 1987 article by




                                                                1124


   1    MacRoberts and MacRoberts on citation analysis?

   2         A.    Yes, sir.

   3         Q.    You made reference to it in your report?

   4         A.    Yes.

   5         Q.    You understand that it's one of the leading

   6    articles that's been written in this area?

   7         A.    No.

   8         Q.    You understand that it's a frequently cited

   9    article, even by Garfield?

  10         A.    That doesn't make it good.

  11         Q.    Frequency of citation doesn't make it good?

  12         A.    Certainly not.  It doesn't mean that I agree with

  13    it.

  14               Does it have anything to do with this study, is

  15    what you're implying.  If you're implying that, I would say

  16    there are some serious drawbacks in that article, as applied

  17    to Barschall's methodology.

  18         Q.    You understand that one of the inquiries made by

  19    MacRoberts and MacRoberts was a study of whether formal

  20    influences were generally cited by authors or not?

  21         A.    Excuse me?  Formal?

  22         Q.    Whether authors actually cited all of the things

  23    they relied on in their work.

  24         A.    Nobody does.

  25         Q.    In fact, they found that the most thorough




                                                                1125


   1    scholars cited only 64 percent of the references that they

   2    relied on; isn't that right?

   3         A.    They may have said that.  I -- I don't know.  I

   4    certainly don't refer back to Newton when I talk about

   5    gravity.  What kind of a structure are we imagining here?  I

   6    don't -- I'm unable to understand.  That was one of the

   7    problems I had with MacRoberts, was that they, and

   8    Mr. Kingma's use of it, was that -- as though it applied

   9    preferentially or deferentially to Gordon & Breach but not

  10    to any other journal.

  11         Q.    Who has made that contention?

  12         A.    That was the general tenor of Dr. Kingma's

  13    report, that there was something wrong, something biased, in

  14    the way people do citation that would affect one journal

  15    differently than another journal.

  16         Q.    Well, you don't know any studies, do you, which

  17    show that these kinds of errors don't affect some journals

  18    more than others, do you?

  19         A.    I don't know of any that do.

  20         Q.    You don't know of any that don't, do you?

  21         A.    I don't know of any that don't.  I just have an

  22    intuition that it just doesn't really make any difference

  23    from one journal to the next.

  24               MR. PLOTZ:  Just one moment.

  25               I have no further questions.




                                                                1126


   1               THE COURT:  Any redirect?

   2               MR. HUVELLE:  We have no questions, your Honor.

   3               THE COURT:  Thank you, Doctor. you may step down.

   4               (Witness excused)

   5               THE COURT:  Defendants may call their next

   6    witness.

   7               MR. MESERVE:  Our next witness is Dr. Marc

   8    Brodsky.

   9     MARC H. BRODSKY,

  10         called as a witness by the defendants,

  11         having been duly sworn, testified as follows:

  12    DIRECT EXAMINATION

  13    BY MR. MESERVE:

  14         Q.    Dr. Brodsky, where are you employed?

  15         A.    At the American Institute of Physics.

  16         Q.    What is your position at AIP?

  17         A.    I am the executive director, which is the chief

  18    operating officer.

  19         Q.    How long have you been with AIP as the chief

  20    operating officer?

  21         A.    About three and a half years.

  22         Q.    Is the chief operating officer the highest

  23    permanent policy official?

  24         A.    Yes.  Under the direction of the governing board,

  25    I am responsible for all the operations of AIP.




                                                                1127


   1         Q.    That includes the publishing operation?

   2         A.    It includes publishing, service programs,

   3    publishing services for other societies, among other things.

   4         Q.    Can you very briefly describe your education?

   5         A.    I have a Ph.D. in physics from the University of

   6    Pennsylvania.

   7         Q.    In what field did you do your thesis research?

   8         A.    I did my field in condensed matter physics, the

   9    specialty of solid state physics and the specialty of

  10    infra-red spectroscopy of ionic solids.

  11         Q.    Where were you employed before you joined AIP?

  12         A.    Immediately before joining AIP, I was at IBM at

  13    the Thomas J. Watson Research Center for 25 years.

  14         Q.    Very briefly, what were your responsibilities at

  15    IBM?

  16         A.    I was a research staff member and started out as

  17    a researcher in the field of amorphous semiconductors.  I

  18    became a manager and moved up the management ladder.  I

  19    managed small groups, departments, and eventually I was an

  20    executive in the division headquarters.

  21         Q.    What was the scope of your responsibilities as an

  22    executive?

  23         A.    I had oversight responsibility for all technical

  24    plans, technical programs, and budget oversight for the half

  25    billion dollar budget in the IBM research division.




                                                                1128


   1         Q.    To what extent are you familiar with the

   2    specialty ferroelectrics?

   3         A.    I am familiar with it.  In the course of my

   4    career I manage groups that had to deal with ferroelectrics

   5    as competition for the technologies that we were using, and

   6    also I did a very significant study for IBM about building a

   7    factory where the competitive technology involved

   8    ferroelectrics.

   9         Q.    Are you familiar with the Gordon & Breach journal

  10    entitled Ferroelectrics?

  11         A.    Yes.  I've heard of it.  I have seen it.  Of

  12    course since this litigation I have become extremely

  13    familiar with it, having read through this extensively.

  14         Q.    Do you happen to have a copy of Plaintiffs'

  15    Exhibit 2, which is the Barschall analysis, up there in

  16    front of you?

  17         A.    3.  The Physics Today article.  Here it is,

  18    Exhibit 2.

  19         Q.    I am going to ask you -- I would like you to turn

  20    to Table 3 of the Plaintiffs' Exhibit 2.  That's the table

  21    that begins on page 1442.

  22         A.    I have found it.

  23         Q.    Before I start, let me ask you the question:  Do

  24    you view the Gordon & Breach journal Ferroelectrics to be a

  25    specialized journal?




                                                                1129


   1         A.    Yes, to some extent it is more specialized than

   2    others.

   3         Q.    In comparison with other journals that are listed

   4    in Table 3, is ferroelectrics unique in the degree of its

   5    specialization?

   6         A.    No.

   7         Q.    How does it compare with other journals in Table

   8    3?

   9         A.    In some it --

  10         Q.    In terms of specialization.

  11         A.    In some it is more specialized, in some it is

  12    less specialized, and there are half a dozen or a dozen that

  13    are about the same specialization.

  14         Q.    Can you very briefly indicate a few of the

  15    journals on Table 3 which in your view are more specialized

  16    or about the same specialization as ferroelectrics?

  17         A.    Yes.  I'll start scanning at the top and sort of

  18    look down.  Nuclear Fusion, on page 1442, I would say about

  19    the same kind of specialization, although judging whether

  20    something is more specialized or less specialized, the size

  21    of the field and the number of people doing it has

  22    interrelationship to the field.  And Atomic Spectroscopy,

  23    that's probably much more specialized.

  24               There's one down at the bottom that AIP

  25    publishes, The Journal of Physical and Chemical Reference




                                                                1130


   1    Data.  I would consider that more specialized.  On 1442 a

   2    little higher up, published by the Institute of Physics,

   3    Classical and Quantum Gravity, I would consider that much

   4    more specialized.  Plasma Physics Control, that's -- seems

   5    to be much more specialized.  Here's one, International

   6    Journal Infra-red and Mill -- it says Infra-red and Milli --

   7    International Journal, Infra-red and Millimeter Waves by

   8    Plenum.  That's considerably more specialized.

   9               I could go down that list and find a dozen or two

  10    more that have comparable specialization or are more

  11    specialized.

  12         Q.    Dr. Taylor, when he testified about the field of

  13    ferroelectrics last week, said that about 30 percent of the

  14    literature in the specialty of ferroelectrics was published

  15    in the Gordon & Breach journal of the name Ferroelectrics.

  16               Have you examined that claim?

  17         A.    Yes.  It didn't sound right to me so I went back

  18    and did some counting.

  19         Q.    How did you go about doing that?

  20         A.    Well, when I heard Dr. Taylor say the professor

  21    at Toyota bibliography was a good way to document it, I took

  22    an issue from 1987 which listed half of 1985 references to

  23    bibliography and counted 1,068 references and went through

  24    and counted how many were in Ferroelectrics and how many

  25    were in a couple of other journals, one AIP journal, one APS




                                                                1131


   1    journal.

   2         Q.    Dr. Brodsky, I'm going to hand you a copy of

   3    Defendants' Exhibit VVVVV, five V's, which is the

   4    Ferroelectrics issue, and ask you to verify that this is the

   5    issue that has the bibliography of literature in the field

   6    of ferroelectrics that you mentioned.

   7         A.    This looks like the issue, Volume 74, Nos. 1 and

   8    2, 1987, and there is a bibliography by Toyota that begins

   9    on page 207.

  10         Q.    That's entitled "Bibliography of Ferroelectrics."

  11               You indicate how many items are in this

  12    bibliography?

  13         A.    I counted 1,068.

  14         Q.    How many of these items are from the journal

  15    Ferroelectrics?

  16         A.    I counted 92, or about 8 and a half percent of

  17    them.

  18         Q.    How many were from the APS journal Physical

  19    Review B?

  20         A.    44, according to my count, which is about 4

  21    percent.

  22         Q.    How many were in the AIP journal, The journal of

  23    Applied Physics?

  24         A.    According to my count, 2 percent, or 21.

  25         Q.    Did you actually go and look at the various




                                                                1132


   1    Ferroelectrics articles to assess their character?

   2         A.    I read the titles and looked at them, but I

   3    assumed from the testimony that I heard on -- a week ago

   4    Monday, I believe that this was the way to determine whether

   5    something really was in the scope of the ferroelectrics

   6    field.

   7         Q.    To what extent were the articles in the journal

   8    Ferroelectrics conference proceedings?

   9         A.    Of the 92, all but 17 -- 75 were from a single

  10    conference proceeding spread out over a couple volumes, and

  11    17 were what I would call original research contributed

  12    papers that appear in a typical research journal,

  13    specialized or otherwise.

  14         Q.    What distinction is there between articles that

  15    come from conference proceedings and original research

  16    articles, if any?

  17         A.    Well, a great variability depending on the

  18    conference.  I mean, some, as Professor Taylor points out,

  19    are refereed before they go into the paper, before they go

  20    into the journal.  Some aren't.  But as a publisher of

  21    conference proceedings, we have a lot of debate on how

  22    valuable conference proceedings articles are because they

  23    often -- for archival purposes, because they often appear

  24    elsewhere.

  25               Editors are somewhat more lenient about prior




                                                                1133


   1    publication, in general, some journals about prior

   2    publication of things that appear only in conferences,

   3    provided at least something new is put in the article when

   4    it appears in a regular contributed journal.

   5         Q.    Are you familiar with the field of the physics

   6    and chemistry of liquids?

   7         A.    Yes.

   8         Q.    Can you explain the nature of your familiarity

   9    with that field?

  10         A.    Well, I worked for many years in the field of

  11    amorphous semiconductors, which have to do with disorder,

  12    and solids and liquids are amorphous materials, and often

  13    had cause to have conferences on the subject and look at the

  14    literature to complement my work and document my work.

  15         Q.    Are you familiar with the Gordon & Breach journal

  16    that is entitled Physics and Chemistry of Liquids?

  17         A.    I can't remember where, when I was actually doing

  18    research.  I mean, it is such a familiar-sounding thing.  I

  19    certainly know of the editor.  I have heard him speak at

  20    conferences.  But the -- mostly familiar with it in

  21    preparation for this litigation.

  22         Q.    You have reviewed it in the context of this

  23    litigation?

  24         A.    Yes.  I have read through the 1987, all the

  25    issues, all five issues.




                                                                1134


   1         Q.    How would you characterize the level of

   2    specialization of that journal, in The Physics and Chemistry

   3    of Liquids?

   4         A.    Not as specialized as, say, Ferroelectrics or

   5    some of the other journals, but comparable to other journals

   6    that I published in that -- that's on this list, like the

   7    Journal of Non-Crystalline Solids or Thin Solid Films.

   8         Q.    Are there any AIP journals that include articles

   9    in the field physics and chemistry of liquids?

  10         A.    Yes, many do.  The Journal of Chemical Physics,

  11    for one.  There are others that do.  We have a Journal of

  12    Physics of Fluids.  But the one that would match sort of the

  13    interdisciplinary nature -- the advertised interdisciplinary

  14    nature of Physics and Chemistry of Liquids would be Journal

  15    of Chemical Physics because that has chemical and physics

  16    components to it.

  17         Q.    Have you examined the number of articles in your

  18    journal, the Journal of Chemical Physics, that are in the

  19    field of the physics and chemistry of liquids, articles in

  20    the year 1987?

  21         A.    Yes.  I've gone back on to an Internet database

  22    of -- that goes back to 1985, and I searched for things in

  23    that field of liquids in the Journal of Chemical Physics and

  24    found 430 articles in 1987 in our journal there.

  25         Q.    Have you examined the number of articles in the




                                                                1135


   1    Gordon & Breach journal entitled Physics and Chemistry of

   2    Liquids in 1987?

   3         A.    Yes.  I counted them up, and there are 42.

   4               MR. MESERVE:  I have no further questions.

   5               THE COURT:  Any cross?

   6    CROSS-EXAMINATION

   7    BY MR. LUPERT:

   8         Q.    Dr. Brodsky, you listed journals that were more

   9    specialized than Ferroelectrics.  I may have missed it, and

  10    I apologize if I did, but did you list the ones that were

  11    less specialized when you went through that list?

  12               You said there were some that were more, there

  13    were some that were less, there were some that were about

  14    the same.  And I think -- did I just get the list --

  15         A.    As I went through, I tried to say in each one

  16    whether I thought it was more specialized or less

  17    specialized.

  18         Q.    So if we spent the time going through that whole

  19    list of 200, we are going to find a whole bunch that were

  20    more specialized than Ferroelectrics, we're going to find

  21    the ones that you were good enough to list for Mr. Meserve

  22    that are --

  23         A.    I list some that are about -- equivalently

  24    specialized.  I mean, there are all kinds.  More

  25    specialized.  Several, dozen or so, or more, that are about




                                                                1136


   1    the same specialization -- level of specialization.  And

   2    there are a considerable number that are less specialized,

   3    more general.

   4         Q.    Without belaboring the point, the journals of the

   5    APS which are called Physical Review A, B, C, D, E, and the

   6    like, they cover lots and lots of topics, correct?

   7         A.    Yes.

   8         Q.    You did some analysis of a couple of journals,

   9    Physics and Chemistry of Liquids, for Gordon & Breach and

  10    Ferroelectrics, and I gather from your testimony you didn't

  11    look at any of the others?

  12         A.    I've looked through --

  13         Q.    You can't give us the statistics on any of these

  14    others, I take it?

  15         A.    I don't think so.

  16         Q.    Thank you.  I don't have any further questions.

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

  18               (Witness excused)

  19               THE COURT:  Defendants may call their next

  20    witness.

  21               MR. MESERVE:  The next witness is Dr. Harry

  22    Lustig.

  23     HARRY LUSTIG,

  24               Recalled, and testified further as follows:

  25               THE COURT:  Mr. Lustig, the Court reminds you,




                                                                1137


   1    you are still under oath.

   2               THE WITNESS:  I'm sorry, sir?

   3               THE COURT:  You are still under oath.  We won't

   4    swear you again.  You are still under oath.

   5               THE WITNESS:  Yes.

   6    DIRECT EXAMINATION

   7    BY MR. MESERVE:

   8         Q.    Good afternoon, Mr. Lustig.

   9         A.    Good afternoon.

  10         Q.    Can you briefly describe your background.

  11         A.    I came to this country as a refugee from Naziism

  12    in 1939.  Was in high school for two and a half years.

  13    Entered City College, joined the United States Army at age

  14    18, came back and got my degree in physics in 1946.  I then

  15    went on to graduate school at the University of Illinois and

  16    got a Ph.D. in 1953.

  17         Q.    What was the field in which you did your thesis?

  18         A.    It was theoretical nuclear physics.

  19         Q.    What was your employment immediately after you

  20    got your Ph.D.?

  21         A.    I accepted an offer at my alma mater, City

  22    College, and stayed there for 32 years with some time off

  23    for various visiting professorships and the national

  24    appointments and so on.

  25         Q.    Can you very briefly just describe the trajectory




                                                                1138


   1    of positions that you held at City College?

   2         A.    I worked my way up from instructor to a full

   3    professor in about twelve years.  When I was on a Fulbright

   4    Professorship in Ireland, I was elected chairman of the

   5    department in 1964, kept that until 1970, and then went away

   6    as head of the department at the University in Paris, and

   7    when I came back I was appointed dean of science.  In 1982 I

   8    became vice president for academic affairs, provost and

   9    deputy president.

  10         Q.    When you were provost, did you have

  11    responsibility for library matters?

  12         A.    Well, I had 12 attendees and two directors

  13    reporting to me and one of them was the chief librarian,

  14    yes.

  15         Q.    Are you familiar how City College made decisions

  16    as to the acquisition and cancellation of journals?

  17         A.    Well, I'm familiar from many perspectives, as a

  18    department member of certain laboratory committees, as a

  19    department chair, as a dean and as a provost.

  20         Q.    Briefly -- can you very briefly describe how it's

  21    done at City College?

  22         A.    Well, it changed over time.  The early years --

  23    by that I mean the '60's and early '70's, in our department,

  24    the physics department, transformed itself from a

  25    undergraduate department into a very good Ph.D. -- granting




                                                                1139


   1    department, ranking among the first 20 in the National

   2    Research Council's rankings.  We basically just acquired

   3    journals and made our wish lists and there was money, and we

   4    got almost all the journals we wanted.

   5               Then in the late '70's, middle '70's, late 70's,

   6    early 80's, the budget crunch began to hit, and so what

   7    happened then is that each discipline, each -- each school,

   8    often each department, library was assigned a cut by the

   9    provost.  And that cut, let's say, could be for physics,

  10    maybe $75,000, and so what the librarian did, she prepared a

  11    list of all the physics journals that were held in the

  12    library.  She gave us whatever information she had at the

  13    time, which first included only the total price, but later

  14    on also the citation index.  She turned that over to the

  15    faculty of the department, and she said, please use -- you

  16    make recommendations which journals to cut.

  17         Q.    You testified the other day that you became I

  18    think the treasurer of the APS in 1985.  I would like to ask

  19    you some questions about the origins of the sources of

  20    revenue for the APS journals.

  21         A.    The sources of revenues for the APS journals,

  22    listing them all but in very different proportions, were,

  23    first of all, subscriptions, which mean library

  24    subscriptions, and member subscriptions, page charges, some

  25    reprint charges to authors, if they wanted to order large




                                                                1140


   1    quantities of reprints, and some minor sources of other

   2    revenue such as back issues.

   3         Q.    How significant a source of revenue were

   4    reprints?

   5         A.    A very insignificant source.

   6         Q.    What about copying fees?

   7         A.    The APS was extremely liberal as printed in

   8    the -- on the covers of the journal, the inside covers,

   9    about copying.  Basically all copying for educational

  10    purposes, all quotations, were allowed, and the only thing

  11    where we try to have any restrictions was copying in books,

  12    republication of an article in a book for profit.  But even

  13    there we allowed to publish and ask for it, and almost

  14    always were granted permission to do that, without fee.

  15         Q.    You mentioned that you had two tiers of prices.

  16    How did you set the prices for members --

  17         A.    The prices --

  18         Q.    -- in the journals?

  19         A.    Sorry.  The prices for members were set, for our

  20    own members, were set as the last copy, marginal cost, which

  21    means only the cost of the paper and the postage, basically,

  22    to send it to that member.

  23         Q.    What about the subscription price for the other

  24    category, which I guess is mostly libraries?

  25         A.    Well, the libraries don't have the funds to pay




                                                                1141


   1    the much larger fraction.  In addition, to pay their own

   2    distribution costs, of course, paying the postage, they had

   3    to pay the fixed costs, which constituted about at least 70

   4    percent of the total costs.

   5         Q.    Did you make a surplus on your journals, achieve

   6    a surplus?

   7         A.    Many years, we -- some years we didn't.  Many

   8    years we did.  Originally we had no policy with even

   9    budgeting for surplus, but by and by we tried to budget for

  10    a 10 percent surplus.

  11         Q.    Did you disclose that fact to individuals outside

  12    the APS?

  13         A.    Yes.  One of the things we always did in any

  14    meeting for librarians is to explain that fact to them.

  15         Q.    Why?

  16         A.    These are our community.  These are the people

  17    who run us.  And we wanted to be up front and let them know

  18    that we needed that money for outreach and educational

  19    programs.

  20         Q.    I would like to turn -- you mentioned page

  21    charges as a source of revenue.  To what extent were page

  22    charges voluntary?

  23         A.    They were completely voluntary.

  24         Q.    What sort of an honoring rate for page charges

  25    did you achieve?




                                                                1142


   1         A.    It declined over the years for a number of

   2    reasons, one of them being the larger and larger European

   3    authorship.  Right now I would estimate that the honoring

   4    rate is under 50 percent.

   5         Q.    Meaning less than 50 percent of the authors pay

   6    page charges?

   7         A.    That's correct.

   8         Q.    Is there a penalty if you don't pay a page

   9    charge, of any type?

  10         A.    There is no penalty of any kind.

  11         Q.    To what extent does the APS rely on page charges

  12    as sources of income for its journals?

  13         A.    When I retired as treasurer last year, I think it

  14    was 8 or 9 percent of the total revenue.

  15         Q.    Is that as a result of a conscious policy to

  16    reduce page charges?

  17         A.    Yes.  It is partially a result of a conscious

  18    policy to reduce page charges, and as a result of having no

  19    page charges for electronically submitted manuscripts, and

  20    of course of a decline in the honoring rate.

  21         Q.    Is there any preset limit on the number of pages

  22    that would be published in an APS journal in a year?

  23         A.    No.  There's no limit on the total number of

  24    pages or articles to be published in any APS journal per

  25    year.




                                                                1143


   1         Q.    Do you delay any papers once they are ready for

   2    publication?

   3         A.    We do not.

   4         Q.    Does the APS charge libraries an extra fee if you

   5    publish more pages --

   6         A.    No.

   7         Q.    -- than you anticipated?

   8         A.    Certainly not, no.

   9         Q.    How frequently do you publish your journals?

  10         A.    Physical Review Letters is published weekly.  The

  11    sections of the Physical Review are published either twice a

  12    month or once a month.  And The Reviews of Modern Physics is

  13    published quarterly.

  14         Q.    For Physical Review, what is the average time

  15    between receipt of a manuscript and its publication, receipt

  16    of a manuscript by APS and its publication?

  17         A.    I have to break this down into two factors.

  18    There's a time between receipt of a manuscript and

  19    acceptance.  And the median time for that, I stress "median"

  20    because there is some -- stragglers with very problematical

  21    papers sometimes -- the median time is just about 100 days

  22    for that.  And then for the Physical Review, the average

  23    time from acceptance to when the journal is actually

  24    received by a subscriber is about two to two and a half

  25    months, and for Physical Review Letters it is about one




                                                                1144


   1    month.

   2         Q.    So the total time, then, is about six months?

   3         A.    Six, seven months, or something like that, yes.

   4         Q.    Are there any limits on the number of pages that

   5    are allowed in any given article in the Physical Review?

   6         A.    Not in the Physical Review, but there is for

   7    Physical Review Letters, four pages.

   8         Q.    Are there any instructions just to submit general

   9    papers to the Physical Review?

  10         A.    No, and I don't think general papers would be

  11    accepted.  All of our papers are specialized papers.

  12         Q.    How is the Physical Review mailed to subscribers

  13    in the United States?

  14         A.    The Physical Review is mailed by what is now

  15    called periodicals rate.  Used to be called second class

  16    rate but it's now called periodicals rate.

  17         Q.    Are there eligibility requirements for the

  18    periodical rate?

  19         A.    Yes, indeed.  You have to disclose in the journal

  20    and to the postal authorities a lot of information,

  21    including the number of subscribers.

  22         Q.    What is the speed of delivery of journals that

  23    are mailed using the periodical class rate?

  24         A.    The Post Office has told us that it is the same

  25    as for letters, for first-class postage.




                                                                1145


   1         Q.    Does air mail exist as a class of mail for

   2    domestic purposes in the United States?

   3         A.    No.  Air mail has not existed since 1977.

   4         Q.    To what extent do the APS journals draw

   5    international authors?

   6         A.    About 70 percent of our authors are from outside

   7    the United States.

   8         Q.    Was Professor Barschall a friend of yours?

   9         A.    Recently, yes.  He -- I -- I don't think I knew

  10    him personally until I became treasurer of APS.  But I

  11    certainly -- I may have met him at meetings, by the way.

  12    But I certainly knew of his work quite a bit, since I --

  13    since I -- even during my Ph.D. thesis and afterwards, yes.

  14         Q.    How was it that you knew his work?

  15         A.    I used his work.  He was an experimental nuclear

  16    physicist.  I was a theoretical nuclear physicist, and I

  17    relied on his data on extended theories and so on.

  18         Q.    You indicated in your testimony the other day

  19    that Professor Barschall's career as an experimental

  20    physicist ended in the 1960's.  Did he stay engaged in

  21    physics after the 1960's?

  22         A.    I may have given a slightly inaccurate statement.

  23    I said -- I meant to say that he never rebuilt his

  24    laboratory, which was bombed in a terrorist attack, but he

  25    certainly never -- he never gave up physics.  He shifted his




                                                                1146


   1    field somewhat.  He used his expertise in nuclear physics,

   2    in neutron physics then to work on the utilization of

   3    neutrons in cancer treatment and some other related medical

   4    fields.

   5         Q.    To what extent does the practice of nuclear

   6    physics require knowledge of data handling evaluation and

   7    analysis?

   8         A.    All experimental theoretical work in physics

   9    requires such knowledge, but nuclear physics very much so

  10    because you have to take a lot of data and you have to

  11    analyze the data for reliability.  You have to, for

  12    consistency.  You have to be able to deal with them

  13    statistically, to see their significance, to determine error

  14    rate, probable error rate, and so on.

  15         Q.    Are you familiar with any of the prizes or honors

  16    that Dr. Barschall has received over the years?

  17         A.    Well, I think quite early on he became -- was

  18    elected as a member of the National Academy of Sciences,

  19    which I think, short of the Nobel Prize, is the greatest

  20    honor that American societies can conceive.

  21               MR. LUPERT:  Judge, I have to object to this as

  22    hearsay.

  23               THE COURT:  You say that he became a member of

  24    the National Society?

  25               MR. LUPERT:  No, just the question.  That is, do




                                                                1147


   1    you know what awards this man received.

   2               THE COURT:  Is there not something in the record

   3    which has all this, which has the awards that he received?

   4               MR. MESERVE:  There is an exhibit of Professor

   5    Barschall's resume, which I believe that the plaintiffs have

   6    objected to.  Perhaps they have withdrawn their objection

   7    now.  But there was a resume that we had intended to submit

   8    as part of the record in this case for Professor Barschall.

   9    If that is acceptable, I am happy to -- I am happy to move

  10    on anyway.

  11               MR. LUPERT:  I would just suggest we take a look

  12    at it and move on.

  13    BY MR. MESERVE:

  14         Q.    Was Professor Barschall active in the APS?

  15         A.    Yes, he was active in the APS.

  16         Q.    Did he get paid for his various things that he

  17    did for the APS, compensation?

  18         A.    No.  No committee members ever get paid, but he

  19    was also an editor of Physical Review C, and it was

  20    customary to give a stipend to editors, but Professor

  21    Barschall refused to accept any stipend.

  22         Q.    Was he unusual in the extent of his involvement

  23    in the affairs of APS?

  24         A.    I would say he was unusual, but he was certainly

  25    not unique.  I can think of six or ten other colleagues who




                                                                1148


   1    were as active as Professor Barschall.

   2         Q.    Dr. Lustig, on your direct testimony the other

   3    day, you had mentioned that you participated in a physics

   4    colloquium at City College in 1988.  Can you very briefly

   5    describe what you meant by a colloquium?

   6         A.    A colloquium is a weekly gathering of the faculty

   7    and graduate students of the department, supplemented by

   8    many seminars during the week, in which an invited speaker,

   9    often from the outside and sometimes from the inside of the

  10    department, gives a lecture on a topic of general interest

  11    in physics or in a related area.

  12         Q.    Who attended your colloquium?

  13         A.    As I remember, there were about 40 people there

  14    that are professor and graduate students in the department.

  15         Q.    What was the subject of your talk?

  16         A.    The subject of the talk was the economics of

  17    publishing or the prices of the library serial or something

  18    of that sort.

  19         Q.    Was your talk part of an effort to market APS

  20    journals?

  21         A.    Not in my view.

  22         Q.    You also mentioned a meeting that you

  23    participated in in Washington in November 1991.  How many

  24    people attended that meeting?

  25         A.    I think six to eight.




                                                                1149


   1         Q.    What was the purpose of that meeting?

   2         A.    The purpose of that meeting was to -- I prepared

   3    a sheet of eight questions, actually.  It was to try to

   4    elicit the opinion, the input, and have a dialog with

   5    librarians about a number of issues of interest to them and

   6    to us.

   7         Q.    Was that meeting part of an effort to market APS

   8    journals?

   9         A.    Not in my view.

  10               MR. LUPERT:  Objection.  This has been stipulated

  11    to.  It was a secondary use.  This is one of the secondary

  12    uses that we stipulated to, this meeting and the one in

  13    March of 1992 in Charleston.  These were the two library

  14    presentations, Mr. Meserve, plus the Fitch letter and the

  15    others.

  16               THE COURT:  What is the issue that you are

  17    directing this to?

  18               MR. MESERVE:  We stipulated that we intended to

  19    distribute the surveys to librarians in an aborted effort

  20    to -- it was aborted.  There was an implication from

  21    Mr. Lupert's examination that Dr. Lustig's presentations

  22    were somehow to his colleagues at -- in a physics colloquium

  23    were somehow part of marketing.  We did not stipulate to

  24    that.

  25               MR. LUPERT:  Judge, if I can interrupt, we never




                                                                1150


   1    even touched on the colloquium in the examination that I

   2    conducted.  The only discussions I took this witness through

   3    were two library presentations, including in November of

   4    1991 and in, if my memory serves me right, March of 1992.

   5    The colloquium never came up.  The two presentations to

   6    librarians are where the tables that come under the

   7    Barschall table were either displayed on an overhead

   8    projector or were actually distributed.  I thought we had a

   9    stipulation on this.

  10               MR. MESERVE:  All I wanted to ask this witness

  11    was two or three questions about each of them as to what the

  12    purpose of these meetings were.  We have never stipulated

  13    that these meetings were marketing because they weren't.

  14               Now, I believe, your Honor, that this is an issue

  15    that we should have been past but Mr. Lupert felt it

  16    essential to go through and talk about these things in

  17    direct examination.  I'm merely trying to clarify the

  18    record.

  19               THE COURT:  In the direct examination?

  20               MR. MESERVE:  In the direct examination, he was

  21    asked -- Mr. Lupert just said that, as to the librarian

  22    meetings, this was covered in the direct examination.

  23               MR. LUPERT:  It was, but it was stipulated that

  24    this was a secondary use, not -- we are just completely

  25    inconsistent with his testimony.




                                                                1151


   1               THE COURT:  I suspect that this colloquy is going

   2    to take longer than the testimony.  Right?

   3               MR. MESERVE:  I believe it will, your Honor.

   4               THE COURT:  I hope that's true.  And I am going

   5    to have to break at 4:15.  I'm sorry, but I have another

   6    matter.

   7               MR. MESERVE:  I just had a few more questions.

   8               THE COURT:  Go ahead.

   9    BY MR. MESERVE:

  10         Q.    You also testified about going to a Charleston

  11    meeting in May of 1992.  Were you invited to that meeting?

  12         A.    Yes, sir, I was.

  13         Q.    What was the subject of your involvement at that

  14    meeting?

  15         A.    It was very similar to the earlier meeting.  It

  16    was -- they have a -- the report to librarians about the

  17    economics of publishing and to hear their advice and their

  18    concerns on a number of issues that concerned us at the

  19    time.

  20         Q.    Was your presentation part of an effort to market

  21    APS journals?

  22         A.    Not in my opinion.

  23               MR. MESERVE:  I have no further questions of this

  24    witness.

  25               MR. LUPERT:  Judge, I would love to finish.  If I




                                                                1152


   1    could have one minute it would save time.  And if you gave

   2    me until 4:30, I probably could finish.  And that would be

   3    the end of the case, but if you can't do it --

   4               THE COURT:  And that would be the end of the

   5    case?

   6               MR. LUPERT:  I believe so.

   7               THE COURT:  And there are no other witnesses?

   8               MR. MESERVE:  We have further witnesses, your

   9    Honor.

  10               THE COURT:  I will do that.

  11               MR. LUPERT:  So if you could just, without even a

  12    recess, if I could have just 60 seconds.

  13               (Pause)

  14               MR. MESERVE:  Your Honor, I have just been told

  15    that the transcript says we have further witnesses, and I

  16    can assure you that we have no further witnesses.

  17               THE COURT:  Yes.

  18               (Pause)

  19               MR. LUPERT:  Thank you, Judge, for your patience

  20    on this.  I just found the document I was looking for and I

  21    just had a very few questions about one document and I need

  22    Defendants' Exhibit 119.

  23    CROSS-EXAMINATION

  24    BY MR. LUPERT:

  25         Q.    Dr. Lustig, you testified a few minutes ago that




                                                                1153


   1    you attended a meeting in November 1991 with librarians.  If

   2    you would focus on that one and not the March 1992 one,

   3    Dr. Lustig -- Dr. Lustig.

   4         A.    Yes, sir, I'm looking.

   5         Q.    If you could just put the document down for just

   6    one second.  Just so we have the context, focus your mind,

   7    if you would, on the November 1991 meeting, with the

   8    representative group of librarians.  You said there were

   9    about six or so?

  10         A.    Six or eight I said, yes.

  11         Q.    And they were from, among the ones that were

  12    there you recall were from librarian associations, including

  13    a representative of the American Research Libraries, which

  14    represents well over 100 of the major research institutions

  15    in the country, correct?

  16         A.    I don't know -- I don't think they are official

  17    representatives.  They were chosen -- some were members of

  18    the ARL institutions, yes.

  19         Q.    Yes.  ARL's senior officer, Anne Okerson, was

  20    there, correct?

  21         A.    She was not the senior officer.

  22         Q.    She was a senior officer of ARL, correct?

  23         A.    She had a department.

  24         Q.    How many research libraries does ARL represent,

  25    just approximately?




                                                                1154


   1         A.    Maybe 100, maybe a little more.

   2         Q.    Are they the most prestigious in the country?  Is

   3    that the group that's considered the most prestigious in the

   4    country?

   5         A.    It is.

   6         Q.    Would you take a look at Exhibit 119.

   7               MR. LUPERT:  Does the Court have a copy?

   8               THE COURT:  Yes.

   9         Q.    This is a meeting -- this is a memorandum from

  10    you that you signed to Dr. Barschall.  Do you see that?

  11         A.    Yes, I see it.

  12         Q.    Those are your initials, sir?

  13         A.    Yes.

  14         Q.    This is a memorandum which describes to

  15    Dr. Barschall why it was that you were going to have this

  16    meeting with the libraries.  It predates it by about a

  17    month, you see?

  18         A.    It was a suggestion about what I thought we might

  19    have the meeting for, yes.

  20         Q.    Yes.  And Dr. Barschall was going to attend, you

  21    recall, as an APS representative?

  22         A.    He was the chair of the publications oversight

  23    committee.

  24         Q.    In addition, one of the things that happened at

  25    the meeting, remember, was that there was an overhead slide




                                                                1155


   1    projection which included the tables from -- certain of the

   2    tables from Physics Today?

   3         A.    One of the things that happened was a

   4    presentation of the overall economics by APS's publishing,

   5    which did include one or two slides from the Barschall

   6    articles.

   7         Q.    Don't you recall, as is reflected in the third

   8    paragraph of this document, that you wanted to use the

   9    occasion with the librarians to bring them up to date on the

  10    Gordon & Breach case?  Remember that was one of the reasons?

  11    It says it.

  12         A.    I say, and additionally we would like to bring

  13    them up in the status of the Gordon & Breach case.

  14         Q.    Two, you would like to show them the budget of

  15    our publications.  Do you see that?

  16         A.    Yes.

  17         Q.    In fact that's when you showed them the 10

  18    percent surplus --

  19         A.    Yes, I did.

  20         Q.    -- that you were shooting for, right?

  21         A.    Yes.

  22         Q.    In that context, you wanted to explain why price

  23    increases are necessary and what you might do to hold them

  24    down in the future?

  25         A.    Yes, certainly, particularly the latter.  That's




                                                                1156


   1    why we wanted this discussion with them about these policy

   2    changes, yes.

   3         Q.    Indeed that's why it was necessary to tell them

   4    about your need for a surplus, correct?

   5         A.    No.  I think -- once I present the economics, I

   6    present the economics, including the surplus, sure.

   7         Q.    You were trying to explain why price increases

   8    were necessary, with Dr. Barschall's help, in order to meet

   9    at least partly the problem that was happening every single

  10    year for at least 15 years by this point that there were

  11    annual cancellations of journals by librarians?

  12         A.    First of all, I don't think it was with Mister --

  13    Dr. Barschall's help.  He didn't help me with that.

  14    Secondly, as I think I testified now repeatedly earlier, the

  15    main reason for the price increases was the growth.  But I

  16    did want to present the overall picture, an honest scholarly

  17    picture of all the economics, including the revenues and

  18    changes in them and changes in cost.

  19         Q.    Is it your testimony, sir, as you sit here today,

  20    that it was not even in your mind as a purpose, whether the

  21    exclusive purpose or not, that this presentation with the

  22    Barschall tables might help persuade librarians not to

  23    cancel APS journals?

  24         A.    I have never had any real fear of cancellation of

  25    APS journals.  I have studied the whole -- I have studied




                                                                1157


   1    the whole history of cancellations, and I find that we

   2    basically have cancellations only for multiple copies of

   3    journals, where -- as a convenience, and those I think once

   4    the library budgets got tight we would lose anyway.  There

   5    was no way to stave that off.

   6         Q.    So in other words, it is your testimony, sir, on

   7    this very last moment of trial, my last question, that there

   8    was no, not even an iota, of promotional attempt being made

   9    in this discussion with librarians when you put onto the

  10    overhead projector the Barschall tables and explained, as

  11    the documents show, why those tables in your view proved why

  12    those journals were more cost effective?

  13         A.    The tables already proved -- I certainly want the

  14    librarians to have a good image in their view of the

  15    American Physical Society and its publications, yes.

  16         Q.    So therefore there was a promotional intent, or

  17    there wasn't, sir?

  18         A.    Sir, I don't want the word.  If you want to

  19    consider it promotional, if you want to consider it, you

  20    may.

  21         Q.    What about you as the treasurer of the APS?  What

  22    did you think at the time?

  23         A.    I have --

  24               MR. MESERVE:  Objection, your Honor.

  25               THE COURT:  Yes.  Sustained.




                                                                1158


   1               MR. LUPERT:  We have no further questions.

   2               THE COURT:  Thank you.

   3               THE WITNESS:  Thank you, sir.

   4               THE COURT:  You may step down.

   5               (Witness excused)

   6               MS. BURKE:  Your Honor, we are going to work it

   7    out with our colleagues and hopefully we will be able to

   8    submit the exhibits by stipulation tomorrow morning.

   9               THE COURT:  All right.  Subject to the exhibits,

  10    my understanding is that the record is closed, that all the

  11    live testimony has been taken.

  12               Now, counsel asked about post trial briefs, and

  13    I'm going to ask you how long you want for that, but I have

  14    to also tell you that it is my very strong desire that that

  15    be the minimum time actually required.  The case has been

  16    fully tried and I think I have a reasonably good grasp of

  17    the issues.  I really don't need extensive briefing.  I want

  18    to be able, regardless of when -- I don't want to talk about

  19    lag time between submission of manuscripts and

  20    publication -- but regardless of when publication takes

  21    place, I really want to have resolved as much as possible

  22    before the summer hiatus sets in and staff leaves and so on.

  23    The question is, when can you submit whatever post trial

  24    submissions you wish to submit?

  25               MR. MESERVE:  Your Honor, I think that, if the




                                                                1159


   1    Court will allow, perhaps we should confer about this.  We

   2    had talked about a schedule that accommodated Mr. Lupert's

   3    vacation.

   4               MR. LUPERT:  And yours.

   5               MR. MESERVE:  And mine afterwards.  We need to --

   6               THE COURT:  There is a conflict between those of

   7    us who will take the vacation before resolving this case and

   8    those of us who will take the vacation after resolving this

   9    case.

  10               MR. LUPERT:  We need a couple of minutes to talk

  11    about it.  We had a schedule at 9 --

  12               THE COURT:  You can take a couple.  I will tell

  13    you, while you are conferring about that, perhaps the not

  14    insignificant job of clearing the tables could begin.

  15               MR. LUPERT:  Judge, if I could also just put on

  16    the record, it was subject also to the deposition testimony,

  17    as well as the exhibits, which, I am sure you are aware of.

  18               THE COURT:  Which I am sure you are going to

  19    submit as exhibits.

  20                                o0o

  21

  22

  23

  24

  25




                                                                1160


   1

   2                        INDEX OF EXAMINATION

   3

   4    Witness                    D      X      RD     RX

   5    PAUL H. RIBBE...........1028   1081

   6    MARC H. BRODSKY.........1126   1135

   7    HARRY LUSTIG............1136   1152

   8

   9                         DEFENDANT EXHIBITS

  10    Exhibit No.                                     Received

  11     UU .........................................1028

  12     G, K, and Q ................................1079

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25